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CA/493/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 493 of 2011
In
LETTERS
PATENT APPEAL No. 36 of 2011
To
CIVIL
APPLICATION No. 504 of 2011
In
LETTERS
PATENT APPEAL No. 47 of
2011
=========================================================
PARMAR
ASHOK RAMSINGBHAI - Petitioner(s)
Versus
BHAVNAGAR
MUNICIPAL CORPORATION - Respondent(s)
=========================================================
Appearance
:
MR
KM PATEL, SR. ADVOCATE, MR GK RATHOD and MR MUKESH H RATHOD for
Petitioners.
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 24/02/2011
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have
heard Mr. K.M. Patel, learned Sr. Advocate with Mr. Mukesh H. Rathod
and Mr. G.K. Rathod, learned Counsel for the applicants and Mr. H.S.
Munshaw, learned Counsel for the respondent. Mr. Munshaw, is allowed
three weeks time from today to file affidavit-in-reply and Mr. Mukesh
H. Rathod, is allowed two weeks time, thereafter, to file
rejoinder.
2. Learned
Counsel for the appellants / applicants submitted that there was no
foundation laid in Special Civil Application that the list of
employees, filed as Exhibit-40, which shows appellant was employee of
the respondents for the years 1994, 1995 and 1996 was incorrect. The
said list was not disputed by the respondents either before the
labour Court nor there was any pleading before the learned Single
Judge in Special Civil Application that the said list was of the
volunteers, for the years 1994, 1995 and 1996. Since, this fact was
not pleaded, it appears that the respondent had accepted the list to
be of the employees for the years 1994, 1995 and 1996. Exhibit-40,
the own document of the respondent established that the applicants
have worked for three years i.e. 1994, 1995 and 1996, as employees of
the respondent, as their
names find mention in the list of employees. In absence of any
pleading that the list of employees mentioned in Exhibit-40 was
illegal, nor there was any relief claimed that Exhibit-40 was
illegal and it ought not to have been relied by the labour Court, the
learned Single Judge could not have held the list to be illegal. The
Apex Court, in the case of “Manohar Lal(Dead)
By LRS. Vs. Ugrasen (Dead) By LRS. And Others”,
reported in (2010) 11 SCC 557, held that in
absence of any pleading, no relief can be granted.
3. In view
of the aforesaid undisputed facts, prima faice, we are of the
opinion that the learned Single Judge committed an error in
discarding the list of employees, Exhibit-40, which was the very
basis of the order of the Labour Court, in granting relief of
reinstatement to the appellants/applicants. The list Exhibit-40 was
not challenged by the respondent before the learned Single Judge but
he has harped upon the validity of the said list, without there being
any whisper or foundation laid in the writ petition.
4. For the
aforesaid reasons, the applicants are entitled to interim relief.
5. Until
further order of this Court, the effective operation of the order of
the learned Single Judge, dated 20th October, 2010, shall
remain stayed.
(V.
M. SAHAI, J.)
(G.B.SHAH,
J.)
Umesh/
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