Gujarat High Court
Malvi Engineer Through Rakeshbhai ... vs Amrutlal Nathabhai on 16 January, 2024
NEUTRAL CITATION
C/SCA/12664/2013 JUDGMENT DATED: 16/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12664 of 2013
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 12664 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MALVI ENGINEER THROUGH RAKESHBHAI ASHOKBHAI SHUKLA
Versus
AMRUTLAL NATHABHAI & 1 other(s)
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Appearance:
MR HASIT H JOSHI(2480) for the Petitioner(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
MR UT MISHRA(3605) for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/01/2024
ORAL JUDGMENT
NEUTRAL CITATION
C/SCA/12664/2013 JUDGMENT DATED: 16/01/2024
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1. Employer as petitioner has filed this petition challenging
the order dated 05.04.2013 of Labour Court Ahmedabad, in
Misc. Application No.53 of 2011 and the award dated
13.03.2008 of the Labour Court, Ahmedabad in Reference
(LCA) No.120 of 2007. In the award dated 13.03.2008 in
Reference (LCA) No.120 of 2007 the Labour Court, directed the
petitioner - employer to reinstate respondent - workman to
his original post with continuity of service and 50%
backwages. Whereas in the order dated 05.04.2013, the Labour
Court, Ahmedabad in Misc. Application No.53 of 2011 rejected
the delay condonation application and consequently the
application seeking restoration.
2. The facts in brief are as under:
2.1. For the alleged illegal termination, respondent -
workman raised dispute before the Labour Court registered as
Reference (LCA) Application No.120 of 2007. The Labour
Court upon adjudication directed petitioner to reinstate
workman to his original post with continuity of service and
also awarded 50% backwages. It was case of the petitioner -
employer that the said award was passed ex-parte. Therefore,
an application seeking restoration along with delay condonation
application was filed under Rule 26A of the Industrial Disputes
Rules ("The Rules" for short). The said application seeking
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restoration with delay condonation application was not
entertained by the Labour Court on the ground that the delay
occasioned in preferring the restoration is not justified and,
therefore, delay cannot be condoned. Aggrieved by the orders
dated 05.04.2013 and 13.03.2008 present petition is filed.
3. Heard Mr. Hasit Joshi, learned advocate for the petitioner
- employer and Mr. U.T.Mishra, learned advocate for the
respondent - workman.
4. Mr. Joshi, learned advocate for the petitioner submitted
that in the dispute raised by the workman, the petitioner was
not served with the notices and, thus the petitioner was not
granted opportunity to lead evidences as also to cross examine.
The award dated 13.03.2008 was an ex-parte award. Since
principles of natural justice are not complied, the reference
deserved to be restored. As there was delay in filing
restoration application under Rule 26A of the Industrial
Disputes rules 1966("the Rules" for short), an application
seeking condonation of delay was filed explaining delay.
Despite that the same was rejected.
4.1. Further, earlier notices of the Labour Court, Ahmedabad
in reference were never served to the petitioner and, therefore,
upon having come to know about the pendency of proceedings
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immediately an application seeking restoration was filed with
an application seeking condonation of delay. However, the
Labour Court without considering the justification offered by
the employer, rejected the application seeking condonation of
delay. He submitted that the rejection of condonation of delay
application has caused prejudice to the petitioner as no
opportunity was given to lead the evidences. Therefore, the
order dated 05.04.2013 in Misc. Application No.53 of 2011 of
Labour Court, Ahmedabad deserves to be quashed and set
aside. Consequentially the award of the Labour Court dated
13.03.2008 in Reference (LCA) No.120 of 2007 deserves to be
restored to the file of Labour Court. He, therefore, prayed
that the order dated 05.04.2013 may be quashed and set-aside
and reference may be restored to the file of Labour Court.
