Shah Enanatali Nadirali vs Meso Private Ltd.

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, the Petitioner - workman has prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned judgment and award dated 11/10/2004 passed by Labour Court, Gandhidham-Kutch in Reference (ICG) No. 36/2003 dismissing the said Reference for default as well as order dated 13/02/2006 passed by the Labour Court, Gandhidham-Kutch in I.D. Misc. Application No. 2 of 2005, which was filed to restore the main Reference, which also came to be dismissed for non-prosecution.

Having heard the learned advocates appearing on behalf of the respective parties and considering the decisions of this Court rendered in the case of Divisional Railway Manager, Western Raiway, Rajkot and Another Vs. Secretary, Paschim Railway Karmachari Parishad, Ahmedabad, in the case of Mohitosh Dass C/o. Gujarat Rajya Kamdar Union v. M.G. Memon or His successor in Office, Presiding Officer and Anr. reported in 2004(2) GLR 1475 as well as recent decision of this Court rendered in the case of Chandrakant Devgiri Giri v. Porbandar Nagarpalika reported in (2009)2 GLH 228, the impugned order dated 11/10/2004 passed by the Labour Court, Gandhidham-Kutch in Reference (ICG) No. 36/2003 in dismissing the said Reference for default, cannot be sustained. Consequently, the order dated 13/02/2006 passed by Labour Court, Gandhidham-Kutch in I.D. Misc. Application No. 2 of 2005, which was filed under Rule 26-A of the Industrial Disputes (Gujarat) Rules, cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the concerned Labour Court for deciding the said Reference afresh and in accordance with law and on merits.

At this stage, Mr. D.C. Dave, learned advocate appearing on behalf of the Respondent has submitted that in that case a suitable observation be made that while considering the matter on merits on remand, if ultimately Labour Court holds in favour of the Petitioner, Labour Court may consider that the delay has been occurred on the part of the Petitioner-workman and the aforesaid aspect may be considered while awarding backwages.

In view of the above and considering the aforesaid decisions rendered by this Court and impugned judgment and award dated 11/10/2004 passed by the Labour Court, Gandhidham-Kutch in Reference (ICG) No. 36/2003 as well as the order dated 13/02/2006 passed by Labour Court, Gandhidham-Kutch in I.D. Misc. Application No. 2 of 2005 are hereby quashed and set aside and the Reference (ICG) No. 36/2003 is remanded to the Labour Court, Gandhidham-Kutch to decide and dispose of afresh and in accordance with law and on merits.

Mr. Ramnani, learned advocate appearing on behalf of the Petitioner has assured the Court that the Petitioner shall co-operate the Labour Court in deciding and disposing of the said Reference at the earliest and there shall not be any unnecessary adjournment sought on the part of the Petitioner. It goes without saying that the said Reference was dismissed for default for non-prosecution on the part of the Petitioner and restoration application also came to be dismissed. In case, the Petitioner succeed before the Labour Court while considering the question of backwages, the Labour Court to consider the above conduct on the part of the Petitioner. Rule is made absolute to the aforesaid extent. No costs.