IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15176 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= TALUKA DEVELOPMENT OFFICER - Petitioner(s) Versus HIRABHAI MANABHAI PANDYA - Respondent(s) ========================================================= Appearance :
MR HS MUNSHAW for Petitioner(s) : 1, MR. VD MEWADA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/03/2012 CAV JUDGMENT
1. By way of this petition under Article-227 of the Constitution of India, petitioner Taluka Development Officer, Taluka Idar has prayed for the following reliefs :
“7.
(A) Be pleased to admit the present Special Civil Application;
(B) Be pleased to allow this Special Civil Application by way of issuing appropriate writ, mandamus or directions quashing and setting aside the Award date 10/01/1997 passed by the Labour Court at Himatnagar in Reference (LCH) No.107 of 1996, annexed as AnnexureE and the order dated 08/10/2010 passed by the Labour Court at Himatnagar in Miscellaneous Application No.3 of 2010, annexed as AnnexureJ holding that the same are illegal, unjust, arbitrary, bad in law and contrary to the facts & evidences on record and without jurisdiction as well as the provisions of Industrial Disputes Act, 1947 in the interest of justice.
(C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution and operation of the Award dated 10/01/1997 passed by the Labour Court at Himatnagar in Reference (LCH) No.107 of 1996, annexed as AnnexureE and the order dated 08/10/2010 passed by the Labour Court at Himatnagar in Miscellaneous Application No.3 of 2010, annexed as AnnexureJ in the interest of justice.
(D) Be pleased to pass necessary orders to call for the record and proceedings of Reference (LCH) No.107 of 1996 of the Hon’ble Labour Court at Himatnagar.
(E) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order.”
2. Facts relevant for the purpose of deciding this petition can be summarized as under :
Challenge in the present petition is to the order passed by the Labour Court, Himatnagar dated 8/10/2010 rejecting the application preferred by the petitioner under Rule-26A of the Industrial Disputes (Gujarat) Rules,1966 for setting aside an ex-parte Award. The respondent workman preferred Reference LCH No.107/1996. In the said Reference notice was served upon the petitioner and the petitioner filed its written statement opposing the Reference. It appears that thereafter no steps were taken further to contest the reference and the Labour Court was left with no other option but to pass an order dated 10/1/1997 directing the petitioner to pay a salary for the period between 20/7/1988 to 10/1/1997. After the Award was passed by the Labour Court dated 10/1/1997, the petitioner challenged the same by filing Special Civil Application No.2969 of 1997. The learned single Judge of this Court (Coram: Mr.Justice H.K.Rathod, as His Lordship then was) took into consideration the fact that the remedy for the petitioner lies in filing the application under Rule-26A of Rules,1966 for setting aside an ex-parte Award. On this ground the petition was not entertained and other issues on merits were not considered. It will be expedient to quote the order passed by the learned Single Judge dated 12/1/2005 in Special Civil Application No.2969/1997 :
“Heard Learned Advocate Mr.Japee for the petitioner and Mr.Raval for the respondent. In this petition the order passed by the Labour Court, Himatnagar in Reference No.107 of 1996 dated 1711997 is challenged by the petitioner wherein the Labour court has granted full back wages in favour of the respondent from 2071988 to 1011997. While issuing rule, this Court has granted interim stay against the operation of the impugned award by order dated 2141997. Learned Advocate Mr.Japee submits that the award in question was passed by the Labour Court in absence of the petitioner, therefore, it is an exparte order made by the Labour Court and the petitioner was not able to avail the opportunity of hearing before the labour court by contesting the claim of the respondent. From perusal of the award in question, it is clear that it is an exparte award made by the labour court. As per rule 26A of the Industrial Disputes (Gujarat) Rules, 1966, petitioner can approach the labour court concerned for setting aside such an exparte order passed by it and as per rule 26B of the said Rules, the petitioner can also make prayer for stay of such an exparte order. Therefore considering the fact that such an alternative remedy is available to the petitioner to file an application under Rule 26A of the said Rules for setting aside the order, this Court has not entertained this petition and has not considered the merits of the matter. Therefore, it is open for the petitioner to file an application for setting aside the order in question before the labour Court within one month from the date of receipt of copy of this order. Pendency of the present petition before this court till the date of filing of the application by the petitioner before the Labour Court be considered to be genuine or sufficient cause for delay and the labour Court shall have to consider such application on merits and in accordance with law without considering the question of delay. Interim relief granted by this Court against the operation of the impugned order will continue to operate till the application, that may be filed by the petitioner, is examined by the labour court. Subject to these observations and directions, this petition is disposed of without observing anything on merits. Rule is discharged. Interim relief stands vacated. No order as to costs.”
Thus, it can be seen that while disposing of Special Civil Application No.2969/1997 the learned Single Judge of this Court observed that it will be open for the petitioner to prefer application under Rule 26-A of the Industrial Disputes (Gujarat), Rules, 1977 and can also pray for stay of the so-called ex-parte order under Rule 26-B of the said Rules.
