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CA/7783/2009 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 7783 of 2009
In
MISC.CIVIL
APPLICATION (STAMP NUMBER) No. 1307 of 2009
In
SPECIAL CIVIL APPLICATION No. 1689 of 2002
With
MISC.CIVIL
APPLICATION (STAMP NUMBER) No. 1307 of 2009
In
SPECIAL CIVIL APPLICATION No. 1689 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
RAJENDRA
CHANDRKANT MAHADIK - Petitioner(s)
Versus
LIFE
INSURANCE CORPORATION OF INDIA - Respondent(s)
=========================================================
Appearance
:
MR
UT MISHRA WITH MR TR MISHRA
for
Petitioner(s) : 1,
MR AK CLERK for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/04/2010
ORAL
JUDGMENT
1. The
present Civil Application is filed for condonation of delay of 1249
days caused in filing Misc. Civil Application No. 1307 of 2009 for
recalling the order dated 08.12.2005 whereby the main matter being
Special Civil Application No. 1689 of 2002 was allowed and thereby
has prayed for hearing the main matter afresh on merits.
2. The
Industrial Tribunal in Reference (ITC) No. 6 of 1998 passed an award
partly allowing the reference on 23.07.2001, directing the respondent
corporation herein to reinstate the petitioner and pay 50% backwages.
The said award came to be challenged by the respondent corporation
before this court by way of Special Civil Application No. 1689 of
2002 and this court vide order dated 08.12.2005 allowed the petition
and quashed the award of the Industrial Tribunal directing
reinstatement and backwages.
2.1 Being
aggrieved by the said order, the petitioner preferred Misc. Civil
Application No. 977 of 2009 for recalling the order dated 08.12.2005
and the same was rejected by this court vide order dated 24.04.2009
on the ground that application for condonation of delay was not
filed. Thereafter the present Civil Application is filed on
11.05.2009 for condonation of delay of 1249 days in filing the
application for recalling the order dated 08.12.2005 in main matter.
3. Mr.
U.T. Mishra, learned advocate appearing for the applicant has
submitted that the main matter was decided ex parte without hearing
the applicant’s advocate. Mr. Mishra has submitted that the
applicant was under a bonafide impression that he has given
Vakalatnama duly signed in favour of his previous advocate, but it
was quite later that the applicant learnt that the vakalatnama was
not actually handed over to the advocate.
3.1 Mr.
Mishra has submitted that it was only in the year 2008 that the
applicant came personally to the court and inquired from the office
and it is only then that he came to know that the matter was disposed
of way back in the year 2005. Thereafter, the application for
recalling the order was filed in the year 2009 which was rejected for
not filing delay condonation application.
3.2 Mr.
Mishra has submitted that only on the ground of delay, justice should
not be denied to the applicant. He has cited various decisions of
the Apex Court and High Courts to support his submission that the
Limitation Act is not directly applicable in a labour dispute.
4. Mr.
A.K. Clerk, learned advocate appearing for the respondent corporation
has strongly opposed this application for delay condonation. He has
submitted that the applicant cannot try to reopen the litigation
which has been decided way back in the year 2005 after a period of
almost four years on some flimsy ground of not filing of Vakalatnama.
4.1 Mr.
Clerk has drawn the attention of this court to the affidavit-in-reply
filed on behalf of the respondent corporation and submitted that the
applicant was thoroughly negligent and did not care at all about the
matter pending before this Court. He has submitted that there is no
cause much less sufficient cause made out by the applicant for
condonation of delay of 1249 days.
5. This
court has heard learned advocates for the either side at length and
also perused the documents, more particularly the affidavit-in-reply
and the rejoinder filed by either side. Before proceeding with the
matter, some facts deserve to be cleared outright. The Reference
(ITC) No. 6 of 1998 was filed in the year 1998 and award thereof was
passed in the year 2001. Thereafter, in the year 2002, Special Civil
Application was filed before this court and the same was allowed in
the year 2005.
5.1 An
application for recalling the order allowing the main matter was
filed in the year 2009 and the same was dismissed for want of delay
condonation application/prayer. The applicant thereafter filed the
present application. It is required to be noted that after the main
matter was allowed in the year 2005, the petitioner made no effort to
inquire about the status of the matter. The vague statement about
inquiring from the advocate then representing the case of the
applicant cannot be accepted inasmuch as the applicant himself has
stated that the signed Vakalatnama was not handed over to the
concerned advocate at the relevant time. The advocate would
obviously have asked for signed vakalatnama for filing appearance.
The applicant seems to be negligent and regardless of his matter.
6. It
is also required to be noted that the order dated 08.12.2005 allowing
the main matter in favour of the respondent corporation was passed on
merits. Though served, the applicant did not remain present either
personally or through advocate. Neither did the applicant file any
application for availing benefits under the provisions of Section 17B
of the Act. The court in the absence of any representation on behalf
of the applicant proceeded on merits of the case.
