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LPA/1664/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1664 of 2010
In
SPECIAL
CIVIL APPLICATION No. 844 of 2010
With
CIVIL
APPLICATION No. 8503 of 2010
In
LETTERS PATENT APPEAL No. 1664 of 2010
=========================================================
PITAMBERDAS
RAMCHANDRA VATWANI/VATVANI - Appellant
Versus
GIRISHKUMAR
TULSIBHAI MAKWANA & 24 - Respondents
=========================================================
Appearance
:
MR
HARDIK C RAWAL for
Appellant : 1,MRS MH RAWAL for Appellant : 1,
None for Respondents
: 1 - 25.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 15/12/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
appellant herein was petitioner before learned single Judge in SCA
No.844 of 2010, which petition was dismissed, exercising the powers
under Article 227 of the Constitution, on 29.3.2010. Invoking Clause
15 of the Letters Patent, it is argued for the appellant that the
observations made by learned single Judge in respect of
maintainability of review application by the Controlling Authority
under the Payment of Gratuity Act, 1972 were erroneous and, in the
peculiar facts and circumstances of the case, the appellant was
required to be given a chance of hearing on merits, since original
order for payment of gratuity was made ex-parte and the
subsequent attempts of the appellant at setting aside the ex-parte
order have successively failed.
2. Relevant
facts of the case are that the respondent herein preferred
applications for payment of gratuity which were registered as
Gratuity Case Nos.125 to 149 of 2007 and after notice to and filing
of written submission by the appellant, ex-parte order had to
be made on 23.6.2008 due to absence of the appellant before the
Controlling Authority. Thereafter, on 06.07.2009, an application for
review of the ex-parte order was made and it was rejected on
the same day on account of being barred by limitation. Thereafter,
the appellant preferred an appeal from the original ex-parte
order as well the order in review application on 18.7.2009. That
appeal was rejected on 29.7.2009. Admittedly, the appeal was filed
without complying with the condition of depositing the amounts of
gratuity.
3. Under
the above circumstances, even as provision for setting aside an
ex-parte order of Controlling Authority was searched out and cited
by learned counsel Mr.H.C.Rawal, from the Payment of Gratuity
(Gujarat) Rules, 1973, it was clear from bare reading of Rule 11 (5)
and proviso thereto that application for setting aside ex-parte
order had to be made within 30 days of the order, which condition was
admittedly not satisfied. Therefore, the so-called application for
review was bound to be rejected. Thereafter, appeal was also not
filed within time, even though the main challenge was to the ex-parte
order of the Controlling Authority and the requirement of depositing
the required amount of gratuity was not fulfilled. It appears from
the record that instead of defending the cases on merits and pursuing
the legal remedies available to the appellant, he had preferred to
concoct a document of settlement which was suspected by learned
single Judge to be an exercise in collusion with one of the workmen
concerned. Therefore, the ultimate result of the challenge to the
orders of the Controlling Authority as well as Appellate Authority
had to be negative, whether the Court was entertaining the petition
under Article 226 or 227 of the Constitution. Hearing the main
grievance of the appellant about quashing the ex-pate order,
it was put to learned counsel whether the appellant was prepared to
deposit the amount which the Controlling Authority had ordered, as a
condition for issuing notice to the respondent, but learned counsel
had, on instruction, expressed his inability to deposit any amount.
Under the circumstances, the present appeal is not only devoid of
merits, but appears to be lacking in bona fide. Therefore, it
is summarily dismissed along with the civil application.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(J.C.Upadhyaya,J.)
(KMG
Thilake)
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