JUDGMENT :

H.K. RATHOD, J.

1. Heard learned Advocate Mr. Y.V. Shah for the petitioner and Mr. Varun K. Patel for the respondent Management.

2. How the legal process has been misused by the party, this is the clear example thereof. Initially, dispute was raised by the petitioner before the labour court in reference no. 131 of 1994 wherein the labour court has set aside the termination dated 1st October, 1993 but since the respondent establishment had been closed, labour court has not granted order of reinstatement but granted only back wages for interim period by order dated 7.9.2003. Said award was published on 30.9.2004 and thereafter, recovery application was filed by the petitioner wherein employer had not remained present and ultimately labour court in absence of the employer, by order dated 30.4.2003, granted amount against the employer to be recovered from the employer under the provisions of the Land Revenue Code by the Collector, Surendranagar District and recovery certificate was also issued by the labour court, Surendranagar. Thereafter, petitioner had approached this court by filing SCA No. 7307 of 2004 with grievance that the district collector is not taking any steps for recovering the amount specified in the recovery certificate. This Court has expected from the District Collector to take prompt steps for completing exercise and try to ensure recovery as far as possible within four months from the date of receipt of copy of this order in the said petition. Thereafter, respondent employer filed application under rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 being Miscellaneous Application No. 3 of 2005 on 24.1.2005 along with an application for condonation of delay before the labour court wherein labour court passed order on 21.10.2005 with consent of both the parties wherein it was decided to pay Rs. 15000.00 (Rs. Fifteen thousand only) to the workman by the employer for staying operation of the recovery certificate. Thereafter, miscellaneous application filed in recovery application no. 3 of 2005 Exh.5 was decided by the labour court, Surendranagar. Labour Court allowed it. With consent of the parties, Rs. 15000.00 has been taken by the petitioner, being the amount of cost for reopening the original reference no. 131 of 1994 and decided to complete hearing within six months and date of hearing was fixed on 11.8.2006. Said order was passed on 7.7.2006. Thereafter, petitioner approached labour court by filing Miscellaneous Application No. 5 of 2006 for review and for correction of the error committed by the labour court, Surendranagar. Labour Court rejected said application of the petitioner on 17.11.2006.

3. Learned Advocate Mr. Y.V. Shah submitted that after the award came to be published, the labour court is becoming functuous officio and, therefore, labour court is not having jurisdiction to decide the application filed by the respondents under rule 26A of the ID (Gujarat) Rules, 1966. In support of his submission, he placed reliance on the following decisions:

(1) Sangham Tape Co. vs. Hans Raj, (2005) 9 SCC 331

(2) Mukundbhai Gunvantrai Bhatt vs. Excell Industries Ltd. 1998 (1) GLR 586

(3) M. Jagdamba Dyeing and Printing and Another vs. Ramkumar Ramchal Mishra c/o Surat Silk Labour Union, 2006 (1) GLH 545

(4) The Central Bank of India and Others vs. Their Workmen, AIR 1960 SC 12

4. It is required to be noted that there is misunderstanding on the part of the lawyer representing the petitioner. There is vast difference in application of section 17A to the award and to the order passed by the labour court in recovery application. If the labour court has passed order under section 33-C-2 of the ID Act, 1947, then, section 17A would not apply because there is no need to publish order passed in recovery proceedings under section 33-C(2).

5. From the record, it is clear that the application was filed by the employer under Rule 26A against the award as well as against the order of the labour court in recovery proce