SCA/14703/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14703 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJULA NAGARPALIKA - Petitioner(s) Versus PANKAJKUMAR PRATAPARI CHUHAN - Respondent(s) ========================================================= Appearance : MR RV DESAI for Petitioner(s) : 1, MR KAUSHAL D PANDYA for Respondent(s) : 1, MR AMRISH K PANDYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 06/08/2008 ORAL JUDGMENT 1. The petitioner has approached this Court against the Award dated 17.8.2005 passed by the Industrial SCA/14703/2007 2/10 JUDGMENT Tribunal in Complaint (IT) No.14 of 2002 in Misc. Application No.17 of 2005. The petitioner has also challenged an order dated 29.1.2007 passed by the Industrial Tribunal, Bhavnagar in Misc. Civil Application No.17 of 2005 in Complaint (IT) No.14/02. By above referred Award dated 17.8.2005, the Industrial Tribunal directed the present petitioner No.4 to reinstate the respondent on his original post and to pay him wages an average salary drawn by him during 12 months preceding the date of his termination. The said award dated 17.8.2005 was passed ex parte. Aggrieved by the said order, above referred Misc. Application No.17 of 2005 was preferred with a prayer that the ex parte award may be set aside and the proceedings of the complaint may be restored. After considering the submission of present petition, Industrial Tribunal rejected the said application. 2. Mr. Desai, learned advocate appears for the petitioner and Mr. Pandya, learned advocate appears for respondent. 3. Mr. Desai, learned advocate submitted that the Industrial Tribunal has committed serious error of law SCA/14703/2007 3/10 JUDGMENT and jurisdiction in passing ex parte award and in rejecting Misc. Application. He submitted that the petitioner had engaged advocate to represent its case before the Tribunal, however, the petitioner's advocate came to be appointed as Judge of the Fast Track Court and the petitioner could not maintain the follow up of the proceedings and then the complaint came to be decided ex parte. He submitted that considering the said aspect, Misc. Application with a prayer for restoration of proceedings ought to have been allowed. 4. Mr. Pandya, learned advocate submitted that there was gross negligence on the part of the petitioner during pendnecy of the complaint proceedings and the excuse given by the petitioner in support of the request of restoration of the proceedings of the complaint is also not justified or tenable inasmuch as period of almost one year passed between the time when the petitioner's advocate came to be appointed as Judge of Fast Track Court and the time, when ex parte award came to be passed. Mr. Pandya also submitted that in between in lieu of chief-examination on behalf SCA/14703/2007 4/10 JUDGMENT of the respondent workman was produced on record and much after the petitioner's advocate came to be appointed as Judge in Fast Track Court, the respondent workman had remained present on 7.2.2005 in the Court to offer himself for cross-examine. However, at that time also, the petitioner remained absent on 7.2.2005 and cross-examination was not conducted. He on the basis of such fact submitted that the order passed by the learned Tribunal in complaint, though ex parte is justified in the fact of the case and as the consequence, the Tribunal has right in justified in rejecting the Misc. Application also. 5. Upon hearing Mr. Desai, learned advocate for the petitioner and Mr. Pandya, learned advocate for respondent and upon considering the material on record, it appears that the petitioner had not even cared to file written statement in the complaint proceedings for span of almost three years inasmuch as the complaint has been filed around April, 2002, whereas the award came to be passed in August, 2005 in interregnum, the petitioner did not care to file written statement. Even if the excuse of the petitioner that he could not keep the track of the SCA/14703/2007 5/10 JUDGMENT matter after the advocate was appointed as Judge is to be accepted, then also there is no explanation for the period from April, 2002 until the petitioner's advocate came to be appointed as a Judge in Fast Track Court and the information came to be conveyed to the petitioner by the advocate's father in April, 2004. In this view of the matter, the stage of filing written statement was ordered to be closed by the learned Tribunal. The petitioner continued to ignore the proceedings. It has come on record that the petitioner Nagarpalika was informed in April, 2004 by father of the advocate about the advocate's appointment as Judge in Fast Track Court. The impugned award came to be passed almost after 14 months after the said intimation. When the intimation was given by the advocate's father, which factual aspect has come out from the evidence on record, there was no base or justification for the petitioner to continue to ignore the proceedings and it is not justified on the part of the petitioner to find fault with the Tribunal for passing an ex parte award. 6. It is the case of the petitioner Nagarpalika that the fact of the ex-parte award came to its knowledge SCA/14703/2007 6/10 JUDGMENT on 24.9.2005 when the copy of the award was served on the petitioner Nagarpalika and thereafter, the Misc. Application came to be filed. 