Remanded

Patan Resha Udyog v. Thakore Chanduji Kurshiji

Gujarat HC4 Feb 2014SCA/15078/2013

Case brief

AI extract

What is this about?

The High Court allowed the special civil application to set aside an ex-parte award passed against the employer. The court found the employer had sufficient cause for the 12-day delay due to a bona fide misconception of the limitation rule. The impugned order dismissing the application was quashed.

What did the court decide?

Impugned order dated 18.02.2013 set aside; Reference restored; Application to set aside ex-parte award allowed; Cost of Rs. 1,500 awarded to workman.

Patan Resha Udyog Vs Thakore Chanduji Kurshiji — Service and Employment | Gujarat HC (2014)

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C/SCA/15078/2013 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 15078 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE N.V.ANJARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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PATAN RESHA UDYOG....Petitioner(s)

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Versus

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THAKORE CHANDUJI KURSHIJI & 1....Respondent(s)

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Appearance:

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MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1 MR TEJAS P SATTA, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2

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================================================================

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 04/02/2014

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ORAL JUDGMENT

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This petition by the employer is filed
against order dated 18.06.2013 passed by Labour Court,

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Page 1 of 6

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C/SCA/15078/2013 JUDGMENT

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Mehsana dismissing Miscellaneous Application No.10 of
2010. The said application was filed by the petitioner
under Rule 26-A of the Industrial Disputes (Gujarat)
Rules, 1966, for setting aside ex-parte award. The
said award sought to be set aside therein was passed
by the Labour Court in Reference (LCM) No.647 of 2008
on 02.01.2010.

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2.The relevant facts in the backdrop may be
set out. Petitioner has stated that it is a cottage
industry engaged in manufacturing of hand-woven ropes
for Indian style string bed. The work, according to
the petitioner, is seasonal in nature available during
the times of monsoon and Diwali only. It is stated
that the petitioner is a small unit which faced
adverse conditions due to sharp decline of demand of
its product in the market. It is its further case that
on or around 04.03.2004 the respondent-workman
voluntarily left the work on account of quarrel with
another employee.

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3.The workman raised industrial dispute before
the Labour Court, Kalol. His case in the Reference was
that his services came to be terminated illegally. The
Labour Court passed award dated 02.01.2010 directing
reinstatement of workman with 70% backwages and cost
of Rs.1,000/-. In the said Reference proceedings, it
appears that the petitioner-first party employer
neither filed its written reply nor led evidence. The
judgment and award was accordingly ex-parte.

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4.Learned advocate for the petitioner Mr.Varun

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Page 2 of 6

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C/SCA/15078/2013 JUDGMENT

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K. Patel submitted that due to some communication gap,
though the Reference resulted into the judgment and
award, it was not brought to notice by the advocate
appearing on its behalf, despite the petitioner was
keeping in touch and was inquiring about the
proceedings. At later stage it became known that the
proceedings were at the stage of passing ex-parte
award and at that juncture petitioner again met his
advocate and applied for certified copy. Learned
advocate submitted that the petitioner remained under
bonafide impression that the period of limitation for
filing the application to set aside the award would
start from the date of receiving of certified copy. He
submitted that the application was filed within 30
days as required under the Rule reckoning from
18.02.2010, being the date on which the petitioner
received the certified copy. Learned advocate prayed
that the order may be set aside and the proceedings of
Reference may be restored for re-adjudication.

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4.1The respondent-workman contested the prayer
in the present petition by filing affidavit-in-reply.
Learned advocate Mr.Tejas Satta for the workman relied
on the submissions and contentions raised in the reply
affidavit. He further submitted that the workman who
had put in 25 years of service and he still awaits the
benefits of the award passed in his favour even after
long time. He submitted that the Reference was made as
back as in 2004. He submitted that it was a case of
negligence on part of the employer in not leading
evidence in the Reference. Accordingly to his
submission, after passage of this much time if the

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Page 3 of 6

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C/SCA/15078/2013 JUDGMENT

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matter is reopened before the Labour Court by setting
aside the award, it would be injustice to the
respondent. He urged to dismiss the petition.

