Kachchh Gramin Bank Since ... vs Kachchh Jilla Majoor Vikas Manch
2021 Latest Caselaw 10948 Guj

     C/SCA/11842/2009                         IA ORDER DATED: 06/08/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2020
           In R/SPECIAL CIVIL APPLICATION NO. 11842 of 2009
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MAHESH KESHAVJI CHAUHAN Versus KACHCHH GRAMIN BANK SINCE AMALGAMATED AND RENAMED ========================================================== Appearance:

for the PETITIONER(s) No. MR BHARGAV HASURKAR for the PETITIONER(s) No. MR PS CHAMPANERI for the RESPONDENT(s) No. MR.VARUN K.PATEL for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI Date : 06/08/2021 IA ORDER

1. The applicant is the original respondent No.2 seeking the review under Order 47 of the Code of Civil Procedure of the oral order passed by this Court on 18.10.2019 in Special Civil Application 11842 of 2009, whereby the Court had disposed of the petition by quashing and setting aside the order passed by the Labour Court in Reference (LCD) No.3 of 2002 - Bhuj.

2. The petition was challenging the order passed by the Labour Court in Reference (LCD) No.3 of 2002 - Bhuj Reference passed, whereby the Labour Court had allowed the Reference made by the applicant and directed the respondent No.2 to reinstate the applicant to his original post of Bank Branch Manager with all incidental, financial and other benefits, this order is sought to be reviewed.

3. It is the say of the applicant that during the course of hearing, the Court had observed that the Labour Court had erred by assuming jurisdiction and entertaining the

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Reference, which pertained to reinstatement as a Branch Manager on the ground that the present applicant was not a workman as per the provisions of the Industrial Disputes Act, 1947 ('the I.D.Act' for short) and he could not have challenged the same by way of a Reference before the Labour Court. Learned counsel appearing for the applicant has conceded to such defect of incorrectly pursuing the remedy for his grievance before the Labour Court. It is the say of the applicant that his consent was never sought by the learned counsel. Neither he has given it explicitly or impliedly and as a result thereof, this consent being defective and improper has resulted into the disposal of the petition against the present applicant in the premise which is incorrect.

4. The order passed in Special Civil Application No.11842 of 2009 therefore was sought to be challenged by preferring the Letters Patent Appeal No.348 of 2020 and during the course of the hearing, the submission in reference to incorrect and unathorised consent given had cropped up. The Division Bench, therefore, had deemed it fit that in such eventuality, this aspect needs to be brought to the notice of this Court and hence, the Letters Patent Appeal was withdrawn with a liberty to file the present application for review. Accordingly, this application with the following prayers:

"9...

(A). This Hon'ble Court be pleased to admit and allow

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the present Miscellaneous Civil Application for Review;

(B). This Hon'ble Court be pleased to review and/or recall its order dated 18.10.2019 passed in Special Civil Application No.11842 of 2009 in the matter of Kutch Gramin Bank, since amalgamated and renamed v/s. Kutch Jilla Majoor Vikas Manch and restore Special Civil Application No.11842 of 2009 to its original files and further be pleased to list such matter for hearing on merits in the interest of justice;

(C). This Hon'ble Court may be pleased to pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice."

5. This Court has heard the learned advocate, Mr.Bhargav Hasurkar, who has urged that the application for review is preferred so as to bring to the notice of this Court that on account of incorrect and unauthorised consent by the learned counsel, the patent illegality has crept into the order and such consent could not have been given in first place, the review is being sought. He has also urged that the first issue which had been framed by the Labour Court was whether it is proved that the opponent is a workman as defined in Section 2(s) of the I.D.Act and whether that Court had jurisdiction to entertain the reference. There are specific findings given by the Labour Court in support of its jurisdiction. In such

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circumstances, the applicant has suffered irreparably since the year 1997 and with the consent a fresh forum after a lapse about two decades was needed to be resorted to.

5.1 The Labour Court since has passed the reasoned order, both on the grounds of jurisdiction as well as on the merits of the case. The summary dismissal, on the ground of the consent of the learned counsel of the petition, is sought to be reviewed.

6. Learned advocate, Mr.Varun Patel appearing originally for Kachchh Gramin Bank and now for Dena Bank has strenuously resisted this application for review. According to him, it is not only the consent of the parties, which has weighed with the Court, but there is an independent findings also, which could have been questioned and challenged before the Division Bench. Without so doing, the applicant has preferred to withdraw the Letters Patent Appeal and has approached this Court. There is a limited scope of review and there is no error apparent on the face of the record, if at all there is a dispute as to whether the consent was given, that is between the learned counsel and the applicant - original respondent No.2 that in no manner would entitle the applicant to approach this Court for review. He has further urged that the issue of jurisdiction since had weighed with the Court, it had chosen to quash the order keeping open all the issues between the parties, to be agitated before

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the appropriate forum.

7. Having thus heard the learned advocates on both the sides, the Court at the outset notices that the learned advocate appearing for the applicant-respondent at the relevant point of time admitted that it was erroneous on the part of the Labour Court to entertain the Reference and adjudicate upon the same. He urged the Court to decide the aspect of preliminary objection on his admission and also sought permission for the respondent to take a legal recourse as otherwise would be available.

8. Learned advocate, Mr.Varun Patel had no objection to the Court quashing and setting aside the judgment and award on the ground of jurisdiction. He also wanted all the rights of the parties to be kept intact and sought permission to allow those contentions to be raised before the appropriate forum, if at all such proceedings is initiated.

9. The Court acceded to the request, of course, but at the same time, at paragraph No.9, it had on the strength of the material on the record had noticed that the respondent had worked as a Bank Manager and also had undergone departmental proceedings in the capacity of the Manager and it was on his punishment that he was made the clerk and hence, he would not have taken recourse to the remedy before the Labour Court for the

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grievance is prior to his having worked on the post of the clerk. Thus, on the ground of jurisdiction alone and keeping the rights of the parties open to be agitated before the appropriate forum, the petition was disposed as not pressed.

10. There is a complete absence of any error apparent on the face of the record for this court to review the order as per the settled cannon of law.

10.1 Moreover, if one looks at Section 2 A of the I.D.Act, it permits the individual workman to raise an industrial dispute where an employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination also is to be deemed as an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

10.2 Here, the applicant himself has approached this Court without his cause being espoused by the Union. It is not a case of either discharge, dismissal, retrenchment or termination.

"The Second Schedule of the Industrial Disputes Act.

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1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing orders;

3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;

4. Withdrawal of any customary concession or privilege;

5. Illegality or otherwise of a strike or lock-out; and

6. All matters other than those specified in the Third Schedule."

11. In the event of any discharge or dismissal of the workman including the reinstatement or grant of relief to the workman wrongfully dismissed the jurisdiction of the Labour Court is to be resorted to. This makes it very clear that even if the case of the applicant - respondent No.2 is accepted in toto of his being a workman then also this cannot be entertained.

12. However, as had held and observed by this Court at paragraph No.9 in its order, which is sought to be reviewed, in absence of any ground having been made out for the Court to review its order, this application is dismissed. Dismissal of this application in no manner will curtail the rights of the applicant in taking the legal recourse available to him.

(SONIA GOKANI, J) M.M.MIRZA