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SCA/1164/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1164 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
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 ?
======================================
ZAKIRHUSSEN
KESHARSINH RANA @ JAYMENDRASINH KESHARISINH RANA - Petitioner
Versus
KANJARI
GRAM PANCHAYAT KANJARI NAGAR SEVA SADAN, & 1 - Respondents
======================================
Appearance :
MR
AV NAIR FOR MR ASHISH H SHAH for the Petitioner.
MR KAUSHAL D
PANDYA for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/03/2011
ORAL
JUDGMENT
1. Rule.
Mr.Kaushal Pandya, learned advocate waives service of notice of Rule
on behalf of respondent No.1.
2. By
way of this petition under Articles 226 and 227 of the Constitution
of India, the petitioner – workman has prayed for an
appropriate writ, order and/or direction, quashing and setting aside
the order dated 03/11/2010 passed below Exhs.1, 2 & 3 in
I.D.Misc.Application No.15 of 2007 in Reference (LCN) No.337/2001, by
which, the Labour Court, Nadiad has allowed the said application
submitted by respondent No.1 herein and restored Reference (LCN)
No.337/2001. However, while allowing the said application, Labour
Court has not permitted the petitioner to withdraw an amount of
Rs.1,29,264/-, which
has been deposited by respondent No.1 herein pursuant to the order
passed by this Court (Coram: Hon’ble Mr.Justice S.R.Brahmbhatt) in
Special Civil Application No.12017/2009.
3. Facts
leading to the present petition, in nutshell, are as under:
That
an ex-parte judgement and award came to be passed by learned
Presiding Officer, Labour Court, Nadiad in Reference (LCN)
No.337/2001. That thereafter, the petitioner – workman
preferred Recovery Application No.54/2007 and the said application
was allowed ex-parte and respondent No.1 – Gram Panchayat was
directed to pay a sum of Rs.1,29,264/- to the petitioner and Labour
Court also issued Recovery Certificate. Subsequently, respondent-Gram
Panchayat preferred ID Misc.Application No.15/2007 u/s. 26-A(2) of
the Industrial Disputes Act seeking restoration of the original
Reference proceedings. However, in the meantime, the Collector
initiated the proceedings to execute the recovery certificate. It
appears that since any action with regard to execution of the
aforesaid recovery certificate was not taken, the petitioner
preferred writ petition being Special Civil Application
No.12017/2009, which came to be disposed of by learned Single Judge
of this Court (Coram: Hon’ble Mr.Justice S.R.Brahmbhatt) vide order
dated 15/12/2009 and in the said order, learned Single Judge directed
inter-alia that :-
“5. This
Court is of the view that when the restoration proceedings have been
filed and taken up, it would be in the fitness of things that the
Labour Court in whose favour the Demand Draft is drawn shall not
disburse this amount for a period of fifteen days from today, i.e.
30th December, 2009 and thereafter, disburse the said
amount on or after 1st January, 2010 in case no order is
obtained for restoring the matter by 30th December, 2009.
In view of this, Shri. Nair seeks permission to withdraw the
petition. Notice discharged.”
4. It
appears that the aforesaid amount in question was directed to be
deposited with the Registry of the Labour Court and the Labour Court
was directed to disbursed the same in favour of the petitioner, if
any, order was not passed in the restoration application by
30/12/2009. As any order in respect of ID Misc.Application No.15/2007
was not passed by 30/12/2009, the petitioner had submitted an
application dated 11/03/2010 seeking disbursement of the aforesaid
amount. However, the application of the petitioner is kept undecided
by the learned Labour Court. Thereafter and after the time limit
fixed by this Court, learned Presiding Officer, Labour Court, Nadiad
has allowed the aforesaid ID Misc.Application No.15/2007 vide order
dated 03/11/2010 i.e. almost after one year, by imposing cost of
Rs.5,000/- and without any other or further directions with respect
to disbursement. Being aggrieved by and dissatisfied with the
aforesaid order dated 03/11/2010 passed by the Labour Court, Nadiad,
the petitioner has preferred the present petition challenging the
order dated 03/11/2010 passed by the Labour Court, Nadiad in ID
Misc.Application No.15/2007 as well as not passing any order on the
application submitted by the petitioner to disburse the amount i.e.
