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SCA/12551/2008 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12551 of 2008
=========================================================
GUJARAT
CLOTH DEALERS COOPERATIVE SHOPA & WAREHOUSING SOC - Petitioner
Versus
PARMARBHAI
KHUSHALBHAI PARMAR & 1 - Respondents
=========================================================
Appearance :
MR
DIPAK R DAVE for Petitioner : 1,
None for
Respondent : 1
MR
KRUNAL PANDYA AGP for respondent -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/10/2008
ORAL
ORDER
Heard
Shri Dave, learned counsel for the petitioner at length.
The
petitioner has made following prayers in this petition :
(i)
to quash and set aside the recovery notice dated 17.6.2008 issued by
the respondent No. 2.
(ii)
to direct the respondent No. 2 to immediately remove the seal
applied by him on the office premises of the petitioner;
(iii)Pending
the admission, hearing and final disposal of this petition, this
Hon’ble Court may be pleased to direct the respondent No. 2 to
remove the seal applied on the office premises of the petitioner.
(iv)
Any other and further relief or reliefs to which this Hon’ble Court
deemed fit, in the interest of justice; may kindly be granted.
The
main ground urged for quashing the impugned notice dated 17.6.2008
is that the petitioner is ready and willing to reinstate the
respondent and in order to indicate bonafide attempt for
reinstatement on the part of the petitioner, a letter dated
29.9.2008 is produced on record. Shri Dave for the petitioner
vehemently submitted that the award passed, whereupon, the recovery
certificate is issued is absolutely contrary to law and therefore,
the impugned notice in this proceeding deserves to be quashed and
set aside. Shri Dave has submitted that as the petitioner has
already filed proceedings for ex-parte order and award whereupon the
recovery certificate is based, the notice issued by Mamlatdar, Alian
Recovery impugned in this petition deserves to be quashed and set
aside. In the award, no findings are recorded with regard to
granting for back wages and therefore, that ex-parte award is bad in
law and therefore, it could not have been executable. Shri Dave
relies upon the decision of Madras High Court in case of M.S.N.S.
TRANSPORTS, TIRUCHIRAPPALLI VS. RAJARAM (K.) AND ANOTHER,
reported in 1961 (1) LLJ p.336 in support of his submission that in
such a case, the application for payment of wages would not be
maintainable and recovery application would be maintainable and
therefore, the notice issued by respondent No. 2 is required to be
quashed and set aside.
Following
undisputed facts as submitted by learned counsel for the petitioner
deserve to be set out as under:
The
employee had been allegedly terminated on 18.5.2004.
The
Industrial Dispute was raised and referred to the concerned Labour
Court for adjudication, which came to be numbered as Reference LCA
1379 of 2004 and the same was decided ex-parte on 20.9.2006. As for
the reasons recorded in restoration application pending before the
Competent Authority, the petitioner was prevented from even filing
written statement resisting the Reference.
The
ex-parte award is dated 20.9.2006.
The
payment of wages application was allowed ex-parte on 10.8.2007.
Shri
Dave fairly submitted that the respondent workman in fact approached
this Court by preferring Special Civil Application No. 8366 of 2008
for realizing the dues and implementation of the award. In that
proceedings, the present petitioner was represented by an advocate,
wherein, this Court (Coram: S.R.Brahmbhatt, J.) passed the following
order on 15.9.2008:
Rule.
Ms. Pathak, learned AGP waives service of Rule for respondent No. 1.
No one appear for respondent No. 2.
The
petitioner has approached this Court under Article 226 of the
Constitution of India seeking appropriate writ of mandamus or any
other writ, order or direction to respondent No. 1 for implementing
and effecting the recovery certificate dated 28.9.2007 for
recovering of the sum mentioned thereunder.
Ms.
Pathak, learned AGP submitted that certificate is required to be
effected and hence some time be stipulated so that the same could be
effected.
In
view of this, this petition is disposed of with following direction
:
The
respondent No. 1 is hereby directed to have the recovery certificate
implemented and recovered the amount mentioned thereunder in
accordance with law within a period of 90 days from the receipt of
the process of writ of this Court.
With
aforesaid direction, the petition is disposed of. Rule is made
absolute to the aforesaid extent. There shall be no order as to
costs.
It
deserves to be noted that during pendency of the said application,
Civil Application No. 10551 of 2008 had also been filed making
prayer for removal of the attachment and seals, which was sought to
be withdrawn and the permission was granted by this Court on
9.9.2008. The said order is produced at Pg. 44 of the petition.
Shri
Dave has submitted that restoration proceedings being Misc. Civil
Application Nos. 226 of 2008 and 252 of 2008 are pending.
Shri
Dave submits that the petitioner is not likely to run away as lot of
immovable properties available for attachment and therefore some
indulgence be granted. Shri Dave also submit that the petitioner is
facing great hardship.
This
Court has heard learned counsel for the petitioner at length. The
very prayer in this petition indicates that the petition is confined
to validity of the notice issued by respondent No. 2 and there is no
submission whatsoever with regard to authority and/or jurisdiction
for issuance of such notice. The submission made at length with
regard to serious infirmities in ex-parte award and based upon
which, recovery certificate has been issued cannot be examined in
absence of any prayer made in the petition. It also deserves to be
noted that in light of the pendency of the restoration proceedings
before the Competent Court, a question arises as to whether would it
be proper for this Court to examine the contention raised with
regard to validity or propriety of the ex-parte award. The answer
would be emphatic NO . The
respondent No. 2 has rightly issued the notice and as there is no
challenge to that notice with regard to its jurisdiction and/or
competence, the other grounds raised with regard to validity and
propriety of ex-parte award cannot be taken aid to assail the
recovery notice.
The
judgment cited at bar by the petitioner would not have applicability
in view of the aforesaid facts, as this Court is not examining the
validity and/or propriety of the ex-parte award as substantive
proceedings for quashing them aside have been preferred.
In
view of this, the petition being bereft of merits, deserves
rejection and is accordingly rejected. However, there shall be no
order as to costs.
(S.R.BRAHMBHATT,
J.)
pallav
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