{"id":50955,"date":"2011-05-02T00:00:00","date_gmt":"2011-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sashin-vs-rupa-on-2-may-2011"},"modified":"2018-05-22T22:43:09","modified_gmt":"2018-05-22T17:13:09","slug":"sashin-vs-rupa-on-2-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sashin-vs-rupa-on-2-may-2011","title":{"rendered":"Sashin vs Rupa on 2 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sashin vs Rupa on 2 May, 2011<\/div>\n
Author: V. M. G.B.Shah,&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\n\n \n\n\n\t \n\nLPA\/692\/2011\t 14\/ 14\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 692 of 2011\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1401 of 2011\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 5112 of 2011\n \n\nIn\nLETTERS PATENT APPEAL No. 692 of 2011\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE V. M. SAHAI \n\n \n\n \nHONOURABLE\nMR.JUSTICE G.B.SHAH<\/a>\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\n\t\t\tbe referred 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\nSASHIN\nAND COMPANY - Appellant(s)\n \n\nVersus\n \n\nRUPA\nUKA SAKARIA SINCE DECD. THRO' HEIR & 1 - Respondent(s)\n \n\n=================================================\n \nAppearance : \nMR\nPJ KANABAR for Appellant(s) : 1, \nNone for Respondent(s) : 1 -\n2. \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 V. M. SAHAI\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE G.B.SHAH\n\t\t\n\t\n\n \n\n\t\t\t\t\nDate<\/a> : 02\/05\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE V. M. SAHAI)<\/a><\/p>\n
1.\t\tWe
\nhave heard Mr P J Kanabar, learned counsel for the appellant.  This
\nLetters Patent Appeal has been filed challenging the order dated
\n7.3.2011 passed by the learned Single Judge in Special Civil
\nApplication No.1401 of 2011.  The appellant challenged the ex-parte
\norder passed by the Workmen Compensation Commissioner and Labour
\nCourt, Surendranagar in Misc.Application No.3 of 2009 dated
\n31.8.2010.  The Commissioner had decided Workmen Compensation
\n(Non-fatal) Case No.106 of 1993 by order dated 26.7.2002 against the
\nappellant with a direction to pay Rs.97,320\/- with  a penalty of
\nRs.48,660\/-, the total of which comes to Rs. 1,45,980\/- with 6%
\ninterest with effect from 19.6.1991.  This amount was to be deposited
\nby the appellant  within 30 days from the date of receiving the order
\nof the Commissioner.\n<\/p>\n
2.\t\tBefore
\nthe Commissioner, the appellant remained absent though notices issued
\nby the Commissioner was served on the appellant and no reply was
\nfiled by the appellant. Therefore, the Commissioner, after
\nconsidering the medical certificate dated 14.11.2000 and after
\nconsidering the evidence of the workman, passed an order dated
\n26.7.2002 against the appellant. Thereafter, the appellant approached
\nthe Commissioner by way of Misc. Application No.3 of 2009 with a
\nprayer to condone the delay in filing the application for
\nrestoration. It is relevant to point our here that the respondent
\nworkman Rupabhai Ukabhai Sakaria had died during the pendency of the
\nproceedings, therefore, no reply could be filed by him opposing the
\naforesaid application filed by the appellant for condoning the delay.