7. The explanation given by the petitioner Nagarpalika that it could not attend the proceedings on account of the fact that its advocate came to be appointed as Judge in the Fast Track Court, appears to be a feeble and a lame excuse, not supported by the facts on record, advanced by the petitioner to shield its carelessness in attending the proceedings. 8. The judgment on which Mr. Desai has placed reliance i.e. the judgment and order dated 16.1.2008 which is passed in case of petitioner Nagarpalika is in fact another evidence of the carelessness of the petitioner Nagarpalika in attending the proceedings before the learned tribunal because in the said case also an ex-parte award was passed and even after the ex-parte award passed on 22.3.2005, the petitioner Nagarpalika did not wake up and did not care to become vigilant about the various pending matters. 9. It is sheer carelessness and indifference by the SCA/14703/2007 7/10 JUDGMENT petitioner Nagarpalika and its officers towards the matters pending before the learned tribunal or the labour court where the cases of workmen, who are out of employment or who are claiming unpaid wages, etc. are pending. This indolence, in the facts of the case, does not deserve any sympathetic view. The fact that the advocate was appointed as Judge of the Fast Track Court was informed to the petitioner Nagarpalika in April, 2004 and thereafter, the petitioner Nagarpalika did not care to attend the proceedings until August, 2005 i.e. for more than one year and that therefore, it cannot be said that the award came to be passed ex- parte on account of mistake or fault on the part of the advocate. 10. As observed herein above, this is a case which exhibits sheer carelessness as well as pathetic insensitivity on the part of the employees of the public body and “who-cares-just-let-it-be” attitude in attending the matters before the court. In view of this court, it is high time that such carelessness on the part of the officers of the public body is not condoned and such negligence and irresponsible behaviour of the officers of public bodies should not SCA/14703/2007 8/10 JUDGMENT escape the consequences. 11. In light of the facts which have come out from the record of the present proceedings, it has become clear that the reason or explanation given by the petitioner Nagarpalika in support of the request to set aside the ex-parte award does not appear to be justified or acceptable and the said explanation has already been rejected by the tribunal. It is pertinent that the petitioner Nagarpalika had, after being informed that advocate Mr. Rajguru has been appointed as Judge in the Fast Track Court, engaged another advocate. The case has gone unattended and the workman shall have to unnecessarily, without any fault on his part, languish for further time due to petitioner's negligence. 12. This Court is aware and conscious of the fact that if the ex-parte award is not set aside then unfortunately it would be a public body who will have to bear the consequences and ultimately the burden will be on the public exchequer. It is only for such reason that the court is inclined to interfere in this matter as an exceptional case though having found that SCA/14703/2007 9/10 JUDGMENT the petitioner has failed to give any acceptable and justifiable reason for ignoring the proceedings before the learned tribunal. Considering the fact that the obligation to comply with the ex-parte award would ultimately burden the public exchequer and considering a possibility that the petitioner Nagarpalika, probably, may have a case on merits, which may be required to be examined by the tribunal, this court is of the view that equities are, in the overall interest, required to be balanced, and that therefore this court is inclined to pass following order:- (A) The petitioner shall pay an amount of Rs.17,500/- towards cost. The said payment shall not be refundable or adjustable against any of the liabilities of the petitioner which may arise in future after conclusion of the proceedings. (B) The said amount shall be paid to the respondent on or before 30th September, 2008. (C) It would be open for the petitioner Nagarpalika, to take action and this court hopes that the Nagarpalika would take action in accordance with law to recover the said amount from the concerned officer and to make concerned officer personally liable to make the payment of the said amount after ascertaining SCA/14703/2007 10/10 JUDGMENT the responsibility. (D) Only upon the payment of the aforesaid amount to the respondent and after the respondent issues acknowledgement receipt of the payment, the order dated 29.1.2007 in Misc. Application No.17 of 2005 and the ex-parte award dated 17.8.2005 in Complaint No.14 of 2002 shall stand set aside and the proceedings of complaint (IT) No.14 of 2002 shall stand restored to file. (E) After the said proceedings are restored to file, the learned tribunal shall endeavor to complete the proceedings as early as possible and preferably before 31.2.2009. 13. With the aforesaid observation and directions, present petition is disposed of. Notice discharged. Ad-interim relief, if any, granted earlier, stands vacated forthwith. No order as to costs. [K.M.Thaker, J.] ynvyas