SCA/711920/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7119 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= OWNER OF BHARAT STORES MUKUNDRAI GANGADAS PAREKH - Petitioner(s) Versus CHANDRAKANT BACHUBHAI BHATT - Respondent(s) ========================================================= Appearance : MR PUNIT B JUNEJA for Petitioner(s) : 1, MR MB PARIKH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 19/09/2008 ORAL JUDGMENT 1. Rule. Learned counsel Mr.Parikh wavies service of notice of Rule on behalf of the respondent-workman. By consent of learned counsel of both the parties, Rule is fixed forthwith. 2. The petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India SCA/711920/2008 2/4 JUDGMENT challenging order dated 20.02.2008 passed by the Labour Court, Amreli rejecting Misc. Application (ID) No.10 of 2007 made by the petitioner under Rule 26A of the Gujarat Industrial Disputes Rules for restoration of the award in Reference (LCA) No.60 of 2004 as it was passed ex-parte without any representation from the petitioner. 3. Facts in brief deserve to be set out as under:- 4. The respondent-workman raised industrial dispute which came to be referred to the concerned Court and Reference No.60 of 2004 commenced on 24.08.2007. The Labour Court accepted the reference and made an order of reinstatement with full back wages and continuity of service. The petitioner came to know about the passing of the said award without any effective hearing from their side on 20.09.2007. The restoration application under Rule 26A of the Gujarat Industrial Disputes Rules came to be filed on 20.10.2007 and the same is rejected by the Labour Court on 20.02.2008 which is impugned before this Court. 5. Mr.Juneja, learned advocate appearing for the petitioner has submitted that the impugned award deserves to be perused as it could be seen therefrom that the Labour Court has not recorded clear findings with regard to the claim of the workman. Though, the written statement has been filed, it has not been anywhere discussed and the same has been brushed aside by merely saying that the claim of the workman has not been rebutted. Though, in the written statement, the petitioner has elaborately disputed the claim of the workman. Thus, the entire issue has proceeded merely on the basis of the oral testimony as well as the claim of SCA/711920/2008 3/4 JUDGMENT the concerned workman. The workman has not examined any other witness in support of his claim and the right of cross-examination had been closed by the Labour Court. Though, learned advocate fairly admits that there was default on the part of the petitioner-employer as they could not remain present. However, that in itself would not absolve the Labour Court of its duty under the law to test the claim of the workman on the touchstone of available evidence on record. 6. Learned counsel Mr.Parikh for the workman submitted that even the application for restoration cannot be said to be competent as it was filed by the son of the petitioner, proprietor concerned and the power-of- attorney, which was subsequently filed, was merely a rectification which was not permissible in the eye of law. He submitted that the order of the Labour Court impugned in this petition is absolutely justified and, therefore, no interference is called for. 7. This Court has heard learned counsel of the parties at length. The aforesaid undisputed facts go to show that the Labour Court in its impugned award dated 24.08.2007 has not recorded its finding and justification with regard to the averments and stand of the employer taken in the written statement. The written statement was on the record. At least, therefore, a duty was caste upon the Labour Court to discuss the same. Instead thereof, the Labour Court has proceeded only on the feet of the oral testimony of the workman alone, which otherwise is not inconsonance with law, especially that right to defence had been closed. When such an order is made, Labour Court has all the more duty bound to be cautioned in accepting the testimony of the workman without any SCA/711920/2008 4/4 JUDGMENT further and other corroborative evidence. Therefore, the application of restoration ought to have been allowed. The petitioner has prayed before this Court that Reference (LCA) No.60 of 2004 be decided on merits. 8. This Court needs to be mindful of the fact that the employer has been pursuing his remedy and the restoration would not have caused untold undue hardship to the respondent-workman. The reference is of the year 2004 only wherein, the written statement disputing the claim of the workman has already been filed. In this set of circumstances, this Court is of the view that the prayer made by the employer for restoring the reference to the file of the Court would not be unjustified or unreasonable from any count. Accordingly, order dated 20.02.2008 passed in Misc. Application (ID) NO.10 of 2007 as well as award dated 24.08.2007 are quashed and set aside and the Labour Court, Amreli is directed to decide Reference (LCA) No.60 of 2004 afresh after affording an opportunity to the parties. The learned counsel have assured this Court that the avoidable adjournment will not be requested. Therefore, the entire reference be decided preferably within a period of six months from the date of receipt of the order of this Court. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) Hitesh