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2017 Supreme(Guj) 718
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, J.
Piyush Jamiyatram Aasmani – Appellant
Vs.
Sunderlal Girdharlal Modi and Ors. – Respondents
Special Civil Application Nos. 7909 and 6211 of 2010
Decided On : 06-04-2017
For the Appellant :U.T. Mishra, Advocate
For the Respondent: Sandhya Natani
Headnote:
Code of Civil Procedure, 1908 – Order IX Rule 13 – Industrial Disputes Act, 1947 – Section-17A – Special Civil Application is preferred by petitioner (heir of the employer)-original applicant challenging order of Labour Court, rendered in Miscellaneous Application in Reference (LCG) Application, whereas, he has preferred Special Civil Application challenging order passed by Labour Court, in Recovery Application – Held, Court notices that challenge to award itself had failed due to non-removal of office objections and thereafter, no attempt is made to challenge such an order nor to remove office objections – Instead challenge in both these petitions is to the order of dismissal of application to set aside ex-parte award and to the order passed in the recovery application – Nothing illegal or perverse could be found – On contrary Court has followed law while rejecting request of ex-parte award – Interference is called for at the hands of this Court – Petition Dismissed (Paras 16, 17)
Sonia Gokani, J.
1. Since, both the petitions involve similar questions of law and facts, they are heard together and are being disposed of by this common judgment.
2. Special Civil Application No. 7909 of 2010 is preferred by the petitioner (heir of the employer)-original applicant challenging the order dated 30.04.2007 of the Labour Court, Surat, rendered in Miscellaneous Application No. 62 of 2002 in Reference (LCG) Application No. 836 of 1997, whereas, he has preferred Special Civil Application No. 6211 of 2010 challenging the order passed by the Labour Court, Surat, dated 07.04.2010 in Recovery Application No. 30 of 2008.
3. Brief facts leading to the present petitions are as follows:
"The husband of the respondent had instituted a reference before the Labour Court, Surat, being Reference (LCG) Application No. 836 of 1997, claiming reinstatement with continuity of service, backwages and other benefits. The original Respondent-workman had worked with the firm for more than 35 years. The firm was doing the business of commission agent and selling of vegetables and the workman was also doing selling of vegetables and other miscellaneous works. He fell ill on 24.09.1996 and could not attend the work for about 18 days and after getting recovery, when he reported for duty, he was relieved from the work without paying any dues."
4. The workman therefore moved the Labour Court by filing the Reference No. 836 of 1997 under Section 10 of the Industrial Disputes Act, 1947 (for short, the ID Act') Reference and the Labour Court proceeded ex-parte against the Firm and passed an award on 12.09.2000, directing the petitioner-firm to reinstate the workman with continuity of service, backwages and other benefits. The firm was closed on 01.08.1998, which was an HUF firm. The 'Karta' of the firm, namely Jamiyatram unfortunately expired on 14.02.2002 and his son-present petitioner chose not to carry on the business of the Firm. It is his case that since his father original opponent-employer, was not served with the notice of the Reference, the reference proceeded ex-parte. He, therefore, preferred an application being Miscellaneous Application No. 62 of 2002 in the said reference seeking to set aside the award dated 12.09.2000.
5. Learned Presiding Officer vide judgment and order dated 30.04.2007 rejected the said application being Miscellaneous Application No. 62 of 2002 in original Reference No. 836 of 1997.
6. On the ground that the petitioner had not preferred the said application within a period of 30 days from the date of the award, the Labour Court chose not to condone the delay.
6.1 Pursuant thereto, respondent-workman filed Recovery Application No. 30 of 2008 before the Labour Court, Surat. During the pendency of the said application, an interim order was needed to be obtained and therefore, the petitioner has rushed to this Court seeking following reliefs in Special Civil Application No. 7909 of 2010:
"15. ...
(a). Be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the judgment and order dated 30/4/2007 passed by the Labour Court, Surat in Misc. Application No. 62 of 2002 in Reference (LCG) Application No. 836/1997.
(b). Pending admission, hearing and final disposal of the present petition, be pleased to stay the proceedings of Recovery Application No. 30/2008 pending before the Labour Court, Surat and further be pleased to stay the operation and execution of award dated 14/6/2001 passed in Reference (LCG) Case No. 836/1997.
(c)...."
7. whereas, in Special Civil Application No. 6211 of 2010 he has sought reliefs as under:
"7. ...
(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order passed by the learned Labour Court, Surat in Recovery Application No. 30 of 2008 dated 7th April, 2010 - Annexure 'A' herein,
