Gujarat High Court
Ghabrubhai Bhagubhai Vala vs Gujarat State Road Transport ... on 29 January, 2025
NEUTRAL CITATION
C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2705 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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GHABRUBHAI BHAGUBHAI VALA
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH
DIVISIONAL CONTROLLER
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Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the Petitioner(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 29/01/2025
ORAL JUDGMENT
1. This petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India, challenging the order passed by the learned Presiding Officer, Labour Court, Valsad, in Reference (LCV) No.334 of 2005, dated 20.07.2017, as well as the order passed in the application for restoration No.52 of 2019, dated 31.07.2021, whereby the application for restoration is rejected on the ground that no ex parte award was passed and the Reference was disposed of on the basis of the withdrawal pursis filed by the present petitioner, and therefore, application Page 1 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025 NEUTRAL CITATION C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025 undefined under Rule 26A of Gujarat Industrial Disputes Rule is not maintainable.
2. Heard the learned advocate Ms.Sangita Pahwa for the petitioner and learned advocate Mr.H.C.Naidu for the respondent.
3. Learned advocate Ms. Pahwa submits that the petitioner was appointed as a driver in the corporation at Una in the year 1980 and thereafter, he was transferred to different places. On non-resumption of duty at the place where he was transferred, a chargesheet was issued for unauthorized absence from duty. Thereafter, the departmental inquiry proceeded further and ultimately, the service of the petitioner was put to an end in the year 1984 vide Office Order dated 17.01.1984. Learned advocate Ms. Pahwa submits that challenging the order passed by the authority dismissing the service, Regular Civil Suit No.38 of 1992 was filed before the learned Civil Judge, Bagsara, which was decreed in favor of the petitioner. Challenging the decree, the appeal which was filed, being Regular Civil Appeal No.31/1991, came to be allowed on the ground that the civil court had no jurisdiction to entertain the relief, which was covered under the Industrial Disputes Act. Thereafter, the Reference came to be filed before the learned Labour Court, Valsad, claiming reinstatement to the original post and to set aside the order of termination.
3.1. Learned advocate Ms. Pahwa submits that Page 2 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025 NEUTRAL CITATION C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025 undefined subsequently, the pursis came to be filed on 20.07.2017 stating that the corporation is willing to pay the amount and therefore, permission was sought to withdraw the Reference filed before the learned Labour Court. It is submitted that the aforesaid application was filed under the signature of the present petitioner as well as the advocate of the respondent. Learned advocate Ms. Pahwa submits that thereafter, the order was passed permitting the present petitioner to withdraw the Reference on 20.07.2017.
3.2. Learned advocate Ms. Pahwa submits that, thereafter, for a period of two years, the present petitioner has made all sincere efforts to get the relief which was promised by the respondent. However, as the respondents were backout from their commitment, the application, being Misc. Application No. 52 of 2019, was filed below Exhibit-8 under Rule 26A of the Gujarat Industrial Dispute Rules, praying to restore the Reference to its original file. Learned advocate Ms. Pahwa submits that, without considering the fact that the award was not passed on merit and without considering the fact that no adjudication was made, instead of allowing the application filed under Rule 26A, the learned Labour Court has rejected the application on 31.07.2021.
3.3. Learned advocate Ms. Pahwa has relied on the decision rendered by the High Court of Judicature, Page 3 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025 NEUTRAL CITATION C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025 undefined Rajasthan, in D.B.C.S.A. No. 300 of 2004, decided on 24.01.2005, and submitted that the learned Court ought not have passed an award on the basis of the withdrawal pursis, as the same cannot be termed an award, which is defined under Section 2B of the I.D. Act. Learned advocate Ms. Pahwa has also relied on the decision rendered by this Court in the case of Mohitosh Dass vs. Mg. Menon, reported in (2004) 2 GLR 1475, and submitted that without examining the issue, if the award is passed, then the same can be termed an ex-parte award, and under Rule 26A of the Gujarat Industrial Disputes Rules, the same can be restored and this Reference can be decided on merits.
