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LPA/81/2008 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 81 of 2008
In
SPECIAL
CIVIL APPLICATION No. 11230 of 2000
With
CIVIL
APPLICATION No. 1019 of 2008
In
LETTERS PATENT APPEAL No. 81 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
CHIEF
OFFICER, - Appellant(s)
Versus
MAHERAJHUSEN
LALUMIYA MALEK & 2 - Respondent(s)
=================================================
Appearance
:
MR YV SHAH for Appellant(s) :
1,
MR.HIREN M MODI for Respondent(s) : 1 - 2.
RULE SERVED for
Respondent(s) : 3,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 29/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE G.B.SHAH)
1. We
have heard Mr Y V Shah, learned counsel for the appellant and Mr
Hiren Modi, learned counsel for the respondents No.1
& 2. The appellant, being aggrieved and dissatisfied by the
impugned order dated 9.7.2007 passed by the learned Single Judge in
Special Civil Application No.11230 of 2000, has preferred this
Appeal.
2. The brief facts of this
case are that the appellant is Dehgam Municipality duly constituted
under the provisions of the Gujarat Municipality Act, 1963. The
respondents were recruited as daily wager Peons and Naka Clerk in the
Octroi department of the appellant Municipality and they have worked
for more than 240 days in each year and the respondents were
illegally retrenched from service respectively with effect from
1.1.1991 and with effect from 23.11.1992 without giving any notice.
3. The Labour Court,
Ahmedabad had passed award on 25.6.1997 in Reference (LCA) No.2083 of
1993 directing the appellant to reinstate the respondents with full
back wages. Being aggrieved and dissatisfied by the said ex-parte
award, the appellant has challenged the same by preferring Special
Civil Application No.11230 of 2000. The learned Single Judge has
dismissed the said Special Civil Application vide order dated
9.7.2007 and hence the instant Letters Patent Appeal has been
preferred by the present appellant.
4. Learned counsel for the
appellant has vehemently submitted that the Labour Court and the
learned Single Judge ought to have considered that the Registered
Post with Acknowledgement Due notices were not duly served upon the
appellant Municipality by the Labour Court to file written statement
in both the References and no copy of statement of claims has ever
been served upon the appellant Municipality and no reasonable
opportunity of defence has ever been granted to the appellant
Municipality before passing the ex-parte award dated 25.6.1997 in
Reference (LCA) No.2024 of 1993 and Reference (LCA) No. 2084 of 1993.
Learned counsel for the appellant has then submitted that respondent
No.1 was appointed as daily wage peon between 23.7.1985 and
31.12.1990 for a limited period and has never worked for more than
240 days of service in any year and particularly in a preceding year
from the date of alleged retrenchment and, therefore, no question of
notice or notice pay and payment of retrenchment compensation arises
under the Industrial Disputes Act, 1947 and, therefore, respondent
No.1 has no right to claim such benefits. So far as respondent No.2
is concerned, he had worked only for 11 days during the leave vacancy
and thus the impugned ex- parte award cannot be enforced against the
appellant Municipality. Learned counsel for the appellant has then
submitted that the ex-parte award passed
by the Labour Court is grossly perverse and without jurisdiction and
no evidence has been produced by the respondents to show that they
had made efforts to get alternative job to mitigate the loss and not
gainfully employed elsewhere and they have not filed any affidavit
under
section 17B of the Act. He has further submitted that the
respondents have never completed 240 days’ service and therefore, the
appellant Municipality is not obliged to comply with the provisions
of section 25F of the Act. Moreover, the Octroi department is
already closed and when there is no work at all, it is practically
impossible to reinstate the respondents and as the ex-parte award
cannot be implemented in any circumstances, this matter should be
remanded to the Labour Court to decide the Reference afresh on
merits.
5. Learned counsel for the
respondents has placed reliance on Rule 26A and 26B of the Industrial
Disputes (Gujarat) Rules, 1966 (for short, ‘the Rules’) and submitted
that it is already provided in the said Rules that which steps one
could take from the date of knowledge of an ex parte order and as the
appellant had not chosen to take the benefit of the said provision
under the Rules, at this stage, the submission for remand to decide
the Reference on merits afresh should not be considered.
6. We have considered the
above referred rival submissions made by the learned counsel for the
parties. The learned Single Judge had observed in paras 3 and 4 of
order dated 9.7.2007 passed in Special Civil Application No.11230 of
2000 which reads as under:
“3. So
far as the question of service of notice upon the petitioner is
concerned, the petitioner, for the reasons best
known to them, but for making a statement that no notices were issued
to them, have not tried to file copy of the proceedings recorded by
the Labour Court, copies of the Summons issued by the Labour Court
and service report submitted by the process server to the Labour
Court. If such documents were filed before this Court, the court, in
such circumstances, at least make an inquiry
that in fact, the lower court was justified or not in proceeding
ex-parte. So far as the question of sufficiency of of cause is
concerned, I do not think that this Court would be entitled to look
into the sufficiency of the cause for absence, because, that would
have been in the domain of the first court, if an application for
setting aside ex-parte order / award was made before that Court.
4. So far as
the merits of the matter are concerned, learned Labour Court has
found and as a fact that the respondent had worked for more than 240
days in 12 calender months preceding the date of
retrenchment/illegal removal. If such were unimpeachable facts and
there was no controversy against the truth of the fact, the court
below cannot be condemned with an allegation that it faulted in
making the award.”
7. Considering the above
facts on record, we are unable to digest the submissions made by the
learned counsel for the appellant that the learned Single Judge ought
to have called for the Records & Proceedings from the Labour
Court before passing the impugned order dated 9.7.2007 and to verify
the allegations whether notices as required under the law were ever
served upon the appellant Municipality. Under this circumstances, it
is important to refer to Rule 26A and 26B of the Rules, 1966 for
consideration of this case and the same are extracted as under:
“R. 26A.
