Gujarat High Court
Itm Universe vs Shram Yogishree Ganpatsinh Salamsinh ... on 11 December, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1356/2023 ORDER DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1356 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6296 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1356 of 2023
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ITM UNIVERSE
Versus
SHRAM YOGISHREE GANPATSINH SALAMSINH CHAUHAN C/O
RAJENDRA P GOSWAMI
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Appearance:
MR MITUL SHELAT with MS DISHA N NANAVATY(2957) for the Appellant(s)
No. 1
for the Respondent(s) No. 2
MR KRISHNAN GHAVARIYA with MR BHAVESH D HAJARE(5515) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 11/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.Mitul Shelat with learned
advocate Ms.Disha Nanavati for the appellant and learned
advocate Mr.Krishnan Ghavaria with learned advocate
Mr.Bhavesh Hajera for the respondent.
2. What is sought to be called in question in this Letters
Patent Appeal filed under Clause 15 of the Letters Patent is the
order dated 5.10.2023.
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C/LPA/1356/2023 ORDER DATED: 11/12/2023
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2.1 The said order dated 5.10.2023 reads as under,
"Issue Rule. There is no prima facie case made
out by the learned advocate for the petitioner,
as the respondent workman though issued the
notice for reinstatement in the month of
September 2014, it appears that no efforts were
made by the petitioner to reinstate the
respondent workman. The impugned order
therefore cannot be stayed and the petitioner is
required to reinstate the respondent workman,
however with regard to the payment of the
back-wages the impugned order the impugned
order shall remain stayed. Ad-interim relief is
modified accordingly as interim relief."
3. Prior to passing of the aforesaid order, when the Special
Civil Application came to be listed before the court for the first
time, the order dated 12.7.2023 reproduced below came to be
passed.
"1. Learned advocate Mr. Mitul Shelat for the
petitioner places on record the documents which
were placed before the Labour Court. The same
are taken on record.
2. Heard learned advocate Mr. Mitul Shelat for
the petitioner.
3. He submitted that the order of Labour Court,
Vadodara in Reference (LCV) Case No.117 of
2015 is erroneous. It is recorded by the Labour
Court that the Officer of the petitioner -
Company went to the respondent - workman
and asked him to join service. It is also on
record at Exh. 8 that the respondent - workman
did not show his willingness to join service,
when the Officer of the petitioner visited him on
the ground that he has been employed by some
other company. Ignoring this fact, the Labour
Court has awarded reinstatement with 20% back
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C/LPA/1356/2023 ORDER DATED: 11/12/2023
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wages. Once the respondent - workman has not
shown readiness to join service, despite offer
from the management, it was not incumbent
upon the employer to serve him with the notice
calling upon him to join service as he was daily
wager / contractual employee. Learned advocate
submitted that before the Labour Court,
employer has shown his willingness to grant
lumpsum compensation, which has been
ignored.
4. Considering the submission, issue Notice
returnable on 05.10.2023.
5. By way of ad-interim-relief in terms of Para-
17(B) is granted till the next date of hearing."
3.1 The main petition was filed by the appellant herein seeking
to set aside judgment and award dated 15.10.2022 passed by the
labour court, Vadodara whereby respondent workman was
directed to be reinstated in service with 25% backwages and
continuity of service.
3.2 As could be seen from the aforestated orders, at the first
juncture, the court after hearing learned counsels for the
appellants found prima facie substance in the case of the
appellant observing that once the respondent workman had not
shown readiness to join the services, despite offer from the
management, it was not incumbent upon the employer to serve
him with the notice calling him to join the services as he was a
daily wager / contractual employee. With such observation, the
ad-interim relief in terms of paragraph No.17(B) of the petition
was granted thereby effect, execution and implementation of the
award of the labour court was stayed.
3.3 Sequence of events show that the petition was then listed
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on 5.10.2023. On that date, the respondent had not appeared. It
was only learned advocate for the appellant who made
submissions pursuant to the earlier order dated 12.7.2023. The
court issued rule, however, took the view that the judgment and
award of the labour court could not be stayed and the petitioner
was required to be reinstated in service, continuing stay in
respect of payment of backwages. The court proceeded to
modify the ad-interim order.
3.4 While the court is conscious of the fact that the order
brought under challenge in the present Appeal is an interim
order, however, the peculiar facts show that order dated
12.7.2023 was passed. On 5.10.2023 there was no change of
circumstances. The respondent did not appear, however the
court proceeded to modify the order as above.
4. In course of the hearing of the present appeal, it was
jointly stated by both the learned advocates that the respondent-
workman has not been taken back in service pursuant to the
order dated 5.10.2023. When the court has modified the earlier
order while issuing notice without hearing the other side and
without any context of change of circumstances, it could be said
to be exercise of jurisdiction not warranted. To some extent,
straightway modification of the earlier order without any
different facts and circumstances and without hearing both the
sides, could also be viewed as irregular exercise of jurisdiction.
In the aforesaid view, the court is inclined to exercise the
Letters Patent jurisdiction to interfere with order dated
5.10.2023.
5. The said order dated 5.10.2023 is set aside. The order
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C/LPA/1356/2023 ORDER DATED: 11/12/2023
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dated 12.7.2023 is restored. The matter is remitted to learned
single Judge who shall consider the merits of the order dated
12.7.2023 for its continuance or vacation, as the case may be,
after hearing both the sides.
6. It would be also open for the parties to request learned
single Judge to advert to the final hearing and disposal of the
main petition, looking to the compass of the controversy
involved.
6.1 While submitting on the merits of the order dated
12.7.2023, all contentions for both the sides will be open
including the contention about the payment of wages under
Section 17B of the Industrial Disputes Act, 1947 to be raised by
the respondent, to be considered on its own merits and in
accordance with law.
6.2 It is clarified that this court has not gone into the merits of
the case of the interim order or in respect of the main
controversy in the petition and has not expressed any opinion
on the merits of the case.
7. The Letters Patent Appeal is accordingly disposed of.
In view of disposal of the Appeal, the Civil Application will
not survive. It is accordingly disposed of.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
Manshi
