Gujarat High Court
State Of Gujarat Through Range ... vs Ghasura Jafarkhan Rahematkhan on 11 February, 2021
Bench: Nirzar S. Desai
C/SCA/2801/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2801 of 2021
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STATE OF GUJARAT THROUGH RANGE FOREST OFFICER
Versus
GHASURA JAFARKHAN RAHEMATKHAN
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Appearance:
MS. ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 11/02/2021
ORAL ORDER
1. Heard learned Assistant Government Pleader Ms. Asmita Patel,
for the petitioner-State through video conference.
2. By way of this petition, the petitioner-State has challenged the
order dated 22.04.2019 passed in Industrial Dispute Misc.
Application No. 6 of 2018 below Exh 9, by the learned Presiding
Officer, Labour Court, Palanpur, whereby the Labour Court
dismissed the application preferred by the petitioner for quashing
and setting aside exparte award dated 30.07.2014 passed by the
learned Judge, Palanpur in Reference (LCP) No. 30 of 2010.
3. The brief facts of the case of the petitioner are as under:-
3.1 The respondent-workman preferred an industrial disputes,
which culminated into reference (LCP) No. 30 of 2010 stating that
he was serving under the petitioner since 1981 and was drawing
wages of Rs.108 per day. On 25.11.2008, his services were
terminated orally without issuance of any notice or notice pay or
retrenchment compensation, and thereby, the petitioner violated the
mandatory provision of Industrial Dispute Act, 1947 ("the ID Act").
C/SCA/2801/2021 ORDER
3.2 In Reference (LCP) No. 30 of 2010, once notice was issued
by the Labour Court and the petitioner was served with the notice.
However, the petitioner State government did not file any reply and
accordingly right to file reply was closed. Even, at the stage of
argument, no one appeared for the petitioner-State and ultimately
entire proceedings proceeded exparte. After taking into
consideration the documents available on record ultimately, the
learned Judge Labour Court, Palanpur, passed an award dated
30.07.2014 and allowed the Reference holding that the action of the
petitioner-State to terminate the services of the respondent-workman
is illegal, unreasonable, contrary to the principles of natural justice
and in violation of provisions of the ID Act and accordingly directed
the petitioner-state to reinstate the respondent-workman by treating
his service as continuous service with full back wages. A cost of
Rs.3,000/- was also awarded in favour of the respondent-workman to
be paid by the petitioner-State.
4. After the aforesaid award was passed, since the same was not
complied with, the respondent-workman preferred a Recovery
Application No. 2 of 2016 under Section 33C (2) of Industrial Dispute
Act, 1947 and prayed for direction to direct the petitioner-state to
pay a sum of Rs.4,64,135/- to the respondent-workman towards the
amount of back-wages from 25-11-2008 to 31-12-2015.
5. In the recovery proceedings also, Labour Court, Palanpur,
issued notice to the petitioner-state. Once the notice was served
upon the petitioner-state, the petitioner-state appeared through its
advocate. It transpires from the record that though the advocate for
the petitioner-state appeared before the Labour Court, Palanpur, in
Recovery Application No. 2 of 2016, no reply was filed on behalf of
the petitioner-state in those proceedings. Thereafter, even the right
C/SCA/2801/2021 ORDER
to file reply was also closed. The record also reveals that at no point
of time, any attempt was made to reopen the right to file the reply,
which was closed. Thereafter, the respondent-workman led the
evidence by filing an affidavit in support of his claim and submitted
closing pursis. The records also reveals that the petitioner was also
given a chance to produce witness or any evidence in their favour.
Since nothing was done by the present petitioner, ultimately, right to
led evidence was also closed and the matter was kept for arguments,
ultimately, after taking into consideration the material on record, and
after taking into consideration the arguments advanced by the
advocate for the respondent-workman. The Presiding Officer, Labour
Court, Palanpur, vide order dated 23.10.2019 allowed the Recovery
Application No. 2 of 2016 of the respondent-workman and directed
the present petitioner-state to pay a sum of Rs. 4,64,135/- within a
period of 30 days from the date of the award.
6. In the meantime, the petitioner-state preferred an application
being Industrial Tribunal Misc. Application No. 6 of 2018 during the
pendency of Recovery Application No. 2 of 2016. The said application
was preferred under Rule 26(A) of the Industrial Disputes (Gujarat)
Rules, 1966 (for short "the Rules, 1966") with a prayer to quash and
set aside the exparte award and to take the reference case on board.
