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LPA/944/2001 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 944 of 2001
with
CIVIL
APPLICATION NO 10063 of 2001
In
SPECIAL
CIVIL APPLICATION No. 6051 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE B.J.SHETHNA
HONOURABLE
MR.JUSTICE M.C.PATEL
==============================================================
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 ?
==============================================================
MD
SHAH AND HITEN RASHMIKANT GARDI HIGHER SECONDARY HIGH - Appellants
Versus
LASUBEN
NARANBHAI RABARI - Defendant(s)
==============================================================
Appearance
:
MR
HS MUNSHAW for
Appellant(s) : 1,
MR UM SHASTRI for Defendant(s) :
1,
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE B.J.SHETHNA
and
HONOURABLE
MR.JUSTICE M.C.PATEL
Date
: 07/09/2005
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE B.J.SHETHNA)
The
respondent ? lady Lasuben Naranbhai Rabari filed Recovery
Application No.152 of 1994 before the Labour Court, Surendranagar
u/s.33(c)(2) of the Industrial Disputes Act (for short ?Sthe Act??),
wherein she has stated that she was working with the School as Peon
since 1.12.1988 for which she was paid only Rs.100/- pm. Minimum
Wages Act applies to the school as well. But, instead of paying
Minimum Wages to her she was paid only Rs.100/- pm and later on she
was illegally dismissed from service. Thus, she claimed difference
in salary between 1.12.1988 to 30.6.1994 before the Labour Court,
Surendranagar. Notice of that Recovery Application was duly served
upon the Appellant ? School. Though Reply Ex.6 was filed by the
appellant School, for about 3-1/2 years they miserably failed to
remain present before the Labour Court. Therefore, by order passed
below Ex.12 their right to lead evidence was closed. The respondent
was examined before the Labour Court and after considering her
evidence the Labour Court allowed her Application and ordered to pay
Rs.50,250/- as difference in the salary of the respondent ?
workman towards Minimum Wages within 30 days from the date of
receipt of the order. Rs.250/- was awarded by way of cost to the
respondent. This order dated 25.8.2000 passed by the Labour Court
was duly served upon the appellant ? School on 31.8.2000. For
setting aside the ex-parte order Application was required to be
filed within one month before the Labour Court, but that application
was also not filed within time. Later on, after expiry of period of
limitation Miscellaneous Application No.27 of 2000 was filed before
the Labour Court for setting aside the ex-parte order passed by the
Labour Court without filing separate application for condonation of
delay. On that Application Notice was issued to the respondent ?
workman and after considering her reply the Labour Court dismissed
that Miscellaneous Application for quashing and setting aside the
ex-parte order. Aggrieved of the same the appellant ? School
approached this Court by way of writ petition i.e. Special Civil
application No.6051 of 2001 under Art. 226 & 227 of the
Constitution of India and prayed that both the impugned orders dated
25.8.2000 as well as 16.4.2001, passed by the Labour Court be
quashed and set aside. Learned Single Judge of this Court (Ravi R.
Tripathi, J.) by his order dated 30.7.2001 dismissed the said
petition by observing that in spite of several opportunities given
to the petitioners they did not bother to remain present before the
Labour Court. Therefore, the Labour court has no alternative but to
close the evidence and pass the order on Recovery Application. Even
in Miscellaneous Application not a word was mentioned as to why
they failed to remain present before the Labour Court. In view of
this, the learned Single Judge was of the opinion that the
appellants were absolutely negligent in not remaining present before
the Labour Court in Recovery Application. Therefore, he refused to
exercise his discretionary jurisdiction in favour of the appellant ?
petitioner. This is challenged in this Appeal.
Shri
Barot for the appellant submitted that though they have not remained
present before the Labour Court in Recovery Application, reply Ex.6
to the Recovery Application was filed by them, wherein it was
specifically stated that she was working hardly for half an hour and
that too for a few days in a year. This was not considered by the
Labour Court. It is true that such reply was filed but no evidence
was led by the appellant ? School before the Labour Court to that
effect. The respondent lady was examined before the Labour Court and
in her evidence she has specifically stated that she was working
eight hours a day, and not in a month and she was not paid the
salary in accordance with Rules. In that view of the matter the
Labour Court allowed that Recovery Application then there is no
question of interference. The appellant was very much negligent,
that even after receipt of the ex-parte order passed by the Labour
Court they did not move the Application for setting aside the
ex-parte order within a period of limitation. There was a delay even
in filing such Application and without filing separate Application
for condonation of delay they prayed for setting aside the ex-parte
order. On facts, the learned Judge rejected that Application on the
ground that no case was made out for setting aside the ex-parte
award and for nearly 3-1/2 years the applicant constantly failed to
remain present before the Labour court in Recovery Application. When
the Labour Court refused to set aside ex-parte Award and the learned
Single Judge of this Court also refused to interfere with such order
in exercise of his discretionary writ jurisdiction then this Court
in LPA will not interfere with such order.
In
view of the above discussion, this Appeal fails and is hereby
dismissed.
As
the main Appeal is dismissed, Civil Application No. 10063 of 1005
(for stay) has to be dismissed and accordingly it is dismissed.
Interim relief, granted earlier, stands vacated. The amount of
rs.25,000/- deposited by the appellant will have to be paid to the
respondent by A/c. Payee cheque. Rest of the amount to be paid by
the appellant to the respondent as early as possible and not later
than 31.12.2005 by way of A/c. Payee Cheque.
(B.J.SHETHNA,J.)
(M.C.PATEL,
J.)
sas
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