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MCA/2662/2007 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR REVIEW No. 2662 of 2007
In
SPECIAL
CIVIL APPLICATION No. 2848 of 2001
======================================================
YOUNUS
MIYAJAN - Applicant(s)
Versus
EXECUTIVE
ENGINEER & 1 - Opponent(s)
======================================================
Appearance
:
MS SEJAL K MANDAVIA for
Applicant
MR PV HATHI for
Opponents
======================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/03/2008
ORAL
ORDER
1. The
applicant herein has prayed to review and recall the order dated 27th
December 2005 passed by this Court in Special Civil Application
No.2848 of 2001 and restore the said petition file.
2. The
prayers made in the aforesaid petition are as under:
[A] That
Your Lordships be pleased to issue an order and or direction or writ
in the nature of cerriorari or any other writ, order or direction
quashing and setting aside the impugned termination order dated
5.10.2000, marked Annexure ‘F’, terminating the services of the
petitioner being arbitrary, illegal and against the elementary
principles of natural justice.
[B] That
your Lordships be pleased to direct the respondents to reinstate
petitioner with full back wages and continuity of service.
[C] Pending
admission and final disposal of this petition, your Lordships be
pleased to issue direction to the respondents to take the petitioner
on duty or pay and continue to pay full salary till final disposal of
the present petition.
3. The
aforesaid petition came to be disposed of by a common judgement
passed in said petition and in Special Civil Application Nos.1196 of
2001.
4. Learned
Advocate for the applicant submitted that Though the party is the
same in both the petitions, in fact both the subject matters of
above petitions are different inasmuch as the subject matter of SCA
No.2848/2001 is order of termination and the subject matter of SCA
No.1196 of 2001 is transfer. She therefore submitted that this fact
could not be pointed out to the Court at the time of hearing and
there is an inadvertent mistake on the part of the learned Advocate
for the petitioner as a result of which the aforesaid petition came
to be disposed of without adjudication. Learned Advocate submitted
that the applicant is a very poor person and is out of job since
2000 and if the matter is not restored great injustice would be
caused to the applicant.
5. Mr.
P.V. Hathi, learned Advocate for the opponent has objected to the
application and submitted that if the application is allowed, the
Panchayat will require to pay back wages and will create
complications.
6. As
a result of hearing and perusal of the record, it is clear that the
subject matter of the above Special Civil Application is different
and the matter has been disposed of without adjudicating the order
of termination. Therefore the grievance of the petitioner raised in
the above is not redressed. It was a bonafide mistake and therefore
I am of the opinion that in the interest of justice the matter
requires to be restored for adjudication of the issue in question.
Further, I am of the view that because of the mistake of Advocate,
the litigant should not be made to suffer. Merely on the ground that
Panchayat will have to pay backwages the valuable right of hearing
the petition on merits cannot be denied to the petitioner. Therefore,
the application deserves to be allowed.
7. In
the premises aforesaid, this application is allowed and the Special
Civil Application No.2848 of 2001 is restored to file. The said
petition shall be listed for hearing before the appropriate court and
it will be open to both the parties to raise all the available
contentions at the time of hearing of the said petition. Rule is made
absolute accordingly with no order as to costs.
[K.S.
JHAVERI, J.]
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