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Gujarat High Court
Letters Patent Appeal No. 77 Of 2 vs Mr Ph Pathak For on 13 October, 2011
Author: J.M.Panchal, Honourable H.H.Mehta,
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD



     LETTERS PATENT APPEAL No 77 of 2001


             in


     SPECIAL CIVIL APPLICATIONNo 9183         of 2000



     --------------------------------------------------------------
     KARLI DOODH UTPADAK SAHAKARI MANDLI LIMITED
Versus
     RABARI DHIRJIBHAI SARTAN
     --------------------------------------------------------------
     Appearance:
     1. LETTERS PATENT APPEAL No. 77 of 2001
          MR RC JANI for Appellant No.
          MR PH PATHAK for Respondent No. 1


     --------------------------------------------------------------


                  CORAM : MR.JUSTICE J.M.PANCHAL
                                     and
                          MR.JUSTICE H.H.MEHTA


                  Date of Order: 06/07/2001


ORAL ORDER

(Per : MR.JUSTICE J.M.PANCHAL)
By filing this appeal under Clause 15 of the
Letters Patent of Bombay, the appellant has challenged
legality of judgment dated August 30, 2000 rendered by
the learned Single Judge in Special Civil Application No.
9183 of 2000 by which award dated September 23, 1999
passed by the Labour Court, Kalol, directing the
appellant to reinstate the respondent in service with
backwages, is confirmed.

2.The respondent was employed as Store Keeper. He
was dismissed from service on August 31, 1987. He,
therefore, raised, a dispute regarding legality of the
order by which his services were terminated. On failure
of conciliation proceedings, the dispute was referred to
Labour Court, Kalol for adjudication, where it was
numbered as Ref. (LCK) No. 83 of 1988. Statement of
claim was filed by the respondent to which written
statement was submitted by the appellant at Ex.19. The
respondent had given evidence on oath which was recorded
at Ex.20. Thereafter the appellant had submitted an
application at Ex.24 seeking permission of the Court to
lead evidence to prove misconduct of the respondent. The
Labour Court had rejected the said application and though
time was granted by the Labour Court to enable the
opponent to challenge the said order before the High
Court, the appellant accepted the order passed by the
Labour Court which was passed below application Ex.24,
and did not challenge the same before higher forum.
Thereafter, the appellant did not cross-examine the
respondent, though the matter was adjourned from time to
time on four occasions. On March 24, 1999, the appellant
submitted an application seeking adjournment in the
matter but the same was rejected by the Labour Court and
right of the appellant to cross-examine the respondent
was closed. Placing reliance on the evidence adduced by
the respondent, the Labour Court held that he had
continuously served for more than 240 days and the
appellant had not complied with the provisions of the
Industrial Disputes Act, 1947 before effecting his
retrenchment from service. Under the circumstances, the
Labour Court by award dated September 23, 1999, directed
the appellant to reinstate the respondent in service with
backwages.

3.Feeling aggrieved by the said award, the
appellant preferred Special Civil Application No. 9183
of 2000. The learned Single Judge has dismissed the same
by order dated August 30, 2000 giving rise to the present
appeal.

4.The learned Counsel for the appellant submitted
that in view of the averments made in the written
statement regarding misappropriation of the amount of the
appellant society, the Labour Court should not have
directed reinstatement in service with backwages. What
was claimed was that having regard to the averments made
in the written statement, the matter should be remanded
to the Labour Court reserving liberty to the appellant to
lead evidence to prove misconduct against the respondent.
Lastly, it was submitted that during interregnum period,
the respondent was gainfully employed, and therefore, in
any view of the matter, the direction to pay backwages
during the said interregnum period should be set aside by
this Court.

5.We have heard the learned Counsel for the
appellant and taken into consideration the record of the
case. A bare reading of the award makes it evident that
though sufficient opportunity was given to the appellant
to prove its case, no evidence worth the name was led by
the appellant in support of averments made in the written
statement. The observations made by the Labour Court in
the Award would indicate that the appellant was merely
interested in prolonging the case on one pretext or
other. Though the order passed by the Labour Court below
application Ex.24 is accepted by appellant, it was argued
that in view of the admission made by the respondent that
he had committed misappropriation of the funds belonging
to the appellant society, the award should be set aside.
However, we find that so called admission was never
produced by the appellant nor proved before the Labour
Court and does not form part of the record of the Labour
Court. Under the circumstances, we are of the opinion
that the Labour Court did not commit any error in
accepting uncontroverted and unchallenged evidence
adduced by the respondent and setting aside the order by
which the services of the respondent were terminated.
Thus direction to reinstate the respondent in service
granted by Labour Court being eminently just, is rightly
upheld by the learned Single Judge. Similarly, the claim
made by the appellant that during the interregnum period,
the respondent was gainfully employed, and therefore,
backwages should not have been awarded to him, is devoid
of merits. It is true that before the Labour Court, some
documents were sought to be produced by the appellant to
establish that during interregnum period, the respondent
was gainfully employed, and therefore, was not entitled
to backwages. However those documents are not proved at
all, and therefore, the Labour Court rightly held that as
the respondent was not gainfully employed during
interregnum period, he was entitled to backwages.

6.On over all view of the matter, we find that the
learned Single Judge has not committed any error in
dismissing the petition filed by the appellant under Art.
226 of the Constitution and no ground is made out by the
learned Counsel for the appellant to interfere with the
same in the present appeal. The net result is that we do
not find any substance in the appeal and the same is
liable to be dismissed.

7.For the foregoing reasons, the appeal fails and
is summarily dismissed.

Date: 06-07-2001.(J.M.PANCHAL, J.)
ccshah
( H.H.MEHTA, J.)


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