Bhuj Municipality vs Dawood Umar Kumbhar
2021 Latest Caselaw 18271 Guj

      C/SCA/17105/2021                                   ORDER DATED: 09/12/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/SPECIAL CIVIL APPLICATION NO. 17105 of 2021
                                 With
        MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 1601 of 2015
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                            BHUJ MUNICIPALITY
                                  Versus
                          DAWOOD UMAR KUMBHAR
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Appearance:
MR BY MANKAD(440) for the Petitioner(s) No. 1
MS.REENA KAMANI for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No.,2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 09/12/2021
                   ORAL ORDER

[1] In the present writ petition, the petitioner has challenged the order dated 04.10.2010 in Recovery Application No.27 of 1997 passed in Misc. Application No.19 of 2012. The prayer clause WILL suggest that the writ petitioner has challenged the order dated 04.10.02010 by filing the writ petition here in the year 2021.

[2] The facts giving rise to the present petition are that the respondent-workman is working as a driver with the petitioner Municipality from 01.07.1986. He had filed Recovery Application No.27 of 1997 before the Labour Court at Bhuj for getting the differences of pay between the post of a driver and a labourer under Section 33C(2) of the Industrial Disputes Act, 1947, (the ID Act). It was the case of the respondent No.1, that though he is working as a driver, he was being paid the salary

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of a labourer. The Labour Court at Bhuj allowed the recovery application by an order dated 04.10.2010.

[2.1] Learned advocate Mr.Mankad appearing for the petitioner-Municipality has submitted that the aforesaid award was passed ex parte, and without authority of law, hence the Municipality challenged the same by filing Special Civil Application No.15422 of 2010, which was disposed of vide order dated 21.03.2011 with other allied matters, by directing the petitioner-Municipality to file an application under the provision of Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 (of Rule, 1966).

[2.2] It is submitted that as per the order passed by this Court in Special Civil Application No.15422 of 2010 filed by the petitioner- Municipality, the Municipality preferred an application under Rule 26A of Rule, 1966, for setting aside an ex parte order dated 04.10.2010, but since there was delay in preferring the said application, the petitioner-Municipality preferred Misc. Application No.19 of 2012 under Rule 26A(2) of Rule, 1966 for condoning the delay of 76 days, which was required to be condoned as the petitioner-Municipality had preferred Letters Patent Appeal No.788 of 2011 for setting aside the order dated 21.03.2011 passed in Special Civil

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Application No.15422 of 2010. It is submitted that the Labour Court vide order dated 31.01.2017, has rejected the delay condonation application and hence, the present petition has been filed.

[2.3] He has further submitted that the respondent no.2 has erred in dismissing the application for condoning the delay on the ground that the petitioner has not filed the review application within 15 days, as per the order of this Court. It is submitted that while dismissing the application seeking condonation of delay, the Labour Court has not mentioned the reason, as stated hereinabove and in fact the Labour Court ought to have decided the application in the year 2012, when it was presented. It is further submitted that even the amendment application giving reason of delay in filing the amendment application and the respondent no.2 has not given any opportunity to the petitioner before coming to the conclusion on the said aspect.

[2.4] It is further submitted that the petitioner- Municipality had preferred an application being Special Civil Application No.11298 of 2018 against the order dated 31.01.2017 in delay condonation application being I.D.Misc. Application No.19 of 2012, in which, this Court, has issued notice on 26.07.2018 and the same is pending for adjudication. It is further submitted that the petitioner has challenged the similar

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order of refusing condonation of delay in preferring application under Rule 26A of Rule, 1966 passed by the Labour Court on 31.01.2017. As per the order of the Labour Court, the petitioner has already deposited an amount before the Registry of this Court, which is invested in a Fixed Deposit by the Registry and is still continued every year. Thus, he has submitted that the impugned order may require to be set aside.

[3] In response to the aforesaid submissions, learned advocate Ms.Reena Kamani has submitted that in fact the impugned order passed by the Labour Court does not require any interference, since despite the directions issued by this Court vide judgment dated 21.03.2011 passed in Special Civil Application No.15422 of 2010 and other allied matters to file an appropriate application under Rule 26A of Rule, 1966 within a period of 15 days, the same was not filed. She has submitted that against the aforesaid order, the petitioner Nagarpalika had filed Letters Patent Appeal No.788 of 2011, which was also dismissed of by the order dated 28.09.2011.

