Standard vs Gajjar on 13 October, 2008

[Cites 2, Cited by 0]

Gujarat High Court

Standard vs Gajjar on 13 October, 2008

The petitioner has filed SCA 29217 of 2007 challenging the order dated 16.7.2007 rejecting the delay condonation application, for seeking condonation of delay occurred in preferring the restoration application No. 275 of 2005, which was made in Recovery Application being Recovery Application No. 240 of 2002 in Recovery Application No. 1962 of 2001, and prayed for direction to the learned labour court to rehear the Recovery Applications 1962 of 2001 and 240 of 2002 and restraining the respondents from attaching and disposing off the property mentioned therein, in Special Civil Application No. 29128 of 2007, the petitioner has challenged the order dated 30.7.2007 passed in Misc. Application No. 135 of 2005 rejecting the application for restoration in Reference [LCAD] No. 46 of 2002. As the parties in both the proceedings are common, both the matters were heard together and are being disposed of by this common judgment and order.

Facts in brief deserve to be set out as under.

The respondent workmen were constrained to prefer Recovery Application being Recovery Application No. 1962 of 2001 under Section 33 (c)(2) of the I.D.Act as their wages from April to June 2001 were not paid by the petitioner. The appropriate Labour Court after affording enough opportunity to the petitioner for appearing and defending its stand ultimately had to pass an ex parte order on and award on 10.10.2001 allowing the same. As the petitioner herein above did not comply with the order dated 10.10.2001 made in Recovery Application no. 1962 of 2001 the respondent herein workmen had to file one more Recovery Application being Recovery Application no. 240 of 2002 under Section 33 (c ) (1) for recovering their dues as awarded by the Court in Recovery Application no. 1962 of 2001 which was also allowed ex parte vide order dated 26.02.2002 as despite due service of notices and opportunity no one appeared for the opponent i.e the present petitioner. The petitioner therefore filed Restoration Application being MCA 275 of 2006 in Recovery Application no. 240 of 2002 in Recovery Application no. 1962 of 2001 and prayed for delay condonation as the application for restoration was filed after passage of considerable time. The Labour Court vide the impugned Order dated 16.07.2007 has rejected the same The Respondent No.2 has started proceedings for recovering the dues based upon the Recovery Certificate issued by the Labour Court being aggrieved therewith the petitioner has preferred SCA 29217 of 2007. The Respondent Workmen had also raised Industrial Disputes with regard to non payment of their terminal dues despite the promises by the petitioner vide their Notice to Workmen at the relevant time and it proceeded with closure of the unit without following due procedure of law. The Reference being Reference (LCA-D) no. 46 of 2002 came to be accepted and allowed, after recording that though sufficient opportunities were given, none turned up on behalf of the employer and hence, the said ex-parte award was being passed vide Order dated 15.03.2005. As it was allowed ex parte the present petitioner filed Restoration Application being MCA No. 135 of 2005 which also came to be rejected by the Labour Court vide its Order dated 30.07.2007 wherefrom arises SCA No. 29218 of 2008.

Shri Desai, learned counsel appearing for the petitioner submitted that as the employer petitioner was unable to meet with its legal dues from Bank, the Bank had attached the properties of the Company and the Company had remained closed thereafter. Shri Desai has pointed out from the order of the Labour Court impugned in these proceedings that sometimes even registered AD notices had remained un-served and therefore, it was not proper for the labour Court to reject the application of the petitioner. Shri Desai has submitted that the Labour Court's findings with regard to petitioner approaching the Labour Court with suppression of facts is also finding recorded contrary to the evidence on record and therefore, same finding deserves to be quashed and set aside. Shri Desai has submitted that the petition deserves to be allowed as the petitioner could not attend the Court on account of circumstances beyond their control.

Shri Desai further submitted that the property sought to be attached cannot be attached as the owners are different. The respondent no. 2 deserve to be directed not to attaché the property as mentioned in the petition.

Shri Mishra, learned counsel appearing for the respondent workmen vehemently opposed both the petitions and submitted that these petitions deserve to be rejected as the suppression of facts, which has been recorded by the Labour Court, has been perpetuated even in these Special Civil Applications before this Court. In fact, the workmen were constrained to file Special Civil Application No. 9124 of 2001, wherein, this Court while relegating the workmen to the alternative remedy, observed in order dated 27.12.2001 in para-8 with regard to anxiety of the workmen and their apprehension with regard to nonpayment of dues and company s surreptitious attempts of removing the machinery from the company s premises. It deserved to be noted that thus, the workmen and the employer were pursuing their dispute and company did have knowledge of workmen being relegated to alternative remedy. Therefore Company s so called lack of knowledge of proceedings before labour court was merely a façade for its default in appearing before the Labour Court.

Shri Mishra has taken this Court through the notice pasted by the Company itself in respect of their so called closure and promised to the workmen to pay the dues, which were admissible to them. Shri Mishra has also brought to the notice of the Court the notice dated 31.10.2001, which was issued by the Company to the security guard with regard to non acceptance of the posts, correspondences etc. and not to disclose the residential address to the process server. The petitioner has only denied them only in its rejoinder. Shri Mishra has submitted that in view of this, petitions deserve to be rejected with costs.

Shri Mishra further submitted the respondent no.2 may proceed against any property wherein the employer company has its interest. But it is for the respondent no.2 to decide the same.

This Court has heard learned counsel for the parties at length, perused the papers and gone through the orders impugned in these matters.

It deserve to be noted at this stage that the petitioner has not challenged the Ex Parte Award dated 15.03.2005 passed in Reference (lCA-D ) No.46 of 2002 and only challenged Order dated 30.07.2007 passed in Restoration Application being MCA 135 of 2005. In absence of any challenge to the main award the challenge to the order dated 30.07.2007 is to be examined in SCA 29218 of 2007. The Petitioner has not moved the Restoration Application in prescribe time limit and not filed any Delay Condonation application seeking condoning of delay that had occurred in preferring MCA 135 of 2005 in Reference 46 of 2002. The Labour Court has elaborately discussed the reasons for not accepting the same. It deserves to be noted that the reasoning applicable for examining the challenge in SCA 29317 of 2007 would also be applicable in examining the challenge in SCA 29218 of 2007. The entire approach of the petitioner before the Labour Court in both the proceedings betrays not only callousness but also lack of regards to the Labour Adjudication Machinery as could be seen from the following discussion.

The undisputed facts go to show that the petitioner Company did have knowledge of the workmens' demand and disputes as the order in Special Civil Application No. 9124 of 2001 dated 27.12.2001 clearly indicate that the Company was represented through its advocate and the order goes to show that Company did have knowledge with regard to the lis between itself and its workers. Against this back drop as well as the notice which Company pasted on 25.9.2001 with regard to payment of dues and terminal benefits to its work force, and the notice to watchmen not to accept notices and not to disclose its residential address to process servers deals serious blows to its stand that it did have no knowledge especially when right before few days ago they were party to the proceedings in special civil application in this court wherein the present petitioner was represented by advocate.

Against this backdrop the impugned orders deserve to be examined. The Labour Court has elaborately recorded its findings with regard to issuance of process and its service upon the Company. Only at the later stage, there is a mention with regard to one registered AD not being served, but in the same line, the Labour Court has recorded that subsequently, the notice, which was issued, was served by bailiff personally, and that cannot be ignored. The Labour Court has further recorded that the dues of the workmen have been evaded deliberately and even the Labour Court has recorded to the effect that the petitioner has evaded and avoided to pay the legitimate dues of the workmen.

The cursory glance at the application made before the Labour Court seeking restoration would in itself be sufficient to reject these petitions as it would clearly reveled the absolute casual approach which was adopted by the petitioner before the Labour Court during pendency of the Reference and same had been continued even while making restoration application as the same is bereft of any material whatsoever, which would be sufficient to have been finally relied upon seeking discretion of the Court under Rule 26A of the ID Gujarat Rules. The petitioner s applications made before the labour court are so very bereft of necessary pleadings and documentary evidence that labour could had to reject the same as the petitioner could not prove its assertion with any material on record. The non mentioning of attachment dates, non productions of necessary documents in support therewith and in action for such a long time coupled with the fact that petitioner did know that this Court had in fact relegated the respondents to alternative remedy under ID Act were sufficient to deal serious blow to its theory.

The assertion and averments made in these two petitions are not forming part of the two application and hence the petitioner s reliance thereupon could be of no avail to them as under Article 227 of the Constitution. The fact of non service of notice has not been believed by the labour court and this court under article 227 would not interfere with such findings in absence of any cogent evidence produced before the labour court.

The orders impugned are to be examined in light of the jurisdiction under Article 227 of the Constitution of India and this Court is of the considered view that the impugned orders do not suffer from any infirmity warranting interference. Therefore, both the petitions deserve to be dismissed and they are dismissed.

Though the petitions are being dismissed a direction is required to the Respondent No.2 to afford opportunity to the petitioner for indication as to in which property the employer company has interest and which property are absolutely not attachable being in no way connected or affiliated to the employer petitioner. It goes without saying that recovery proceedings cannot be held against personal property and it would be laying only against the property of Employer and the property wherein the said employer has some interest or stake to that extent. The Respondent No.2 is at liberty to effect recovery from the property of the Employer or the property wherein the employer it interest or share to that extent. Notice discharged in both the matters. There shall be no order as to costs.

Registry is directed to keep the copy of this judgment in Special Civil Application No. 29218 of 2007.

(S.R.BRAHMBHATT, J.) pallav Top

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Gujarat High Court