Setting aside ex-parte orders, awards and reports – (1) On
an application made within thirty days from the date of knowledge of
an ex-parte order, award or report by the party concerned, the Board,
Court, Labour Court, Tribunal or Arbitrator may, for sufficient
cause; set aside after notice to the opposite party such order, award
or report, as the case may be.
(2) The Board, Court,
Labour Court, Tribunal, or Arbitrator may on sufficient cause being
shown, extend the period referred to in sub-rule (1).
(3) An application under
sub-rule, (1) shall be supported by an affidavit.
R. 26B. Stay of operation
of awards – The Labour
Court Tribunal or Arbitrator shall have the power to stay the
operation of an award conditionally
or otherwise in appropriate cases, until the application for setting
aside ex-parte orders is disposed off finally.”
8. If
we peruse the above referred Rules, it is clear that if a party has
any grudge with the ex-parte order, award or report by the Board,
Court or Labour Court, Tribunal or Arbitrator had been passed then
from the date of the knowledge of the said ex-parte oder
showing sufficient cause one can proceed further for setting aside
the said award before the relevant Board, Court, Labour Court,
Tribunal or Arbitrator. But leaving all these aspects aside, the
present appellant Municipality has preferred to rush to the High
Court by filing Special Civil Application No.11230 of 2000. In our
view, the appellant Municipality wants to shift the burden cast upon
it on the High Court by submitting that the record and proceedings
had not been called for by the concerned court to see that whether
the notices had been duly served on the appellant Municipality or
not. But the learned Single Judge has rightly observed in para 3
referred above that the appellant could have produced the relevant
copies or certified copies of the record and proceedings of the trial
court to meet with his case but as he has utterly failed to do so,
the appellant should blame only himself and none else.
9. Learned
counsel for the appellant has placed reliance on the following
reported decisions of the Hon’ble the Apex Court as well as
of this High Court out of which he has cited the case of
HManshukumar Vidyarthi and Others v. State of Bihar and
others (1997) 4 SCC 391 in
which it has been held that the petitioners were not appointed to the
post on daily wages in accordance with the Rules but were engaged on
the basis of need of the work. Another decision in the case of Halvad
Nagarpalika & Others v. Jani Dipakbhai Chandravadanbhai &
Others (2003) 2 GLH 397 in
which it has been held that appointments were made without following
any legal procedure or statutory or recruitment policy and in that
event it is not material whether the workmen have completed the
service of 240 days in a year or not. The third decision on which
reliance was placed by the learned counsel for the appellant is the
case of Avas Vikas Sansthan & Anr. v. Avas Vikas
Sansthan Engineers Assn. & Ors 2006 (3) 583 in
which it has been held that where a project has been shut down due to
want of funds the employer cannot by a writ of mandamus be directed
to continue employing such employees. Finally the learned counsel
for the appellant has relied on para 17 of a decision in the case of
Ranip Nagar Palika v. Babuji Gabhaji Thakore and Ors.
(2008 AIR SCW 449) on the
point of remand of the case. Para 17 is extracted as under:
“17. There was need
for factual adjudication on the basis of the materials adduced by the
parties. That apparently has not been done. We therefore set aside
the orders of the Labour Court, learned Single Judge and Division
Bench of the High Court and remit the matter to the Labour Court to
consider the matter afresh. It has to specifically record a finding
as to whether the claim of the workmen of continuance of service is
acceptable. It has also to be decided as to whether the workmen had
completed 240 days of service. The decision is vital to see whether
section 25F of the Act has any relevance.”
10. We
have carefully perused the above referred decisions and there is no
dispute with the ratio laid down by the Apex Court as well as of this
Court but in our considered view, the same are not of any help to the
present appellant and are not required to be taken into consideration
because it is the fact that the Labour Court was compelled to pass
ex-parte order as referred above and moreover, the present appellant
has not chosen to file restoration application under the provisions
of Rule 26A and 26B of the Rules and chosen to prefer a wrong forum
by filing Special Civil Application No. 11230 of 2000.
11. It
is the say of the appellant that the Labour Court had never served
registered A.D. Notice upon the Chief Officer of the Municipality to
file written statement. We have carefully perused the award dated
25.6.1997 passed in Reference (LCA) No.2024/1993 and Reference
(LCA) No.2083/1993. The learned counsel for the respondent
has drawn our attention to paragraph No.3 of the said award and
submitted that it has been specifically mentioned by the Presiding
Officer that on behalf of first litigant i.e. Dahegam Nagarpalika the
written statement in Reference (LCA) No.2024/1993 was not filed but
it had filed the written statement in Reference (LCA) No.2083/1993
but the exhibit number to the said written statement had not been
given because the same was filed at a very belated stage and the
second litigant had taken objection for taking the said written
statement on record and thus the first litigant
i.e. Dahegam Municipality had remained negligent to see that the said
written statement be taken on record and be exhibited but they had
not taken any interest regarding the same. If we consider the above
facts emerged from the record, it is clear that a totally wrong
defence had been taken by the present appellant that the Labour Court
had not served registered A.D. notice upon the Chief Officer of the
Municipality to file written statement but it is clear that the
appellant itself remained negligent and in our view he should thank
itself for the same. Under the circumstances, we do not find any
illegality either in the impugned order passed by the learned Single
Judge or in the award passed by the Labour Court.
12. In the result, this
appeal fails and is accordingly dismissed.
Civil Application No.
1019 of 2008
In
view of the order passed in the main Appeal, this Civil Application
No.1019 of 2008 does not survive and is accordingly disposed of.
Rule is discharged. The ad-interim relief stands vacated.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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