Ahmedbad Municipal ... vs Rashidmiya Mahamadmiyan Arab ...
2021 Latest Caselaw 8128 Guj

     C/SCA/14224/2011                             JUDGMENT DATED: 09/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14224 of 2011


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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      AHMEDBAD MUNICIPAL CORPORATIONTHRO' ITS TRANSPORT
                           MANAGER
                            Versus
     RASHIDMIYA MAHAMADMIYAN ARAB 1576 MOTI BALUCHAVAD OPP
                            MAYNA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 09/07/2021

                             ORAL JUDGMENT

1. The present petition has been filed by the petitioner under

Articles 14, 226 and 227 of the Constitution of India against the

order dated 29.04.2011 passed by the Industrial Tribunal,

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Ahmedabad (hereinafter be referred to as the "Tribunal") in Misc.

Application (I.T.) No.18 of 2010 in Approval Application (I.T.)

No.508 of 2003 in Reference (I.T.) No.137 of 2001 whereby the

Tribunal has allowed Misc. Application (I.T.) No.18 of 2010

preferred by the respondent and ordered to rehear Application

(I.T.) No.508 of 2003 on merits .

2. The main contention of the petitioner herein is that the

respondent was appointed as Acting Driver and he has

unauthorizedly absent continuously and, therefore, after

departmental inquiry, he was dismissed from the service w.e.f.

02.12.2003. It is contended by the petitioner that at that time,

Reference (I.T.) No.137 of 2001 was pending before the Industrial

Tribunal and, therefore, the petitioner has filed Approval

Application (I.T.) No.508 of 2003 on 02.12.2003, which came to

be allowed on 07.09.2005. It is further contended that thereafter,

the respondent has filed Misc. Application with an application for

condonation of delay on 03.09.2009 which came to be allowed

vide order dated 03.09.2010. Being aggrieved with the said

order, the petitioner herein has preferred Special Civil

Application No.15724 of 2010 before this Court, which was finally

C/SCA/14224/2011 JUDGMENT DATED: 09/07/2021

disposed of on 03.02.2011 with direction to the Tribunal to

proceed with the Approval Application for restoration with

conditions that the respondent would not claim any monetary

benefit for the intervening period. It is also contended that

thereafter, the Tribunal heard the parties and on 29.04.2011

quashed and set aside its earlier order dated 07.09.2005 and

ordered to rehear Approval Application (I.T.) No.508 of 2003 on

merits. This order has been challenged by way of present

petition by the petitioner herein on the grounds that earlier, the

Tribunal allowed the Approval Application, as the respondent

herein did not appear for long time and there was almost huge

gap and delay in filing the said application. Now, the Tribunal has

allowed the same and doing so, the Tribunal has committed error

of facts and law in passing the order of rehearing of the Approval

Application. It is contended that when the respondent was

absent right from 04.01.2002 and never bothered to enter into

any correspondence with the management of the employer,

then, the Tribunal ought not to have interfered with the

impugned order of granting application for approval and to order

to rehear the Approval Application No.508 of 2003 which was

earlier accepted by it. That conduct of the respondent ought to

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have been taken into consideration. It is contended that the

Approval Application has been filed on 02.12.2003 and there was

no right accrued to the respondent as at any stage during the

hearing and passing of order of allowing the said application,

more particularly, when the respondent was served with the

notice issued by the Tribunal, he did not take part in the

proceedings. On all these grounds, it is prayed to quash and set

aside the order dated 29.04.2011 passed by the Tribunal in Misc.

Application (I.T.) No.18 of 2010 in Approval Application (I.T.)

No.508 of 2003 in Reference (I.T.) No.137 of 2001. It is prayed to

allow the present petition.

3. Heard Mr. H. S. Munshaw, learned advocate for the

petitioner and Mr. Yogen Pandya, learned advocate for the

respondent, at length, through video conferencing.

4. Mr.H. S. Munshaw, learned advocate for the petitioner has

submitted the same facts which are narrated in the memo of

petition and has submitted that the respondent was driver and

due to his absentisum for long period, he was served with the

charge-sheet and after due inquiry, he came to be dismissed

C/SCA/14224/2011 JUDGMENT DATED: 09/07/2021

from the service w.e.f. 02.12.2003. He has submitted that at that

time, as the reference was pending, the authority i.e. petitioner

has preferred an application for approval on the same day. He

has submitted that the Tribunal has afforded sufficient

opportunity to the respondent, but, he did not attend the

proceedings and ultimately, the same was allowed by the

Tribunal. He has submitted that thereafter, the respondent has

filed application for condonation of delay for fresh hearing of the

Approval Application, which came to be allowed by the Tribunal.

He has submitted that against which the petitioner has

approached this Court by way of filing Special Civil Application.

According to him, the said petition came to be disposed of with

certain directions wherein the respondent has undertaken not to

insist for any salary during the interregnum period. According to

him, thereafter, the Tribunal has passed the impugned order

dated 29.04.2011 for rehearing of the Approval Application. He

has submitted that as the respondent was not vigilant regarding

his right, considering his conduct, the Tribunal ought not to have

granted the prayer made by the respondent and ought not to

have passed the order for rehearing of the Approval Application.

