Mukeshbhai Bhailal Makwana vs Presiding Officer
2023 Latest Caselaw 5156 Guj

    C/SCA/11863/2018                           JUDGMENT DATED: 04/07/2023




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO. 11863 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN --Sd--

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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 of             NO
     the judgment ?

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

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        MUKESHBHAI BHAILAL MAKWANA
                   Versus
         PRESIDING OFFICER & 1 others
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MR. RISHIN R PATEL(7222) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                        Date : 04/07/2023

                        ORAL JUDGMENT

C/SCA/11863/2018 JUDGMENT DATED: 04/07/2023

1. The present petition is filed against the award passed by the Labour Court, Vadodara in Reference (LCV) Case no.671 of 2010 dated 26th March, 2013 and order passed in Misc. Application no.54 of 2013 dated 30 th January, 2016.

2. In the present petition, the petitioner prays as under:

"(A) The Hon'ble Court may be pleased to admit this petition;

(B) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction under Articles 226 and 227 of Constitution of India by quashing and setting aside the impugned judgment and award dated 26th March, 2013 passed by the Labour Court, Vadodara in Reference (LCV) no.671 of 2010 and quash and set aside order dated 16th January, 2016 in Misc.

Application no.54 of 2013 and remand the matter for fresh adjudication to the respondent no.1.

(C) The Hon'ble Court be pleased to grant such other and further relief/s which may be deem fit and proper under the facts and circumstances of case in the interest of justice."

C/SCA/11863/2018 JUDGMENT DATED: 04/07/2023

3. The brief facts of the case are as under:

3.1 It is the case of the petitioner that he has worked with the respondent no.2 on the permanent post of workman/labourer since last may years. The respondent no.2 had initiated the inquiry and the petitioner was charge- sheeted and as the charges levelled against the petitioner are considered as proved in departmental inquiry by order dated 7th September, 2010 the dismissal order was issued against the petitioner by way of punishment.

3.2 Thereafter, the respondent no.2 has filed approval application under the provisions of Industrial Disputes Act, 1947 before the Industrial Tribunal, Vadodara for approving the said dismissal order passed against the petitioner and the same has been registered as Application no.37 of 2010.

3.3 It is the case of the petitioner that thereafter, the petitioner has approached the union representative of Amoli Kamdar Unit for the same and the union has represented the workman in the approval application before the Industrial Tribunal, as well as, filed a complaint before the Assistant Labour Commissioner, Vadodara for setting aside the order of dismissal, in which conciliation proceedings later on ended in failure and said dispute referred to the Labour Court, Vadodara for adjudication of dismissal order passed by the respondent no.2 against the petitioner and being numbered as Reference (LCV) Case no.671 of 2010.

C/SCA/11863/2018 JUDGMENT DATED: 04/07/2023

3.4 The Labour Court has dismissed the reference by judgment and award dated 26 th March, 2013 in absence of any evidence and without affording an opportunity to the petitioner to file statement of claim.

3.5 Thereafter, the petitioner has preferred Misc. Application no.54 of 2013 for setting aside the ex-parte award. However, the said award has been rejected by the Labour Court by order dated 30th January, 2016.

3.6 Being aggrieved by the said award and order dated 26 th March, 2013 passed in Reference (LCV) Case no.671 of 2010, as well as, the order dated 30 th January, 2016 passed in Misc. Application no.54 of 2013 the present petition is filed.

4. Heard Mr. Paresh J. Brahmbhatt, learned advocate for the petitioner and Mr. Rishin R. Patel, learned advocate for the respondent no.2.

5. Without going into the merits of the matter of the entire case, perusing the rojkam of Reference (LCV) Case no.671 of 2010 and thereafter, Misc. Application no.54 of 2013, it appears that in 2010 reference has been taken-up by the Court, the notices were issue. It is also on record that on various dates, both the learned advocates for the parties were not present and thereafter, matter was kept for evidence of the workman on 26th November, 2012 and the rights of both the parties were closed and the order dismissing the reference was passed on 26th March, 2013.

C/SCA/11863/2018 JUDGMENT DATED: 04/07/2023

6. Thereafter, the application for restoring the order was also filed bearing Misc. Application no.54 of 2013, which was also not considered and in haste, again no opportunity was granted and restoration application was dismissed in the year 2016. Rojkam of the said Misc. Application no.54 of 2013 is also produced on record in which application was filed by the workman, reply was also filed and merely because the workman was not present, the reference was rejected.

7. As it appears from the rojkam and record that both the applications have been decided in haste by the Labour Court. It is a fact that legislation is beneficial legislation and the dispute between the parties is to be adjudicated in its true and correct perspective after having the evidence on record. Merely on some of the occasion parties were not present and though the matter is that of the year 2010, it was dismissed in a hasty manner and even though the workman had filed application for restoration, it appears that it was also dismissed without considering the reasons assigned by the workman.

8. As such this Court is of the opinion that if the main reference being Reference (LCV) Case no.671 of 2010 is restored to its original file and opportunity is granted to both the parties to adduce the evidence and the Labour Court in light of the evidence adjudicate the case of the workman, as well as of the employer in accordance with labour laws and in its right perspective, it will meet ends of justice.

9. Therefore, under the circumstances, the order in

C/SCA/11863/2018 JUDGMENT DATED: 04/07/2023

Reference (LCV) Case no.671 of 2010 and order in Misc. Application no.54 of 2013 is hereby quashed and set aside. The Reference (LCV) Case no.671 of 2010 is restored back to its original file for fresh adjudication.

It is directed to the Labour Court, Vadodara to issue notice to both the parties and afford an opportunity to both the parties to adduce the evidence and file their written statements and in light of that, the Labour Court, Vadodara shall decide the reference on its own merits and in accordance with law within the period of six months from the date of receipt of writ of this order. It is hereby also directed to both the parties to cooperate the Labour Court, Vadodara in disposal of the reference in accordance with law. The parties are at liberty to raise their respective contentions by way of written submissions, as well as evidence before the Labour Court, Vadodara.

10. With these observations, the present petition stands disposed of. Rule made absolute to the aforesaid extent. It is also made clear that this Court has not entered into the merits of dispute between the parties.

R. & P. be sent back to the concerned Court forthwith.

Sd/-

(RAJENDRA M. SAREEN, J.) AMAR RATHOD...