Gujarat High Court Case Information System
Print
SCA/15722/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15722 of 2010
With
SPECIAL
CIVIL APPLICATION No. 15724 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16335 of 2010
=========================================================
AHMEDABAD
MUNICIPAL TRANSPORT SERVICE THROUGH - Petitioner
Versus
SAFIMIYAN
HUSENMIYAN SAIYAD - Respondent
=========================================================
Appearance :
MR
HS MUNSHAW for
Petitioner
MR YOGEN N PANDYA for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 03/02/2011
COMMON
ORAL ORDER
In
this group of petitions, the petitioner is the same and issue is
identical, wherein, the concerned Industrial Court has allowed the
Misc. Application under Rule 26A of the Industrial Disputes
(Gujarat) Rules on the ground that Industrial Court ought not to
have condoned the delay, as the facts are so glaring which would
shock the conscious of any Court. The subject matter of the
challenge is same and petitioner is same and therefore, all these
matters were heard together and are being disposed of by this common
order.
Shri
Munshaw, learned advocate appearing for the petitioner submitted
that in all this three cases, the workmen were issued and facing
serious charges of habitual absentism and on account of such a
chargesheet, inquiry was required to be conducted, which was
conducted and as a result thereof, the appropriate punishment orders
of dismissal were passed. These orders were required to be governed
by the provisions of Section 33(2)(B) and hence, the appropriate
approval applications in each of the cases were made. The approval
applications were made in the year 2003 and as it is seen from the
orders made on the approval application, the respective workman did
not remain present nor did they bother to file their written
statement. Hence, ultimately, the Court after recording its
findings, came to the conclusion that the approval, as sought for is
required to be allowed and accorded approval in all the approval
applications vide its order in the year 2006. These orders were
passed ex-parte in the year 2006. No application under Rule 26 of
the Rules came to be made for quite sometime and ultimately, the
workmen woke up from slumber and filed Restoration Application with
delay condonation application in the year 2009. Thus, there is
inordinate delay in preferring the applications. The workmen did not
specifically mentioned anywhere in the application as to what
prevented them from approaching the Court with reply in the main
approval application nor did workmen mentioned as to what prevented
them from filing restoration application in time. The Industrial
Court has on broad principles of liberal approach to the delay
condonation application, has allowed the applications for
condonation of delay and thus, now, the restoration applications are
to be heard on merits. At this stage, this Court is approached under
Articles 226 and 227 of the Constitution of India.
Shri
Munshaw, learned advocate appearing for the petitioner submitted
that the condonation of delay is without taking into consideration
the relevant factors like the testing of veracity of the workmen,
recording findings with regard to workmen’s say, which preventing
workmen from appearing before the Court when the approval
application was pending and cause preventing workmen from filing
restoration application. He submitted that restoration application,
if allowed, would cause tremendous hardship and result into undue
advantage to the workmen as the question of monetary benefits in the
intervening period may crop up and therefore, he submits that delay
condonation applications were not required to be allowed. He in the
alternative submitted that in case, if the Court is not inclined to
accept this submission as there would be a chance and opportunity to
the corporation petitioner to make appropriate submission in respect
of the question of back wages, arising at the relevant time, then,
at least, the workmen who be not permitted to take advantage of
their own delay, which otherwise may amount to putting premium upon
their position, which has occurred on account of their own
irrelevant behaviour. He submitted that the Court may order that the
workmen may not be entitled to the back wages for the concerned
period.
At
this stage, Shri Pandya, learned advocate appearing for the
respondent workman in each matter, submitted that he has
instructions to submit on behalf of workmen that workmen would file
an undertaking before the Court where the Restoration Application is
being argued that the workmen even if the Restoration Application is
allowed, would not claim back wages for the period from the date of
award in the approval application till the date of filing of
respective applications for restoration and delay condonation. A
copy of such undertaking can also be given to the other side as well
as to file in the proceedings of this petitions and court may
dispose of the matter, as the other side is otherwise have a liberty
to argue and make submission on back wages or further binding the
workmen in restoration application hearing itself.
In
view of this submission made by Shri Pandya, learned advocate Shri
Munshaw for the petitioner submits that he does not press these
petitions as the workmen themselves have given up their claim for
wages under any circumstances for the period i.e. the date on which,
the approval application was allowed till restoration application
was filed. However, both the advocates requested that the Court may
pass appropriate direction to the concerned Tribunal to dispose of
the main matters i.e. Restoration Applications itself as
expeditiously as possible.
In
view of this submission and in view of the fact that Shri Munshaw,
learned advocate does not press these petitions, it would be
appropriate to issue direction to the concerned Industrial Tribunal
to dispose of the Restoration Applications on merits on or before
30.04.2011. With this observation, all the petitions are disposed
of. Notice discharged. No costs.
Registry
is directed to keep of this matter in each matter.
(S.R.BRAHMBHATT,
J.)
pallav
Top