Gujarat High Court
Bharatbhai Punamchand Gandhi vs Deputy Executive Engineer & on 15 June, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/9136/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9136 of 2015
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BHARATBHAI PUNAMCHAND GANDHI....Petitioner
Versus
DEPUTY EXECUTIVE ENGINEER & 1....Respondents
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Appearance:
MR MANISH S SHAH, ADVOCATE for the Petitioner
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 15/06/2015
ORAL ORDER
1. Heard learned advocate for the petitioner.
2. The petitioner, who happens to be 2nd party in Reference (LCH) No.52 of 2010 in the Court of Labour Judge, Himmatnagar, has approached this Court by way of this petition filed under Article 226 and also under Article 227 of the Constitution of India, inter alia challenging the order dated 09.02.2015, whereunder the Court rejected the Reference for the reasons stated thereunder.
3. Facts in brief, as could be culled out from the memo of the petition, if narrated shortly, would indicate that the petitioner had been engaged as Clerk-cum-typist from 01.01.1982 to 08.05.1983 and was paid wages of Rs.16.70 per day at the end of the month. From 08.05.1983, the petitioner's services Page 1 of 6 C/SCA/9136/2015 ORDER came to be orally terminated without any rhyme or reason and without following the procedure of law and in blatant violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the " I.D. Act", for the sake of brevity). The petitioner raised industrial dispute before the concerned authority, which came to be referred to the competent Court, wherein it was marked as Reference (L.C.H.) Application No.52 of 2010 in Himmatnagar.
3.1 The petitioner filed statement of claim on 11.08.2010, inter alia contending that the petitioner had completed 240 days. If one takes help of the provision of Section 25-B of the I.D. Act and in that view of the matter the termination which was brought about without following procedure of Section 25-F was absolutely illegal and deserve to be quashed and set aside.
3.2 The written statement came to be filed on behalf of the respondent inter alia contending that the Reference was not maintainable, as the petitioner had been engaged only for a daily rated employee and his services were never terminated. Moreover, it was also contended that dispute was raised after in ordinate delay of 27 years and therefore, Court may not interfere with the termination.
3.3 The Labour Court appears to have examined all these aspects and ultimately come to the conclusion that the workman did not deserve to be Page 2 of 6 C/SCA/9136/2015 ORDER granted any relief and rejected the Reference vide its order dated 09.02.2015. Being aggrieved and dissatisfied with the same, the petitioner has chosen to prefer this petition under Article 226 as well as under Article 227 of the Constitution of India.
4. Learned advocate appearing for the petitioner invited this Court's attention to the decision in case of Gujarat State Forest Development Corporation Limited Vs. Budhabhai Kamjibhai Nizama, reported in 2006-JX(Guj)-0-405 and provision of Section 25-B of the I.D. Act and Exhibit-13 in support of his submission that the Court erred in wrongfully concluding that the petitioner had not completed 240 days. The counsel, however, could not explain from the material available on record as to was there any justification whatsoever for raising the dispute, in fact, the entire memo of the claim statement did not reveal any justifiable cause which would merit consideration for ignoring the same.
5. This Court is of the considered view that this petition is required to be dismissed in limine for the following reasons namely;
(i) The petition, though appears to have been filed under Article 226 as well as under Article 227 of the Constitution of India, the perusal of the memo of the petition would disclose that there exists no pleadings which would justify invoking provision of Article 226 at all. Article 226 is though mentioned Page 3 of 6 C/SCA/9136/2015 ORDER in the cause title as well as in the memo would on its own not be attracted unless and until the pleadings are present in the petition justifying invoking of Article 226 of the Constitution of India. In absence of these pleadings, this Court is persuaded to hold that there exists no ground whatsoever which could have been available to the petitioner to invoke Article 226 of the Constitution of India. Hence, this petition is required to be considered as one filed only under Article 227 of the Constitution of India and therefore, the inherent scope of consideration of challenge to the order under Article 227 will have to be borne in mind and if one examine these aspects, then one will have to accept the decision rendered by the Court which is impugned in this petition.
(ii) The Court cannot be said to have not taken into consideration the delay aspect, though, the Court has elaborately relied upon Exhibit-13 for computing the period of 240 days in the preceding year of termination which in fact is sought to be highlighted by the advocate for the petitioner. But unfortunately this Court is unable to accept the submission canvassed on behalf of the petitioner that delay aspect was ignored by the Court and, therefore, the Court's order rejecting the Reference be viewed only, as if, it was rejected on account of lack of completion of 240 days. In fact, the close perusal of the order clearly indicate that the Court is consistently mindful of the fact that the Reference Page 4 of 6 C/SCA/9136/2015 ORDER was in fact belatedly filed and the dispute in that forum could not have been said to have existed. The Reference of belated dispute and 27 years is absolute ground available for rejection of the Reference. Assuming for the sake of examining without holding that in view of Section 25-B, the petitioner could have been said to have completed 240 days for the preceding year, then also the peculiar facts of the case namely; one year and five months total engagement period and inordinate delay in raising the dispute without any whisper for justifying the same, would in itself sufficient to persuade any Court for denying relief to the petitioner. The judgment and award impugned in this petition, therefore, if being viewed from that angle, then they are not required to be interfered with in any manner.
(iii) The Court is also not impressed upon the submission canvassed at the Bar on behalf of the petitioner that Section 10 remedy does not provide for any limitation and therefore, 27 years period was not required to be explained. This submission is required to be outrightly rejected, as the inordinate delay without explanation, if permitted to be agitated, then it would lead to a chaotic situation and the Labour Court would not be justified in exercising discretion when there is no justification pleaded, therefore, this ground is also meritless and required to be rejected.
Page 5 of 6 C/SCA/9136/2015 ORDER6. The petition, therefore, being bereft of merits, deserves rejection and is accordingly rejected. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) Pankaj Page 6 of 6