Rule 26(A) of the Rules, 1966 provides for making an application
within a period of 30 days from the date of knowledge of passing of
the exparte award. It also provides for condoning the delay by
showing on sufficient cause and accordingly, the petitioner had
preferred an application in being Industrial Tribunal Misc.
Application No. 6 of 2018 with a prayer to quash and set aside the
award dated 30.07.2014 in the year 2018. In that application, notice
was issued to the respondent-workman and thereafter, after hearing
the advocates for the petitioner-state as well as respondent-
C/SCA/2801/2021 ORDER
workman, the learned Presiding Officer, Labour Court, Palanpur vide
order dated 22.04.2019 dismissed the Industrial Tribunal Misc.
Application No. 6 of 2018 for quashing and setting aside the exparte
award.
7. The learned Presiding Officer, Labour Court, Palanpur, while
deciding the application for quashing and setting aside the exparte
award observed that in the original Reference, in spite of the fact
that notice was served upon the petitioner-state, the petitioner-state
had chosen not to appear or not to file reply in the Reference.
Thereafter, in spite of the fact that the right of the petitioner-state to
file reply was also closed, right to cross-examine was also closed and
even after the closing pursis was submitted by the respondent-
workman, the petitioner did not appear before the Labour Court,
Palanpur. Even at the stage of evidence also, the right of the
petitioner to led evidence was closed and even at the stage of
arguments also, the petitioner had chosen not to appear, and
therefore, exparte award was passed. Further, the Labour Judge
observed that the petitioner had though preferred an application
under Rule 26(A) of the Rules, 1966 for setting aside the exparte
decree, the same is not accompanied by any application for
condonation of delay. Meaning thereby, the application was time
barred. The petitioner did not canvass any specific reason for
condoning the delay in preferring the application under Rule 26(A) of
the Rules, 1966. Further, the learned Labour Judge also observed
that the petitioner was given full opportunity to defend its case in the
original Reference, which the petitioner failed to avail, and hence,
even the principles of natural justice were also followed. It is only
because of the careless and negligence of the petitioner that the
exparte award came to be passed, and, hence, learned Labour Judge,
vide judgment dated 22.04.2019 dismissed the application preferred
C/SCA/2801/2021 ORDER
under Rule 26(A) of the Rules, 1966 for setting aside the exparte
award.
8. Learned AGP Ms. Patel has submitted that for negligence of
the advocate engaged by the petitioner, the State may not be
penalized by rejecting the application for setting aside the exparte
award.
9.1 Learned AGP has pointed out that in the Recovery
Application, vide order dated 23.10.2019, the learned Presiding
Officer, Labour Court, Palanpur has awarded a sum of Rs.4,64,135/-
in favour of the respondent-workman. The said amount is awarded on
the basis of the exparte award, when at no point of time, the State
Government could file even reply. According to Ms. Patel, learned
AGP, since the amount to Rs. 4,64,135/- is awarded in favour of the
respondent-workman payable by the State Government, it would
amount to burdening the public exchequer, and therefore, lenient
view is required to be taken. She further submitted that at no point
of time, it was an intention of the petitioner not to participate in the
reference, learned AGP Ms. Patel further submitted that at no point
of time, until the exparte award was served upon the petitioner, the
petitioner was aware about any such proceeding or even about
passing of any such award. Therefore, she urged that considering the
totality of the facts and circumstances and considering the fact that
the award being an exparte award, the same deserves to be quashed
and set aside. Therefore, she urged that at least a notice be issued in
favour of the respondent-workman, so that, the State Government
can move a step further in rectifying the mistake committed by its
advocate.
C/SCA/2801/2021 ORDER
10. This Court has considered various orders passed vide order
dated 30.07.2014 in Reference (LCP) No. 30 of 2010, order dated
22.04.2019 passed in Industrial Tribunal Misc. Application No. 6 of
2016 and order dated 23.10.2019 passed in Recovery Application No.
2 of 2016.
