ORDER :

1. In the present writ petition, the petitioner has challenged the order dated 04.10.2010 in Recovery Application No.27 of 1997 passed in Misc. Application No.19 of 2012. The prayer clause WILL suggest that the writ petitioner has challenged the order dated 04.10.02010 by filing the writ petition here in the year 2021.

2. The facts giving rise to the present petition are that the respondent-workman is working as a driver with the petitioner Municipality from 01.07.1986. He had filed Recovery Application No.27 of 1997 before the Labour Court at Bhuj for getting the differences of pay between the post of a driver and a labourer under Section 33C(2) of the Industrial Disputes Act, 1947, (the ID Act). It was the case of the respondent No.1, that though he is working as a driver, he was being paid the salary of a labourer. The Labour Court at Bhuj allowed the recovery application by an order dated 04.10.2010.

2.1 Learned advocate Mr.Mankad appearing for the petitioner-Municipality has submitted that the aforesaid award was passed ex-parte, and without authority of law, hence the Municipality challenged the same by filing Special Civil Application No.15422 of 2010, which was disposed of vide order dated 21.03.2011 with other allied matters, by directing the petitioner-Municipality to file an application under the provision of Rule 26A of the Industrial Disputes (Gujarat) Rules, 1966 (of Rule, 1966).

2.2 It is submitted that as per the order passed by this Court in Special Civil Application No.15422 of 2010 filed by the petitioner- Municipality, the Municipality preferred an application under Rule 26A of Rule, 1966, for setting aside an ex parte order dated 04.10.2010, but since there was delay in preferring the said application, the petitioner-Municipality preferred Misc. Application No.19 of 2012 under Rule 26A(2) of Rule, 1966 for condoning the delay of 76 days, which was required to be condoned as the petitioner-Municipality had preferred Letters Patent Appeal No.788 of 2011 for setting aside the order dated 21.03.2011 passed in Special Civil Application No.15422 of 2010. It is submitted that the Labour Court vide order dated 31.01.2017, has rejected the delay condonation application and hence, the present petition has been filed.

2.3 He has further submitted that the respondent no.2 has erred in dismissing the application for condoning the delay on the ground that the petitioner has not filed the review application within 15 days, as per the order of this Court. It is submitted that while dismissing the application seeking condonation of delay, the Labour Court has not mentioned the reason, as stated hereinabove and in fact the Labour Court ought to have decided the application in the year 2012, when it was presented. It is further submitted that even the amendment application giving reason of delay in filing the amendment application and the respondent no.2 has not given any opportunity to the petitioner before coming to the conclusion on the said aspect.

2.4 It is further submitted that the petitioner- Municipality had preferred an application being Special Civil Application No.11298 of 2018 against the order dated 31.01.2017 in delay condonation application being I.D.Misc. Application No.19 of 2012, in which, this Court, has issued notice on 26.07.2018 and the same is pending for adjudication. It is further submitted that the petitioner has challenged the similar order of refusing condonation of delay in preferring application under Rule 26A of Rule, 1966 passed by the Labour Court on 31.01.2017. As per the order of the Labour Court, the petitioner has already deposited an amount before the Registry of this Court, which is invested in a Fixed Deposit by the Registry and is still continued every year. Thus, he has submitted that the impugned order may require to be set aside.

3. In response to the aforesaid submissions, learned advocate Ms.Reena Kamani has submitted that in fact the impugned order passed by the Labour Court d