\n The appellant did not lead any oral or documentary evidence before
\nthe Commissioner to prove the contents of the application for
\ncondonation of delay of more than seven years. The appellant filed
\nwritten arguments which were considered by the Commissioner. The
\nCommissioner came to the conclusion that Notice dated 28.12.1999 was
\nreceived by the appellant and the assertions made in the application
\nthat the notice was not received from the Commissioner was incorrect
\nand against the material on record.  The certified copy of the order
\ndated 17.9.2002 was received by the appellant. Subsequently  recovery
\ncertificate had been issued by the Commissioner on 19.4.2004 to the
\nDistrict Collector, Rajkot.  Thereafter, recovery proceedings had
\nbeen initiated against the appellant and attachment notice was
\nissued to the appellant. Thereafter the appellants have filed
\nrestoration application which has been rejected by the Commissioner
\non 31.8.2010.  This order was challenged by the appellant before the
\nlearned Single Judge and the learned Single Judge on 7.3.2011 has
\ndismissed the writ petition filed by the appellant.\n<\/p>\n
2.\t\tThe
\nlearned Single Judge has relied on the decisions of the Apex Court
\nwhich are extracted as under:\n<\/p>\n
“…In
\nUnion of India & Ors. v. A. Durairaj (D.)<\/a> reported
\nin 2011 AIR SCW 873, the
\nrelevant discussion made in Para 13 and 14 which are quoted as under
\n:\n<\/p>\n
“13.\t\tIt
\nis well settled that anyone who feels aggrieved by non-promotion or
\nnon-selection should approach the Court\/Tribunal as early as
\npossible. If a person having a justifiable grievance allows the
\nmatter to become stale and approaches the Court\/Tribunal belatedly,
\ngrant of any relief on the basis of such belated application would
\nlead to serious administrative complications to he employer and
\ndifficulties to the other employees as it will upset the settled
\nposition regarding seniority and promotions which has been granted to
\nothers over the years. Further, where a claim is raised beyond a
\ndecade or two from the date of cause of action, the employer will be
\nat a great disadvantage to effectively contest or counter the claim,
\nas the officers who dealt with the mater and\/or the relevant records
\nrelating to the matter may no longer be available. Therefore, even if
\nno period of limitation is prescribed, any belated challenge would be
\nliable to be dismissed on the ground of delay and laches.\n<\/p>\n
14.\tThis
\nis a typical case where an employee gives a representation in a
\nmatter which is stale and old, after two decades and gets a direction
\nof the Tribunal to consider and dispose of the same; and thereafter
\nagain approaches the Tribunal alleging that there is delay in
\ndisposal of the representation (or if there is an order rejecting the
\nrepresentation, then file an application to challenge the rejection,
\ntreating the date of rejection of the representation as the date of
\ncause of action). This Court had occasion to examine such situations
\nin Union of India v. M.K. Sarkar<\/a> [2010 (2) SCC 59] : (2009 AIR SCW
\n7621 Lab IC 575 : AIR 2009 SC (supp) 2158) and held as follows (para
\n9 of AIR SCW):\n<\/p>\n
“The
\norder of the Tribunal allowing the first application of respondent
\nwithout examining the merits, and directing appellants to consider
\nhis representation has given rise to unnecessary litigation and
\navoidable complications.  x x x x x \t<\/p>\n
\tWhen
\na belated representation in regard to a ‘stale’ or ‘dead’
\nissue\/dispute is considered and decided, in compliance with a
\ndirection by the Court\/Tribunal to do so, the date of such decision
\ncannot be considered as furnishing a fresh cause of action for
\nreviving the ‘dead’ issue or time-barred dispute. The issue of
\nlimitation or delay and laches should be considered with reference to
\nthe original cause of action and not with reference to the date on
\nwhich an order is passed in compliance with a court’s direction.
\nNeither a Court’s direction to consider a representation issues
\nwithout examining the merits, nor a decision given in compliance with
\nsuch direction, will extend the limitation, or erase the delay and
\nlaches.\n<\/p>\n
\tA
\nCourt or Tribunal, before directing ‘consideration’ of a claim or
\nrepresentation should examine whether the claim or representation is
\nwith reference to a ‘live’ issue or whether it is with reference to a
\n‘dead’ or ‘stale’ issue. If it is with reference to a ‘dead’ or
\n‘stale’ issue or dispute, the Court\/Tribunal should put an end to the
\nmatter and should not direct consideration or reconsideration. If the
\ncourt or Tribunal deciding to direct ‘consideration’ without itself
\nexamining of the merits, it should make it clear that such
\nconsideration will be without prejudice to any contention relating to
\nlimitation or delay and laches. Even if the Court does not expressly
\nsay so, that would be the legal position and effect.”\n<\/p>\n
\tWe
\nare, therefore of the view that the High Court ought to have affirmed
\nthe order of the Tribunal dismissing the application of the
\nrespondent for retrospective promotion from 1976, on the ground of
\ndelay and laches.”\n<\/p>\n
 ...\t\t\t\t....\t\t\t...\n \n\n\n\t\"6.5.\tIn\n<\/pre>\n
case of  Bhoop Singh Vs. Union of India, reported in AIR
\n1992 SC 1414, the Apex Court has held in Para.8 as under :\n<\/p>\n
“8.\n<\/p>\n
There is another aspect of the matter. Inordinate and unexplained
\ndelay or laches is by itself a ground to refuse relief to the
\npetitioner, irrespective of the merit of his claim. If a person
\nentitled to a relief chooses to remain silent for long, he thereby
\ngives rise to a reasonable belief in the mind of others that he is
\nnot interested in claiming that relief. Others are then justified in
\nacting on that behalf. This is more so in service matters where
\nvacancies are required to be filled promptly. A person cannot be
\npermitted to challenge the termination of his service after a period
\nof twenty-two years, without any cogent explanation for the
\ninordinate delay, merely because others similarly dismissed had been
\nreinstated as a result of their earlier petitions being allowed.
