(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As in both the appeals, inter-connected common questions arise and, in any case, they are arising from the same petition – Special Civil Application No.5957 of 1995, both are considered simultaneously.
2. Letters Patent Appeal No.914 of 2006 is directed the order passed by the learned Single Judge dated 26.8.2005 below Civil Application No.3900 of 2005 in SCA No.5957 of 1995, whereby the learned Single Judge of this Court dismissed the application.
3. Letters Patent Appeal No.214 of 2007 is directed against the order dated 16.12.2005, passed by the learned Single Judge of this Court permitted amendment in the memo of SCA No.5957 of 1995, whereby certain documents were produced and the averments as per Schedule-A of the application came on record.
4. We shall address the respondent of Special Civil Application as 'workman' and the petitioner of Special Civil Application as 'employer', for the sake of convenience, without considering the applicability of the Industrial Disputes Act or otherwise.
5. The common facts are that the 'workman' - the appellant of both the appeals, raised the dispute under I.D. Act against the alleged termination of services, which came to be referred to the Labour Court for adjudication. The Labour Court ultimately on 12.1.1995 passed the award in the proceedings of Reference (LCJ) No.1760 of 1990, whereby the reinstatement by continuity in service was ordered, but without backwages. Against the said award, petition was preferred by the employer being SCA No.5957 of 1995 before the learned Single Judge of this Court. The learned Single Judge this Court on 16.9.1995 while issuing notice, granted ad-interim stay of operation and implementation of the award of the Labour Court, subject to the provisions of Section 17B of the I.D. Act. It appears that thereafter on 29.3.1996, the learned Single Judge of this passed the following order:-
“Mr.P.V. Hathi for the petitioner and Mr.
J.T. Trivedi for the respondent. Heard the learned counsel. Rule. Mr.J.T. Trivedi waives service of rule. It is submitted that the concerned employee is already on job and Village Panchayat of Chaya. Mr.Trivedi apprehends that some action is likely to be taken against the respondent – employee. In case any action to the prejudice to the respondent – employee is taken, it is always open for the employee to move the Court immediately The matter be listed on 22.4.1996. Interim relief as ordered on 16.9.1995 shall continue.”
6. Thereafter, it has been stated that the Civil Application No.5147 of 2000 was preferred by the respondent – workman for early hearing of the matter and it was also prayed that the interim relief in favour of the respondents be vacated. The learned Single Judge of this Court, vide order dated 28.8.2000 allowed the application to the extent of fixing the hearing hearing of the matter, but the interim relief granted was not vacated. It appears that thereafter the the learned Single Judge of this Court finally heard the Special Civil Application and vide judgement dated 22.3.2001 allowed the petition and set aside the award passed by the Labour Court.
7. The workman carried the matter in Letters Patent Appeal being LPA No.577 of 2001 and the said LPA, vide order dated 8.4.2005 passed by the Division Bench of this Court was also allowed and the following operative order was passed by the Division Bench:-
“10. The appeal is allowed. The judgement passed by the learned Single Judge deserves to and is accordingly set aside. The matter is remanded to the learned Single Judge for consideration in accordance with law. There shall be no order as to costs. The parties shall be free to make a request to the learned Single Judge for early disposal of the matter.”
8. It appears that thereafter the application being Civil Application No.3900 of 2005 was preferred by the workman for directing the compliance of the provisions of Section 17B of the I.D. Act from 15.2.2002 during the pendency of the main petition. The learned Single Judge dismissed the application on two grounds; one was that the workman was gainfully employed during the pendency of the petition and during subsequent years and when his services were terminated from Chhaya Nagarpalika, he came running to seek the reliefs against the present opponent, once foregoing the same when the litigation was pending. Another was that the applicant workman had instituted necessary proceedings against the termination by Chhaya Nagarpalika, but the said fact was not disclosed and, therefore, the learned Single Judge found that the main matter be fixed for final hearing and the Court will decide as to whether the applicant is entitled to the wages or not in view of the peculiar facts and circumstances that the Reference is still pending. It is against the said order of the learned Single Judge, LPA No.914 of 2006 before us.
9. It further appears that pending the petition before the learned Single Judge, an application being Civil Application No.10763 of 2005 was preferred by the employer for amendment in the main memo of petition as per Schedule-A, whereby certain averments and documents were to be brought on record. The learned Single Judge, vide order dated 16.12.2005 allowed the amendment, but did observe that simply this Court has granted amendment, it does not mean the facts stated in the amendment are accepted by the Court. The learned Single Judge also observed that it would be open for the respondent workman to controvert the same by filing necessary reply to this amended petition. Against the said order, LPA No.214 of 2007 is before us.
10. We have heard Mr.J.T. Trivedi, learned Counsel appearing for the appellant in both the appeals and Mr.Vaishnav for Mr.P.V. Hathi, learned Counsel for the respondent in both the appeals.
11. As such, the ad-interim relief under Section 17B of I.D. Act was in operation, pending Special Civil Application No.5759 of 1995 until the learned Single Judge (Coram: K.M. Mehta, J.) finally decided Special Civil Application on 22.3.2001. Against the said order, LPA NO.577/2001 was preferred and it is also true that by the order of the Division Bench, the matter has been remanded to the learned Single Judge. It is not brought to our notice that pending LPA, the order of the learned Single Judge was stayed or not and it further appears that the Division Bench has remanded the matter, but has not expressly provided for revival of the interim relief under Section 17B of I.D. Act or not. Under these circumstances, we find that such aspect can finally be examined at the time when the learned Single Judge is to decide the Special Civil Application for final hearing, or in alternative the party may resort to appropriate proceedings, if otherwise permissible in law.
12. At that stage, Mr.Trivedi, learned Counsel appearing for the appellant prayed that he may be permitted to withdraw the Civil Application No.3900 of 2005 field before the learned Single Judge as well as the present LPA. The present appeal being continuous proceedings, if the application is to be withdrawn, we find that the same can be permitted to be withdrawn, leaving the parties to agitate all questions to be raised before the learned Single Judge in the pending petition as may be available in accordance with law.
13. Hence, subject to the aforesaid observations, Civil Application No.3900 of 2005 shall stand withdrawn and consequently, LPA No.914 of 2006 shall stand disposed of.
14. So far as LPA No.214 of 2007 is concerned, the learned Single Judge has already made it clear in the impugned order that simply this Court has granted amendment, it does not mean the facts stated in the amendment are accepted by the Court. Such observations by the learned Single Judge would mean that the aspects of acceptability of the amendment or the documents produced with the amendment is to be considered by the Court at the time of final hearing and at that stage, the workman may object for acceptance of the contents of the averments in the amendment and/or the admissibility of the documents.
15. Under these circumstances, we find that when the said aspect was already made clear, merely because the party was permitted to bring on LPA/914/2006 10/10 JUDGMENT record certain averments or certain documents, the same would not prejudice the rights of the respondent workman, since the acceptability of the contents of the averments or the documents is to be considered only at the time of final disposal of the main Special Civil Application. Under these circumstances, subject to the aforesaid observations, no interference is called for to the order passed by the learned Single Judge. Hence, LPA No.214 of 2007 shall stand disposed of accordingly.
16. Both the LPAs shall stand disposed of accordingly in terms of the present order. There shall be no order as to costs.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod