{"id":247662,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/special-civil-application-no-vs-mr-alpesh-j-patel-for-on-2-august-2011"},"modified":"2016-05-16T06:09:47","modified_gmt":"2016-05-16T00:39:47","slug":"special-civil-application-no-vs-mr-alpesh-j-patel-for-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/special-civil-application-no-vs-mr-alpesh-j-patel-for-on-2-august-2011","title":{"rendered":"Special Civil Application No. … vs Mr Alpesh J Patel For on 2 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Special Civil Application No. … vs Mr Alpesh J Patel For on 2 August, 2011<\/div>\n
Author: Ravi R.Tripathi,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     SPECIAL CIVIL APPLICATION No 8590 of 2001\n\n\n\n\n     For Approval and Signature:\n\n\n\n              Hon'ble MR.JUSTICE RAVI R.TRIPATHI\n\n\n     ============================================================\n<\/pre>\n
    1. Whether Reporters of Local Papers may be allowed      : NO
\n       to see the judgements?\n<\/p>\n
    2. To be referred to the Reporter or not?                  : NO<\/p>\n
    3. Whether Their Lordships     wish to see the fair copy   : NO
\n       of the judgement?\n<\/p>\n
    4. Whether this case involves a substantial question       : NO
\n       of law as to the interpretation of the Constitution
\n       of India, 1950 of any Order made thereunder?\n<\/p>\n
    5. Whether   it is to be circulated to the Civil Judge?    : NO<\/p>\n
     ————————————————————–
\n     AGRICULTURAL PRODUCE MARKET COMMITTEE
\nVersus
\n     GIRISHKUMAR BABURAO BHAVSAR\n<\/p>\n
     ————————————————————–
\n     Appearance:\n<\/p>\n
     1. Special Civil Application No. 8590 of 2001
\n          MR KM PATEL for Petitioner
\n          MR ALPESH J PATEL for Respondent<\/p>\n
     ————————————————————–\n<\/p>\n
              CORAM : MR.JUSTICE RAVI R.TRIPATHI<\/p>\n
     Date of decision: 09\/01\/2002<\/p>\n
ORAL JUDGEMENT<\/p>\n
     1.Rule. Mr. Alpesh J. Patel, learned Advocate,
\n     appears and waives service of Rule on behalf of the
\n     respondent.\n<\/p>\n
 2.This Court, on 1st October, 2001, adjourned this
\nmatter by passing an order, which reads as under :\n<\/p>\n
 “S.O.    to 23rd October, 2001 for final disposal.\n<\/p>\n
         Leave to replace Annexure `C’ and Mr.        A.J.
\n         Patel waives notice in this behalf.”\n<\/p>\n
It is required to be noted that Mr.    Alpesh J.
\nPatel, learned Advocate for the respondent workman, very
\nwell knew about the matter since then.   Thereafter, the
\norder sheet records that the matter is adjourned on six
\noccasions. However, the Computer Board shows that the
\nmatter is listed for nine times. Mr. Alpesh J. Patel,
\nlearned Advocate for the respondent, submitted that the
\nmatter was adjourned on account of heavy Board as it
\ncould not be taken up by the Court.\n<\/p>\n
3.Today, when the matter is taken up for final
\nhearing, after the learned Advocate for the petitioner
\ncompleted his arguments, Mr.    Alpesh J. Patel, learned
\nAdvocate for the respondent, started his arguments and
\nwhen he found that the Court is not inclined to accept
\nhis submissions, he made a request for adjourning the
\nmatter for a week for enabling him to file a reply. The
\nrequest is not only unreasonable, but, is also not bona
\nfide   inasmuch as after having allowed the learned
\nAdvocate appearing for the petitioner to complete his
\narguments, when the Court is not inclined to accept his
\nsubmissions, he made this request, which is rejected by
\nthis Court.\n<\/p>\n
4.The present matter is in a very narrow compass.
\nThe respondent-workman was appointed as a peon on 18th
\nFebruary, 1984 purely on temporary basis. A copy of the
\nappointment order is annexed at Annexure-A. Thereafter,
\nthe respondent-workman came to be appointed as a watchman
\nby an order dated 28th February, 1985, a copy of which is
\nalso produced at Annexure-A collectively, page 12. There
\nis no dispute about the same. It was only in the year
\n1987, when the respondent-workman was posted to work as a
\nwatchman in the night shift in `Navin Yard’ opened by the
\npetitioner-Agricultural    Produce    Market    Committee
\n(hereinafter referred to as “APMC” for short), the
\nrespondent was found to be not punctual and lacking in
\nsincerity in discharge of duties.    He was, therefore,
\nissued several show cause notices and even warnings.
\nSince 12th January, 1990, the respondent-workman stopped
\nreporting for duty.     The petitioner-APMC issued show
\ncause notice dated 15th January, 1990 to show cause as to
\nwhy he has remained absent from duty since 12th January,
\n 1990.\n<\/p>\n
5.The respondent-workman filed his reply dated 19th
\nJanuary, 1990, a copy of which is produced at Annexure-A
\ncollectively, page 15 to the petition, which is also
\nmarked as Exh.   49 of the Labour Court proceedings. The
\nsaid reply to the show cause notice makes an interesting
\nreading.   It appears that with a view to see that the
\npetitioner-APMC assigns him the work of peon, he made all
\nsorts of averments to the effect that, he belongs to
\nBhavsar community; he is single bodied; he is very timid
\nand what to work as a `night watchman’; he is afraid of
\neven coming out during night hours; he has no ability to
\nwork as a watchman; he is terribly         scared   while
\ndischarging duties as a watchman; and, he is having
\nconstant fear that he will be killed by somebody.     The
\nsaid explanation, after having been received, was replied
\nby petitioner-APMC vide a letter dated 25\/01\/1990. The
\nrespondent-workman, then, approached the Labour Court and
\nthe Labour Court, by its judgement and award dated 29th
\nJanuary, 2001, in Reference (LCH) No. 244 of 1996, with
\nmaterial contradictory observations and findings, ordered
\nreinstatement without back wages.\n<\/p>\n
6.The important point on which the Labour Court has
\nerred is in paragraph 9. The Labour Court has recorded
\nthat, “From the record of the case, it is proved that the
\nrespondent-workman is not given a show cause notice.”
\nThis is not correct on the face of the record inasmuch as
\nthe show cause notice dated 15th January, 1990 is
\nproduced at Annexure-B to this petition, which is marked
\nas Exh.41 of the Labour Court proceedings. The Labour
\nCourt, then, proceeded to observe that, `no departmental
\ninquiry is held against the respondent workman and,
\ntherefore, without    adopting   legal   procedure,   the
\nconcerned workman is not allowed to attend his duties.’
\nBoth these observations are unwarranted inasmuch as when
\nit is clear from the record of the case that the
\nrespondent-workman himself stopped reporting for duty.
\nFurther,   the   show   cause   notice   issued   by the
\npetitioner-APMC is replied by him, the reply is already
\non record as discussed hereinabove. There is no question
\nof   petitioner-APMC   having   not followed the legal
\nprocedure and not allowing the respondent-workman to
\nresume his duties.\n<\/p>\n
7.It is surprising that the Labour Court, without
\ntaking into consideration as to what is the controversy
\ninvolved in the case, has observed in the same paragraph
\nas under :\n<\/p>\n
  “The   concerned workman has worked as a peon and
\n         watchman from 20th February, 1984       to   18th
\n         January, 1990 continuously with the first party
\n         institution and, therefore, he has completed more
\n         than 240 days service.”\n<\/p>\n
It is difficult to appreciate as to what is the
\nsignificance of these observations. The question of the
\nrespondent-workman having worked for 240 days was not at
\nall before the Labour Court. It seems that the learned
\nJudge of the Labour Court, without any application of
\nmind to the facts of the case by a force of habit, made
\nsuch observations. It seems that after having reached to
\nthe conclusion that the Court is to pass an order for
\nreinstatement, the reasons are supplied. The second part
\nof paragraph 9 of the judgement and award reads that,
\n“When an employee has worked for more than 240 days in a
\nyear, then, only after following the provisions of the
\nIndustrial Disputes Act<\/a>, 1947, a step of terminating the
\nservices   of the workman can be taken against the
\nworkman.”\n<\/p>\n
Without   appreciating   the   real   controversy
\ninvolved in the matter, namely, whether it was the
\nrespondent-workman, who stopped reporting for duty of his
\nown or the petitioner-APMC restrained him from reporting
\nand without taking into consideration that the respondent
\nworkman has not only admitted in reply to the show cause
\nnotice, but has also admitted in the deposition before
\nthe Labour Court, a copy of which is also produced in the
\npetition, being Exh.10 (Annexure-C, page 19). In the
\nsaid deposition, the relevant portion reads as under :\n<\/p>\n
 “The present case is filed so as to get the
\n        services as a peon.      It is true that I am not
\n        ready to work as night watchman. It is true that
\n        I had worked as a night watchman         in   the
\n        institution.”\n<\/p>\n
The learned Judge of the Labour Court being
\nunmindful of the contents of the deposition of the
\nrespondent-workman has held that as the first party has
\nnot held the departmental inquiry, the action of not
\nallowing the respondent-workman to report for duty is
\nunreasonable, illegal and violative of principles of
\nnatural justice. In the same breath, the learned Judge
\nof the Labour Court has observed that, “However, the
\nconcerned workman has not remained present on duty since
\n12th January, 1990 of his own, is proved and, therefore,
\nthe concerned workman is not entitled for the back
\nwages.”\n<\/p>\n
 All these findings show that       the  impugned
\njudgement and award of the Labour Court is nothing, but,
\na clear case of non application of mind and is without
\nappreciating the documentary as well as oral evidence
\nproduced on the record and, therefore, the same is
\nrequired to be quashed and set aside.\n<\/p>\n
8.Mr. K.M. Patel, learned Advocate appearing for
\nthe petitioner-APMC, relied upon the judgement of the
\nApex Court reported in 1999(7) SCC 332, 2001(1) SCC 424
\nand also a judgement of this Court, reported in 2001 (3)
\nGLR 2045, wherein one of the aforesaid judgement of the
\nApex Court is followed.   Mr. K.M. Patel submitted that
\nthe present judgement and award is not only misconceived,
\nbut, the same has resulted in miscarriage of justice.\n<\/p>\n
9.Mr. Alpesh J. Patel, learned Advocate appearing
\nfor the respondent-workman, submitted that though he was
\nappointed as a watchman by a letter dated 28th February,
\n1985, he was assigned duties as peon in the office, by an
\norder dated 5th November, 1986. A copy of that office
\norder is placed on record. He also produced a statement
\nabout the working of the respondent-workman in the
\npetitioner-APMC and by relying upon it, he contended that
\nthough    the    respondent-workman  was appointed as a
\nwatchman, the petitioner-APMC has utilised his services
\nas peon.      He submitted that it was not open for the
\npetitioner-APMC to post him as a night watchman at Navin
\nYard.    He, therefore, contended that the judgement and
\naward of the Labour Court awarding reinstatement to the
\nrespondent-workman is just and proper and the same is
\nrequired to be upheld by this Court.\n<\/p>\n
10.Mr. Alpesh J. Patel, learned Advocate for the
\nrespondent-workman, also relied upon a judgement of the
\nApex Court in the matter between D.K. Yadav and J.M.A.
\nIndustries Limited, reported in 1993 (II) LLJ 696. The
\nsaid judgement of the Apex Court has no application to
\nthe facts of the present case as there is nothing common
\nto the facts of the present case and the facts of that
\ncase.\n<\/p>\n
11.In view of the aforesaid discussion, the present
\npetition is allowed. Rule is made absolute with no order
\nas to costs.\n<\/p>\n
(Ravi R.   Tripathi, J.)
\nkamlesh*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Special Civil Application No. … vs Mr Alpesh J Patel For on 2 August, 2011 Author: Ravi R.Tripathi, IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8590 of 2001 For Approval and Signature: Hon’ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : […]<\/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-247662","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSpecial Civil Application No. ... vs Mr Alpesh J Patel For on 2 August, 2011 - 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\/special-civil-application-no-vs-mr-alpesh-j-patel-for-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Special Civil Application No. ... vs Mr Alpesh J Patel For on 2 August, 2011 - 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