\nAccepting the petitioner’s contention would upset the entire service
\njurisprudence and we are unable to construe Dharampal in the manner
\nsuggested by the petitioner. Art. 14 or the principle of
\nnon-discrimination is an equitable principle and, therefore, any
\nrelief claimed on that basis must itself be founded on equity and not
\n.be alien to that concept. In our opinion, grant of the relief to the
\npetitioner, in the present case, would be inequitable instead of its
\nrefusal being discriminatory as asserted by learned counsel for the
\npetitioner. We are further of the view that these circumstances also
\njustify refusal of the relief claimed under Art. 136 of the
\nConstitution.”\n<\/p>\n
6.6.\tIn
\ncase of  State of M.P. & Others Vs. Nandlal Jaiswal and Others,
\nreported in AIR 1987 SC 251, the Apex Court has held in Para.23
\nas under :\n<\/p>\n
“23.\n<\/p>\n
Now, it is well settled that the power of the High Court to issue an
\nappropriate writ under Article 226 of the Constitution is
\ndiscretionary and the High Court in the exercise of its discretion
\ndoes not ordinarily assist the tardy and the indolent or the
\nacquiescent and the lethargic. If there is inordinate delay on the
\npart of the petitioner in filing a writ petition and such delay is
\nnot satisfactorily explained, the High Court may decline to intervene
\nand grant relief in the exercise of its writ jurisdiction. The
\nevolution of this rule of laches or delay is premised upon a number
\nof factors. The High Court does not ordinarily permit a belated
\nresort to the extraordinary remedy under the writ jurisdiction
\nbecause it is likely to cause confusion and public inconvenience and
\nbring in its train new injustices. The rights of third parties may
\nintervene and if the writ jurisdiction is exercised on a writ
\npetition filed after unreasonable delay, it may have the effect of
\ninflicting not only hardship and inconvenience but also injustice on
\nthird parties. When the writ jurisdiction of the High Court is
\ninvoked, unexplained delay coupled with the creation of third party
\nrights in the meanwhile is an important factor which always weighs
\nwith the High Court in deciding whether or not to exercise such
\njurisdiction. We do not think it necessary to burden this judgment
\nwith reference to various decisions of this Court where it has been
\nemphasised time and again that where there is inordinate and
\nunexplained delay and third party rights are created in the
\nintervening period, the High Court would decline to interfere, even
\nif the State action complained of is unconstitutional or illegal. We
\nmay only mention in the passing two decisions of this Court one in
\nRamanna Dayaram Shetty v. International Airport Authority of India,<\/a>
\n(1979) 3 SCR 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v.
\nCollector, Raipur,<\/a> (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point
\nout that in R. D. Shetty’s case (supra), even though the State action
\nwas held to be unconstitutional as being violative of Article 14 of
\nthe Constitution, this Court refused to grant relief to the
\npetitioner on the ground that the writ petition had been filed by the
\npetitioner more than five months after the acceptance of the tender
\nof the fourth respondent and during that period, the fourth
\nrespondent had incurred considerable expenditure, aggregating to
\nabout Rs. 1.25 lakhs, in making arrangements for putting up the
\nrestaurant and the snack bar. Of course, this rule of laches or delay
\nis not a rigid rule which can be cast in a straitjacket formula, for
\nthere may be cases where despite delay and creation of third party
\nrights the High Court may still in the exercise of its discretion
\ninterfere and grant relief to the petitioner. But such cases where
\nthe demand of justice is so compelling that the High Court would be
\ninclined to interfere in spite of delay or creation of third party
\nrights would by their very nature be few and far between. Ultimately
\nit would be a matter within the discretion of the Court; ex
\nhypothesis every discretion must be exercised fairly and justly so as
\nto promote justice and not to defeat it.”\n<\/p>\n
The learned
\nSingle Judge, therefore, found that the delay in filing application
\nfiled by the appellant could not be condoned in light of the
\naforesaid decisions.  The learned Single Judge has further held  as
\nunder:\n<\/p>\n
\t\t...\t\t\t\t...\t\t\t...\n \n\n\n\"The\n<\/pre>\n
contention raised by learned advocate Mr. Kanabari before this Court
\nis that acknowledgment, Page 31, does not bear signature of
\npetitioner and Page 42 – second acknowledgment, where also,
\nsignature was in dispute, but, it is necessary to note in support of
\nthis contention, no one was examined by petitioner before
\nCommissioner who can deny signature of petitioner. Before
\nCommissioner, while conducting delay condone application, no oral
\nevidence was led by petitioner and in support of delay, no