[3.1] Learned advocate Ms.Kamani has submitted that the order of the learned Single Judge was neither stayed nor any directions were altered by the Division Bench. Hence, since the petitioner- Nagarpalika was supposed to file an application within 15 days, the Labour Court has precisely

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rejected the delay condonation application. It is further stated that the respondent-workman had filed Special Civil Application No.1601 of 2015 before this Court against the petitioner- Nagarpalika for execution of Recovery Certificate dated 16.05.2012. She has submitted that the petitioner Nagarpalika had also filed Special Civil Application No.118 of 2016 before this Court and all the matters were disposed by the order dated 18.11.2016, whereby the writ petition filed by the petitioner-Nagarpalika being Special Civil Application No.118 of 2016 was allowed because they had challenged the action of the Labour Court in refusing to grant amendment application filed in delay condonation application, whereas in the writ petition filed by the present petitioner being Special Civil Application No.1601 of 2015, the directions were issued to the Labour Court to restore the proceedings under Section 33C(2) of the I.D. Act and such proceedings were ordered to be decided within a period of 15 days from the date of restoration and the Labour Court has also directed to hear and conclude application for amendment within a period of 15 days. She has further submitted that during pendency of the petition, the amount of recovery certificate of Rs.6,97,000/- with interest were ordered to be deposited before the Registry of this Court, which was deposited as per the order dated 24.04.2015 passed in Special Civil Application No.1601 of 2015, which was filed

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by some of the respondents.

[3.2] Learned advocate Ms.Reena Kamani has submitted that other workmen, who were also party to the litigation in their cases, the amount of recovery certificate, which was deposited by the petitioner-Nagarpalika before the Labour Court, has been allowed to be withdrawn, however, the present petitioner is yet not paid the amount of recovery certificate only because such amount is still lying before the Registry of this Court.

[4] Heard the learned advocates appearing for the respective parties.

[5] The facts, as narrated hereinabove suggest that the respondent-workman is still waiting for his legal dues, for which, the Recovery Certificate dated 16.05.2012 has been issued and the same is not being implemented because of the aforesaid litigation. Before, I proceed to observe anything on merits, it would be apposite to refer to the earlier litigation.

[6] It appears that the petitioner-Bhuj Municipality filed four petitions being Special Civil Applications No.15422 of 2010, 15423 of 2010, 15424 of 2010 and 15425 of 2010 challenging the order passed by the Labour Court, Kutch-Bhuj and Recovery Certificate Nos.27 of 1997, 21 of 1997, 18 of 1997 and 28 of 1997. The respondent-workman i.e. Dawood Umar Kumbhar was a party-respondent in

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Special Civil Application No.15422 of 2010.

[7] By the impugned judgment dated 21.03.2011 passed in Special Civil Application No.15422 of 2010 and other allied matters, this Court has disposed all the petitions by observing thus:-

All the four petitions are disposed of with the following directions:-

(1) The petitioner - Nagarpalika may file appropriate applications under Rule 26A of the Rules of 1966 before the Labour Court praying for setting aside the ex-parte order, within a period of fifteen days from the date of receipt of this order. It will also open for the petitioner - Nagarpalika to prefer appropriate applications under Rule 26B of the Rules of 1966 praying for stay of the operation of the ex- parte orders till the applications under Rule 26A of the Rules of 1966 are finally disposed of.

(2) The Labour applications, Court, shall on filing of the same decide such in accordance with law after giving opportunity of hearing to the respondents-workmen, within a period of six weeks thereafter.

(3) The Labour Court applications which petitioner - may shall be decide preferred Nagarpalika without by such the being influenced by the present order as this Court has not expressed any opinion on the merits of the rival claims and contentions.

[8] On a bare perusal of the aforesaid directions would reveal that the opportunity was given to the petitioner- Nagarpalika to file an appropriate application under Rule 26A of the Rules, 1966, before the Labour Court praying for setting aside the ex parte award within a period of 15 days from the date of receipt of this order. It was also observed that the petitioner-Nagarpalika may prefer an appropriate application under Rule 26A of Rules,

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1966 and pray for stay of operation of ex parte order under Rule 26 of the Rules, 1966. Thus, the appropriate application was required to be filed within a period of 15 days from the date of receipt of the order. However, the petitioner-Nagarpalika did not do so and instead challenged the order before the Division Bench. By the order dated 28.09.2011 passed in Letters Patent Appeal No.788 of 2011, the Division Bench observed thus:-

"4. In view of the above directions, since the learned Single Jusdge has only directed the appellant to file appropriate application for setting aside the ex-parte order before the Labour Court, we do not find to interfere in the order passed by the Learned Single Judge. It is open for the appellant to raise all the grievances available under the law before the Labour Court and if such applications are filed by the appellant, the Labour Court shall decide the same in accordance with the law."

[9] In Letters Patent Appeal, the Division Bench did not disturb any directions issued by the Coordinate Bench. It is also not in dispute that the order directing the petitioner-Nagarpalika issued by the Coordinate Bench for filing application within a period of 15 days were not stayed and hence, the petitioner-Nagarpalika was under an obligation to file such an application within 15 days, however, the same was not done. The respondent workman i.e. Dawood Umar Kumbhar filed Special Civil Application No.1601 of 2015 for seeking a direction for implementation of the recovery certificate. The petitioner-Nagarpalika

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filed Special Civil Application No.118 of 2016, whereby the Labour Court has refused to accept the application for amendment in the delay condonation application. The writ petitions were heard with the other writ petitions, which were filed for implementation of the recovery certificate.

