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SCA/29217/2007 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 29217 of 2007
With
SPECIAL
CIVIL APPLICATION No. 29218 of 2007
=========================================================
STANDARD
MATERIAL AGENCIES PVT. LTD. - Petitioner
Versus
GAJJAR
MUKESH AMRUTLAL & 2 - Respondents
=========================================================
Appearance :
MR
SA DESAI for Petitioner : 1,
MR TR MISHRA for
Respondent: 1,
MS VS PATHAK AGP for Respondent: 2,
NOTICE
SERVED for Respondent:
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 13/10/2008
COMMON
ORAL ORDER
Heard
learned counsel for the parties.
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.)
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