Gujarat High Court
Excel Shine Pvt Ltd vs Valsad Jilla Kamdar Sangh & on 26 November, 2014
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/16051/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16051 of 2013
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EXCEL SHINE PVT LTD....Petitioner
Versus
VALSAD JILLA KAMDAR SANGH & 1....Respondents
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Appearance:
MR AK CLERK, ADVOCATE for the Petitioner
MR DIPAK R DAVE, ADVOCATE for the Respondent No.1
MR PARITOSH CALLA, ADVOCATE for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 26/11/2014
ORAL ORDER
1. Heard learned advocates for the parties.
2. The petitioner, a Private Limited Company, by way of this petition under Articles 226 and 227 of the Constitution of India, challenged the order dated 30.9.2013, whereunder, the Labour Court rejected the application for seeking condonation of delay of 7 months occurred in filing restoration application of the petitioner.
3. The facts, as they are emerging from the case of petition, annexures, the affidavit-in-reply and annexures, indicating that parties have been in litigation since years and petitions and applications were filed. Ultimately, the workmen were compelled to file Recovery proceedings in the form of Recovery Application No. 187 of 2009 claiming recovery of admissible dues, which Page 1 of 17 C/SCA/16051/2013 ORDER Recovery Application was permitted to be proceeded with without there being any representation from the petitioner side. The said Recovery Application culminated into ex-parte order passed on 5.9.2012. The said order is said to have been served upon present petitioner on 11.9.2012. As the said order made in the Recovery Application was ex-parte, the petitioner chose to prefer an application for restoration, which came to be filed on 1.4.2013. As there was 7 months delay, the delay condonation was urged by pleading and placing on record the factum of ailment suffered by concerned of the petitioner from 27.12.2012 to 22.2.2013 and it was urged that counsel was engaged to represent their side but that counsel could not do anything and therefore, the petitioner did not have knowledge in time and after receiving the order, there was an ailment and that has affected to filing of restoration application. The Court after taking everything into consideration, came to the conclusion that the delay is not required to be condoned and it rejected the application vide order dated 30.9.2013. Being aggrieved and dissatisfied with this order, the present petition is preferred on the grounds mentioned therein.
4. The learned counsel appearing for the petitioner contended that the Labour Court has not exercised its jurisdiction vested in it for considering the delay condonation application. The Labour Court erred in not appreciating the fact that the delay of 7 months, which was also attributable to the serious ailment for some time on the part of concerned of the petitioner, could not have been deliberated as there was no benefit or advantage to be taken on account of delay in filing the application, on the contrary, the delay that has occurred, was to prejudice seriously the case of petitioner.
5. Learned advocate appearing for the petitioner further submitted Page 2 of 17 C/SCA/16051/2013 ORDER that the Court further records in its order that at-least for the period from 27.12.2012 to 22.2.2013 the concerned of the Company suffered serious ailment, which prevented him from approaching the Court having noted this serious ailment and even accepting the plea of ailment, Court could not have relied upon the history or background of petitioner for rejecting the delay condonation application.
6. The delay condonation application was required to be decided on the basis of facts pleaded and proved. The facts, which were not germane for deciding the delay condonation application, could not have been considered by the Court, as the order impugned clearly indicate that the Labour Court while examining the cause of delay, has taken into consideration the chequered history which was a consideration outside the purview of consideration and therefore, it can well be said that delay condonation application is based upon the extraneous consideration, which warrant its quashment under Articles 226 and 227 of the Constitution of India.
7. Learned counsel appearing for the petitioner submitted that by condoning delay and deciding the restoration application on its merit, the Labour Court would have serve the cause of justice, as there was no prejudice likely to be caused to anyone. As that was requested, was the decision on merits, so far as restoration application was concerned. The restoration application was required to be considered as all along, the advocate, who used to represent the petitioner, was engaged in any other matters for representing the petitioner, and there was a lapse on his part so far recovery proceedings are concerned and therefore, it could not have been said that there was a deliberate intention to make any default as same would not have been of any advantageous to the Page 3 of 17 C/SCA/16051/2013 ORDER petitioner. All these factors would have weighed with the Court and Court ought to have allowed this application and take up restoration application to be decided on merits.