He has submitted that after almost four years, the respondent

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has moved the application in question. He has submitted that the

delay occurred in filing such application ought to have

considered by the Tribunal. While referring to the materials

placed on record, he has submitted that the general

philosophical observation has been made by the Tribunal in

granting the prayer for rehearing of the Approval Application. He

has submitted that if such procedure is adopted, then, there will

be multiplicity litigation. He has submitted that during the

departmental inquiry, the respondent did not appear and,

therefore, the Tribunal ought to have refused the prayer of the

respondent for rehearing of the Approval Application. According

to him, ultimately, the sufferer is the administration. He has

prayed to allow the present petition by quashing and setting

aside the order of the Tribunal.

5. Per contra, Mr.Yogen Pandya, learned advocate for the

respondent has submitted that the order of the Tribunal in

granting the prayer for rehearing is in consonance with the law.

He has also submitted that by way of order, the Tribunal has

given an opportunity of being heard to the petitioner. He has

submitted that due to such order, no prejudice is likely to be

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caused to the petitioner. He has submitted that the entire

proceedings pending before the Tribunal can be decided within a

specified period. He has prayed to dismiss the present petition.

6. Having considered the submissions made on behalf of both

the sides coupled with the materials placed on record, it

transpires that there is no dispute regarding the facts that the

industrial dispute is pending between the parties and the

respondent herein was working as driver. It is also undisputed

fact that the petitioner herein has dismissed the respondent from

the service and it has filed Approval Application under Section

33(2)(b) of the Industrial Disputes Act, 1947. Earlier, the same

was allowed as respondent herein did not bother to appear and

file his written statement. It also appears that after considering

the materials, the Tribunal has initially granted Approval

Application. It is also undisputed fact that thereafter, in the year

2009 i.e. after three years, the respondent filed application for

condonation of delay and main Approval Application by restoring

the same. The same came to be allowed by the Tribunal and

delay was condoned and that order was challenged by the

petitioner by filing Special Civil Application No.15724 of 2010.

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The same was disposed of by the Coordinate Bench of this Court

(Coram: Hon'ble Mr.Justice K. S. Jhaveri) vide order dated

03.02.2011 on the basis of the statement made by the learned

advocate for the workman that the workman will not claim the

wages under any circumstances for the period i.e. the date on

which the Approval Application was allowed till the restoration

application was filed. The Court has also directed the Tribunal to

dispose of the restoration application on merits on or before

30.04.2011.

7. Pursuant to the said order, the Tribunal vide its order dated

29.04.2011 has allowed the application of the respondent and its

earlier order passed in Approval Application (I.T.) No.508 of 2003

ordered to be quashed and set aside and directed to rehear the

application on merits.

8. On perusal of the said order of the Tribunal, it appears that

the Reference (I.T.) No.137 of 2001 was pending and during the

pendency of the reference, the respondent came to be dismissed

from the service and present petitioner has sought for approval

of that action. While dealing with the averments of both the

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sides, the Tribunal has specifically held that the delay

condonation application filed by the respondent has already

been allowed. While referring to the materials placed on record

in the Approval Application, the Tribunal has observed that the

original reference being Reference (I.T.) No.137 of 2001 was

pending. It is further observed in para-10 of the order of the

Tribunal that the Approval Application was earlier decided

exparte. It is further observed by the Tribunal that there was

Godhra riots and due to that respondent has not received so-

called notice and, therefore, he did not remain present. The

Tribunal has further observed in the order that the matter was

required to be decided on merits by affording opportunity of

being heard to both the sides. These observations of the Tribunal

cannot be said to be perverse one. It is needless to say that any

lies between the parties needs to be decided on merits rather

than on mere technical grounds. The plea raised by the

petitioner is based only on technical aspects that the workman

i.e. respondent was not vigilant in defending the Approval

Application as well as not remaining present in the departmental

inquiry. Thus, the plea on the part of the petitioner is based on

technical point. It is well settled that any dispute raised between

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the parties should be decided on merits by affording opportunity

of being heard to both the sides. Therefore, considering the

observations of the learned Tribunal, in ordering rehearing of the

Approval Application is based on the well settled principles of law

and it does not suffer from any illegality. The same is sustainable

in the eyes of law. Of course, due to inaction on the part of the

respondent, the Approval Application is pending since 2003 and

also reference is pending since 2001. The grievance of the

petitioner can be resolved if the Tribunal is directed to decide

both the matters within time bound period and with necessary

direction to both the parties to cooperate the Tribunal in deciding

the matters within a time bound period. If such course is

adopted, no prejudice is likely to be caused to either of the

parties.

9. In view of the above discussions, the present petition

stands disposed of with the direction to the Tribunal to decide

Approval Application (I.T.) No.508 of 2003 and Reference (I.T.)

No.137 of 2001 along with all ancilliar proceedings as

expeditiously as possible preferable within a period of three

months from the date of receipt of this order. Both the parties

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are directed to cooperate the Tribunal in deciding the aforesaid

applications within aforesaid time period.

10. Rule is made absolute to the aforesaid extent. Interim relief

stands vacated. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL