SCA/14702/2007 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14702 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 BABUBHAI KANJIBHAI - Respondent(s) ========================================================= Appearance : MR RV DESAI for Petitioner(s) : 1, MR AMRISH K PANDYA for Respondent(s) : 1, MS.JK MEHTA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 05/08/2008 ORAL JUDGMENT In this petition, the petitioner, a Nagarpalika, has challenged the award dated 16.8.2005 passed in complaint (IT) No.16 of 2002 in reference (IT) No.32 of 1998. The petitioner Nagarpalika has also challenged an order dated 29.1.2007 passed in Misc. SCA/14702/2007 2/16 JUDGMENT Application No.18 of 2005 in complaint (IT) No.16 of 2002. By the aforesaid award dated 16.8.2005, which came to be passed ex-parte due to absence of the present petitioner, the Industrial Tribunal has directed the petitioner Nagarpalika to reinstate the respondent on his original post and to pay back wages for the intervening period by calculating the average salary paid to the respondent during 12 months preceding his termination. Aggrieved by the said ex-parte award, the petitioner preferred Misc. Application under Rule- 26(A) of the Industrial Disputes (Gujarat) Rules 1966 before the learned tribunal with request that the ex- parte award may be set aside and the proceedings of the complaint No.16 of 2002 may be restored and opportunity of hearing and defence may be granted to the Nagarpalika. After hearing the parties and taking into account present petitioner's explanation regarding absence, the learned tribunal came to the conclusion that the applicant – petitioner failed to make out any justifiable case in support of the relief prayed for and also failed to satisfy the SCA/14702/2007 3/16 JUDGMENT court about the absence. The learned tribunal thus rejected the Misc. Application by aforesaid order dated 29.1.2007. Aggrieved by the said orders, the petitioner is before this court. Mr. Desai appears for the petitioner Nagarpalika and Ms. Mehta appears for the respondent. Mr. Desai opened his submissions by submitting that the learned tribunal has passed the order against the judgment of the Full Bench of this court and even in absence of the petitioner it was the duty of the learned tribunal to take into account the judgment of the Full Bench. He relied upon the judgment in the matter between Amreli Municipality V/s. Gujarat Pradesh Municipal Employees Union reported in 2004 (3) GLR 32. In the said judgment, the Hon'ble Full Bench of this court has held in para 12.1 that, “12.1 After considering the decisions cited before us, the following principles emerge : SCA/14702/2007 4/16 JUDGMENT (A) No regularisation or permanency can be effected de hors the statutory provisions or the guidelines. (B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc / temporary workmen against the sanctioned set-up without following statutory procedure of recruitment. At the most, Labour Court / Industrial Tribunal can issue direction for consideration or absorption subject to availability of posts on the establishment. (C) To avoid nepotism and corruption, no back-door entry in service; (D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption.” In present case, so far as the impugned award dated 16.8.2005 is concerned, the learned tribunal has neither issued direction for regularization of the respondent or any direction to make him permanent de hors the statutory provisions nor has the learned SCA/14702/2007 5/16 JUDGMENT tribunal directed the petitioner Nagarpalika to regularize the service of ad hoc / temporary workmen against the sanctioned set-up without following statutory procedure and has also not directed the petitioner Nagarpalika to give any back -door entry to the respondent by regularizing his service. From the award, it appears that the respondent was engaged since October, 1993 as a Peon and the dispute claiming regularization was pending in form of reference (IT) No.32 of 1998 and during pendency of the said reference, the service of the respondent was terminated w.e.f. 26.2.2002 and that therefore, the complaint under section 33-A was filed on the ground that during pendency of dispute in which the respondent was concerned workman, the service was terminated without complying with the requirement under section 33 and thereby breach of section 33 was committed. In this view of the matter and upon arriving at a conclusion that breach of section 33 was committed, the learned tribunal passed the impugned order directing the petitioner Nagarpalika to reinstate the respondent on his original post. Thus, there does not appear to be any direction SCA/14702/2007 6/16 JUDGMENT requiring the petitioner to regularize the respondent. In fact, a dispute in form of separate reference for regularization of the respondent is pending. Under the circumstances, the reliance put by Mr. Desai on the judgment of the Hon'ble Full Bench of this court is misplaced and the said judgment is not applicable in the facts of the present case. After the said aspect was pointed out to the petitioner's counsel and he was requested to justify the challenge against the order rejecting the Misc. Application, Mr. Desai submitted that the petitioner Nagarpalika had engaged an advocate to attend the proceedings of the said complaint No.16 of 2002, however, during pendency of the proceedings of the said complaint, the advocate came to be appointed as Judge of the Fast Track Court and the petitioner Nagarpalika did not keep the track of the matter and the same came to be decided ex-parte. In petitioner's submission, there is, therefore, strong justification to set aside the ex-party award. Mr. Desai, in support of his submissions, relied upon the order dated 16.1.2008 passed by this court (Coram: Hon'ble Mr. Justice H.K.Rathod) in special civil application SCA/14702/2007 7/16 JUDGMENT No.17237 of 2007 passed in the matter between Rajula Nagarpalika i.e. the present petitioner and Arvindbhai Ravjibhai & Others and he submitted that in the said case also, the proceedings before the labour court were decided ex-parte on account of absence of petitioner's advocate and this court was pleased to direct the tribunal to restore the proceedings on the condition that the petitioner Nagarpalika must pay Rs.10,000/- towards cost to each of the workmen. Mr. Desai