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MCA/2069/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 2069 of 2010
In
SPECIAL
CIVIL APPLICATION No. 327 of 1991
=========================================================
SHRAMIK
SATHI MAZDUR SAHAKARI MANDLI LTD - Applicant(s)
Versus
FOOD
CORPORATION OF INDIA & 3 - Opponent(s)
=========================================================
Appearance
:
MR
HARNISH V DARJI for
Applicant(s) : 1,
Mr. YF Mehta for Opponent(s) : 1,2,3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 01/12/2010
ORAL
ORDER
Heard
learned Advocate Mr. Harnish V. Darji for applicant. Learned
Advocate Mr.YF Mehta is appearing for opponent Food Corporation of
India. This Court has passed following order in Special Civil
Application NO. 327 of 1991 on 10th May, 2010:
Heard
learned Advocate Mr. Avinash K.Mankad for petitioner, learned
Advocate Mr. YF Mehta for respondent No.1-2, learned Advocate on
behalf of M/s. Thakkar Associate for respondent NO.2 and learned AGP
Ms. Vandana Bhatt for respondent NO.4.
Learned
Advocate Mr. Mankad submitted that in this matter, by passage of
time, number of subsequent incident has taken place in petitioner
society, therefore, he submitted that this petition has become
infructuous by passage of time. Accordingly, considering his
statement, by passage of time and due to subsequent development,
present petition has become infructuous and accordingly this
petition is disposed of as having become infructuous. Rule is
discharged. Interim relief if any shall stand vacated with no order
as to costs. However, in case of any difficulty, it is open for
petitioner to file appropriate application.
Applicant
has made following averments in para 2 of this application:
2. Applicant
says and submits that present application is filed to recall the
order dated 10.5.2007 passed in Special Civil Application No.327 of
1991 and to restore the Special Civil Application No. 327 of 1991 to
its original file. It is humbly submitted that petitioner is a
registered Labour Cooperative Society formed as per the directives
of Food Corporation of India. It is humbly submitted that petitioner
society was engaged in doing Handling and Transport work for
respondent NO.1. It is humbly submitted that petition was filed to
get the various statutory benefits and hence it would have bearing
on all the members of the petitioner society. It is humbly submitted
that petitioner society is still functioning and still it is having
work with the respondent corporation. In view of this cause of the
petition would survive. Hence petition is required to be decided on
its own merits and it is
not infructuous petition. Same is required to
be heard on merits and decided on merits. Considering all this
aspect order dated 10.5.2010 may kindly be recalled and Special
Civil Application NO. 327 of 1991 may be restored to its own file
and may be heard on merits.
In
view of above abverments made by applicant in para 2 of application,
according to applicant, cause of action is surviving and, therefore,
present application is preferred by applicant with a prayer to
recall order of this court dated 10.5.2010.
In
Special Civil Application No. 327 of 1991, petitioner Mandali has
challenged notification dated 1st November, 1990 Annexure
D issued by Central Government. Affidavit in reply is filed by one
Mr. KKR Nair, Dy. Manager (Admn) Food Corporation of India dated
12th March, 1991. Para 11 thereof is quoted as under:
11. With
reference to para 10 of the petition, I respectfully say and submit
that since the petitioner is a Labour Cooperative Society working
through its members and not a Contractor hiring contract labour the
notification of the Government of India which prohibits contract
labour is not applicable. I respectfully say and submit that the
petitioner society is not working in violation or the FCI are not
working in violation of the Notification issued by the Central
Government which only prohibits the contract labour.
I
respectfully say and submit that the workers working at the Baroda
Depot are not the employees of any Contractor but they are doing
the work in their own capacity as members of the Society which is
awarded the handling and transport contract. Here the Society is
the Contractor and the work is being executed through the members
of the Society who are beneficiaries of the Society and not the
workers or employees of the Society. Each of the member of the
Society is, therefore, the owner to the extent of his share in the
Society. Each member of the Society has a proprietory interest in
the profit of the Society and does not work as an employee or
labourer under the Contractor.
I
respectfully say and submit that the status of a worker working
under the Contractor is totally different from that of a member of
the Cooperative Society.I respectfully say and submit that the
worker is engaged by the Contractor by paying him the wages whereas
the worker is a member of the Society has a proprietory interest in
the earning and profit of the Society and gets his share in the
profit of the Society as his own right.
Thus,
as per aforesaid averments made by deponent in affidavit in reply
filed on behalf of Food Corporation of India, it is made clear that
notification dated 1st November, 1990 is not applicable
to present applicant Mandali because it prohibits only Contractor
Labour and applicant Mandali is a Labour Cooperative Society working
through its members and not contractor hiring contract labour.
Therefore, in view of the aforesaid averments made in affidavit in
reply as referred above filed by officer of respondent corporation,
cause of action for petition does not survive. Therefore, order of
this court dated 10th May, 2010 is not required to be
recalled because matter has been disposed of by this court on the
basis of statement made by learned Advocate Mr. Avinash Mankad for
petitioner that by passage of time, petition has become infructuous.
Accordingly, this Miscellaneous Civil Application is disposed of.
Sd/-Illegible
(H.K.
Rathod,J.)
Vyas
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