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LPA/692/2011 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 692 of 2011
In
SPECIAL
CIVIL APPLICATION No. 1401 of 2011
With
CIVIL
APPLICATION No. 5112 of 2011
In
LETTERS PATENT APPEAL No. 692 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
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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 ?
=================================================
SASHIN
AND COMPANY - Appellant(s)
Versus
RUPA
UKA SAKARIA SINCE DECD. THRO' HEIR & 1 - Respondent(s)
=================================================
Appearance :
MR
PJ KANABAR for Appellant(s) : 1,
None for Respondent(s) : 1 -
2.
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 02/05/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Mr P J Kanabar, learned counsel for the appellant. This
Letters Patent Appeal has been filed challenging the order dated
7.3.2011 passed by the learned Single Judge in Special Civil
Application No.1401 of 2011. The appellant challenged the ex-parte
order passed by the Workmen Compensation Commissioner and Labour
Court, Surendranagar in Misc.Application No.3 of 2009 dated
31.8.2010. The Commissioner had decided Workmen Compensation
(Non-fatal) Case No.106 of 1993 by order dated 26.7.2002 against the
appellant with a direction to pay Rs.97,320/- with a penalty of
Rs.48,660/-, the total of which comes to Rs. 1,45,980/- with 6%
interest with effect from 19.6.1991. This amount was to be deposited
by the appellant within 30 days from the date of receiving the order
of the Commissioner.
2. Before
the Commissioner, the appellant remained absent though notices issued
by the Commissioner was served on the appellant and no reply was
filed by the appellant. Therefore, the Commissioner, after
considering the medical certificate dated 14.11.2000 and after
considering the evidence of the workman, passed an order dated
26.7.2002 against the appellant. Thereafter, the appellant approached
the Commissioner by way of Misc. Application No.3 of 2009 with a
prayer to condone the delay in filing the application for
restoration. It is relevant to point our here that the respondent
workman Rupabhai Ukabhai Sakaria had died during the pendency of the
proceedings, therefore, no reply could be filed by him opposing the
aforesaid application filed by the appellant for condoning the delay.
The appellant did not lead any oral or documentary evidence before
the Commissioner to prove the contents of the application for
condonation of delay of more than seven years. The appellant filed
written arguments which were considered by the Commissioner. The
Commissioner came to the conclusion that Notice dated 28.12.1999 was
received by the appellant and the assertions made in the application
that the notice was not received from the Commissioner was incorrect
and against the material on record. The certified copy of the order
dated 17.9.2002 was received by the appellant. Subsequently recovery
certificate had been issued by the Commissioner on 19.4.2004 to the
District Collector, Rajkot. Thereafter, recovery proceedings had
been initiated against the appellant and attachment notice was
issued to the appellant. Thereafter the appellants have filed
restoration application which has been rejected by the Commissioner
on 31.8.2010. This order was challenged by the appellant before the
learned Single Judge and the learned Single Judge on 7.3.2011 has
dismissed the writ petition filed by the appellant.
2. The
learned Single Judge has relied on the decisions of the Apex Court
which are extracted as under:
“…In
Union of India & Ors. v. A. Durairaj (D.) reported
in 2011 AIR SCW 873, the
relevant discussion made in Para 13 and 14 which are quoted as under
:
“13. It
is well settled that anyone who feels aggrieved by non-promotion or
non-selection should approach the Court/Tribunal as early as
possible. If a person having a justifiable grievance allows the
matter to become stale and approaches the Court/Tribunal belatedly,
grant of any relief on the basis of such belated application would
lead to serious administrative complications to he employer and
difficulties to the other employees as it will upset the settled
position regarding seniority and promotions which has been granted to
others over the years. Further, where a claim is raised beyond a
decade or two from the date of cause of action, the employer will be
at a great disadvantage to effectively contest or counter the claim,
as the officers who dealt with the mater and/or the relevant records
relating to the matter may no longer be available. Therefore, even if
no period of limitation is prescribed, any belated challenge would be
liable to be dismissed on the ground of delay and laches.
14. This
is a typical case where an employee gives a representation in a
matter which is stale and old, after two decades and gets a direction
of the Tribunal to consider and dispose of the same; and thereafter
again approaches the Tribunal alleging that there is delay in
disposal of the representation (or if there is an order rejecting the
representation, then file an application to challenge the rejection,
treating the date of rejection of the representation as the date of
cause of action). This Court had occasion to examine such situations
in Union of India v. M.K. Sarkar [2010 (2) SCC 59] : (2009 AIR SCW
7621 Lab IC 575 : AIR 2009 SC (supp) 2158) and held as follows (para
9 of AIR SCW):
“The
order of the Tribunal allowing the first application of respondent
without examining the merits, and directing appellants to consider
his representation has given rise to unnecessary litigation and
avoidable complications. x x x x x
When
a belated representation in regard to a ‘stale’ or ‘dead’
issue/dispute is considered and decided, in compliance with a
direction by the Court/Tribunal to do so, the date of such decision
cannot be considered as furnishing a fresh cause of action for
reviving the ‘dead’ issue or time-barred dispute. The issue of
limitation or delay and laches should be considered with reference to
the original cause of action and not with reference to the date on
which an order is passed in compliance with a court’s direction.
Neither a Court’s direction to consider a representation issues
without examining the merits, nor a decision given in compliance with
such direction, will extend the limitation, or erase the delay and
laches.
A
Court or Tribunal, before directing ‘consideration’ of a claim or
representation should examine whether the claim or representation is
with reference to a ‘live’ issue or whether it is with reference to a
‘dead’ or ‘stale’ issue. If it is with reference to a ‘dead’ or
‘stale’ issue or dispute, the Court/Tribunal should put an end to the
matter and should not direct consideration or reconsideration. If the
court or Tribunal deciding to direct ‘consideration’ without itself
examining of the merits, it should make it clear that such
consideration will be without prejudice to any contention relating to
limitation or delay and laches. Even if the Court does not expressly
say so, that would be the legal position and effect.”
We
are, therefore of the view that the High Court ought to have affirmed
the order of the Tribunal dismissing the application of the
respondent for retrospective promotion from 1976, on the ground of
delay and laches.”
... .... ... "6.5. In
case of Bhoop Singh Vs. Union of India, reported in AIR
1992 SC 1414, the Apex Court has held in Para.8 as under :
“8.
There is another aspect of the matter. Inordinate and unexplained
delay or laches is by itself a ground to refuse relief to the
petitioner, irrespective of the merit of his claim. If a person
entitled to a relief chooses to remain silent for long, he thereby
gives rise to a reasonable belief in the mind of others that he is
not interested in claiming that relief. Others are then justified in
acting on that behalf. This is more so in service matters where
vacancies are required to be filled promptly. A person cannot be
permitted to challenge the termination of his service after a period
of twenty-two years, without any cogent explanation for the
inordinate delay, merely because others similarly dismissed had been
reinstated as a result of their earlier petitions being allowed.
Accepting the petitioner’s contention would upset the entire service
jurisprudence and we are unable to construe Dharampal in the manner
suggested by the petitioner. Art. 14 or the principle of
non-discrimination is an equitable principle and, therefore, any
relief claimed on that basis must itself be founded on equity and not
.be alien to that concept. In our opinion, grant of the relief to the
petitioner, in the present case, would be inequitable instead of its
refusal being discriminatory as asserted by learned counsel for the
petitioner. We are further of the view that these circumstances also
justify refusal of the relief claimed under Art. 136 of the
Constitution.”
6.6. In
case of State of M.P. & Others Vs. Nandlal Jaiswal and Others,
reported in AIR 1987 SC 251, the Apex Court has held in Para.23
as under :
“23.
Now, it is well settled that the power of the High Court to issue an
appropriate writ under Article 226 of the Constitution is
discretionary and the High Court in the exercise of its discretion
does not ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is inordinate delay on the
part of the petitioner in filing a writ petition and such delay is
not satisfactorily explained, the High Court may decline to intervene
and grant relief in the exercise of its writ jurisdiction. The
evolution of this rule of laches or delay is premised upon a number
of factors. The High Court does not ordinarily permit a belated
resort to the extraordinary remedy under the writ jurisdiction
because it is likely to cause confusion and public inconvenience and
bring in its train new injustices. The rights of third parties may
intervene and if the writ jurisdiction is exercised on a writ
petition filed after unreasonable delay, it may have the effect of
inflicting not only hardship and inconvenience but also injustice on
third parties. When the writ jurisdiction of the High Court is
invoked, unexplained delay coupled with the creation of third party
rights in the meanwhile is an important factor which always weighs
with the High Court in deciding whether or not to exercise such
jurisdiction. We do not think it necessary to burden this judgment
with reference to various decisions of this Court where it has been
emphasised time and again that where there is inordinate and
unexplained delay and third party rights are created in the
intervening period, the High Court would decline to interfere, even
if the State action complained of is unconstitutional or illegal. We
may only mention in the passing two decisions of this Court one in
Ramanna Dayaram Shetty v. International Airport Authority of India,
(1979) 3 SCR 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v.
