State of Gujarat vs China Karshan Bhadarka

S.R. Brahmbhatt , J.—The State of Gujarat through its officer has preferred this petition under Articles 226 and 227 of the Constitution of India challenging the order dated 7.2.2001 passed by the Presiding Officer, Labor Court, Junagadh in Reference(LCJ) No. 1253 of 1990 as well as order passed by the Court on 23.3.2007 and 26.6.2007 and in the alternative, prayed that the matter be remanded back for fresh consideration and during the pendency of this proceedings, recovery application being Recovery Application No. 68 of 2007 be stayed.

This Court (Coram: K.A. Puj, J.) on 6.12.2010passed order regarding gross delay and lack of interest on the part of concerned officers in not taking appropriate steps. Therefore, the Petitioner was directed to file an affidavit giving names of concerned Range Forest Officers, who were in charge during that relevant point of time and also proper explanation as to why no timely action were taken by them and for this purpose, the matter was adjourned to 20.12.2010. The Court (Coram: K.A. Puj, J.) on 21.12.2010,after perusing the affidavits etc. filed by concerned officer, the Deputy Conservator of Forest, Junagadh Circle, Junagadh was directed to look into the matter and comply with the direction given in the earlier order dated 6.12.2010 and in the meantime, the notice came to be issued, which was made returnable on 12.01.2011. In response to the notice, concerned workman appeared through learned advocate Shri Supehia.

Looking to the controversy in question, both the counsels were in agreement to have the matter finally dispose of by passing appropriate order. Hence, the Court decided to pass appropriate order at the request of learned advocates.

Rule. Mr. Gohil, learned advocate for Mr. Supehia, learned advocate for the Respondent waives service of Rule on behalf of Respondent. By consent, Rule is fixed forthwith at the request of learned advocates for the parties.

The facts in brief leading to filing this petition deserves to be set out as under: The Respondent workman, at the relevant time, had to raise industrial dispute on his illegal termination, which came to be referred to the competent court, wherein, it was marked as Reference (LCR) No. 1475 of 1988, which was renumbered as Reference (LCJ) 1253 of 1990. The written statement had not been filed on behalf of employer and hence on 7.2.2001, the ex-part award came to be passed ordering reinstatement of the workman with full back wages. As the aforesaid order and award was ex-parte, the Petitioner employer took out appropriate application under Rule 26 of the Industrial Dispute Act (Gujarat) Rules being Misc. Civil Application No. 50 of 2001, which came to be accepted by the Court on condition of depositingRs.3000/-by way of cost to be put to the workman and original reference was restored to the file for hearing on merits.

The Petitioner, unfortunately, again defaulted and could not deposit Rs. 3000/-as ordered under order dated 23.7.2007 on condition for restoration of the reference. Hence, an application came to be moved by the workman being Application Ex. 24 on 12.6.2007 in Reference (LCJ) No. 1253 of 1990 requesting the Court to pass appropriate orders on account of default on the part of employer. The Court accepted the said application and on 26.6.2007 restored the ex-parte order. As no further actions were taken in the meantime, the workman was constrained to file recovery application being Recovery Application No. 68 of 2007. Being aggrieved and dissatisfied with the order of the Labor Court passing ex-parte order and restoring the same again on account of default on the part of employer preferred present petition.

Learned AGP for the Petitioner contended that the default on the part of the employer Petitioner in not depositing the requisite amount as ordered vide order dated 23.3.2007 as per the explanation in the affidavit but if this Court is of the view that the workman is not likely to be affected, incase the matter is heard on merits, pass appropriate order. Even if need be, the Court may consider of awarding appropriate costs, so that the ultimate interest of the parties in having adjudication on merits be saved. Learned AGP for the Petitioner could not satisfactorily explained the inertia evinced by the employer in persuading the litigation before the Labor Court, which has culminated into passing of order against it. Therefore, learned AGP for the Petitioner contended that the Court may pass appropriate order so as to afford both the parties adequate remedy to put forward their case on merits and incase, such opportunity is afforded, than, the workman is not likely to be prejudice in true sense.

Shri Gohil, learned advocate appearing for Mr. Supehia for the Respondent submitted that there shall not be any objection in proceeding with the original reference on its own merits but the Court may take into consideration that the Reference is of the year 1988, was not persuaded by the employer in its true earnest and workman for all these period left hie and dry, therefore, the Court had to pass order dated 7.2.2001. When the said order was recalled and reference was reopened on a condition of depositing Rs. 3000/-by way of costs, an opportunity was in fact given to the employer Petitioner to put forward its case on merits, but even that opportunity was ignored and not availed of and hence the workman was left with no choice but to make appropriate request vide exh. 24 application, as the workman, despite employer Petitioner given an opportunity, did not see the result of litigation. The Labour Court therefore, rightly accepted said application and restored the original award ex-parte made on 7.2.2001 and now the workman has already taken out recovery proceedings in the form of Recovery Application No. 68 of 2007. At that stage, such a petition is made with are quest to reopen the Reference once again, ignoring of the default on the part of employer, such a request is to be viewed in appropriate prospective and in case if the Court is inclined to accept the request, appropriate cost, certainly, more than Rs. 3000/-be awarded so that the workman may now not have to suffer any longer while accepting the request and the court may also fix the time limit for deciding the Reference so as to put an end of the controversy which has arisen in the year 1988 itself. Learned advocate for the Respondent submitted that the Court may pass appropriate order of saddling the employer with appropriate costs, which may be treated as costs only and not be treated as any amount to be set of against the amount, if ultimately payable to the workman as per award.

This Court has heard learned advocates for the parties. There is substance in what learned advocate for the Respondent has submitted in respect of workman''s suffering for no fault on his part for these many years as there was absolute inertia on the part of employer in not even filing written statement in a Reference which had been initiated in the year 1988 but this Court has time and again held that the employer has always right to challenge the award even if it is ex-parte in case if the person is in a position to point out that the award is passed merely on account of default on the part of the employer and without adverting to the merits of the matter in question, in such a situation, the ex-parte award is required to beset aside, which in terms would not prejudice to the workman also in case if he is appropriately compensated in terms of proper costs. In the instant case, therefore, when learned advocate for the Respondent has made out a case for costs, I am of the view that the orders dated 7.2.2001as well as 26.6.2007 are required to be quashed and set aside only with a view to afford last opportunity and final opportunity to the employer to lead its case before the Court and therefore, orders dated 7.2.2001 as well as 26.6.2007 are hereby quashed and set aside on a condition of employer depositing an amount of Rs. 30,000/-(Rest. Thirty Thousand only) before the concerned Court and concerned Court shall disburse the said amount of Rs. 30,000/-to the workman by way of account payee cheque on proper verification and thereafter, Reference (LCJ) No. 1253 of 1990would be restored to file and would be proceeded on merits and will be completed within 3 months from the date of its restoration. It is observed that this Court has not opined on merits of the matter in view of the submission of learned advocates for the parties that parties be given an opportunity to lead their respective cases before the competent court. In view of there opening of the Reference to its file, recovery proceedings now would not survive and it would be treated as if it has come to en end. The order dated 23.3.2007 merges into this order. The petition is partly allowed. Rule is made absolute to the aforesaid extent. There shall be no orders to costs. Order with regard to cost for reopening of the Reference shall remain as it is.