Dahyabhai Gaujibhai Charel vs Range Forest Officer
2021 Latest Caselaw 10552 Guj

       C/SCA/1356/2019                              ORDER DATED: 04/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1356 of 2019

================================================================
                         DAHYABHAI GAUJIBHAI CHAREL
                                   Versus
                           RANGE FOREST OFFICER
================================================================
Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,2
MR DM DEVNANI, AGP for the Respondent No.1
================================================================
     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 04/08/2021
                                ORAL ORDER

Leave to amend the prayer clause.

1. Rule. Learned AGP waives service of notice of rule for the respondent no.1.

2. The present writ petition has been filed challenging the order dated 29.05.2012 passed in Reference (LCD) Case No.911 of 1998 and the award dated 08.08.2018 passed by the Labour Court, Dahod, in Restoration Application No.15 of 2015.

3. Learned advocate Mr.P.C.Chaudhari appearing for the petitioner has submitted that the Labour Court, Dahod, vide order dated 29.05.2012 passed in Reference (LCD) Case No.911 of 1998 has dismissed the reference for the reason that the workman was unable to produce any evidence contrary to the written statement produced by the respondent- authority. It is further observed that despite various opportunities given to the workman, the workman did not remain present and had failed in leading the evidence and hence, the contents of the affidavit, which was produced by the respondent-authority are believed to be true since there was no resistance from the side of the workman. He has submitted that after the aforesaid award, the petitioner-workman filed miscellaneous

C/SCA/1356/2019 ORDER DATED: 04/08/2021

application being Restoration Application No.15 of 2015 for restoring the reference and seeking the direction to here the matter on merits, however, by the impugned order dated 08.08.2018, the Labour Court has rejected this application.

4. Learned advocate Mr.P.C.Chaudhari for the petitioner has submitted that in fact it is settled law that once a reference is made by the appropriate Government, it is not open for the Labour Court to reject the same without adjudication. He has submitted that the reference is required to be decided by the Labour Court on its merits even if the workman is absent, and such factor of absence cannot be presumed against the workman. It is submitted that since the Labour Court on the basis of the written statement filed by the respondent authority had rejected the reference as it was not contested, the impugned awards are required to be set aside. In support of his submissions, he has placed reliance on the judgment of the Coordinate Bench of this Court in the case of Mohitosh Dass vs. M.G. Memon and Another, 2004 (2) GLR 1475. Reliance is also placed on another decision of this Court in the case of Divisional Railway Manager & Anr. vs. Secretary, Paschim Railway Karmchari Parishad, Sabarmati, 2002 (2) GLR 1164.

5. In response to the above, learned AGP Mr.D.M.Devnani has submitted that in fact the award cannot be said to be an ex-parte as the workman was represented by the lawyer and after considering the relevant facts, the Labour Court has rejected the reference. It is submitted that since the lawyer engaged by the workman was present, it can be said that the liberty to deal with all the evidence and the written statement produced by the respondent authority was available. Thus, he has submitted that the impugned award may not be set aside.

6. I have heard the learned advocates appearing for the respective parties.

C/SCA/1356/2019 ORDER DATED: 04/08/2021

7. The impugned award and orders are also perused by this Court. It appears that a reference was made by the appropriate authority with regard to termination and reinstatement of the petitioner workman, which culminated into Reference (LCD) Case No.911 of 1998. By the impugned award dated 29.05.2012, the Labour Court rejected the same. A perusal of the award reveals that the findings are confined to only paragraph 7 and such findings suggest that the reference has been rejected on the ground that since the petitioner-workman was unable to remain present to contest or object the written statement of the respondent authority and, such contents of the written statement are believed as true. It is also observed that since the petitioner-workman is unable to prove his illegal termination, the reference is rejected. Being aggrieved by the aforesaid award, the petitioner-workman preferred the application being ID (Misc.) Application No.15 of 2015 seeking rehearing of the reference on merits. However, the same was also rejected by the order dated 08.08.2018.

8. As narrated hereinabove, the Labour Court has rejected the reference only for the reason that the workman was unable to contest or dispute the written statement produced by the respondent authority. It is open for the Tribunal to accept the written statement as gospel truth without examining the evidence and contents. Though this reference cannot be termed to be ex-parte reference, this Court is of the considered opinion that the Labour Court is required to adjudicate the dispute, after examining the merits and the evidence, which is available on record. The law is well settled on the issue that even if the workman is absent, the Labour Court cannot record any findings to his detriment only because he is absent.

9. Thus, the Tribunal has committed an error of law by not restoring the aforesaid reference on the file, since the actual award, which was passed, does not reveal that the same is speaking order dealing with the

C/SCA/1356/2019 ORDER DATED: 04/08/2021

evidence or material on record. The Labour Court was required to decide the reference on merits. It is made clear that the aforesaid award will not fall within the category of ex-parte award or it cannot be said that the same is dismissed for non prosecution. However, the same would fall within the category of non speaking order, which is bereft of dealing with the evidence and merits.

10. Under the circumstances and in light of the aforenoted facts, the present writ petition is allowed. The impugned award dated 29.05.2012 passed in Reference (LCD) Case No.911 of 1998 and the order dated 08.08.2018 passed in Restoration Application No.15 of 2015 are hereby quashed and set aside. The entire matter is remitted to the Labour Court. The Labour Court is directed to restore the reference on its original file and after giving proper opportunity to the concerned parties, the said reference shall be decided on merits and it is further directed that the present petitioner and the respondent authority shall fully cooperate and any further laxity on behalf of the petitioner will be viewed detrimental to his case. Since the reference is of 2005, it is expected that the Labour Court shall preferably decide it within a period of six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) ABHISHEK