IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10895 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ?
========================================================= VIRAT ENGINEERING PVT LTD - Petitioner(s) Versus ARUN R CHAUDHARY - Respondent(s) ========================================================= Appearance :
MR RC JANI for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MR BD KARIA for Respondent(s) : 1, MR TEJAS D KARIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/10/2012
ORAL JUDGMENT
1. Heard learned Advocates for the parties.
2. The petitioneremployer, the private limited company, has approached this Court, invoking the provisions of Article 226 and also Article 227 of the Constitution of India, challenging the award dated 09.12.1999 passed by the Presiding Officer, Labour Court, Ahmedabad, in Reference (L.C.A.) No.546 of 1985 and the order dated 08.08.2001 passed by the Presiding Officer, Labour Court, in Misc. Application No.148 of 2001, preferred by the employerpetitioner purported to have been filed under Rule 26(A) of Gujarat Industrial Dispute Rules for setting aside exparte award, for the reasons stated therein.
3. Facts in brief, leading to filing this petition, as could be gathered from the memo of petition, deserve to be set out as under.
4. The say of the employer is that on fateful day i.e. 26/27111984, an incident of theft occurred, which was reported to police and the concerned Police Officer recorded First Information Report. This theft occurred at the factory premises and the workman was named as an accused in the FIR. However, no suspension and/or deemed suspension, in any manner, was invoked and the employeeworkman was not permitted to resume the duty, though it was a case of the petitioner that after the incident, the workman of his own volition, did not choose to report for duty and ultimately workman being aggrieved on account of his illegal termination, raised industrial dispute, which was referred to the Competent Court, where it was marked as Reference (L.C.A.) No.546 of 1985. The statement of claim, written statements were filed. The evidences were adduced, but at the fag end of the Trial, the representative or the advocate of the company appears to have been defaulted in remaining present, which did not prevent the Court from passing the order against the company, whereby, workman was ordered to be reinstated with full back wages. The award is dated 09.12.1999. This award was not implemented and Union was constrained to sent a letter to the company. The petitioner has stated that on account of letter of the Union, they came to know that there is award against them and hence filed application for setting aside exparte order. The said application was filed on 07.07.2000, as the company received the notice from the Union in the Month of June 2000. The said application purported to have been filed under Rule 26(A) of the Gujarat Industrial Dispute Rules was, in fact, not accompanying with any delay condonation application, nor was there any prayer seeking condonation of delay for belatedly preferring such application. The workman resisted the said application, which was numbered as Misc. Application No.148 of 2001. The Court, after elaborately referring the various dates, on which, the development of the Trial took place and after referring to the factum of reply of the company, the cross examination of the workman and evidences in this behalf and the advocates' appearance on various dates and nonavailability of one advocate Shri Oza, came to the conclusion that strictly speaking the award cannot be conclusive to be exparte award and otherwise also the application as not found to be tenable in the eyes of law and rejected vide order dated 08.08.2001.
5. Being aggrieved and dissatisfied with these two orders, the petitioner chose to prefer the present petition under Article 226 and also under Article 227 of the Constitution of India, seeking quashment of both these orders on the grounds mentioned in the memo of petition.
6. Ld. Advocate for the petitioner contended that on account of closure of the premises and company since the year 1989, the company and its advocate were facing serious handicaps and could not adduced evidences, which would have justified the action of the company or rather company's stand qua workman abounding his employment. Therefore, the matter is required to be remanded back.
7. Ld. Advocate Shri Jani for the petitioner, thereafter contended that during the pendency of this petition, in order to see to it that, no prejudice is caused to the workman, the company volunteered to deposit certain amount and as could be seen from the record, total amount of Rs.50,956/ was ordered to be deposited and it is being renewed under the consensus of the Court. The depositing of the amount may remain as it is and the matter be remanded in the interest of justice and equity.
8. Ld. Advocate for the workman contended that the action on the part of the company in managing the services was exfacie illegal and the Court has come to the right conclusion that the workman deserves to be reinstated as unceremonious termination of the services of the workman was wholly illegal and when the company's stand was not accepted by the Court, the Court was justified in making Award, the subsequent application has also rightly been rejected as the paragraph No.7 of the judgment and order eloquently makes it clear that there was no justification for rejecting the said application.
9. The ld. Advocate for the workman apropos the contention with regard to remand the matter, contended that the request for remand may not be accepted as the rule is that of year 1984 and the passage of time would in itself indicate that such a request, even if granted, would be of no avail of either party and would lead nowhere. Hence, the petition be dismissed and the amount so deposited be permitted to be withdrawn or be ordered to be given to the workman after proper verification of his identity by account payee cheque.
10. This Court has perused the orders impugned. The Court is of the considered view that the fact with regard to not following procedure of law while terminating the services of the workman, is not disputed in any manner. The say of the employer that the workman abandoned his job on his own accord, is not accepted by the Court on account of the evidences adduced on record when such evidences have been adduced and accepted by this Court.
11. This Court, under Article 227, would not naturally be inclined to interfere therewith. The petition is though styled to have been filed also under Article 226, but the counsel could not indicate as to how this petition could have been styled as under Article 226, as no requisite averments are made either in the memo of the petition or in the cause title. The Labour Court is not joined as a party and when nonjoining the Labour Court as party, whose order is under challenge may not invoke Article 226 of the Constitution of India, as observed by the Full Bench of this Court in case of The Bhagyodya Co operative Bank Limited Vs. Natvarlal K. Patel and Anr.
Reported in 2011 (3) GLH (FB) 89. Now the petition is required to be confined under article 227 only and the inherent limitation of exercising of the jurisdiction under Article 227 would require to be borne in mind. Detailed reasoning occurred in the award as well as in the order not accepting the request for setting aside the award would peruse this Court in not interfering therewith in any manner. The petition is filed under Article 227 and the findings recorded by the Court, whose order is under challenge, therefore cannot be interfered with in any manner, otherwise the same would amount to appreciate or reappreciate the evidence which is not justified when examining the challenge under Article 226 of the Constitution of India. The observations of the Court qua employer's failure in establishing its version of workman abandoning job, is based upon the evidences adduced before the Court. The fact that the employer did not choose even to file delay condonation application and did not produce any evidence to support his stand as to how there was a delay and on what count the delay is required to be condoned and no documentary evidence in support of the case for setting aside the order, would indicate that the observations made by the Court in paragraph Nos.7 and 8 of the order that the order is not required to be interfered with in any manner. The petition deserves to be rejected and accordingly, the same is rejected. Rule is discharged. Interim relief is vacated. The money deposited under the order of this Court is required to be paid to the workman after proper verification. The Registry is directed to do it as soon as possible after proper verification and identification of the concerned person by the concerned advocate and thereafter pay the said amount to the workman by Account Payee Cheque to be identified by the advocate representing the workman. The entire exercise should be completed on or before 30.10.2012.
Ankit* [S.R.BRAHMBHATT, J.]