It deserves to be noted that this order came to be passed on 12/1/2005. Unfortunately, no steps were taken by the petitioner to prefer appropriate application under Rule 26-A of the Rules for a period of 5 years and for the first time on 20/4/2010 application was preferred with prayer for condonation of delay of 5 years. The Presiding Officer, Labour Court, vide order dated 8/10/2010 rejected the application holding that the same was hopelessly time barred and no sufficient cause worth the name has been assigned for gross delay of 5 years. It is at this stage that the petitioner prefers this petition challenging the order passed by the Labour Court rejecting the application for condonation of delay. Notice was issued to the respondent returnable on 20/12/2010 on condition that the petitioner shall pay cost of Rs.2500/- before this Court on or before the returnable date. Mr. Munshaw informed that the cost has been deposited.
I) Contentions of the Petitioner :
Mr. Munshaw submitted that though there is a gross delay of 5 years in preferring application under Rule-26A, the Labour Court ought to have condoned the delay setting aside the ex-parte order and should have heard the Reference de-novo. His principal contention is that the respondent does not fall within the ambit of workman as defined under the I.D.Act because he was a Daily Wager and worked for a period of only one year and that too in the famine relief camp. His case is that having regard to this fact, Labour Court had no jurisdiction to pass the award directing the petitioner to make the requisite payment towards salary. Mr.Munshaw in support of his contention has relied upon two Supreme Court decisions, viz. (1) Deepak Agro Foods Vs. State of Rajasthan & others reported in (2008) 7 SCC -748 and (2) Balvant N. Viswamitra & Ors. Vs. Yadav Sadashiv Mule reported in (2004) 8 SCC -706.
II) Per contra, the learned Advocate Mr. V.D.Mewada appearing for respondents submitted that no error has been committed by the Labour Court, much less an error of law warranting any interference at the end of this court in exercise of supervisory jurisdiction under article-227 of the Constitution. He further submitted that the question as to whether the respondent is a workman within the meaning of I.D.Act is a mixed question of law and fact. If there is any error committed by the Labour Court in deciding such a question, then it cannot be said to be an error of jurisdiction, but at the most it can be termed an error of law. He submitted that therefore, the contention of the learned counsel for the petitioner that the Labour Court ought to have allowed the application for condonation of delay on the ground of the main order passed in Reference being void ab initio because of absence of jurisdiction is not tenable in law. He further submitted that a delay of 5 years can be termed as gross delay and no explanation worth the name has been tendered by the petitioner as to why such an application under Rule 26A could not be preferred in time, more particularly when the learned Single Judge had already passed an order in this regard.
III) Having heard the learned Counsels for the respective parties and on going through the materials on record, I find that no error, much less an error of law can be said to have been commited by the Labour Court in rejecting the application for condonation of delay of 5 years in filing an application under Rule 26-A of Rules,1966 for setting aside ex-parte award. I do not find any merit in the contention of Mr.Munshaw that delay should have been condoned only on the ground that the original Award passed by the Labour Court is without jurisdiction. I am of the view that the judgment which has been relied upon by Mr. Munshaw in the case of Deepak Agro Foods (Supra) on the contrary helps the respondent. In the case of Deepak Agro Foods (supra), Supreme Court has drawn a fine distinction between the orders which are null and void and the orders which are irregular, wrong or illegal. It would be profitable to quote Para-17 of the said judgment :-
“17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See Kiran Singh v. Chaman Pasan.) However, exercise of jurisdiction in a wrongful manner cannot result in a nullity –it is an illegality, capable of being cured in a duly constituted legal proceedings.”
Thus, para-17 is the direct answer to the contention of the learned advocate Mr.Munshaw that the original award is without jurisdiction and therefore, delay ought to have been condoned. As observed earlier, whether the respondent can be said to be a workman under the Industrial Disputes Act, is a mixed question of law and while deciding such a question, if any error has been committed by the Labour Court, then it cannot be said that the order is without jurisdiction, but rather it can be termed as an irregular, wrong or illegal order.
On the same analogy is the judgment of the Supreme Court in the case of Balvant N. Viswamitra (Supra). I may profitably quote Para-9 and 15 of the said judgment ijn the case of Balvant N. Viswamitra (supra.) :
“9. The main question which arise for our consideration is whether the decree passed by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the rot of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, evening execution or collateral proceedings.”
“15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.”
I am of the view that the contention of the learned Advocate Mr.Munshaw that delay of 5 years ought to have been condoned on the ground of inherent lack of jurisdiction on the part of the Labour Court while deciding the Reference is without any merit. It is not the case that the Labour Court was lacking inherent jurisdiction so as to render the award without jurisdiction, null, non est and void ab initio. Labour court had jurisdiction conferred in it by law and while deciding a Reference, if commits an error of law then the same cannot be termed as void ab initio. I am also not convinced with the explanation which has been given by the learned advocate Mr.Munshaw as regards gross delay of 5 years in filing such an application for condonation of delay. I do not find any good ground to disturb the order passed by the Labour Court and condone the delay of 5 years in exercise of my supervisory jurisdiction under Article-227 of the Constitution. In the result, this petition fails and the same is hereby rejected. However, there shall be no order as to costs.
(J.B.Pardiwala, J) mehul