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SCA/6748/2002 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6748 of 2002
=========================================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION - Petitioner(s)
Versus
RAJIYABANU
W/0. JAHANGIRSHA PALLA - Respondent(s)
=========================================================
Appearance
:
MS
ROOPAL R PATEL for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
RULE NOT
RECD BACK for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/02/2011
ORAL
ORDER
Heard
learned advocate Mr. Roopal R. Patel appearing on behalf of
petitioner – G.S.R.T.C. Rule is served to respondent workman –
Jahangirsha Palla, but, subsequently, he expired, therefore, his
heirs and legal representative is joined as respondent and notice of
rule is not served to heirs and legal representative of respondent.
In
this petition, petitioner has challenged order passed by Labour Court
in Recovery Application No.433 of 2001 dated 28th April,
2002 which is produced on record at Ex.12, Page 42 – Annexure ‘J’.
This recovery application was made by respondent workman under
Section 33(C)(1) of Industrial Disputes Act, 1947 with a prayer to
issue recovery certificate in favour of workman against petitioner
Corporation for recovering an amount which is already decided and
ordered by Labour Court, Junagadh in Recovery Application No.76 of
1997 dated 30.08.2001.
Initially,
respondent workman has filed recovery application under Section
33(C)(2) of Industrial Disputes Act, 1947 which was allowed being a
due amount and directed Corporation to pay to workman, which amount
comes to Rs.44,809/-.
Learned
advocate Ms. Roopal Patel appearing on behalf of petitioner
Corporation submitted that aforesaid order passed by Labour Court in
Recovery Application No.76 of 1997 Ex.31 has been challenged by
petitioner Corporation in Special Civil Application No.6031 of 2002,
wherein, rule has been issued by this Court, but, there is no stay
against order of recovery dated 30th August, 2001 passed
in Recovery Application No.76 of 1997. The payment was not made to
respondent by Corporation because of pendency of aforesaid petition.
One
another application had been made under Section 33(C)(1) of
Industrial Disputes Act, 1947 which has been allowed by Labour Court,
Junagadh vide order dated 5th April, 2002. The Labour
Court has directed to issue recovery certificate in favour of
respondent workman to recover Rs.44,809/- by
initiating revenue proceedings against
Corporation. Against aforesaid order, present petition is filed by
Corporation, wherein also, rule has been issued by this Court and
meanwhile, execution and operation of present order has been stayed
by this Court on 7th August, 2002 (Coram : Justice P.B.
Majmudar), which is quoted as under :
“On
24.7.2002, when this matter was placed for admission, the Court
had issued notice to the other side, and made the same returnable
on 12th August, 2002. However, by mistake, the order passed
in another petition, being Special Civil Application No.6778
of 2002, was transcribed in this Special Civil Application, which
reads as under :-
” … … …
Rule.
By way of interim relief, execution and operation of the
impugned order is stayed. However, the petitioner is directed
to comply with the provisions of Section 17-B of the
Industrial Disputes Act, from the date of the Award of the Labour
Court. Moment the respondent files necessary affidavit, as per the
provisions of Section 17-B of the I.D. Act, the Corporation will
comply with the said provision.
Hearing
is expedited. To be heard in the first week of December, 2002.
… … ….”
Subsequently, it was brought to the notice of this Court that the order passed in this Special Civil Application is not properly transcribed and, in that view of the matter, the order passed by this Court on 24.7.2002, which is incorporated above, is recalled and, now, following fresh order is passed in this Special Civil Application, today :-
Notice returnable on 26th August, 2002.
To be placed along with Special Civil Application No.6031 of 2002 on the aforesaid date.
In the meanwhile, execution and operation of the order, which is impugned in this petition, is stayed.
Direct service is permitted.”
When
in Special Civil Application No.6031 of 2002, no stay is granted by
this Court against implementation and execution of order passed in
Recovery Application No.76 of 1997 dated 30th August,
2001, then, present recovery application as referred above has been
filed and that has been allowed by Labour Court, Junagadh.
It
is necessary to note that workman has filed affidavit before Labour
Court, Junagadh vide Ex.2 in Recovery Application No.76 of 1997 and
made statement on oath that amount as per order passed in Recovery
Application No.76 of 1997 is not paid to respondent workman by
Corporation. The evidence of workman remained unchallenged, because,
no cross-examination has been made by advocate of Corporation inspite
of fact that on number of occasions, opportunities were given to
Corporation. Not only that but no oral evidence has been led by
petitioner Corporation before Labour Court and no documentary
evidence was also placed on record. Therefore, vide Ex.9, evidence of
workman has been closed and hence, order has been passed by Labour
Court issuing recovery certificate against present petitioner
Corporation.
In
light of these facts as discussed by Labour Court in Para 3 of
aforesaid order, contentions raised by learned advocate Ms. Roopal
Patel for petitioner Corporation cannot be accepted. Labour Court has
not committed any error in passing order in Recovery Application
No.433 of 2001 issuing recovery certificate against present
petitioner Corporation, because, order passed in Recovery Application
No.76 of 1997 dated 30th August, 2001 is not stayed by
this Court even not set aside by this Court, only petition is
remained pending before this Court and because of it, nothing has
come in way of Labour Court for issuing recovery certificate under
Section 33(C)(1) of Industrial Disputes Act, 1947. Therefore,
contentions raised by learned advocate Ms. Patel that petition is
pending against order dated 30th August, 2001 passed by
Labour Court, Junagadh cannot be accepted, because, against first
order of recovery, no stay is granted by this Court. Therefore,
according to my opinion, Labour Court has not committed any error
which requires interference by this Court.
It
is also necessary to note that notice has been issued by Labour Court
in second recovery application filed by workman under Section
33(C)(1), wherein, petitioner Corporation has not produced any
documents and oral evidence led and cross-examined workman and not
placed on record about the fact that matter is pending before this
Court. Therefore, Labour Court has rightly issued recovery
certificate. For that, Labour Court has not committed any error which
requires interference by this Court under Article 227 of Constitution
of India.
Hence,
there is no substance in present petition, accordingly, present
petition is dismissed.
[H.K.
RATHOD, J.]
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