3.4. Learned advocate Ms. Pahwa further submits that, in any case, this Court may direct the learned Labour Court to decide the Reference on its merits, as there is no award passed on merits, and therefore, the petition filed by the present petitioner is required to be allowed by setting aside the order dated 20.07.2017, permitting the present petitioner to withdraw the Reference being (LCV) No. 334 of 2005.
4. Per contra, learned advocate Mr. Naidu submits that there is no reference to any settlement term in the withdrawal pursis, which is filed by the petitioner, and a countersignature was also made by the learned advocate for the petitioner along with petitioner. Learned advocate Mr. Naidu submits that though the aforesaid award was Page 4 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025 NEUTRAL CITATION C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025 undefined disposed of on the basis of the withdrawal pursis on 20.07.2017, the Misc. Application was filed under Rule 26A of the Gujarat Industrial Disputes Rules on 06.05.2019, which was filed after two years from the date of order passed in Reference (LCV) No. 334 of 2005. As the petitioner himself has withdrawn the Reference without placing any settlement terms on record, no interference is required, and the petition is required to be dismissed.
4.1. Learned advocate Mr. Naidu submits that, as the application for restoration was filed after a period of 30 days and without preferring any separate application for condonation of delay, therefore, also the order passed in Misc. Application No. 52 of 2019 is required to be upheld, and the petition is required to be dismissed.
5. Considering the submissions made by the learned advocates for the respective parties and considering the judgment relied upon by the learned advocate Ms. Pahwa for the petitioner, it is an undisputed fact that the Reference, which was filed by the petitioner challenging the order of termination, was permitted to be withdrawn on the basis of the pursis filed by the petitioner, without placing any settlement terms and only on the bare statement that the respondents are ready to consider the claim of the petitioner.
6. Considering the request made by the petitioner praying Page 5 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025 NEUTRAL CITATION C/SCA/2705/2022 JUDGMENT DATED: 29/01/2025 undefined to withdraw the Reference, the pursis filed below Exhibit 19 was allowed, and the Reference was disposed of on the basis of the said pursis undisputably, the said withdrawal order cannot be termed an award under Section 2A of the I.D. Act. The application, which is filed under Rule 26A, wherein the provisions are mentioned to restore the ex-parte award, which is passed by the learned labour Court would not applicable in the instant case, as the Reference was disposed of on the basis of the withdrawal pursis filed by the petitioner. The application was filed after a period of two years without supporting any application for delay. Therefore, this Court is of the view that the learned Labour Court has not committed any error in rejecting the application being Misc. Application No. 52 of 2009 filed under Rule 26A of the Gujarat Industrial Disputes Rules.
7. This Court has considered the decision rendered by the Apex Court in the case of Virendra Bhandari vs. Rajasthan State Road Transport, reported in (2002) 9 SCC 104. The case before the Apex Court was that no disputed award was passed by the learned Labour Court, and therefore, a second Reference was filed, which was allowed in favour of the petitioner. However, the same was set aside by the High Court on the ground that the second Reference was not maintainable. In that background, the Apex Court held that if the previous Reference was not decided on merits, then there is no bar on the filing of a second Reference.
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8. This Court is of the view that if the industrial dispute still exists and, as claimed by the petitioner and, no amount has been paid to which he is entitled, then instead of filing the application under Rule 26A, the petitioner could have filed another Reference under Section 10 of the I.D.Act, which could have been decided by the authority considering the merits of the case. The judgment relied upon by the learned advocate for the petitioner was based on different facts; therefore, the same would not come to the rescue of the petitioner. In that view of the matter, this Court does not find any infirmity in the impugned judgment passed by the learned Labour Court and, therefore, the petition, being devoid of any merit, deserves to be dismissed.
9. Resultantly, this petition is dismissed. The passed by the learned Presiding Officer, Labour Court, Valsad in Reference (LCV) No.334 of 2005 dated 20.07.2017 and order passed by the learned Presiding Officer, labour Court in Misc. Application (for restoration) No.52 of 2019 in Reference (LCV) No.334 of 2005 dated 31.07.2021 are hereby confirmed.
(M. K. THAKKER,J) M.M.MIRZA Page 7 of 7 Uploaded by M.M.MIRZA(HC01407) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:39:29 IST 2025