11. What transpires from the record is that in the original
Reference being Reference (LCP) No. 30 of 2010, it is true that at no
point of time, even the advocate was engaged by the petitioner, and
therefore, the entire proceedings proceeded exparte, and ultimately,
award dated 30.07.2014 was passed, whereby, the respondent-
workman was directed to be reinstated with continuity of services
and 100% back-wages. However, Court cannot shut its sight from the
facts that thereafter, the application under Rule 26(A) of the Rules,
1966 was preferred by the State Government only in the year 2018
i.e. almost after delay of 4 years and that too after the recovery
application being Recovery Application No. 2 of 2016 was preferred
by the respondent-workman under Section 33 (2) of the Industrial
Disputes Act, 1947. The records also reveal the fact that even the
order dated 23.10.2019 passed by the learned Presiding Officer,
Labour Court, Palanpur was also passed by the labour Court, after
taking note of the fact that though the reply was filed by the learned
advocate for the petitioner, after filing of the reply, the advocate for
the petitioner never remained present. Meaning thereby, even at the
stage of recovery application, the petitioner was well aware about
the fact that the recovery application has been preferred by the
respondent-workman pursuant to the order dated 30.07.2014 passed
in Reference (LCP) No. 30 of 2016 and though recovery application
was filed thereafter after filing appearance, at no point of time, the
advocate for the petitioner filed any reply. At various stages though
the rights of the petitioner was closed, no attempts were ever made
C/SCA/2801/2021 ORDER
to reopen the right to file reply or to lead the evidence. Ultimately at
the stage of arguments also, the advocate for the petitioner was not
present and ultimately, the recovery application was also decided
only on the basis of the submissions made by the advocate for the
respondent-workman. The order directing the petitioner to pay the
sum of Rs.4,64,135/- was passed by the learned Presiding Officer,
Labour Court, Palanpur vide order dated 23.10.2019 shows that even
after the exparte award, the petitioner was never serious about the
proceedings, which were pending before the Labour Court being the
Recovery application No. 2 of 2016. The advocate for the petitioner,
after filing his appearance has not even bothered to file reply or to
lead evidence. The conduct of the petitioner shows that the
petitioner was never serious about contesting the recovery
application.
12. In fact, it is pertinent to note that though the order under
challenged dated 22.04.2019 was passed by the learned Presiding
Officer, Labour Court, Palanpur in Industrial Tribunal Misc.
Application No. 6 of 2016, the said order also was not challenged
immediately before this Court by filing a writ petition. Ultimately,
when the order dated 22.04.2019 was already passed, thereafter,
after almost 6 months, the Presiding Officer, Labour Court,
Palanpur, passed an order dated 23.10.2019, directing the petitioner
to pay a sum of Rs.4,64,135/- to the respondent-workman. This only
shows that how the negligence and careless the petitioner was in its
approach. Had the petitioner preferred a petition, immediately, after
the order dated 22.04.2019 was passed, in that case the fact would
have been different because at that point of time, the Recovery
Application No. 2 of 2016 was pending before the Labour Court at
Palanpur. The petitioner was well aware about the fact that the
application under Rule 26(A) of the Rules, 1966 was rejected by the
C/SCA/2801/2021 ORDER
learned Presiding Officer, Labour Court, Palanpur, as back as on
22.04.2019 and at that time, though Recovery Application No. 2 of
2016 were pending, no immediate action were taken by the
petitioner to challenge the order dated 22.04.2019. This shows
utmost negligence and carelessness on the part of the petitioner.
After the order dated 23.10.2019 also was passed then also the
petitioner has not preferred any application challenging the order
dated 23.10.2019 passed by the learned Presiding officer, Labour
Court, Palanpur, directing the petitioner to pay a sum of
Rs.4,64,135/-. Today, even after almost 15 months are passed after
order dated 23.10.2019 till date, on inquiry, I am told that the order
dated 23.10.2019 is by the State Government.
13. All these facts clearly show that right from the beginning the
petitioner was not serious in contesting the Reference (LCP) No. 30
of 2010. At various stages, the petitioner had occasion and
opportunity to take immediate steps, which were not taken by the
petitioner. The advocate engaged by the petitioner though filed his
appearance, never even bothered to file any reply or to lead the
evidence in Recovery Application No. 2 of 2016, and therefore,
considering the totality of facts and circumstances, it cannot be said
that the order dated 22.04.2019 passed by the learned Presiding
Officer, Labour Court, Palanpur is an erroneous order or that any
error is committed while passing order dated 22.04.2019 in
Industrial Tribunal Misc. Application No. 6 of 2018.
14. Hence, in view of the above discussions, no interference is
warranted in the order dated 22.04.2019 passed by Labour Court,
Palanpur and the order dated 22.04.2019 passed by the Labour
Court, Palanpur in Industrial Tribunal Misc. Application No. 6 of
2018 can be said to be absolutely just, legal and proper order. The
C/SCA/2801/2021 ORDER
present petition challenging the order dated 22.04.2019 passed by
the Labour Court, Palanpur below Exh; 9 in Industrial Tribunal Misc.
Application No. 6 of 2018 deserves to be dismissed and the same is
dismissed. No order as to costs.
Sd/-
(NIRZAR S. DESAI,J)
VISHAL MISHRA
