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CA/16971/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION-FOR CONDONATION OF DELAY No. 16971 of 2010
In
LETTERS
PATENT APPEAL (STAMP NUMBER) No. 2604 of 2010
In
SPECIAL CIVIL APPLICATION No. 4117 of 2009
=========================================================
CHAITANYA
GIRDHARALAL GANDHI - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATION - Respondent(s)
=========================================================
Appearance
:
MRHEMALKACHARYA
for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 31/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The present application
is for condonation of delay of 531 days in preferring appeal against
the order dated 23.06.2009 passed by the learned single Judge of
this Court in Special Civil Application No.4117 of 2009.
We have heard
Mr.Acharya, learned counsel appearing for the applicant on the
aspect of condonation of delay. In order to see that the merits of
the appeal may not be frustrated, we have also heard Mr.Acharya on
merits of the Letters Patent Appeal.
As such, the delay is
of 531 days, and such a long delay cannot be leniently viewed. If
the contents of the application for condonation of delay are
considered, there is no sufficient explanation coming up to exercise
the discretion for condonation of delay, and vague and general
statements have been made in the application for condonation of
delay and, therefore, as such, delay does not deserve to be
condoned.
Apart from the above,
if the merits of the LPA is taken into consideration, the contention
raised by the learned counsel for the appellant is that the finding
recorded by the labour Court for concurring with the decision of the
disciplinary authority based on the inquiry report is arbitrary, and
it was submitted that the labour Court in any case ought to have
interfered with the proportionality of punishment u/s.11A of the
Industrial Disputes Act. It was submitted that the learned single
Judge has erroneously not considered the said aspect and, therefore,
there is a good case on merits in the appeal.
It deserves to be
recorded that the original petitioner – appellant herein
before the labour Court has not challenged the inquiry and has
accepted the inquiry. As per the inquiry officer’s report, the
charges were proved. The labour Court, upon appreciation of the
evidence, has found that the findings recorded of charges having
been proved cannot be said as without proper material. The learned
single Judge has also concurred with the said aspect. The contention
which was pressed in service before the learned single Judge was the
aspect of proportionality of punishment u/s.11A of the ID Act. It
deserves to be recorded that once the charge is proved against the
original petitioner that he was found to have been caught red-handed
doing business of hosiery, which was in the name of his wife, the
punishment imposed of dismissal from service could not be said to be
shockingly disproportionate to the charges proved. Therefore, the
labour Court rightly did not interfere with the punishment u/s.11A
of the ID Act and so is by the learned single Judge when the award
of the labour Court was challenged in a petition under Article
226/227 of the Constitution before this Court. We find that under
the circumstances, on merits, it cannot be said that there is
substance in the appeal. Hence, if on merits, there is no case, no
useful purpose would be served in considering the matter solely on
the ground of condonation of delay and thereafter to consider the
merits at the later stage.
Hence, in view of the
aforesaid, the application for condonation of delay is rejected.
In view of the
rejection of the application for condonation of delay, the LPA
(Stamp) No.2604 of 2010 would not survive and shall also stand
disposed of.
At last Mr.Acharya
prayed that the direction may be given to the Corporation for
payment of terminal benefits. We find that the said aspect is beyond
the scope of the present appeal, since it was not before the learned
single Judge. However, if legally it is permissible, the petitioner
may resort to appropriate proceedings for the said purpose.
(JAYANT PATEL,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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