Gujarat High Court

C Trivedi And Company vs More Ravindra Arvindbhai on 16 April, 2024

Author: Biren Vaishnav

Bench: Biren Vaishnav

                                                                              NEUTRAL CITATION




     C/LPA/403/2024                           ORDER DATED: 16/04/2024

                                                                               undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 403 of 2024
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 23008 of 2022

==================================================
                          C TRIVEDI AND COMPANY
                                   Versus
                       MORE RAVINDRA ARVINDBHAI
==================================================
Appearance:
MR YOGEN N PANDYA(5766) for the Appellant(s) No. 1
for the Respondent(s) No. 1
==================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     and
       HONOURABLE MR. JUSTICE PRANAV TRIVEDI

Date : 16/04/2024

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)

1. The present appeal under Clause 15 of the Letters Patent is

preferred assailing the correctness of the order dated 31.01.2024

passed in Special Civil Application No. 23008 of 2022.

2. The prayer as made in the writ petition preferred by the

appellant - original petitioner was to quash and set aside the order

passed by the labour court, Ahmedabad in Misc. Civil Application

No. 21 of 2013 whereby the application filed by the petitioner

seeking condonation of delay in preferring restoration application

was rejected. It is further prayed to direct the labour court to hear

NEUTRAL CITATION

C/LPA/403/2024 ORDER DATED: 16/04/2024

undefined

and decide the application filed by the appellant - original

petitioner under Section 26A of the Industrial Disputes Act for

restoration of Reference case (LCA) No. 1685 of 2004 on its own

merits. The learned Single Judge after considering the arguments

canvassed by both the parties was pleased to reject the petition.

3. The factual matrix which led to filing of the petition is that

the petitioner was a partnership firm. It was the case of the

respondent - workman that he was illegally terminated by the

petitioner on 01.06.2004. Pursuant to which, the respondent

workman raised a dispute before the labour court, Ahmedabad.

The said dispute culminated into registration of Reference (LCA)

No. 1685 of 2004. The petitioner did not remain present and

participate at the time of adjudication of reference and, therefore,

the Reference came to be allowed by an ex-parte award dated

12.05.2011. Pursuant to such award, workman preferred Recovery

Application. Service of notice of Recovery Application was also

served to the petitioner. However, he did not appear and the

recovery application came to be allowed ex-parte. Pursuant to

service of order of Recovery Application, the petitioner preferred

Misc. Application No. 21 of 2013 seeking condonation of delay of

NEUTRAL CITATION

C/LPA/403/2024 ORDER DATED: 16/04/2024

undefined

575 days and sought restoration of award dated 12.05.2011. The

Miscellaneous Application was rejected pursuant to which,

petitioner preferred writ petition before this Court which came to

be dismissed. Such order of dismissal of writ petition is assailed in

the present appeal.

4. We have heard Mr. Yogen Pandya, learned counsel

appearing for the appellant. The only question for consideration is

that whether the learned Single Judge was justified in dismissing

the petition which in turn dismissed the application for

condonation of delay.

5. We have gone through the record of the petition as well as

the observations made by the learned Single Judge. There are

categorical observations that notice of reference was served to the

petitioner and there was an endorsement by the petitioner. It is

further observed that even the statement of claim was served to

the petitioner as evident from Exhibit-3. It is also observed that

the petitioner had preferred Misc. Application No. 64 of 2015

seeking restoration of recovery application and in that categorical

arguments were there that the petitioner had accepted that the

NEUTRAL CITATION

C/LPA/403/2024 ORDER DATED: 16/04/2024

undefined

notice of reference was served. On going through the record, it

transpires that all the notices at different stages were served to

the appellant - original petitioner, but he had not remained

vigilant enough to purse the proceedings. However, the reference

is of the year 2004 and now in the year 2022 the appellant -

original petitioner is seeking for restoration of the reference. The

learned Single Judge while rejecting the writ petition has made

categorical observations in paragraphs 7 to 10 which read as

under:-

"7. Considered the submissions and the decisions relied upon. Undisputedly, for the termination of the year 2004, the dispute was raised before the Labour Court registered as Reference (LCA) No. 1685 of 2004. From the notice at Exh. 2, it is evident that the said notice was served to the petitioner - Company. From the endorsement it is evident that the notice was signed by one of the partners of the partnership firm and therefore it is true that the petitioner was aware about the pendency of Reference seeking reinstatement with continuity of service and backwages. From the Statement of Claim at Exh.3, it is evident that the Statement of Claim was also served to the petitioner where the next date of hearing was mentioned with the request to remain present. Despite that the petitioner did not remain present in the pending proceedings and therefore for the reference of year 2004, an award was passed on 12.05.2011 directing the petitioner to reinstate the workman to his original post with continuity and full backwages.

8. Pursuant to the award dated 12.05.2011, a Recovery application No. 528 of 2012 was filed. The said Recovery Application was allowed and thereafter the petitioner preferred Miscellaneous Application No. 64 of 2015 seeking Restoration of Recovery Application No. 528 of 2012. From the averments made in the Miscellaneous Application No. 64 of 2015 (seeking restoration of Recovery Application) it is noticed that the petitioner had accepted pendency of Reference (LCA) No. 1684 of 2004 and the award dated

NEUTRAL CITATION

C/LPA/403/2024 ORDER DATED: 16/04/2024

undefined

12.05.2011. In the said application it was referred that the notice issued in the Recovery Application was served to the petitioner, however, he could not get the next date of hearing on account of certain reasons.

9. Undisputedly, the said application seeking restoration of Recovery Application was withdrawn in view of filing of application seeking restoration of the award dated 12.05.2011. Thus, the fact of petitioner having knowledge of filing of Reference, service of Statement of Claim, the service of award and thereafter filing of Recovery Application by the petitioner is true. It is true that the explanation of delay and the sufficient cause is to be considered but it would depend upon facts of each case. There is difference between explanation and excuse, however, in the opinion of this court the explanation is to be considered basis the fats of each case. In the present case, despite having knowledge of filing of Reference and subsequent orders passed by the Labour Court the petitioner choose not to participate and after having passed an order in Recovery Application, an application seeking restoration was filed. The contention of learned advocate for the petitioner that in the Delay Condonation Application the reference has been made in relation to petitioner having knowledge of the filing of reference, in the opinion of this Court is of no consequence because the Labour Court has observed that at every stage, the petitioner was aware of the proceedings, however, he did not participate deliberately. For the termination of the year 2004, the application seeking restoration was filed in the year 2023, with delay of 575 days.

10. In view of above, in the opinion of this Court, despite having knowledge of pending proceedings, more particularly when the petitioner participated in recovery proceedings and sought an adjournment, it cannot be stated that justifiable explanation was provided. Hence, this Court does not find any error in the order of the Labour Court dated 06.08.2022 in Miscellaneous Application No. 21 of 2013. If the contention of learned advocate for the petitioner is accepted then in the opinion of this Court, there would amount to further delay. Hence, considering the facts of the present case, this Court deems it appropriate not to interfere with the order of Labour Court, Ahmedabad dated

06.08.2022 in Miscellaneous Application No. 21 of 2013."

6. Having gone through the observations and the documents

produced on record, we see no infirmity with the order of the

NEUTRAL CITATION

C/LPA/403/2024 ORDER DATED: 16/04/2024

undefined

learned Single Judge as it has been categorically observed that

every stage the petitioner was put to notice of the proceedings.

The observations of the learned Single Judge cannot be said to be

unreasonable.

In exercise of Letters Patent jurisdiction, no ground could

be made out to interfere with the judgment and order passed by