Gujarat High Court
Bhupendrabhai Vallabhbhai Patel ... vs Divisional Controller on 21 July, 2025
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C/SCA/10673/2024 JUDGMENT DATED: 21/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10673 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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BHUPENDRABHAI VALLABHBHAI PATEL (WORKMAN)
Versus
DIVISIONAL CONTROLLER
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/07/2025
ORAL JUDGMENT
1 Rule, returnable forthwith. Learned advocate
Ms.Mandavia waives service of notice of Rule on
behalf of the respondent-State.
2 This petition is filed under Articles 226 and 227 of the
Constitution of India, challenging the order dated
08.11.2019 passed by the learned Industrial Tribunal,
Vadodara in Reference (IT) No.23 of 2011, whereby
the Reference filed by the present petitioner came to
be rejected on the ground of delay, as well as the
order dated 17.05.2023 passed in Misc. Application
No.1 of 2022, whereby the Restoration Application
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filed by the petitioner was also rejected.
3 The facts in nutshell are that the petitioner was
serving with the respondent Corporation as a Clerk
since 1978 and retired from service in the year 2014.
On 11.09.2002, while the petitioner was working at
Karjan Depot, the Accounts Officer of Vadodara
Division inspected the treasury and accounts of
Karjan Depot. During the inspection, it was found that
an amount of Rs.3,364/- was credited towards salary,
whereas the cash available in the treasury was
Rs.3,314/-, resulting in a shortage of Rs.50/- in the
cash book. A report was made to the higher
authorities, and accordingly, a chargesheet was
issued to the petitioner on 07.10.2002.
3.1 The petitioner replied to the chargesheet on
10.10.2002, and upon conclusion of the
departmental inquiry, the Disciplinary Authority
passed an order on 06.01.2003 imposing the
punishment of withholding one increment with
future effect. The said order was challenged in the
first departmental appeal, which came to be
rejected on 31.03.2004. Thereafter, the second
departmental appeal was preferred, which was
pending as on the date of filing of the Reference.
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3.2 Challenging the order of punishment, the
petitioner filed Reference (IT) No.23 of 2011,
wherein the legality and validity of the
departmental inquiry was also assailed. The
learned Tribunal framed a preliminary issue with
regard to the legality of the inquiry and, vide order
dated 22.07.2013, held that the inquiry was
conducted in violation of the principles of natural
justice, and therefore, the departmental inquiry
was declared illegal.
3.3 Subsequently, the learned Tribunal allowed the
Reference in favour of the petitioner on
22.11.2013, observing that though an opportunity
was granted to the respondent to lead evidence to
prove the charges, the same was not availed. As
the award was passed ex parte, the respondent
filed a restoration application along with an
application for condonation of delay being Misc.
Application No.19 of 2014. The said applications
came to be rejected by the learned Tribunal, which
led to the filing of Special Civil Application No.8513
of 2017 before this Court. This Court, vide order
dated 22.11.2017, quashed the award passed by
the Tribunal and restored the Reference to its
original file by setting aside the order rejecting the
application for condonation of delay.
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3.4 Thereafter, without calling upon the respondent
to lead evidence to prove the charges, the learned
Tribunal rejected the Reference on the ground of
delay of eight years in filing the same. The
petitioner, therefore, preferred a restoration
application under Rule 26A of the Gujarat
Industrial Disputes Rules, 1966 which also came to
be rejected. Aggrieved, the petitioner filed Special
Civil Application No.1452 of 2022 before this Court.
However, the said petition was permitted to be
withdrawn with a liberty to file a restoration
application before the learned Tribunal.
Accordingly, the petitioner filed the restoration
application, which also came to be rejected by the
Tribunal on the ground of delay of 83 days.
4 Heard the learned advocate Mr.Brahmbhatt for the
petitioner and the learned advocate Ms.Mandavia for
the respondent.
5 Learned advocate Mr. Brahmbhatt submits that after
holding the departmental inquiry illegal and void,
instead of deciding the Reference on merits by
appreciating the evidence adduced by the
respondent to prove the charges, the learned
Tribunal erroneously proceeded to dismiss the
Reference solely on the ground of delay. Learned
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advocate Mr. Brahmbhatt submits that by not
following the procedure prescribed under the
Industrial Disputes Act, the learned Tribunal has
committed a serious error, and therefore, the
impugned award rejecting the Reference of the
petitioner is required to be interfered with.
5.1 Learned advocate Mr. Brahmbhatt further
submits that the learned Tribunal has also erred in
observing that the petitioner was aware of the
dismissal of the Reference (dated 08.11.2019)
merely because he received costs of Rs.10,000/-
on 11.12.2019. Learned advocate Mr. Brahmbhatt
clarifies that the said amount was awarded in Misc.
Application No.10 of 2019, which was received by
the petitioner after the dismissal of the Reference.
By accepting the said amount, the petitioner
merely came to know that the Reference was
restored to its original file, but that by itself does
not imply that he had knowledge of the dismissal
of the Reference.
5.2 Learned advocate Mr. Brahmbhatt further
submits that due to the COVID-19 pandemic being
at its peak during the relevant period, the
petitioner could not approach the concerned Court
within the stipulated time. Learned advocate Mr.
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Brahmbhatt submits that the ex-parte award was
challenged by way of a writ petition before this
Court, which was later withdrawn with a liberty to
file a restoration application before the learned
Tribunal. Accordingly, a restoration application was
filed; however, the learned Tribunal rejected the
same on the ground of delay of 83 days. Learned
advocate Mr. Brahmbhatt submits that even if the
statutory 30-day limitation period is deducted, the
delay would come to only 53 days, which was
reasonably and sufficiently explained. Despite this,
the learned Tribunal held that no sufficient cause
was shown.
5.3 Learned advocate Mr. Brahmbhatt further
submits that the initial award, which was in favour
of the present petitioner, was restored after a
lapse of more than six years at the instance of the
respondent, yet the petitioner's delay of merely 53
days was not condoned despite being caused for
genuine and bona-fide reasons.
5.4 In view of the above, learned advocate Mr.
Brahmbhatt submits that both the impugned
orders, one passed in the application for
condonation of delay and the other in the main
Reference are unsustainable and deserve to be set
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aside, as they are passed without appreciating the
material and cogent evidence on record. Learned
advocate Mr. Brahmbhatt submits therefore, prays
that the present petition may be allowed and the
impugned orders may be quashed and set aside.
6 Per contra, learned advocate Ms. Mandavia submits
that the petitioner was aware of the impugned award
as on 11.12.2019; however, the Restoration
Application came to be filed only on 01.06.2022.
Learned advocate Ms. Mandavia submits that during
the intervening period, the petitioner had already
approached this Court by filing a writ petition, which
came to be dismissed on 09.03.2022. Despite that,
the Restoration Application was filed after more than
three months, and therefore, the learned Tribunal
was justified in rejecting the application for
condonation of delay.
6.1 Learned advocate Ms. Mandavia further submits
that since the petitioner failed to remain present
before the learned Tribunal during the
proceedings, there was no occasion for the
Tribunal to examine the matter on merits. Hence,
the impugned award dismissing the Reference on
the ground of delay of eight years is just, proper,
and in accordance with law.
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6.2 In view of the above submissions, learned
advocate Ms. Mandavia prays that no interference
be made with the impugned award and the
present petition may be dismissed.
7 Having considered the arguments advanced by the
learned advocates for the respective parties and on
perusal of the reasons assigned by the learned
Reference Court, it emerges that the Reference was
filed by the present petitioner challenging the order
of punishment whereby one increment was withheld
with future effect. It is not in dispute that the
punishment order was passed by the Disciplinary
Authority on 06.01.2003. Thereafter, the first
departmental appeal filed by the petitioner came to
be rejected, and at the time of filing the Reference,
the second departmental appeal was pending.
7.1 It is also not in dispute that during the course of
Reference proceedings, the learned Court decided
the preliminary issue regarding the legality and
validity of the departmental inquiry in favour of the
petitioner and consequently, the Reference was
allowed ex parte by setting aside the punishment
order.
7.2 Challenging the said ex-parte award, the
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respondent filed Misc. Application No.23 of 2011
under Rule 26A of the Gujarat Industrial Disputes
Rules, 1966. The said application came to be
rejected on 26.10.2016, which was challenged
before this Court. This Court, vide order dated
22.11.2017, allowed the petition, set aside the
impugned award, and condoned the delay.
7.3 Pursuant to the said order, the amount of costs
of Rs.10,000/-, as awarded by the learned Labour
Court while restoring the Reference, was paid to
the petitioner on 11.12.2019. However, prior to the
said payment, the learned Reference Court had
already decided the Reference on merits against
the petitioner on 08.11.2019 by holding that the
Reference was filed after a delay of eight years.
8 In the opinion of this Court, once the learned Labour
Court held that the departmental inquiry was illegal
and void, the proper course available to the learned
Court was to grant an opportunity to the respondent
to prove the charges independently. However,
instead of adopting such a course, the learned
Reference Court proceeded to examine the matter
solely on the aspect of delay. Such an approach is
impermissible in the eyes of law, as on one hand, the
legality and validity of the departmental inquiry was
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held in favour of the petitioner, and on the other
hand, the Reference itself was rejected on the ground
of delay.
8.1 In addition, the observation made by the
learned Court in the impugned order that the
petitioner came to know about the dismissal of the
Reference on 11.12.2019 is also misconceived. On
11.12.2019, the petitioner merely received the
costs amount awarded by the learned Court while
allowing the restoration application. There was no
whisper or reference in the said proceedings about
the main award passed in the Reference.
8.2 Therefore, under the erroneous presumption
that the petitioner became aware of the dismissal
of the Reference dated 08.11.2019 on 11.12.2019,
the learned Reference Court dismissed the
restoration application on the ground that no
sufficient and genuine explanation for the delay
was offered by the petitioner.
9 At this stage, this Court has referred the decision
rendered by the Apex Court in the case of N.
Balakrishnan v. M. Krishnamurthy, in AIR 1998
SC 3222 wherein the Apex Court has held as under:
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"11. Rules of limitation are not meant to destroy the
rights of parties. They are meant to see that parties
do not resort to dilatory tactics, but seek their
remedy promptly. The object of providing a legal
remedy is to repair the damage caused by reason of
legal injury. The law of limitation fixes a lifespan for
such legal remedy for the redress of the legal injury
so suffered. Time is precious and wasted time would
never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek
legal remedy by approaching the courts. So a
lifespan must be fixed for each remedy. Unending
period for launching the remedy may lead to
unending uncertainty and consequential anarchy. The
law of limitation is thus founded on public policy. It
is enshrined in the maxim interest reipublicae up sit
finis litium (it is for the general welfare that a
period be put to litigation). Rules of limitation are
not meant to destroy the rights of the parties. They
are meant to see that parties do not resort to
dilatory tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept alive
for a legislatively fixed period of time."
9.1 This Court has also referred the decision of the Apex
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Court rendered in the case of M.S. Grewal v. Deep
Chand Sood, reported in AIR 2001 SC 3660 wherein
the Apex Court has held as under:
"9. The observations as above, undoubtedly lay down
the basic guidance for assessment of damage but
one redeeming feature ought to be noted that
compensation or damages cannot be awarded as a
solatium but to assess the same with reference to
loss of pecuniary benefits. In the decision last noted
(Subramania Iyer [(1969) 3 SCC 64] ) this Court
placed strong reliance on two old decisions of the
English courts, to wit: Franklin v. South Eastern
Rly. Co. [157 ER 448 : (1858) 3 H&N 211] wherein
Pollock, C.B. stated:
"We do not say that it was necessary that
actual benefit should have been derived, a
reasonable expectation is enough and such
reasonable expectation might well exist,
though from the father, not being in need,
the son had never done anything for him. On
the other hand a jury certainly ought not to
make a guess in the matter, but ought to be
satisfied that there has been a loss of sensible
and appreciable pecuniary benefit, which
might have been reasonably expected from
the continuance of life."
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10 In the opinion of this Court, instead of
dismissing the Reference on the ground of delay, the
learned Tribunal ought to have proceeded to
examine the evidence that was required to be led by
the respondent to prove the charge. Even in the
absence of the present petitioner, the learned
Tribunal could have adjudicated the matter on
merits. However, by failing to adopt such a course,
the learned Tribunal has committed an error, and
therefore, the impugned order deserves to be
quashed and set aside. Consequently, the order
passed by the learned Tribunal rejecting the
application for condonation of delay is also requires
to be quashed and set aside.
11 Resultantly, this petition is allowed. The
Reference is restored to its original file. The learned
Industrial Tribunal, Vadodara is directed to decide the
same afresh, in accordance with law, within a period
of six months from the date of receipt of a copy of
this judgment. Rule is made absolute accordingly.
(M. K. THAKKER,J)
M.M.MIRZA
