{"id":226000,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-life-on-9-april-2010"},"modified":"2015-07-11T18:16:58","modified_gmt":"2015-07-11T12:46:58","slug":"rajendra-vs-life-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-life-on-9-april-2010","title":{"rendered":"Rajendra vs Life on 9 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Rajendra vs Life on 9 April, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCA\/7783\/2009\t 13\/ 13\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION No. 7783 of 2009\n \n\nIn\n\n\n \n\nMISC.CIVIL\nAPPLICATION (STAMP NUMBER) No. 1307 of 2009\n \n\nIn\nSPECIAL CIVIL APPLICATION No. 1689 of 2002\n \n\nWith\n\n\n \n\nMISC.CIVIL\nAPPLICATION (STAMP NUMBER) No. 1307 of 2009\n \n\nIn\nSPECIAL CIVIL APPLICATION No. 1689 of 2002\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nRAJENDRA\nCHANDRKANT MAHADIK - Petitioner(s)\n \n\nVersus\n \n\nLIFE\nINSURANCE CORPORATION OF INDIA - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nUT MISHRA WITH MR TR MISHRA\nfor\nPetitioner(s) : 1, \nMR AK CLERK for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 09\/04\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent Civil Application is filed for condonation of delay of 1249
\ndays caused in filing Misc. Civil Application No. 1307 of 2009 for
\nrecalling the order dated 08.12.2005 whereby the main matter being
\nSpecial Civil Application No. 1689 of 2002 was allowed and thereby
\nhas prayed for hearing the main matter afresh on merits.\n<\/p>\n
2.\tThe
\nIndustrial Tribunal in Reference (ITC) No. 6 of 1998 passed an award
\npartly allowing the reference on 23.07.2001, directing the respondent
\ncorporation herein to reinstate the petitioner and pay 50% backwages.
\n The said award came to be challenged by the respondent corporation
\nbefore this court by way of Special Civil Application No. 1689 of
\n2002 and this court vide order dated 08.12.2005 allowed the petition
\nand quashed the award of the Industrial Tribunal directing
\nreinstatement and backwages.\n<\/p>\n
2.1\tBeing
\naggrieved by the said order, the petitioner preferred Misc. Civil
\nApplication No. 977 of 2009 for recalling the order dated 08.12.2005
\nand the same was rejected by this court vide order dated 24.04.2009
\non the ground that application for condonation of delay was not
\nfiled.  Thereafter the present Civil Application is filed on
\n11.05.2009 for condonation of delay of 1249 days in filing the
\napplication for recalling the order dated 08.12.2005 in main matter.\n<\/p>\n
3.\tMr.\n<\/p>\n
U.T. Mishra, learned advocate appearing for the applicant has
\nsubmitted that the main matter was decided ex parte without hearing
\nthe applicant’s advocate.  Mr. Mishra has submitted that the
\napplicant was under a bonafide impression that he has given
\nVakalatnama duly signed in favour of his previous advocate, but it
\nwas quite later that the applicant learnt that the vakalatnama was
\nnot actually handed over to the advocate.\n<\/p>\n
3.1\tMr.\n<\/p>\n
Mishra has submitted that it was only in the year 2008 that the
\napplicant came personally to the court and inquired from the office
\nand it is only then that he came to know that the matter was disposed
\nof way back in the year 2005.  Thereafter, the application for
\nrecalling the order was filed in the year 2009 which was rejected for
\nnot filing delay condonation application.\n<\/p>\n
3.2\tMr.\n<\/p>\n
Mishra has submitted that only on the ground of delay, justice should
\nnot be denied to the applicant.  He has cited various decisions of
\nthe Apex Court and High Courts to support his submission that the
\nLimitation Act is not directly applicable in a labour dispute.\n<\/p>\n
4.\tMr.\n<\/p>\n
A.K. Clerk, learned advocate appearing for the respondent corporation
\nhas strongly opposed this application for delay condonation.  He has
\nsubmitted that the applicant cannot try to reopen the litigation
\nwhich has been decided way back in the year 2005 after a period of
\nalmost four years on some flimsy ground of not filing of Vakalatnama.\n<\/p>\n
4.1\tMr.\n<\/p>\n
Clerk has drawn the attention of this court to the affidavit-in-reply
\nfiled on behalf of the respondent corporation and submitted that the
\napplicant was thoroughly negligent and did not care at all about the
\nmatter pending before this Court.  He has submitted that there is no
\ncause much less sufficient cause made out by the applicant for
\ncondonation of delay of 1249 days.\n<\/p>\n
5.\tThis
\ncourt has heard learned advocates for the either side at length and
\nalso perused the documents, more particularly the affidavit-in-reply
\nand the rejoinder filed by either side.  Before proceeding with the
\nmatter, some facts deserve to be cleared outright.  The Reference
\n(ITC) No. 6 of 1998 was filed in the year 1998 and award thereof was
\npassed in the year 2001.  Thereafter, in the year 2002, Special Civil
\nApplication was filed before this court and the same was allowed in
\nthe year 2005.\n<\/p>\n
5.1\tAn
\napplication for recalling the order allowing the main matter was
\nfiled in the year 2009 and the same was dismissed for want of delay
\ncondonation application\/prayer.  The applicant thereafter filed the
\npresent application.  It is required to be noted that after the main
\nmatter was allowed in the year 2005, the petitioner made no effort to
\ninquire about the status of the matter.  The vague statement about
\ninquiring from the advocate then representing the case of the
\napplicant cannot be accepted inasmuch as the applicant himself has
\nstated that the signed Vakalatnama was not handed over to the
\nconcerned advocate at the relevant time.  The advocate would
\nobviously have asked for signed vakalatnama for filing appearance.
\nThe applicant seems to be negligent and regardless of his matter.\n<\/p>\n
6.\tIt
\nis also required to be noted that the order dated 08.12.2005 allowing
\nthe main matter in favour of the respondent corporation was passed on
\nmerits.  Though served, the applicant did not remain present either
\npersonally or through advocate.  Neither did the applicant file any
\napplication for availing benefits under the provisions of Section 17B
\nof the Act.  The court in the absence of any representation on behalf
\nof the applicant proceeded on merits of the case.\n<\/p>\n
7.\tThe
\ndelay condonation application is also strongly opposed by the
\nrespondent corporation.  At this juncture, the affidavit-in-reply
\nfiled by the respondent corporation also brings out certain important
\naspects of the matter and therefore paras 5, 6 & 8 shall be
\nrelevant to be reproduced:\n<\/p>\n
“5.\n<\/p>\n
It is further submitted that in fact, the averments made in the
\napplication clearly shows that the applicant was thoroughly negligent
\nand did not care at all about the matter pending before this Hon’ble
\nCourt.  The applicant has not given any specific dates for showing
\nsufficient cause and has only made vague statements which are not
\nsupported by any documents.  It is further submitted that the
\napplicant has not given any explanation for the inordinate delay of
\n1249 days in filing the Misc. Civil Application.  In fact the
\napplicant admits that he was under a wrong impression.  The applicant
\nhas not taken any stops to find out the facts and therefore the
\napplicant has not made out any grounds for condonation of delay.\n<\/p>\n
6.\tIt
\nis further submitted that the applicant has admitted that he had not
\ngiven the Vakalatnama duly signed to his advocate.  Therefore no
\nfault can be found with the learned Advocate.  It is evident that the
\napplicant himself was negligent.  The applicant has further admitted
\nthat in 2007 also he had made inquiries about the matter.  Even at
\nthat stage the applicant has not taken any steps nor made any effort
\nto find out the status of the matter.  The applicant has further
\nadmitted that in February 2008 also he had inquiry.  It is therefore
\nclear that the applicant was absolutely negligent and did not care
\nabout the matter for almost 4 years.\n<\/p>\n
8.\tIt
\nis submitted that the present application for condonation of delay is
\nfiled in MCA(Stamp) No. 1307 of 20089.  The prayer made in MCA
\n(Stamp) No. 1307 of 2009 is for recalling the order dated 08.12.2005.
\n It is submitted that MCA (Stamp) No. 1307 of 2009 is not
\nmaintainable as MCA No. 977 of 2009 for the same prayer has been
\ndismissed by this Hon’ble Court by the order dated 24.04.2009.
\nTherefore MCA(Stamp) No. 1307 of 2009 is barred by resjudicata and is
\nnot maintainable.  Therefore the present Civil Application is also
\nnot maintainable.”\n<\/p>\n
8.\tIn
\nview of the aforesaid averments, this court is of the view that the
\napplicant has not shown any cause which can be treated as sufficient
\ncause for the condonation of delay of 1249 days.  The only ground
\nwhich has been tried to be explained herein portrays the callous and
\nnegligent attitude of the applicant and therefore no discretion can
\nbe granted in this regard.\n<\/p>\n
9.\tMr.\n<\/p>\n
Mishra, learned advocate for the applicant has tried to rely upon
\nvarious decisions in this regard and the same are considered as
\nunder:\n<\/p>\n
(i)
\nCollector, Land Acquisition,
\nAnantnag and another vs. Mst. Katiji and others reported in AIR 1987
\nSC 1353 wherein the Apex
\nCourt has observed that the doctrine of equality before law demands
\nthat all litigants including the State as litigant, are accorded the
\nsame treatment and the law is administered in an even-handed manner.
\nThere is no warrant for according a step-motherly treatment when the
\nState is the applicant praying for condonation of delay.  In fact on
\naccount of an impersonal machinery and the inherited bureaucratic
\nmethodology imbued with the note making, file pushing and passing on
\nthe buck ethos, delay on the part of the State is less difficult to
\nunderstand though more difficult to approve.  In any event, the State
\nwhich represents the collective cause of the community, does not
\ndeserve a litigant non grata status.  So also the approach of the
\nCourts must be to do even-handed justice on merits in preference to
\nthe approach which scuttles a decision on merits.\n<\/p>\n
(i.i)
\nIn this case, the Apex Court has mainly considered the case of the
\nState machinery which actually is hit by impersonal machinery and the
\ninherited bureaucratic methodology imbued with the note making, file
\npushing and passing on the buck ethos etc.  However, such is not the
\ncase in the present application.  The applicant seems to have been
\nregardless for around four years inspite of rule being served upon
\nhim.\n<\/p>\n
(ii)
\nAjaib Singh vs. The Sirhind Co-operative Marketing-cum-Processing
\nService Society Ltd. and<\/a> another reported in AIR 1999 SC 1351
\nwherein the Apex Court has held that the provisions of Article 137 of
\nthe Schedule to Limitation Act, 1963 are not applicable to the
\nproceedings under the Industrial Disputes Act and that the relief
\nunder it cannot be denied to the workmen merely on the ground of
\ndelay.  The plea of delay if raised by the employer is required to be
\nproved as a mater of fact by showing the real prejudice and not as a
\nmerely hypothetical defence.  No reference to the labour court can be
\ngenerally questioned on the ground of delay alone.  Even in a case
\nwhere the delay is shown to be existing, the tribunal, labour court
\nor board, dealing with the case can appropriately mould the releif by
\ndeclining to grant back wages to the workman till the date he raised
\nthe demand regarding his illegal retrenchment\/termination or
\ndismissal.  The Court may also in appropriate cases direct the
\npayment of part of the back wages instead of full back wages.\n<\/p>\n
(ii.i)
\n In the aforesaid case, the issue involved was that the services of
\nthe workman were terminated on 16.07.1994 and he had issued the
\nnotice of demand only on 8.12.1981.  It is also not disputed that no
\nplea regarding delay appears to have been taken by the management
\nbefore the labour Court.  However, in the instant case, the delay has
\noccurred in filing application for recalling the order passed against
\nthe applicant who either chose not to remain present though rule was
\nserved upon him or remained negligent of his case before this court.\n<\/p>\n
(iii)
\nSimilar principle as in Ajaib Singh (supra) is accepted in the case
\nof Shahaji vs. Executive Engineer, P.W. D.<\/a> reported in 2007(115)
\nFLR 675.  In that view of the matter, the said decision shall
\nalso not be applicable to the facts and circumstances of the present
\ncase as both are different.\n<\/p>\n
(iv)
\nAssistant Engineer and another vs. Judge, Labour Court and others
\nreported in 2006(109) FLR 274 wherein the Rajasthan High Court has
\nheld that so far as delay of about 5 years in raising the industrial
\ndispute is concerned, it is settled proposition of law that Labour
\nLaw is a benevolent legislature and it should not be rejected on mere
\ntechnical grounds. Similar view has been taken by the Hon’ble Supreme
\nCourt in umpteen number of cases wherein there was delay of about 10
\nto 12 years.\n<\/p>\n
(iv.i)
\nThe aforesaid case revolves around the issue of raising industrial
\ndispute after an inordinate delay.  In the instant case, the delay is
\nnot in raising industrial dispute but restoration application in a
\nwrit petition.  The facts of the said case, therefore, cannot be said
\nto be applicable in the present case.\n<\/p>\n
(v)
\nGujarat State Road Transport Corporation vs. Shri P.D. Solanki<\/a>
\nreported in 1996(1) GLH 709 wherein this Court in a case
\nchallenging the award of the Labour court granting reinstatement and
\nfull backwages, on the ground that the concerned advocate for the
\npetitioner remained absent during the time of the hearing and did not
\nproduce the records before the Labour Court though the same was
\nhanded over to him held that the cause of justice cannot be defeated
\nbecause of inaction of the lawyer for the petitioner and the matter
\nwas remanded to the Labour Court for de novo hearing.\n<\/p>\n
(v.i)
\nIn the present case, the applicant as stated by him, was himself
\nnegligent in handing over the relevant papers to the advocate.  In
\nother words, he did not engage an advocate to represent his case.  In
\nsuch a case, the facts of the aforesaid case cannot be said to be
\napplicable.\n<\/p>\n
(vi)
\n(The) Special Tehsildar, Land Acquisition, Kerala vs. K.V.
\nAyisumma<\/a> reported in 1996(2) GLH 667 wherein the Apex Court has
\ncondoned the delay of fives years in filing application for review of
\nthe award and decree by the reference Court observing that an
\nexplanation of day to day delay at the behest of government is
\ndifficult as the transaction of the business of the Government is
\ndone leisurely by officers who had no or evince no personal interest
\nat different levels.\n<\/p>\n
(vi.i)
\nThe aforesaid case also, as in the case of  Collector, Land
\nAcquisition, Anantnag (supra), has considered the case of the State
\nmachinery wherein no one takes personal responsibility in processing
\nthe matters expeditiously.  However, such is not the case in the
\npresent application.  The applicant has his own personal interest in
\nthe present case and ought to have remained all the more careful.  On
\nthe other hand the applicant seems to have been negligent for around
\nfour years inspite of rule being served upon him.\n<\/p>\n
(vii)
\n Shiv Dass vs. Union of India &
\nOrs. reported in AIR 2007 SC 1330 wherein
\nthe Apex Court remanding the matter dismissed by the High Court on
\nthe ground of delay held that if petition is filed beyond a
\nreasonable period of 3 years, normally Court would reject the same or
\nrestrict the relief which could be granted to a reasonable period of
\nabout 3 years, in the instant case the High Court did not examine
\nwhether on merit appellant had a case.\n<\/p>\n
(vii.i)
\nIn the instant case, the order allowing the petition in favour of the
\nrespondent corporation was also considered on merits.  The present
\napplication is preferred after a period of four years.  In fact it is
\nrequired to be noted that the Apex Court in the aforesaid decision
\nhad also restricted the High Court in giving any relief for a period
\nexceeding three years from the date of presentation of the writ
\npetition.  In fact the Apex Court has held therein that
\nif there is
\ninordinate delay on the part of the petitioner and such delay is not
\nsatisfactorily explained, the High Court may decline to intervene and
\ngrant relief in exercise of its writ jurisdiction.\n<\/p>\n
(viii)
\nN. Balakrishnan vs. M.\n<\/p>\n
Krishnamurthy reported in AIR 1998 SC 3222
\nwherein the Apex Court has observed that condonation of delay is a
\ndiscretionary power of court and that the length of delay is no
\nmatter but acceptability of explanation is only criterion.\n<\/p>\n
(viii.i)
\nIn the present case, not only there is an inordinate delay of 1249
\ndays but also no plausible explanation has come forth.  This court is
\nnot inclined to accept the explanation regarding the vakalatnama not
\nhanded over to the advocate concerned.\n<\/p>\n
(ix)Rafiq
\nvs. Munshi Lal reported in AIR 1981 SC 1400
\n    observed that an innocent party who has done everything in his
\npower should not suffer for the inaction and the deliberate omission
\nor misdemeanour of his counsel.\n<\/p>\n
(ix.i)
\nIn the present case,
\nthe applicant as stated by him, was himself negligent in handing over
\nthe relevant papers to the advocate.  In other words, he did not
\nengage an advocate to represent his case.  In such a case, the facts
\nof the aforesaid case cannot be said to be applicable.\n<\/p>\n
10.\tConsidering
\nthe overall facts and circumstances of the case, coupled with the
\ndecisions cited hereinabove, this court is of the opinion that this
\nis a case where the negligence is purely on the part of the
\napplicant.  Moreover, the principle of reference shall not apply in a
\nwrit petition under Article 227 of the Constitution of India more
\nparticularly in a restoration application.  No other plausible
\nexplanation is coming on record other than the negligence of the
\napplicant.  Moreover, this court while allowing the main matter in
\nfavour of the respondent corporation had decided the matter on
\nmerits.\n<\/p>\n
11.\tThis
\ncourt is thus not inclined to grant any discretion in favour of the
\napplicant after a period of more than three and half years.
\nAccordingly, Civil Application is rejected.  Rule is discharged.  No
\ncosts.\n<\/p>\n
12.\tIn
\nview of the fact that the delay condonation application is rejected,
\nMisc. Civil Application (stamp) No. 1307 of 2009 shall not survive
\nand is accordingly rejected.\n<\/p>\n
(K.S.\n<\/p>\n
JHAVERI, J.)<\/p>\n
Divya\/\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Rajendra vs Life on 9 April, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-226000","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRajendra vs Life on 9 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-life-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra vs Life on 9 April, 2010 - 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