Collector, Raipur, (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point
out that in R. D. Shetty’s case (supra), even though the State action
was held to be unconstitutional as being violative of Article 14 of
the Constitution, this Court refused to grant relief to the
petitioner on the ground that the writ petition had been filed by the
petitioner more than five months after the acceptance of the tender
of the fourth respondent and during that period, the fourth
respondent had incurred considerable expenditure, aggregating to
about Rs. 1.25 lakhs, in making arrangements for putting up the
restaurant and the snack bar. Of course, this rule of laches or delay
is not a rigid rule which can be cast in a straitjacket formula, for
there may be cases where despite delay and creation of third party
rights the High Court may still in the exercise of its discretion
interfere and grant relief to the petitioner. But such cases where
the demand of justice is so compelling that the High Court would be
inclined to interfere in spite of delay or creation of third party
rights would by their very nature be few and far between. Ultimately
it would be a matter within the discretion of the Court; ex
hypothesis every discretion must be exercised fairly and justly so as
to promote justice and not to defeat it.”
The learned
Single Judge, therefore, found that the delay in filing application
filed by the appellant could not be condoned in light of the
aforesaid decisions. The learned Single Judge has further held as
under:
... ... ... "The
contention raised by learned advocate Mr. Kanabari before this Court
is that acknowledgment, Page 31, does not bear signature of
petitioner and Page 42 – second acknowledgment, where also,
signature was in dispute, but, it is necessary to note in support of
this contention, no one was examined by petitioner before
Commissioner who can deny signature of petitioner. Before
Commissioner, while conducting delay condone application, no oral
evidence was led by petitioner and in support of delay, no
documentary evidence has been produced by petitioner and even no
reasonable explanation has been given by petitioner. The contention
raised by learned advocate Mr. Kanabari that instead of 255
disability as certified in medical certificate, the finding of 100%
disability is contrary to medical certificate, but, Commissioner has
considered oral evidence of workman which was remained unchallenged
and according to evidence of workman, he was totally unfit for doing
any kind of work, that itself is proved 100% disability in earning
capacity. The Commissioner has rightly examined 100% disability of
workman in earning capacity, against which, there is no rebuttal
evidence produced by petitioner before Commissioner. Therefore,
contentions raised by learned advocate Mr. Kanabar cannot be
accepted.
In
view of lethargic approach, non-cooperative attitude and not given
compensation to workman when accident has been occurred with a
knowledge to petitioner, therefore, contentions raised by learned
advocate Mr. Kanabar on merits cannot be examined by this Court and
delay is not at all explained by petitioner before Commissioner and
Commissioner has rightly considered original records of Case No.106
of 1993 and for that, Commissioner has not committed any error which
requires interference by this Court. Therefore, contentions raised by
learned advocate Mr. Kanabar cannot be accepted, hence, rejected.
Therefore,
according to my opinion, order passed by Workmen’s Compensation
Commissioner, Surendranagar rejecting delay condone application filed
by petitioner is rightly rejected, for that, Commissioner has not
committed any error which requires interference by this Court.
It
is necessary to note that for justifying delay or explaining same,
there must be some evidence is to be produced by petitioner before
Commissioner, but, no such attempt has been made by petitioner. On
the contrary, petitioner has remained adamant and such a long delay
of seven years definitely cause great prejudice to the right of
respondent claimant when workman has expired meantime and after these
many years, without explaining delay itself, matter cannot get to be
reopened by petitioner. Otherwise, there is no end to such litigation
where workman is became victim of accident during the course of
employment and that facts were within knowledge of petitioner and
after receiving notice from Commissioner, not remained present and
amount of compensation is not paid to complainant.”
3. Mr
P J Kanabar, learned counsel appearing for the appellant has urged
that the learned Single Judge has touched the question on merits of
the case. He has further urged that the Doctor was not examined to
prove the disability and notices were not served on the appellant as
there was no signature of the appellant on the acknowledgement. We
find that the learned Single Judge has given cogent reasons for
recording the finding that the notices were served on the appellant
but the appellant failed to lead any oral or documentary evidence
that the notices were not served or the signature on the
acknowledgement was not of the appellant or of its employee. So far
as the examination of the Doctor is concerned, we are of the opinion
that it was not necessary in a matter which proceeded ex-parte
against the appellant. The Commissioner was satisfied about the
injury mentioned in the certificate, came to the conclusion that it
was a case of 100% disability as the respondent was not able to stand
up for more than 5 to 10 minutes. So far as the last argument of the
learned counsel for the appellant on touching the question on merit
of the case is concerned, the learned counsel argued the question on
merit of the case and it was the legal duty of the Commissioner and
the learned Single Judge to deal with the arguments of the counsel
for the appellant while deciding the case.
4. For the
aforesaid reasons, we agree with the order dated 7.3.2011 passed by
the learned Single Judge in Special Civil Application No.1401 of 2011
as well as of the Commissioner. The appeal is devoid of merits and
is accordingly dismissed.
Civil
Application No.5112 of 2011
In
view of the order passed in the Appeal, Civil Application No.5112 of
2011 does not survive and is accordingly disposed of.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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