8. The learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in case of State of Karnataka Vs. Moideen Kunhi (dead) by Lrs. And Ors., reported in AIR 2009 SC 2577 and submitted that the expression 'sufficient cause' should receive liberal consideration and as such Court while examining the sufficient cause, should see to it that the case on merit is not jeopardize. Therefore the delay of 7 months in the instant case, which was also attributable to the serious aliment for a period from 27.12.2012 to 22.2.2013, could not have been declined to be condoned.
9. Learned counsel appearing for the petitioner thereafter relied upon the decision of the Supreme Court reported in (2011) 14 SCC 465 in case of Abdul Ghafoor and another Vs. State of Bihar, and contended that the circumstances of the party and its compelling priorities if pleaded, are to be taken into consideration, while examining the cause for condoning delay. In the instant case, the period of delay was not so great as to cause any prejudice in case if condoned. The delay occurred in filing the restoration application was sufficiently explained. The petitioner was afflicted with serious ailment for a period from 27.12.2012 to 22.2.2013 is admittedly fact. When such convincing factors were existing and placed on record, the Court ought to have considered them in the appropriate prospective and condoned the delay as it was not likely to cause any prejudice to anyone.
10.Learned counsel for the petitioner thereafter relied upon the Page 4 of 17 C/SCA/16051/2013 ORDER decision in case of Haribhai Lakhubhai Seedhav Vs. State of Gujarat reported in 2010 (2) GLH 97, and submitted that the delay of 10 years was condoned in a case where the ignorance of decision was pleaded. In the instant case, as could be seen from the order, which was ex-parte, had not been prominently served and thereafter the petitioner was restrained from taking any action on account of his ailment and various other adverse circumstances and therefore, the period of 7 months delay was required to be condoned. The order of Court rejecting the condonation of such delay is required to be quashed and set aside.
11.Learned counsel appearing for the petitioner without prejudice to aforesaid submissions, submitted that in case if the Court is inclined to accept this petition, a reasonable cost may be imposed and on that basis also, the petitioner be given an opportunity to plead his case so far as restoration application is concerned and restoration application itself could be directed to be decided in time bound programme, that will not cause any prejudice to anyone.
12.Learned counsel appearing for respondent No. 1 invited this Court's attention to the affidavit-in-reply and averments made thereunder to support his contention that this petition is required to be dismissed on account of not only the chequered history but deliberate non-disclosure of facts, which were germane for deciding this petition.
13.Learned counsel appearing for respondent No.1 invited this Court's attention to the averments made in para-4 of the affidavit-in-reply and submitted that those averments are sufficient to indicate that the petitioner was interested in avoiding liability to make payment on whatever pretext available. The liability to make payment has Page 5 of 17 C/SCA/16051/2013 ORDER been crystallized and deliberately abstaining from appearing before the Recovery Court, would indicate that it was part of strategy to defeat or delay the entire process of recovery or else there was no earthly reason for petitioner not to participate in the recovery proceedings, which had started in the year 2009 itself. The delay is of-course of 7 months but that delay is required to be viewed from the conduct of petitioner, which will persuade this Court in appreciating Labour Court order, declining condoning of delay, is not required to be interfered with in any manner.
14.Learned counsel appearing for respondent No. 1 contended that development of events right from beginning, when highhanded action of lockout was resorted to by the petitioner till it culminated into the recovery order, would indicate that there is a consistent approach and efforts on the part of petitioner in tiring off the workmen so that they may not reach to their relief, which though is granted to them, has not been fructified into any concrete yield.
15.Learned counsel appearing for respondent No.1 submitted that the petitioner even if is ready and willing to pay some cost, would be in fact succeed in its design to prolong the agony of workmen as the imminent outcome of the litigation would be execution proceedings at the end of Recovery Mamlatdar, and which will surely end into workmen receiving their legitimate dues in short time. As against this, the payment of a cost would deprive 32 claimants out of which 3 claimants' heirs are now expecting, as they have died, would have to undergo a long spell of indefinite ways and uncertainty and therefore, this Court may not interfere with the order impugned.