5. On the other hand, Mr. Mishra, learned advocate for the
respondent - workman opposing the petition submitted that
upon statement of claim being filed by the respondent -
workman, several notices were served to the petitioner -
employer. For their negligent approach, second round of
litigation may not be permitted. The Labour Court,
Ahmedabad passed an award after taking into consideration the
evidences on record and the order being just and proper, no
interference is required. Further the award dated 13.03.2008
is on merits which does not call for any interference,
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particularly, when no error could be pointed out by the
petitioner - employer. Referring to the date of order and the
date of restoration application, he submitted that the date of
award is 13.03.2008 whereas the application under Rules 26A
of the Rules was filed in the year 2011, after delay of four
years, therefore, if the present petition is allowed and the
reference is restored to the file of Labour Court, it would
cause great hardship to the workman for no fault of him. He,
therefore, submitted that the present petition deserves to be
rejected.
6. Considered the submissions. Undisputedly in Reference
(LCA) No.120 of 2007 notices were issued to the employer.
Since the reference was not attended by the employer, an
award dated 13.03.2008 was passed after taking into
consideration the evidence on record. The petitioner employer
thereafter filed an application under Rule 26A of the Rules
seeking restoration of the reference along with delay
condonation application. When the application was preferred,
there was a delay of more than four years. Upon
consideration of delay occasioned, the Labour Court deemed it
appropriate not to condone the delay and consequently the
application seeking condonation of delay was rejected by order
dated 05.04.2013. Impliedly the restoration was also rejected.
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6.1 It would be appropriate to refer to the order dated
22.04.2016 of this Court wherein this Court with consent of
the parties, finally disposed of the petition with the direction
to the petitioner to reinstate the respondent - workman and
the rest of the award of continuity and backwages was set
aside. However, despite directions of this Court dated
22.04.2016, the respondent workman did not joined duties,
and therefore Misc. Civil Application No.1965 of 2016 in
Special Civil Application NO.12664 of 2013 was filed seeking
restoration of the present petition. The Court allowed the
MCA on 23.08.2016, with following directions:
"Therefore, following order is passed: -
Office will restore the petition i.e., Special Civil
Application NO.12664 of 2013 to its original status
and file. With the said direction the application is
allowed. Orders accordingly."
6.2. Thus, for the dispute raised in the year 2005, the
application seeking restoration of the award dated 13.03.2008
was preferred in the year 2013. As informed by learned
Advocate for the workman as on date the workman is nearing
the age of superannuation.
7. Considering the time gap involved in the present dispute,
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in the opinion this Court it would not be appropriate to
consider the contention of petitioner to restore the reference.
Even considering the time gap, Learned Advocate for respective
parties have agreed for modification of the award
appropriately. In view of peculiar facts of this case, to meet
the end of justice, this Court deems it appropriate to grant
lumpsum compensation to the workman in lieu of award dated
13.03.2008 in Reference (LCA) No.120 of 2007.
8. The award of the Labour Court dated 13.03.2008 was
passed after taking into consideration the evidence on record,
wherein the Labour Court held the termination as illegal and
reinstatement was ordered. However, it cannot be ignored
that despite direction of reinstatement, the workman chose not
to join duties and, therefore present petition was revived.
9. Considering the facts and circumstances of the present
case, the period for which the respondent workman had
worked and the facts that the workman had nearly attained
the age of superannuation, this Court deems it appropriate to
award lumpsum compensation of Rs.4 lakhs as full and final
award. The award of the Labour Court dated 05.04.2013, is
modified to the aforesaid extent.
10. The amount as directed is to be paid within a period of
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eight weeks from the date of receipt of the order. Further,
the amount of Rs.20,000/- which has been deposited before the
registry of this Court is to be refunded to the petitioner-
employer.
11. It is made clear that this order is passed in the facts and
circumstances of this case and shall not be treated as
precedent.
12. With the above direction, the present petition is disposed
of. Rule is made absolute to the aforesaid extent.
13. Consequentially, the Civil Application (For Direction) No.
1 of 2023 is disposed of accordingly. Stay if any granted
earlier stands vacated.
(MAUNA M. BHATT,J)
NAIR SMITA V.
