SCA/29897/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29897 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 ? ========================================= CENTRAL INVESTIGATION & SECURITY SERVICES LTD. - Petitioner(s) Versus LAKHANASI B GADHAWI - Respondent(s) ========================================= Appearance : MRS YOGINI V PARIKH for Petitioner(s) : 1, MR KISHOR M PAUL for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/07/2008 ORAL JUDGMENT 1. In this petition, the petitioner has challenged an order dated 22.10.2007 passed below Exhibit 22 in Misc. Application No.6 of 2007. The said Misc. Application No.6 of 2007 was preferred by the present SCA/29897/2007 2/7 JUDGMENT petitioner with a prayer for restoration of the proceedings of Reference (LCJ) No.10 of 2003, in which an ex parte award was passed on 17.2.2007. By impugned order dated 22.10.2007, the learned Labour Court has rejected the said Misc. Application . 2. Mrs. Yogini Parikh, learned advocate appears for the petitioner. In response to the notice issued by the Court by order dated 11.12.2007, Mr. Paul, learned advocate appears for the respondent. 3. The respondent herein was working as a security guard with the petitioner - Company. The petitioner is engaged in the activity providing security services and security personnel to industrial units and for that purpose, the respondent herein was engaged by the petitioner as security guard. As per the case of the respondent herein, he was working with the petitioner - Company since October, 1999 and his services were terminated in October, 2002, without complying the procedure prescribed by law. It appears that being aggrieved by the said action of the petitioner - Company, the respondent raised an industrial dispute, which came to be referred for adjudication by an order of Reference dated 17.1.2002. The order impugned in the present petition discloses that the learned Labour Court had forwarded notices to the petitioner - Company intimating about the proceedings and asked the petitioner - Company for filing its written statement. The petitioner - Company did SCA/29897/2007 3/7 JUDGMENT not care to respect the said notice though duly served. The petitioner did not file its written statement. Constrained due to the absence of the petitioner - Company, the learned Labour Court considered it appropriate to proceed ex parte in the Reference proceedings and consequently the Court after passage of almost four years passed the award dated 17.2.2007. 4. Subsequently, the petitioner - Company instead of approaching the learned Labour Court with request for restoration of proceedings and with request for setting aside the ex parte award, approached this Court by way of writ petition being Special Civil Application No.9784 of 2007. At this stage, it is relevant to note that during the pendency of the said petition being Special Civil Application No.9784 of 2007, this Court directed the petitioner - Company to reinstate the respondent and consequently he was reinstated. Thereafter, the order dated 29.6.2007 came to be passed directing the petitioner - Company to prefer an application under Rule 26 (A) and 26 (B). With the said direction, the petition being Special Civil Application No.9784 of 2007 was disposed of. 5. It appears that after the said order dated 29.6.2007, the petitioner herein filed the above referred Misc. Application No.6 of 2007. The said application was opposed by the present respondent and after hearing the SCA/29897/2007 4/7 JUDGMENT parties, the learned Labour Court was pleased to pass impugned order dated 22.10.2007, rejecting the said Misc. Application No.6 of 2007. 6. It comes out from the aforesaid facts that in the Reference proceedings, the petitioner has allowed four years to pass by not attending the said proceedings and when the learned Labour Court ultimately passed the ex parte order, after waiting for four years, the petitioner approached this Court, which caused further delay. 7. At this stage, it is necessary to note that while the Reference proceeding were pending, on 22.10.2006 an application was submitted on behalf of petitioner, asking three months time on the ground that the authorized representative of the Company was out of country. The said request/application dated 22.12.2006, which was addressed to the Superintendent of the Labour Court, discloses knowledge of the proceedings. Under the circumstances, the Company is not justified in putting forward any excuse for not attending the Reference proceedings before the learned Labour Court. In the impugned order, the learned Labour Court has recorded considering the postal acknowledgment that the petitioner had received the copy of the statement of claim on or around 22.8.2003. It also appears that the notice sent by the learned Labour Court asking the applicant to remain present before the learned Labour Court, also was served on the petitioner. The said findings by the SCA/29897/2007 5/7 JUDGMENT learned Labour Court in the impugned order establishes that the petitioner was aware about the pendency of the proceeding. 8. The learned Labour Court has adjudicated Reference ex pate and subsequently, by not believing the defence of the petitioner Company, has also rejected the Misc. Civil Application praying restoration of the proceedings. 9. However, one aspect, which is relevant at this stage, is required to be noted. As mentioned earlier, during the pendency of the petition being Special Civil Application No.9784 of 2007, the respondent was reinstated. The said aspect is not disputed by Mr. Paul, learned advocate. 10. It appears that subsequently, some dispute or difference arose between the parties and as a result of which, the respondent is, now not in the employment. On one hand, Mrs. Parikh, learned advocate on behalf of the petitioner claim that the petitioner has not stopped the respondent from joining the duty whereas on the other hand as per the submission of Mr. Paul, learned advocate, his services have been terminated. If the respondent is right in claiming that his services have been again terminated, such grievance would be beyond the scope of this petition and the respondent has to avoid this remedy in accordance with law. Hence, the said grievance is not considered or entertained at this SCA/29897/2007 6/7 JUDGMENT stage. 11. However, in view of the fact that the respondent was once reinstated during the pendency of the petition being Special Civil Application No 9784 of 2007 and in view of the fact that Mrs. Parikh, learned advocate states that the petitioner is even as of now ready to allow the respondent to resume the duties during the adjudication of the proceedings. It appears to this Court that it would be appropriate and in the interest of justice and fitness of things that the reference proceedings may be adjudicated on merits and the petitioner may be afforded an opportunity to defend the reference on merits since it is always desirable that cases are decided on merits and upon bilateral hearing instead of deciding ex parte. 12. In view of the said submissions made by Mrs. Parikh, learned advocate and readiness of the petitioner, it appears that following directions would meet the ends of justice. (1) The petitioner herein shall make an offer in writing on or before 11.7.2008 to the respondent informing him that the petitioner would allow him to resume the duties, without prejudice right and contentions in the pending Reference proceedings. SCA/29897/2007 7/7 JUDGMENT (2) It would be open for the respondent to resume the duties in response to the said offer by the petitioner. (3) The petitioner shall pay Rs.10,000/- towards the costs. It is clarified that the said amount is not to be adjusted against any direction for backwages, if passed by the learned Labour Court in final award, which may be passed in Original Reference (LCJ) No.10 of 2003. The said amount towards the cost shall be paid to the respondent on or before 20.7.2008. (4) On the compliance of the aforesaid condition, the order impugned dated 22.10.2007 and ex pare order vide dated 17.2.2007 shall stand set aside and learned Labour Court will restore the proceedings of Reference (LCJ) No.10 of 2003 on the file to hear and decide the same in accordance with law, without being influenced by the present order, as expeditiously as possible, preferably within period of eight months from today. With the aforesaid direction, this petition stands disposed of. (K.M.THAKER, J.) ynvyas