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SCA/6739/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6739 of 2008
=========================================================
DINESH
RAMESHCHANDRA PANCHAL - Petitioner(s)
Versus
DISTRICT
COLLECTOR, SURAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BIPIN I MEHTA for
Petitioner(s) : 1,MR VICKY B MEHTA for Petitioner(s) : 1,
Mr.
Krunal Pandya, Asst. GOVERNMENT PLEADER for Respondent(s) :
1,
UNSERVED-REFUSED (N) for Respondent(s) : 2,
MR DIPAK R DAVE
for Respondent(s) : 3,
MR SAVAN N PANDYA for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 14/07/2008
ORAL ORDER
The
petitioner has preferred this petition against the inaction on the
part of respondent No.1 and not executing the recovery certificate
issued way back in September 2003 for an amount of Rs. 51,330/-.
2. Today,
Mr. Pandya, AGP appearing for respondent No.1 states that he has
received instructions, however reply affidavit on basis of
instructions could not be prepared and finalised. He also stated as
per information available to respondent No.1 that the respondent No.3
was ready and willing to pay the amount in question. It is clarified
and explained to Mr. Pandya, AGP appearing on behalf of respondent
No.1 that the readiness on part of the respondent No.3 to pay the
amount in question to the petitioner and/or today’s order in present
petition shall not absolve the respondent No.1 or his office from
explaining the inordinate delay caused and lethargy exhibited in not
executing the recovery certificate and the same shall have to be
explained by way of affidavit.
3. Mr.
Dave appears for respondent No.3. Mr. Dave submitted that actually
the workman was employed by respondent No.2 however subsequently the
respondent No.3 has taken over the establishment and affairs of said
respondent No.2 namely Techno Field Marketing Pvt.Ltd. He further
submitted that the present petitioner has preferred Reference
proceedings against the respondent No.2 and has also impleaded
present respondent No.3 herein in the said proceedings.
Simultaneously, this subject recovery proceedings were also initiated
by the present petitioner claiming diverse amounts in which the
subject ex-parte order came to be passed and thereafter the recovery
certificate in question was issued. He has also submitted that the
Reference proceedings also have culminated into an ex-parte award due
to non-appearance of respondent No.2, however, respondent No.3 has
now preferred miscellaneous application under Rule 26-A for
restoration of the said proceedings and the same is pending. In
this background, Mr. Dave, for respondent No.3, submitted that the
respondent No.3 will not, in future, seek to reopen the said recovery
application’s proceedings which have culminated into subject recovery
certificate, and, the respondent No.3 shall make payment of the
amount in question, i.e., Rs. 51,330/- however this would be without
prejudice to the rights and contentions of respondent No.3 in the
Reference proceedings and the miscellaneous application under Rule
26-A. The offer and request of respondent No.3 appears to be
reasonable. In that view of the matter, it appears that the
following directions would meet the ends of justice;
(1) The
respondent No.1 shall file affidavit explaining the inordinate delay
in respect of the recovery certificate issued in September 2003 since
all these 5 years the said certificate has not been executed;
(2) The
respondent No.3 shall pay the said amount of Rs. 51,330/- on or
before 25th July, 2008 to the petitioner herein by way of
an account payee cheque drawn in name of the petitioner;
(3) It
is clarified that the said payment by the respondent No.3 will not
come in its way in prosecuting the miscellaneous application for
restoration and/or in defending the Reference proceedings if and when
the same are restored by the Labour Court after examining the
miscellaneous application on its merits. It is also clarified that
the restoration application as well as other proceedings will be
decided by the Labour Court independently without being influenced by
this order and/or payment of the aforesaid amount and this order or
submission of respondent No.3 are not to be construed to mean that
the miscellaneous application for restoration is to be allowed. The
same shall be decided on its own merits.
(4) It
is also clarified that the aforesaid clarification shall not,
however,be used by the respondent No.3 for reopening the proceedings
concerning the recovery certificate and/or the recovery application
in which the order directing payment of Rs. 51,330/- came to be
passed. The said payment shall, for all purposes, close the
proceedings relating to the said demand.
4. With
the aforesaid observations and directions, the petition is disposed
of. Notice is discharged.
[
K.M. Thaker, J. ]
rmr.
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