7. The
delay condonation application is also strongly opposed by the
respondent corporation. At this juncture, the affidavit-in-reply
filed by the respondent corporation also brings out certain important
aspects of the matter and therefore paras 5, 6 & 8 shall be
relevant to be reproduced:
“5.
It is further submitted that in fact, the averments made in the
application clearly shows that the applicant was thoroughly negligent
and did not care at all about the matter pending before this Hon’ble
Court. The applicant has not given any specific dates for showing
sufficient cause and has only made vague statements which are not
supported by any documents. It is further submitted that the
applicant has not given any explanation for the inordinate delay of
1249 days in filing the Misc. Civil Application. In fact the
applicant admits that he was under a wrong impression. The applicant
has not taken any stops to find out the facts and therefore the
applicant has not made out any grounds for condonation of delay.
6. It
is further submitted that the applicant has admitted that he had not
given the Vakalatnama duly signed to his advocate. Therefore no
fault can be found with the learned Advocate. It is evident that the
applicant himself was negligent. The applicant has further admitted
that in 2007 also he had made inquiries about the matter. Even at
that stage the applicant has not taken any steps nor made any effort
to find out the status of the matter. The applicant has further
admitted that in February 2008 also he had inquiry. It is therefore
clear that the applicant was absolutely negligent and did not care
about the matter for almost 4 years.
8. It
is submitted that the present application for condonation of delay is
filed in MCA(Stamp) No. 1307 of 20089. The prayer made in MCA
(Stamp) No. 1307 of 2009 is for recalling the order dated 08.12.2005.
It is submitted that MCA (Stamp) No. 1307 of 2009 is not
maintainable as MCA No. 977 of 2009 for the same prayer has been
dismissed by this Hon’ble Court by the order dated 24.04.2009.
Therefore MCA(Stamp) No. 1307 of 2009 is barred by resjudicata and is
not maintainable. Therefore the present Civil Application is also
not maintainable.”
8. In
view of the aforesaid averments, this court is of the view that the
applicant has not shown any cause which can be treated as sufficient
cause for the condonation of delay of 1249 days. The only ground
which has been tried to be explained herein portrays the callous and
negligent attitude of the applicant and therefore no discretion can
be granted in this regard.
9. Mr.
Mishra, learned advocate for the applicant has tried to rely upon
various decisions in this regard and the same are considered as
under:
(i)
Collector, Land Acquisition,
Anantnag and another vs. Mst. Katiji and others reported in AIR 1987
SC 1353 wherein the Apex
Court has observed that the doctrine of equality before law demands
that all litigants including the State as litigant, are accorded the
same treatment and the law is administered in an even-handed manner.
There is no warrant for according a step-motherly treatment when the
State is the applicant praying for condonation of delay. In fact on
account of an impersonal machinery and the inherited bureaucratic
methodology imbued with the note making, file pushing and passing on
the buck ethos, delay on the part of the State is less difficult to
understand though more difficult to approve. In any event, the State
which represents the collective cause of the community, does not
deserve a litigant non grata status. So also the approach of the
Courts must be to do even-handed justice on merits in preference to
the approach which scuttles a decision on merits.
(i.i)
In this case, the Apex Court has mainly considered the case of the
State machinery which actually is hit by impersonal machinery and the
inherited bureaucratic methodology imbued with the note making, file
pushing and passing on the buck ethos etc. However, such is not the
case in the present application. The applicant seems to have been
regardless for around four years inspite of rule being served upon
him.
(ii)
Ajaib Singh vs. The Sirhind Co-operative Marketing-cum-Processing
Service Society Ltd. and another reported in AIR 1999 SC 1351
wherein the Apex Court has held that the provisions of Article 137 of
the Schedule to Limitation Act, 1963 are not applicable to the
proceedings under the Industrial Disputes Act and that the relief
under it cannot be denied to the workmen merely on the ground of
delay. The plea of delay if raised by the employer is required to be
proved as a mater of fact by showing the real prejudice and not as a
merely hypothetical defence. No reference to the labour court can be
generally questioned on the ground of delay alone. Even in a case
where the delay is shown to be existing, the tribunal, labour court
or board, dealing with the case can appropriately mould the releif by
declining to grant back wages to the workman till the date he raised
the demand regarding his illegal retrenchment/termination or
dismissal. The Court may also in appropriate cases direct the
payment of part of the back wages instead of full back wages.
(ii.i)
In the aforesaid case, the issue involved was that the services of
the workman were terminated on 16.07.1994 and he had issued the
notice of demand only on 8.12.1981. It is also not disputed that no
plea regarding delay appears to have been taken by the management
before the labour Court. However, in the instant case, the delay has
occurred in filing application for recalling the order passed against
the applicant who either chose not to remain present though rule was
served upon him or remained negligent of his case before this court.
(iii)
Similar principle as in Ajaib Singh (supra) is accepted in the case
of Shahaji vs. Executive Engineer, P.W. D. reported in 2007(115)
FLR 675. In that view of the matter, the said decision shall
also not be applicable to the facts and circumstances of the present
case as both are different.