\ndocumentary evidence has been produced by petitioner and even no
\nreasonable explanation has been given by petitioner. The contention
\nraised by learned advocate Mr. Kanabari that instead of 255
\ndisability as certified in medical certificate, the finding of 100%
\ndisability is contrary to medical certificate, but, Commissioner has
\nconsidered oral evidence of workman which was remained unchallenged
\nand according to evidence of workman, he was totally unfit for doing
\nany kind of work, that itself is proved 100% disability in earning
\ncapacity. The Commissioner has rightly examined 100% disability of
\nworkman in earning capacity, against which, there is no rebuttal
\nevidence produced by petitioner before Commissioner. Therefore,
\ncontentions raised by learned advocate Mr. Kanabar cannot be
\naccepted.\n<\/p>\n
\tIn
\nview of lethargic approach, non-cooperative attitude and not given
\ncompensation to workman when accident has been occurred with a
\nknowledge to petitioner, therefore, contentions raised by learned
\nadvocate Mr. Kanabar on merits cannot be examined by this Court and
\ndelay is not at all explained by petitioner before Commissioner and
\nCommissioner has rightly considered original records of Case No.106
\nof 1993 and for that, Commissioner has not committed any error which
\nrequires interference by this Court. Therefore, contentions raised by
\nlearned advocate Mr. Kanabar cannot be accepted, hence, rejected.\n<\/p>\n
\tTherefore,
\naccording to my opinion, order passed by Workmen’s Compensation
\nCommissioner, Surendranagar rejecting delay condone application filed
\nby petitioner is rightly rejected, for that, Commissioner has not
\ncommitted any error which requires interference by this Court.\n<\/p>\n
\tIt
\nis necessary to note that for justifying delay or explaining same,
\nthere must be some evidence is to be produced by petitioner before
\nCommissioner, but, no such attempt has been made by petitioner. On
\nthe contrary, petitioner has remained adamant and such a long delay
\nof seven years definitely cause great prejudice to the right of
\nrespondent claimant when workman has expired meantime and after these
\nmany years, without explaining delay itself, matter cannot get to be
\nreopened by petitioner. Otherwise, there is no end to such litigation
\nwhere workman is became victim of accident during the course of
\nemployment and that facts were within knowledge of petitioner and
\nafter receiving notice from Commissioner, not remained present and
\namount of compensation is not paid to complainant.”\n<\/p>\n
3.\t\tMr
\nP J Kanabar, learned counsel appearing for the appellant has urged
\nthat the learned Single Judge has touched the question on merits of
\nthe case. He has further urged that the Doctor was not examined to
\nprove the disability and notices were not served on the appellant as
\nthere was no signature of the appellant on the acknowledgement.  We
\nfind that the learned Single Judge has given cogent reasons for
\nrecording the finding that the notices were served on the appellant
\nbut the appellant failed to lead any oral or documentary evidence
\nthat the notices were not served or the signature on the
\nacknowledgement was not of  the appellant or of its employee.  So far
\nas the examination of the Doctor is concerned, we are of the opinion
\nthat it was not necessary in a matter which proceeded ex-parte
\nagainst the appellant. The Commissioner was satisfied about the
\ninjury mentioned in the certificate, came to the conclusion that it
\nwas a case of 100% disability as the respondent was not able to stand
\nup for more than 5 to 10 minutes.  So far as the last argument of the
\nlearned counsel for the appellant on touching the question on merit
\nof the case is concerned, the learned counsel argued the question on
\nmerit of the case and it was the legal duty of the Commissioner and
\nthe learned Single Judge to deal with the arguments of the counsel
\nfor the appellant while deciding the case.\n<\/p>\n
4.\t\tFor the
\naforesaid reasons, we agree with the order dated 7.3.2011 passed by
\nthe learned Single Judge in Special Civil Application No.1401 of 2011
\nas well as of the Commissioner.   The appeal is devoid of merits and
\nis accordingly dismissed.\n<\/p>\n
 Civil
\nApplication No.5112 of 2011<\/p>\n
\t\tIn
\nview of the order passed in the Appeal, Civil Application No.5112 of
\n2011 does not survive and is accordingly disposed of.\n<\/p>\n
\t\t\t\t\t\t\t\t[V
\n M SAHAI, J.]<\/p>\n
\t\t\t\t\t\t\t\t[G
\nB  SHAH, J.]<\/p>\n
msp<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sashin vs Rupa on 2 May, 2011 Author: V. M. G.B.Shah,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-50955","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSashin vs Rupa on 2 May, 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\/sashin-vs-rupa-on-2-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sashin vs Rupa on 2 May, 2011 - 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