Jamnagar Municipal Corporation vs Laxmiben Khimjibhai Arabadiya
2022 Latest Caselaw 6729 Guj

      C/SCA/10076/2018                               JUDGMENT DATED: 28/07/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10076 of 2018
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 10077 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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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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                         JAMNAGAR MUNICIPAL CORPORATION
                                       Versus
                           LAXMIBEN KHIMJIBHAI ARABADIYA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 28/07/2022
                                 ORAL JUDGMENT

[1] These two petitions are arising out of the same fact and are raising identical issues. Hence, at the request of learned advocate both the parties, both the petitions are taken jointly taken for disposal. The facts are extracted from Special Civil Application No.10766 of 2018.

[2] This petition under Article 227 of the Constitution of India is filed for quashing and setting aside the order dated 23.02.2018 by the Labour Court, Jamnagar in Misc. Application No. 10 of 2017 in

C/SCA/10076/2018 JUDGMENT DATED: 28/07/2022

Reference (LCJ) No.61 of 2008. Essentially, the challenge is to the order which according to the petitioner is a non-speaking order and though the application was filed for condoning the delay with reasons assigned, the impugned order is passed with one line without any reasons.

[3] Learned advocate appearing for the petitioner submitted that the award came to be passed ex-parte and therefore, the corporation was required to file an application under Section 26A for recall of the ex-parte award. Learned advocate submitted that in an application, the petitioner corporation had conveyed several reasons for not remaining present while the reference was being conducted and had also assigned reasons for cause of delay in filing the application under Section 26A.

[3.1] It is submitted that without referring to the cogent reasons, the Labour Court has proceeded to pass an order of rejecting the application.

[4] Learned advocate appearing for the respondent-workman submitted that the grounds which are raised in the present petition as well as grounds raised in an application for condoning of delay will not be sufficient to explain the conduct of the petitioner- corporation. Therefore, rightly the Labour Court has rejected application for condonation of delay. It is submitted that the award itself is passed on merits and even if the delay is condoned and the reference is heard afresh, it would result into a futile exercise. Learned advocate has relied upon the decision of the Supreme Court in the case of Salil Dutta v/s. T M And M C Private Limited, reported in 1993 (2) SCC 185 to submit that it not a good ground to shift the entire blame on an advocate who had not remained present and on account of his non appearance, the matter was dismissed for want of prosecution.

C/SCA/10076/2018 JUDGMENT DATED: 28/07/2022

[5] The Court has heard learned advocates for the parties and perused the documents placed on record. The reference was filed by the respondent who was appointed on honorary basis as Anganwadi helpers under the ICDS Scheme. The reference was numbered as Reference Case No.61 of 2008, wherein considering the continuing service service for a period of 21 years, the action of terminating the services of the respondent on 19.12.2015 was held to be illegal and the respondent was ordered to be reinstated.

[6] During the course of reference, it appears that on behalf of the petitioner-corporation no one had remained present where the parties joined was Manager, Child Development Scheme Officer, UCD Project under Jamnagar Municipal Corporation. It appears that after the award, the corporation when became aware of such award, moved an application under Section 26A being Application No.10 of 2017 by raising several issues including the factual matrix to contend that the case of the respondent workman need not be considered. Alongwith the application for review, separate application for condonation of delay was also filed, wherein grounds were raised regarding knowledge of the passing of the award and the reasons for which there was delay in filing the application for recall. By the impugned order dated 23.02.2018, such application came to be rejected by a one line order which reads as under:-

"Final order"

(1) The application of the applicant is hereby rejected. Order pronounced in open Court on 23rd February, 2018."

[7] In the opinion of the Court, the grounds were raised both in the application for recall as well as application for condonation of delay. The impugned order indicates that no reference is made to the grounds raised in both the applications and by a one line order the right of the petitioner-corporation to contest has been

C/SCA/10076/2018 JUDGMENT DATED: 28/07/2022

extinguished. Time and again the Hon'ble Supreme Court has deprecated the practice of passing a one line order without assigning any reason, this being one such case would need interference.

[8] In view of the aforesaid, the matters are remanded back to the Labour Court, Jamnagar for considering afresh application under Section 26A as well as application for condonation of delay on its own merits and in accordance with law. Considering the length of period that has passed, from the date on which the reference was raised to the date on which ex-parte award was passed and the fact that while passing the award, the Labour Court has imposed cost of Rs.10,000/- and hence, the Court deems it fit to award the cost of Rs.10,000 (Rupees Ten Thousand Only) to the petitioner in each petition to be paid to the respondent-workmen through the Labour Court upon the matters being restored on the files of the Labour Court.

[9] With the aforesaid, the petitions stand allowed. The order dated the order dated 23.02.2018 is quashed and set aside. The Misc. Application No.10 of 2017 in Reference (LCJ) No.61 of 2008 and Misc. Application No.09 of 2017 in Reference (LCJ) No.62 of 2008 are hereby restored.

(A.Y. KOGJE, J) SIDDHARTH