16.Learned counsel appearing for respondent No. 1 invited this court's Page 6 of 17 C/SCA/16051/2013 ORDER attention to observation made by this Court in case of M. Jagdamba Dyeing & Printing and Anr. Vs. Ramkumar Ramchal Mishra, C/o. Surat Silk Labour Union, reported in 2006 (1) GLH 545 and submitted that the observations and ratio of said judgment would be attracted clearly to present case, as the 7 months delay itself is not sufficient to absolve the petitioner of its deliberate default of years which occurred on account of its non-participation in the recovery proceedings itself.
17.Learned counsel appearing for respondent No. 1 contended that had there been any bonafide intention to obtain an opportunity, nothing prevented the petitioner from coming forward with an offer of depositing at least what is admissible according to them. Lack of any such offer would go in long way to establish that the petitioner is merely interested in prolonging the litigation and avoiding payment, which is otherwise due since long.
18.This Court has heard learned counsel for the parties and perused the documents on record. The following indisputable aspect emerged therefrom deserve to be mentioned so as to appreciate the contentions of the counsel for the parties in proper perspective namely:
(1) The memo of petition is consisting of 5 pages only and page no. 6 to 50 are the documents, annexures, which do not contain anywhere indicating any prior litigation or the proceedings as such.
The petitioner has unfortunately not averred about any past proceedings, which gave rise to filing of recovery application. This omission is pleaded to be deliberate suppression of facts by the petitioner and it was urged on behalf of respondent that petition is required to be dismissed even on that ground also.
Page 7 of 17 C/SCA/16051/2013 ORDER(2) The respondent no.1 has filed affidavit-in-reply along with documents, forming of Court's order passed in various occasions in various litigation and based thereupon it was contended, as it is stated hereinabove, that the history giving rise to present petition, would be absolutely essential for deciding the contentions for condonation of delay or examination of challenge to order declining condonation of delay of 7 months that occurred in preferring restoration application.
(3) The close perusal of the document, those have been brought on record of the proceedings, would indicate that the chronology of events, which would be required to be set out in brief to appreciate the serious objection on the part of respondent no. 1 in resisting the 7 months delay as well as challenge to order in this proceedings, as learned counsel for respondent No. 1 has led special emphasis thereupon.
(i) The workmen at relevant time were constrained to raise demand and demand notice came to be issued on 1.10.2001.
(ii) The intervention was invited on 1.2.2002.
(iii) The conciliation was admitted on 21.8.2002.
(iv) During the proceedings of conciliation, lady members of work force came to be terminated on 1.11.2002.
Page 8 of 17 C/SCA/16051/2013 ORDER(v) On 2.11.2002, one more workman came to be discharged.
(vi) This unceremonious ouster of three workmen gave cause for consternation, which was dubbed to be 'illegal strike' by the petitioner.
(vii) The strike is said to be from 2.11.2002 to 15.11.2002.
(viii) Thereafter, workmen presented themselves from 16.11.2002 for discharging their duties which was sorted by locking them out, the entire dispute qua strike being illegal or legal or there was a lockout illegal or legal, came to be subject matter of dispute, which came to be referred to Court as Reference LCV(Demand) 2 of 2003.
(ix) That reference culminated into an award on 9.7.2005, whereunder, the Court came to the conclusion that there was illegal lockout and strike was not illegal and resultant benefits and wages were ordered to be granted.
(x) This Award of the Labour Court rendered on 9.7.2005 came to be assailed by the petitioner by way of Special Civil Application No. 24781 of 2005 in this Court, wherein, there was an initial stay granted in favour of the petitioner on condition of compliance of Section 17B of the I.D. Act.
Page 9 of 17 C/SCA/16051/2013 ORDER(xi) The workmen were constrained to move an application being Civil Application No. 5140 of 2006 in Special Civil Application No. 24781 of 2005 seeking appropriate direction qua non- compliance with Section 17B of the I. D. Act.
(xii) 28.4.2006 is the date when aforesaid Civil Application was allowed.
(xiii) The employer did not comply with this order as pleaded and chose to prefer Civil Application No. 7264 of 2006 in Special Civil Application No. 24781 of 2005 and urged the Court for recalling the order, under which, the directions were issued for compliance of Section 17B of the I.D. Act, which was passed on 28.4.2006.
