Gujarat High Court
Pramod Trading Co vs Maheshbhai Punjabhai Thakor & Ors on 17 October, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/4242/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4242 of 2014
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PRAMOD TRADING CO .....Petitioner
Versus
MAHESHBHAI PUNJABHAI THAKOR & Ors....Respondents =============================================================== Appearance:
MR NILESH A PANDYA, ADVOCATE for the Petitioner MR SUBRAMANIAM IYER, ADVOCATE for the Respondent No. 1 MR PARITOSH CALLA, ADVOCATE for the Respondent No. 2 =============================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 17/10/2014 CAV ORDER
1. Challenge in this petition is made by the Employer to the order passed by the Labour Court, Vadodara dated 19.01.2012 in Recovery Application No.178 of 2008. By the said order, the Labour Court has restrained the petitioner from availing the service of an advocate, since the representative of the Union has raised objection in that regard.
2. Learned advocate for the petitioner has submitted that there is no employee - employer relationship between the petitioner and the respondent and inspite of that, the respondent had projected himself to be the workman of the petitioner and further that though there is no award in his Page 1 of 4 C/SCA/4242/2014 CAV ORDER favour, he has straightway filed Recovery Application invoking provisions of Section 33C(2) of the Industrial Disputes Act, 1947, wherein apart from the facts, even the legal submissions are required to be made before the Labour Court and therefore the assistance of an Advocate is required by the petitioner. It is further submitted that, on behalf of the respondent a legally trained mind like the Union representative is appearing and thus, though the petitioner has good case on merits, he may not be able to put his case effectively before the Labour Court.
It is submitted that, under these circumstances, on behalf of the petitioner appearance of an Advocate was filed which is objected by the other side and under these circumstances, impugned order is passed by the Labour Court, which may be interfered with.
3. On the other hand, learned advocate for the respondent has submitted that Section 36(4) of the Industrial Disputes Act, 1947 is quite clear and therefore there was no occasion for the Labour Court to grant sanction ignoring the objection of the respondent and therefore Labour Court has not committed any error. Reliance is placed on the decisions of the learned Single Judge and the Division Bench in the case of J.B.Transport Company vs. Shankarlal @ Mavaram Nathuji Patel in Special Civil Application No.2687 of 1998 dated 22.07.1998 as confirmed by the Division Bench in the Letters Patent Appeal No.1101 of 1998 vide order dated 09.12.1998. It is submitted that this petition be dismissed.
4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the petitioner is a small trader. He cannot be Page 2 of 4 C/SCA/4242/2014 CAV ORDER expected to have any officer in his organisation looking after legal affairs, nor it is mandatory for him to be a member of some Association which may represent his case. Denial of an opportunity to the petitioner to put his case before the Court through an Advocate, in the present case, has resulted in a situation where he is unable to put his case as effectively as respondent would be, and this has resulted in inequality before law, the correcting measure of which was envisaged by enacting Section 36(4) of the Act, and under these circumstances the petitioner needs to be given the opportunity of availing the service of an Advocate. Further, the controversy in this regard is covered by the decision of this Court in the case of Schneider Electric India Pvt. Ltd. Vs. Kailashben R. Valand reported in 2014 (2) GLR 1264 and in the case of Veer Textile vs. Babubhai and ors. Upadhyay in Special Civil Application No. 3547 of 2014 dated 17.09.2014. Considering the totality, this Court finds that, denial of opportunity to the petitioner to put his case through an Advocate has resulted in denial of reasonable opportunity to a party to the litigation to put his case before the Court as compared to the contesting party. It is this situation which needs to be corrected by this Court. For this reason, this petition needs to be allowed.
5. For the reasons recorded above, the following order is passed.
5.1 This petition is allowed.
5.2 The impugned order passed by the Labour Court, Vadodara dated 19.01.2012 in Recovery Application No.178 of 2008 is quashed and set aside.
Page 3 of 4C/SCA/4242/2014 CAV ORDER 5.3 The petitioner is permitted to avail the service of an
Advocate, in the proceedings of Recovery Application No.178 of 2008 before the Labour Court, Vadodara.
5.4 Rule made absolute. No order as to costs.
(PARESH UPADHYAY, J.) M O Bhati/02 Page 4 of 4