[10] By common order dated 18.11.2016 passed in Special Civil Application No.118 of 2015 and other allied matters, this Court disposed of the writ petitions by observing thus:-

"1. The Labour Court will hear and conclude the application for amendment within a period of 15 days from the date of receipt of the writ of this Court after hearing both the parties.

2. In the vent, the Labour Court decides to grant the amendment, condonation of thereafter decided the delay within application would a also period of for be 15 days from the date of the grant of amendment after hearing the parties. 3. In the event, the Labour Court decides to restore the proceedings under Section 33(c)(2), such proceedings also shall be decided within a period of 15 days from the date of restoration of the proceedings aforestated.

4. The parties will cooperate before the Labour Court and in absence of the cooperation, it will be open for the Labour Court to proceed in the matter in accordance with law.

5. In the meanwhile, the amount deposited in the Labour Court pursuant to the recovery made by the Collector shall be deposited in the name of the Labour Court concerned in a fixed deposit scheme in a Nationalized Bank, initially for a period of one year and if in any event, the proceedings aforestated gets prolonged beyond the period of one year, the said FDR shall be renewed for a further period of one year."

[11] During the pendency of this petition, as noted hereinabove, the petitioner-Nagarpalika has

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deposited an amount of recovery certificate before this Court and the same is lying in the Registry of this Court. The petitioner-Nagarpalika has not disputed that so far as the amount of Recovery Certificates, which was issued in favour of other workmen, who are similarly situated to the respondent workmen in the litigation, and whose amounts were deposited before the concerned Labour Court, are allowed to be withdrawn and the respondent workmen is only left for the reason that such amount is deposited before the Registry of this Court, and no direction is passed with regard to disbursal of such amount to him by this Court.

[12] After all these proceedings, vide a common order dated 31.01.2017 passed in Misc. Application No.19 of 2012, which was filed by the petitioner- Nagarpalika for condonation of delay, the Labour Court has rejected them since there was 76 days delay in filing Misc. Application. The Labour Court has observed that despite the directions issued by this Court the same were not followed and hence, taking shelter of the aforesaid order dated 21.03.2011 passed in Special Civil Application No.15422 of 2010 and allied matters, the concerned Labour Court has rejected the delay condonation application filed by the present petitioner, which is subject matter of challenge. Thus, the undisputed fact remains that despite the direction issued by this Court in the judgment dated

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21.03.2011 and there being no stay, the petitioner- Municipality did not care to file the application within time stipulated by this Court. Neither any application was filed before this Court seeking extension of filing the application nor any directions were sought from the Division Bench seeking liberty to extend the period of filing an application under Rule 26B of the Rules of 1966. Even though the period is of 76 days, the same cannot be condoned in wake of the directions issued by the Coordinate Bench and confirmed by the Division Bench. Thus, in such eventuality, it cannot be said that the order passed by the Labour Court suffers from any illegality or perversity.

[13] It is not in dispute that those workmen, who are similarly situated to the petitioners and parties to the litigation are allowed to withdraw the amount from the Labour Court. Hence, the respondent-workman cannot be discriminated. Merely because the amount of recovery certificate is deposited before this Court.

[14] Under the circumstances, this Court is the of the considered opinion that since the matter has been dragged for all these years, and though the respondent-workman, who is similarly situated to the other employees, who are paid the amount is being made to suffer. The impugned order does not require interference. Even after passage of 9 years, he is unable to get benefits of the recovery

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certificate because of the recalcitrant attitude of the petitioner-Nagarpalika. The aforesaid litigation indicates that right from the beginning; the petitioner-Nagarpalika was not serious enough to contest the litigation as the initial award was passed ex parte. Even the directions issued by this Court are not honoured. Thus, this Court is not inclined to exercise its discretion under Articles 226 and 227 of the Constitution of India in favour of the petitioner-Nagarpalika. The writ petition is rejected. Notice is discharged. The amount of Rs.15,000/-, which is deposited before the Registry of this Court pursuant to the order dated 22.11.2021, shall be paid to the respondent-workman with regard to the litigation cost.

Order in Misc. Civil Application No. 1 of 2021 in Special Civil Application No. 1601 of 2015:-

So far as the amount, which has been deposited pursuant to the order dated 24.04.2015 passed in Special Civil Application No.1601 of 2015 with regard to the recovery certificate, the Registry is directed to disburse the amount with accrued interest to the applicant i.e. Dawood Umar Kumbhar, who is respondent No.1 in Special Civil Application No.17105 of 2021 after due verification.

With the aforesaid direction, the Misc. Application is disposed off accordingly.

(A. S. SUPEHIA, J) NABILA