Dwarka Nagarpalika vs Jitendra Ranchhoddas Majethia
2021 Latest Caselaw 1512 Guj

         C/LPA/966/2017                                         ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 966 of 2017
          In R/SPECIAL CIVIL APPLICATION NO. 9053 of 2017
                               With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
            In R/LETTERS PATENT APPEAL NO. 966 of 2017
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                      DWARKA NAGARPALIKA
                            Versus
            JITENDRA RANCHHODDAS MAJETHIA & 1 other(s)
==========================================================
Appearance:
MR DILIP B RANA(691) for the Appellant(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA
                      Date : 02/02/2021
                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Mr. Dilip B. Rana, learned advocate for the appellant and Mr. T.R. Mishra, learned advocate for respondent no.1. Though served, no one appears for the respondent no.2.

2. The present appeal is directed against the order dated 2.5.2017 passed by the learned Single Judge of this Court in Special Civil Application no.9053 of 2017. The learned Single Judge, while considering the Writ Petition filed by the appellant herein, was pleased to dismiss the Writ Petition on the ground of delay. It would be appropriate at this stage to note that what was challenged by the petitioner by way of a writ petition under

C/LPA/966/2017 ORDER

Article 226/227 of the Constitution of India was the judgment and award rendered by the Labour Court, Jamnagar in Reference (LCD) no.12 of 2000 dated 28.6.2011 and the recovery orders passed thereafter.

3. The record of this appeal indicates that the respondent-workman was working as a Valveman since 1996 on daily wages. On respondent- workman being discontinued from his job, he filed a Reference through the Union which came to be registered as Reference (LCD) no.12 of 2000. A notice came to be issued to the appellant-Nagarpalika, however, no appearance was filed. The record indicates that the said Reference was decided after 11 years by the Labour Court i.e. the award was declared on 28.6.2011. Thereafter, the appellant filed an application before the Labour Court on 1.8.2012 to set aside the ex­parte award. The said application came to be rejected on 31.10.2012. The workman, as a last resort, approached the Labour Court for recovery of the amount due from the appellant and filed Recovery Application no.153 of 2013 on 16.8.2013 under the provisions of Section 33(C)(2) of the Industrial Disputes Act and claimed Rs.7,33,427/­ as arrears. The said application was partly allowed by order dated 19.1.2017. The said order alerted the

C/LPA/966/2017 ORDER

appellant for the first time after 5 years and therefore, they approached this Court by way of the present petition as observed hereinabove. The learned Single Judge was pleased to reject the same and hence, this appeal.

4. After taking the Court through the factual matrix arising out of this appeal, Mr. Rana, learned advocate for the appellant specifically invited attention to Ground (H) of this appeal in order to justify the delay of almost more than 5 years. Mr. Rana further submitted that there is no post of Valveman in the permanent set­up of the appellant- Municipality. We have also heard Mr. Mishra, learned advocate for respondent no.1 who has relied upon the affidavit filed in this proceeding and has contended that the appeal is misconceived and the same deserves to be dismissed.

5. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

6. We have also perused the record of the appeal as well as the memo of Writ Petition filed before this Court. Reference was made by the respondent - workman under the provisions of

C/LPA/966/2017 ORDER

the Industrial Disputes Act in the year 2000. The Labour Court passed the award on 28.6.2011. The appellant herein approached the Labour Court for restoration of the matter as an ex­parte award came to be filed. The record indicates that in the Reference, the Labour Court did issue notice which was duly served upon the appellant. However, it appears that from 2000 to 2011, no one appeared and any of the Chief Officers, who were on such post, did not think it fit to even inquire about the Reference. The record therefore speaks itself that for almost 12 years, the appellant­ Municipality did not take any notice of the pending Reference. It appears that after the award was passed on 28.6.2011, the appellant approached the Labour Court for restoration as provided under Rule 26A of the Rules for restoration. The said application, even according to the appellant, came to be dismissed by the Labour Court on 31.10.2012. The said date is very crucial and material as the appellant could have challenged the award dated 28.6.2011 as well as the order passed in restoration application after or rather in the year 2012 itself. No challenge admittedly was made by the appellant till 24.7.2017, the date on which the present petition was filed before this Court. Hence, 5 years after having full and complete knowledge of the award passed by

C/LPA/966/2017 ORDER

the Labour Court, the petitioner approached this Court. The grounds raised, more particularly, Ground (H) of the memo of appeal state what was almost reiterated in the Writ Petition before the learned Single Judge. Even if those grounds are appreciated as it is, the same are nothing but a lame excuse. It cannot be believed that the appellant­Municipality was not manned by anybody. The provisions of Section 258 of the Gujarat Municipalities Act, 1963, on the contrary, provides for supervisory jurisdiction of the District Collector over all Municipalities. Moreover, it is noteworthy that even the reason for frequent transfers of the Chief Officer is no reason or explanation for delay of 5 years. As observed hereinabove, the application for restoration was rejected by the Labour Court on 31.10.2012. The respondent-workman herein preferred a recovery application under Section 33(C)(2) of the Industrial Disputes Act in the year 2013. It is not the case of the appellant that no notice was issued in the recovery proceedings and even though they were well aware, the appellant preferred not to challenge the award for a period of 5 years and more. The explanation by way of Ground (H) is no explanation. It does not even constitute a cause much less a sufficient cause for considering enormous delay of 5 years in

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challenging the judgment and award. Even in the grounds set up for explanation and come with a lame excuse of frequent transfer of Chief Officer is explained from 2014. It is an admitted position that the appellant was well aware about the order since the year 2012 and the learned Single Judge has rightly not exercised the jurisdiction under Article 226 and/or 227 of the Constitution of India. The observations made by the learned Single Judge, more particularly, in Paragraphs 3 and 4 of the impugned order calls for no interference.

7. At this stage, it would be appropriate to refer to the recent judgment of the Hon'ble Apex Court in the case of the State of Madhya Pradesh & Ors. vs. Bherulal, rendered in Special Leave Petition (C) Diary no.9217 of 2020 dated 15.10.2020. Similar facts and circumstances arise in this appeal. Lethargy shown by the appellant in challenging the impugned judgment and award disentitles them from any relief in the Writ Petition and the Writ Petition is rightly not allowed by the learned Single Judge. We are in total agreement with the view expressed by the learned Single Judge.

8. The post of Chief Officer is never kept vacant and in absence of a regular incumbent of a

C/LPA/966/2017 ORDER

Chief Officer considering his status and importance as per the provisions of the Gujarat Municipalities Act, 1963 is always filled up either by way of temporary arrangement as In­charge Chief Officer or a full­fledged Chief Officer. Mere transfer of one incumbent or the other cannot be a valid explanation for delay of 5 years.

9. The appeal therefore is liable to be dismissed and the same being merit­less is hereby dismissed. The amount deposited as per the earlier order with the Registry of this Court may be disbursed in favour of the respondent - workman along with the interest, if any, accrued during pendency of this appeal. The respondent shall provide Bank details to the Registry of this Court and the Registry is directed to remit the amount as per this order through RTGS in favour of the respondent­ workman. In facts of this case, however, there shall be no order as to costs. As the appeal is dismissed, Civil Application would not survive and the same is also dismissed.

(R.M.CHHAYA, J)

(R.P.DHOLARIA, J) MRP