has also relied upon the judgment of this court dated 26.7.2005 in special civil application No.8255 of 2005. Ms. Mehta for respondent vehemently supported the order dated 16.8.2005 as well as the order dated 29.1.2007 and submitted that it is not the case of the petitioner that before terminating the service of the respondent it had complied with requirement under section 33 and that therefore, it is not in dispute that the petitioner Nagarpalika has committed breach of section 33 while terminating the service of the respondent and that therefore, there is no error in the order dated 16.8.2005 and even if the request of SCA/14702/2007 8/16 JUDGMENT the petitioner were to be accepted, then also, after restoration of the proceedings, Nagarpalika would not be in position to improve upon the situation. She submitted that in the facts of the case, the award and the order are justified and they may not be set aside as it would cause lot of hardship and prejudice to the respondent. From the conjoint reading of award and order it appears that the complaint was filed in 2002 and the award came to be passed in August, 2005 i.e. after 3 years and during the intervening 3 years, the petitioner Nagarpalika did not get any time to file written statement in the complaint No.16 of 2002. However, Mr. Desai submitted that actually, the Nagarpalika had filed its reply and he relied on Annexure – B (Pages 21 to 25). On perusal of Annezxure – B the statement of Mr. Desai appears to be inaccurate because the reply on which he relies seems to be for the original reference and not the subject complaint in which the ex-parte award is passed. Actually, the production of said reply in this petition is likely to give misleading impressions, if not closely examined. SCA/14702/2007 9/16 JUDGMENT From the award and the order it appears that the affidavit in lieu of chief examination of the respondent was filed and thereafter the respondent was offered for cross examination on 7.2.2005. However, the advocate – representative of the petitioner Nagarpalika was not present and cross examination was not conducted. Subsequently, the matter was placed for evidence of the employer and due to employer's absence, the evidence in support of the case of the employer was not produced and therefore, the court was left with no option but to pass ex-parte order. It also comes out from the record that the defence taken up by the petitioner Nagarplaika in its Misc. Application and in support of the request for setting aside of the ex-parte award was that the advocate of the petitioner Nagarpalika came to be appointed as Judge of the Fast Track Court and for want of information the petitioner Nagarpalika could not attend the proceedings. It has, however, also come out from perusal of the order in Misc. Application that as per per the evidence of the SCA/14702/2007 10/16 JUDGMENT witness of the present petitioner, which was recorded in Misc. Application, Mr. Rajguru, advocate for the petitioner Nagarpalika was appointed as Judge in the Fast Track Court in February, 2004. Petitioner's witness has admitted that the said aspect was informed to the petitioner Nagarpalika by father of the advocate in April, 2004. The learned tribunal has in the order dated 21.9.2007 recorded that the stage of reply by the petitioner was closed by an order dated 2.11.2004 i.e. 9 months after the advocate came to be appointed as Judge of the Fast Track Court and 7 months after the intimation of the said fact was given to the petitioner Nagarpalika by advocate's father in April, 2004. The order dated 21.1.2007 also records that subsequently, the affidavit in lieu of chief examination (Exh.15) was filed and on 7.2.2005 i.e. even after one year since the petitioner's advocate came to be appointed as Judge in the Fast Track Court, nobody on behalf of the petitioner Nagarpalika was present to cross examine the respondent. It was six months thereafter that the learned tribunal SCA/14702/2007 11/16 JUDGMENT passed ex-party award on 16.8.2005 and in the interregnum also, nobody on behalf of the petitioner Nagarpalika took care to attend the proceedings of the complaint. It is the case of the petitioner Nagarpalika that the fact of the ex-parte award came to its knowledge 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. 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. 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 SCA/14702/2007 12/16 JUDGMENT petitioner Nagarpalika in attending the proceedings before the learned tribunal because in the said case also an ex-parte award appears to have been made on 22.3.2005 whereas, in present case, the ex-parte is made in 16.8.2005. It shows that 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. It is sheer carelessness and indifference by the 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. In light of such facts of present case, this court is of the view that the judgment of the Hon'ble Apex Court in the case between Rafiq & Another V/s. Munsilal & another reported in AIR 1981 SC 1400 would not be applicable because in present case, the fact that the SCA/14702/2007 13/16 JUDGMENT 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. 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 escape the consequences. 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 SCA/14702/2007 14/16 JUDGMENT 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 by its order dated 29.1.2007. 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 Mr. D.M.Bhatt, advocate, as its advocate. The details about the fact that when said Mr. D.M.Bhatt was engaged as an advocate is not available on record, but the fact remains that 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. 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 the petitioner has failed to give any acceptable and justifiable reason for ignoring the SCA/14702/2007 15/16 JUDGMENT 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 August, 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 the responsibility. SCA/14702/2007 16/16 JUDGMENT (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.18 of 2005 and the ex-parte award dated 16.8.2005 shall stand set aside and the proceedings of complaint (IT) No.16 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 31.1.2009. 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.] kdc