(iv)
Assistant Engineer and another vs. Judge, Labour Court and others
reported in 2006(109) FLR 274 wherein the Rajasthan High Court has
held that so far as delay of about 5 years in raising the industrial
dispute is concerned, it is settled proposition of law that Labour
Law is a benevolent legislature and it should not be rejected on mere
technical grounds. Similar view has been taken by the Hon’ble Supreme
Court in umpteen number of cases wherein there was delay of about 10
to 12 years.
(iv.i)
The aforesaid case revolves around the issue of raising industrial
dispute after an inordinate delay. In the instant case, the delay is
not in raising industrial dispute but restoration application in a
writ petition. The facts of the said case, therefore, cannot be said
to be applicable in the present case.
(v)
Gujarat State Road Transport Corporation vs. Shri P.D. Solanki
reported in 1996(1) GLH 709 wherein this Court in a case
challenging the award of the Labour court granting reinstatement and
full backwages, on the ground that the concerned advocate for the
petitioner remained absent during the time of the hearing and did not
produce the records before the Labour Court though the same was
handed over to him held that the cause of justice cannot be defeated
because of inaction of the lawyer for the petitioner and the matter
was remanded to the Labour Court for de novo hearing.
(v.i)
In the present case, the applicant as stated by him, was himself
negligent in handing over the relevant papers to the advocate. In
other words, he did not engage an advocate to represent his case. In
such a case, the facts of the aforesaid case cannot be said to be
applicable.
(vi)
(The) Special Tehsildar, Land Acquisition, Kerala vs. K.V.
Ayisumma reported in 1996(2) GLH 667 wherein the Apex Court has
condoned the delay of fives years in filing application for review of
the award and decree by the reference Court observing that an
explanation of day to day delay at the behest of government is
difficult as the transaction of the business of the Government is
done leisurely by officers who had no or evince no personal interest
at different levels.
(vi.i)
The aforesaid case also, as in the case of Collector, Land
Acquisition, Anantnag (supra), has considered the case of the State
machinery wherein no one takes personal responsibility in processing
the matters expeditiously. However, such is not the case in the
present application. The applicant has his own personal interest in
the present case and ought to have remained all the more careful. On
the other hand the applicant seems to have been negligent for around
four years inspite of rule being served upon him.
(vii)
Shiv Dass vs. Union of India &
Ors. reported in AIR 2007 SC 1330 wherein
the Apex Court remanding the matter dismissed by the High Court on
the ground of delay held that if petition is filed beyond a
reasonable period of 3 years, normally Court would reject the same or
restrict the relief which could be granted to a reasonable period of
about 3 years, in the instant case the High Court did not examine
whether on merit appellant had a case.
(vii.i)
In the instant case, the order allowing the petition in favour of the
respondent corporation was also considered on merits. The present
application is preferred after a period of four years. In fact it is
required to be noted that the Apex Court in the aforesaid decision
had also restricted the High Court in giving any relief for a period
exceeding three years from the date of presentation of the writ
petition. In fact the Apex Court has held therein that
if there is
inordinate delay on the part of the petitioner and such delay is not
satisfactorily explained, the High Court may decline to intervene and
grant relief in exercise of its writ jurisdiction.
(viii)
N. Balakrishnan vs. M.
Krishnamurthy reported in AIR 1998 SC 3222
wherein the Apex Court has observed that condonation of delay is a
discretionary power of court and that the length of delay is no
matter but acceptability of explanation is only criterion.
(viii.i)
In the present case, not only there is an inordinate delay of 1249
days but also no plausible explanation has come forth. This court is
not inclined to accept the explanation regarding the vakalatnama not
handed over to the advocate concerned.
(ix)Rafiq
vs. Munshi Lal reported in AIR 1981 SC 1400
observed that an innocent party who has done everything in his
power should not suffer for the inaction and the deliberate omission
or misdemeanour of his counsel.
(ix.i)
In the present case,
the applicant as stated by him, was himself negligent in handing over
the relevant papers to the advocate. In other words, he did not
engage an advocate to represent his case. In such a case, the facts
of the aforesaid case cannot be said to be applicable.
10. Considering
the overall facts and circumstances of the case, coupled with the
decisions cited hereinabove, this court is of the opinion that this
is a case where the negligence is purely on the part of the
applicant. Moreover, the principle of reference shall not apply in a
writ petition under Article 227 of the Constitution of India more
particularly in a restoration application. No other plausible
explanation is coming on record other than the negligence of the
applicant. Moreover, this court while allowing the main matter in
favour of the respondent corporation had decided the matter on
merits.
11. This
court is thus not inclined to grant any discretion in favour of the
applicant after a period of more than three and half years.
Accordingly, Civil Application is rejected. Rule is discharged. No
costs.
12. In
view of the fact that the delay condonation application is rejected,
Misc. Civil Application (stamp) No. 1307 of 2009 shall not survive
and is accordingly rejected.
(K.S.
JHAVERI, J.)
Divya//
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