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5.Having gone through the facts on record and
having considered submissions of both the sides, there
is no gainsaying that the judgment and award dated
02.01.2010 was passed without the employer having put-
forth his case. The petitioner-employer did not file
reply nor any evidence was led. The reasons noted
above were furnished by learned advocate. Be as it
may. The fact remains that the petitioner did not
avail opportunity for some reason and the proceedings
went ex-parte resulting into award of reinstatement
with 70% backwages. Rule 26 of the Rules which permits
setting aside of the ex-parte award provides period of
30 days within which a party has to make the
application. The Rule permits condonation of the
period beyond 30 days if the application is made by
beyond that period provided sufficient cause adduced.
In the instant case, the application under Rule 26-A
was filed after delay of 12 days. The point of focus
in the present petition is whether the employer showed
sufficient cause for the same.

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5.1The judgment and award aforesaid was passed
on 02.01.2010. It is the case of the petitioner that
it came to know about the same on 30.01.2010 when it
received copy with forwarding letter of Labour
Commissioner. The petitioner was required to file the
necessary application on or before 03.03.2010. It
however appears that having immediately applied for

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Page 4 of 6

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C/SCA/15078/2013 JUDGMENT

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certified copies after intimation of the deliverance
of the award as aforesaid, and having received the
certified copies on 18.02.2010, it filed the requisite
application under Rule 26-A.

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5.2The explanation offered is that the
petitioner was under bonafide impression that the time
limit would be counted from the date on which
certified copies were available. The explanation given
is an honest explanation. It is not that the
petitioner whiled away the time in any manner or sat
indolent after having intimation about the ex-parte
judgment and award. If in the process delay of 12 days
has taken place, the same stand explained
sufficiently. The Labour Court in rejecting the
application of the petitioner for setting aside the
ex-parte award has approached the matter with pedantic
and wooden approach. Substantial justice would lie in
permitting the petitioner to lead evidence and for
that the ex-parte award has to be set aside by
allowing the application of the petitioner. Except in
the case of gross negligence or unpardonable
indolence, it is trite that decision on the lis
between the parties is rendered on merits after giving
opportunity to both the sides.

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6.In the aforesaid view, it would be in the
interest of justice that the petitioner is afforded an
opportunity before the Labour Court to place its case.
The Reference and award dated 02.01.2010 is therefore
deserves to be re-decided after giving opportunity to
the parties. At the same time, the hardships the

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Page 5 of 6

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C/SCA/15078/2013 JUDGMENT

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workman has suffered for all these years due to
prolongation could not be overlooked. This may be
mitigated by awarding cost of Rs.01,500/-.

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7.As a result of the above discussion, the
impugned order dated 18.02.2013 passed by the Labour
Court, Mehsana in Miscellaneous Application No.10 of
2010 is hereby quashed and set aside on condition that
cost of Rs.01,500/- directed as above is paid by the
petitioner to the workman within three weeks from the
date of this order. Reference (LCM) No.647 of 2008
(old No.365 of 2004) is restored to the files of the
Labour Court and the Labour Court shall proceed to
adjudicate and decide the same after giving
opportunity to both the sides. In the facts of the
case and the Reference being old, the Labour Court
shall proceed expeditiously and decide the Reference
in question as directed above within 12 weeks from the
date of receipt of certified copy of this order.

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8.It is clarified that this Court has not gone
into merits of the case of the either side and the
matter shall be at large before the Labour Court which
shall decide the Reference afresh after giving
opportunity to both the sides and in accordance with
law.

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9.Rule is made absolute accordingly.

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Anup

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Page 6 of 6

Patan Resha Udyog v. Thakore Chanduji Kurshiji

Case brief

What is this about?

What did the court decide?

Patan Resha Udyog v. Thakore Chanduji Kurshiji

Case brief

What is this about?

What did the court decide?

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