(xiv) This application came to be rejected vide order dated 12.10.2006, wherefrom, Letters Patent Appeal No. 594 of 2007 was preferred, whereunder also the Division Bench passed an order on 9.5.2007 rejecting the same completely.
(xv) In the meantime, the Misc. Civil Application was preferred for participation of contempt proceedings as the workmen were not paid any dues or wages flowing from Section 17B of the I.D. Act, which came to be withdrawn on account of workmen being desirous of taking appropriate Page 10 of 17 C/SCA/16051/2013 ORDER remedy.
(xvi) The workmen, therefore, filed application under Section 33 (C-1) being Recovery Application No. 121 of 2007, which was not entertained by the Court on the ground that there exists a petition and recovery proceedings would not therefore be maintained.
(xvii) The workmen though were left with no choice, brining one more application by way of Civil Application No. 8109 of 2009 in SCA No. 24781 of 2005 with appropriate prayers that there exists non-compliance with the mandatory provisions of Section 17B and therefore, petitioner rendered itself disqualified from continuing with the proceedings.
(xviii) This Court vide order dated 29.7.2009 recorded clearly that there was blatant violation of statutory provisions of Section 17B on the part of petitioner, and hence, treating that to be an act of disqualifying them to be petitioner seeking discretionary relief, the Court treated it to be default for which the petition being SCA No. 24781 of 2005 came to be dismissed for default, that order is also placed on record of this petition.
(xix) The petitioner employer had option to pay 17B wages and seek recalling of the order dated 29.7.2009, as it was clearly observed by the Court Page 11 of 17 C/SCA/16051/2013 ORDER in the order that the petition i.e. SCA No. 24781 of 2005 was being dismissed for default and it was not dismissed on merits.
(xx) The bonafide litigant or petitioner would have promptly chosen the available efficacious remedy of seeking recalling of order by making the payment of 17B wages to the workmen, as otherwise also, it was under an obligation to pay the statutory wages in the form of 17B wages to the workmen during pendency of the petition.
(xxi) The said course was for the reasons best known to petitioner, was not resorted to and matter was not pursued thereafter by the employer petitioner in any other forum.
(xxii) This order dated 29.7.2009, as was not sought to be recalled by the employer, attained finality, which give legitimate right to the workmen to move recovery proceedings, which they were not getting anything out of their succeed in the litigation so far.
(xxiii) The workmen thus filed one more Recovery Application being Recovery Application No. 187 of 2009.
(xxiv) This Recovery Application was instituted in the year 2009 and in this proceedings, the Court has recorded that during pendency, notices at Page 12 of 17 C/SCA/16051/2013 ORDER appropriate stage to the employer concerned, with regard to closing of rights, non-appearance, posting of matters etc., on all these occasions, the employer has chosen to abstain from participating in the proceedings. This absence of employer in the proceedings is sought to be explained way laying responsibility upon the advocate, who was engaged for the matter. The fact remained to be noted that in the order, the Court had recorded that none appeared, meaning thereby, even the advocate did not have filed his vakalatnama.
(xxv) This Recovery Application came to be allowed vide order dated 5.9.2012 and the Court ordered payment of Rs.1,16,78,623/- in favour of 32 claimants out of which 3 died.
(xxvi) This Recovery proceedings were thus, spanned from 2009 to 2012 and from all these period, there is glaring default on the part of employer as he has chosen not to participate in the proceedings nor had he bothered to inquire from his advocate what happened to the proceedings.
(xxvii) The order dated 5.9.2012 came to be served upon the employer on 11.9.2012. Thus, it is admitted fact that at-least from 11.9.2012, the employer was in knowledge of the order, which is passed against it.
(xxviii) The certificate was issued on 4.12.2012.
Page 13 of 17 C/SCA/16051/2013 ORDERThe employer had suffer ailment from 27.12.2012 to 22.2.2013 and restoration came to be filed on 1.4.2013, wherein, the order came to be passed declining condonation on 30.9.2013.
Against which present petition is filed.
(4) Thus, present petition is filed, which do not indicate the chronology, which were required to be brought on record by respondent no.1 by way of their affidavit-in-reply as it is stated hereinabove.
19.Against the aforesaid backdrop of factual almost indisputable aspect, the question arises as to whether the ostensible 7 months delay, which any Court would have considered condonable, was required to be condoned or whether the Court, while considering the application for condonation of delay, was required to be oblivious of chequered history pleaded for rejecting the delay condonation application, as submitted by learned counsel for the petitioner.
20.This questions are required to be answered keeping in mind the purview of examining the order impugned in this petition. The petitioner has invoked Articles 226 and 227 of the Constitution of India in assailing the order dated 30.9.2013 passed by the Labour Court, declining condonation of delay.
21.The entire memo of petition, nowhere indicate any pleading which would said to be a pleading available for invoking Article 226 of the Constitution of India, though in a cause title, the Presiding Officer of the Labour Court is made party and in the prayer clause, Page 14 of 17 C/SCA/16051/2013 ORDER a writ of certiorari or any other appropriate writ is urged, but that in itself, in my view, is not sufficient for treating this petition as one having been filed under Article 226, as in absence of any specific pleading qua jurisdiction or exercise of jurisdiction or refusal of jurisdiction and other pleadings, which would indicate that Article 226 is capable of being invoked, this Court is of the view that present petition cannot be treated as having been one filed under Article 226 of the Constitution of India.
22.Having come to conclusion that this petition is not filed under Article 226 of the Constitution of India, this Court is to examine the petition to be filed under Article 227 of the Constitution of India.
23.The delay of 7 months coupled with the fact that there was a period within 7 months on which the petitioner was afflicted with serious ailment, would have in fact heavily weighed with the Court in considering the contention of delay but unfortunate for the petitioner, it has nowhere indicated that how would he account for the non-participation in the proceedings from 2009 to 5.9.2012. In other words, the Court when was urges to condone the delay, ought to have been apprise of the fact that even in the interregnum period i.e. from 2009 to 5.9.2012, there was sufficient cause for not participating in the proceedings. The Court hastened to add here that learned counsel for the petitioner is not incorrect in submitting that the Court could not have been heavily impressed upon the history for declining the prayer for condoning delay but in a given case, when the Court is convinced about the deliberate attempt in perpetrating the agony of the litigation without loosing anything more, then said factors cannot be brushed aside by the Court, as the same would amount to adding insult to the injury to the person, Page 15 of 17 C/SCA/16051/2013 ORDER who has been pursuing his litigation with vigil, care and caution. As in the instant case, as could be seen from the events narrated hereinabove, the workmen who succeeded in the litigation, who were ordered to be paid their wages, dues and other benefits, as back on 9.8.2005, were not paid a single farthing till recovery application was filed nor was there any justifiable reason shown not to participate in the recovery proceedings, neither in the delay condonation application or in this petition, the petitioner has indicated anywhere as to what is its defense for resisting the recovery application. In fact, the facts narrated hereinabove, would shock the conscious of any Court that how and in what manner the employer can choose to take advantage of the provisions of law for avoiding its liability to be discharged to the workmen on whose toiling he could build his business.
24.The Court is of the considered view that had there been some semblance of defense available for resisting recovery application, nothing prevented the petitioner from putting it forth to this Court for supporting the arguments qua lack of prejudice as pleaded, on the contrary, the absence of any cogent reasons or defense available for resisting recovery application, would indicate that there exists none and yet there is an insistence upon seeking restoration of the recovery proceedings, which can surely be viewed causing greater prejudice to the workmen as there fruits of litigation pushed back in the realm of uncertainty and untold agony. This cannot be the purpose of proceedings nor can this Court continuance such an approach while exercising the power under Article 227 of the Constitution of India or even in that view of the matter, under Article 226 of the Constitution of India, in fact Article 226 of the Constitution of India is purely a discretionary remedy and in a given situation like present one, the Court would Page 16 of 17 C/SCA/16051/2013 ORDER not be justified in exercising its power in favour of petitioner, who has been succeeded in avoiding its liability to make payment to the workmen on one pretext or other.
25.The petition being hopelessly merit-less, deserves to be dismissed and is dismissed accordingly. Notice discharged. No costs.
(S.R.BRAHMBHATT, J.) pallav Page 17 of 17