Rs.1,29,264/-, which has been deposited by respondent No.1 herein
pursuant to the order passed by this Court.
5. It
appears that the explanation was sought by learned Single Judge of
this Court from the concerned Labour Court why the order and
direction passed by this Court prescribing time limit to pass the
order in ID Misc.Application No.15/2007 on or before 30th
September,2009, has not been complied with and why the amount was not
disbursed in favour of the petitioner. Learned Presiding Officer,
Labour Court, Nadiad submitted his report dated 07/03/2011 by
submitting that there was non-compliance of the order passed by this
Court by his predecessor and in fact he has resumed his duty on 1st
July,2010.
6. Having
heard Mr.A.V.Nair, learned advocate appearing on behalf of the
petitioner and Mr.Kaushal Pandya, learned advocate appearing on
behalf of respondent No.1 and considering the impugned order passed
by Learned Presiding Officer, Labour Court, Nadiad in ID
Misc.Application No.15/2007 in allowing the said application and
directing to restore Reference (LCN) No.337/2001, it appears to the
Court that no illegality and/or error has been committed by the
Labour Court in allowing the said application and restoring the
Reference (LCN) No.337/2001. A cogent reasons have been given by the
Labour Court while allowing the said application and restoring the
Reference on file, and, therefore, no interference of this Court is
required in exercise of power under Articles 226 and 227 of the
Constitution of India.
7. However,
considering earlier order dated 15/12/2009 passed by this Court in
Special Civil Application No.12017/2009, some order is required to be
passed with respect to an amount of Rs.1,29,264/-, which has been
deposited by respondent No.1, pursuant to the earlier order passed
by this Court. Considering the earlier order passed by this Court, it
appears to the Court that if the petitioner is permitted to withdraw
50% of the amount, which is deposited by respondent No.1, on
Undertaking that if he fails in the main Reference, he will repay the
same within time that may be prescribed by the Labour Court and
remaining 50% amount will be deposited in the Fixed Deposits in any
Nationalised Bank initially for a period of one year, it will meet
the ends of justice and it will protect the interest of both the
parties.
8. In
view of the above and for the reasons stated hereinabove, the
petition succeeds in part. The impugned order dated 03/11/2010 passed
by learned Presiding Officer, Labour Court, Nadiad in not passing any
order with respect to disbursement of the amount of Rs.1,29,264,
which has been deposited by respondent No.1 pursuant to the earlier
order passed by this Court, is hereby quashed and set aside and the
petitioner is hereby permitted to withdraw a sum of Rs.64,632/- (50%
of Rs.1,29,264/-), which is deposited by respondent No.1, as stated
hereinabove on furnishing Undertaking by the petitioner that in case
he fails in main Reference, he will repay the amount within time,
that may be prescribed by the Labour Court and on such Undertaking,
Labour Court, Nadiad is hereby directed to pay a sum of Rs.64,632/-
(50% of Rs.1,29,264/-) to the petitioner on proper identification and
verification immediately but not later than 15 days from the date of
filing of such Undertaking.
So
far as a sum of Rs.64,632/- (50% of Rs.1,29,264/-) is concerned,
Labour Court is directed to invest the same in the Fixed Deposits in
any Nationalised Bank initially for a period of one year with
cumulative interest thereon, so that whoever succeeds in the main
Reference, the same may be given to them.
So
far as impugned order dated 03/11/2010 passed by Labour Court in
restoring the main Reference is concerned, for the reasons stated
hereinabove, the same is hereby confirmed and another order passed by
Labour Court in ID Misc. Application No.15/2007 is dismissed to the
aforesaid extent only. Labour Court is directed to decide and dispose
of the main Reference (LCN) No.337/2001 at the earliest but not later
than 31/12/2011. All concerned are directed to co-operate the Labour
Court in early disposal of the main Reference. Rule is made absolute
to the aforesaid extent. No costs.
Direct
service is permitted.
[M.R.SHAH,J]
*dipti
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