SCA/2740/2008 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2740 of 2008 To SPECIAL CIVIL APPLICATION No. 2750 of 2008 With SPECIAL CIVIL APPLICATION No. 2741 of 2008 To SPECIAL CIVIL APPLICATION No. 2750 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DEPUTY EXECUTIVE ENGINEER & 1 - Petitioner(s) Versus SURABHAI MOTIBHAI CHAVDA - Respondent(s) ========================================================= Appearance : MR PRADEEP PATEL for Petitioner(s) : 1 - 2. None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 15/02/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Pradeep Patel appearing on behalf of petitioners. SCA/2740/2008 2/37 JUDGMENT 2. This group of petitions are filed by petitioners on 13th September 2007 vide Special Civil Application (Stamp) No.23614 of 2007 to Special Civil Application (Stamp) No.23624 of 2007. These matters are remained in objection. Ultimately, on 2nd February 2008, after removing the objections, matters are registered as regular special civil application. 3. In the present petitions, petitioners have challenged ex-parte award passed by Labour Court, Nadiad Exh.29 in Reference No.32 of 1998 (Old Reference No.272 of 1984) dated 21st December 1998. The Labour Court, Nadiad had set aside the termination order in favour of 11 workmen those who are respondents and granted reinstatement with continuity of service with full backwages of interim period. The respondents raised industrial dispute against their termination dated 21st December 1983 which was referred for adjudication on 30th July 1984 to Labour Court, Nadiad. The Labour Court, Nadiad has passed an ex-parte award prior to this in Reference No.273 of 1984 vide Exh.11 on 28th May 1991. Thereafter, application No.49 of 1991 was filed by petitioners for setting aside ex-parte award which was allowed by Labour Court after hearing both the sides on 23rd December 1997 vide Exh.9 and given reasonable opportunity of hearing to the petitioners and directed to decide the reference on merits. Thereafter, matter was adjourned to 20th March 1998. But, after restoring the reference while setting SCA/2740/2008 3/37 JUDGMENT aside the ex-parte award, again, petitioner remained absent throughout and not filed reply against the statement of claim filed by respondent. Vide Exh.9 – Surabhai Mothibhai Chavda, vide Exh.14 – Harkhabhai Lalabhai Vankar, vide Exh.15 – Dhanabhai Lalabhai Vankar, vide Exh.16 – Bhupatbhai Motibhai Chavda, vide Exh.17 – Mohbatsinh Fatehsinh Rathod, vide Exh.18 – Ramabhai Khanabhai Vankar, vide Exh.19 – Lallubhai Juhabhai Dabhi, vide Exh.20 – Udabhai Juhabhai Dabhi, vide Exh.21 – Nanabhai Bajibhai Dabhi, vide Exh.22 – Nanjibhai Vaghjibhai Rathod, vide Exh.23 – Chimanbhai Pashabhai Vankar were filed affidavit before Labour Court supporting the facts narrated in statement of claim and Shri Surabhai Motibhai Chavda was examined in support of statement of claim. The present petitioner was not remained present to cross-examine the aforesaid workmen though notices were served to the petitioners. Thereafter, vide Exh.25, the oral evidence of the workmen was closed and matter was kept for oral evidence of petitioner. Thereafter, again, an intimation was sent vide Exh.26 to the petitioner to remain present before the Labour Court, even though, petitioner remained absent. Therefore, ultimately, Labour Court has heard the matter and passed ex-parte award against the petitioner. 4. Initially, Labour Court had issued notice to petitioner, but, no one remained present on behalf of petitioner. No advocate was engaged by petitioner in the proceedings pending before the Labour Court. SCA/2740/2008 4/37 JUDGMENT These workmen were working and remained in service since number of years and completed continue service of 240 days and their services were terminated by violating Section 25F, 25G and 25H of Industrial Disputes Act, 1947. Vide Exh.5, notice issued by Labour Court which was served to petitioner, thereafter, not remained present, therefore, Labour Court had issued, again, a second notice vide Exh.8 to the petitioner, even though, petitioner remained absent. Therefore, ex-parte award was passed on 28th May 1991 which was subsequently restored and after restoration also, notices were served to petitioner while giving a date of hearing on 20th March 1998, even though, petitioner remained absent and no advocate was engaged and ultimately, even on second occasion, Labour Court has passed an ex-parte award on 21st December 1998. Before that, vide Exh.26, an intimation was sent by Labour Court to the petitioner, even though, petitioner remained absent. 5. The ex-parte award dated 21st December 1998 being a second ex-parte award was not challenged by petitioner for about ten years period. The petitioner was aware about alternative remedy as, in past, it was availed, even though, petitioner has not made any application for setting aside second ex-parte award. No petition was filed for about ten years period and thereafter, receiving the notice from Labour Court of recovery application No.47 of 2005 which was based on second ex-parte award. Thereafter, a petition was filed after a period of more than two years. The SCA/2740/2008 5/37 JUDGMENT above facts are narrated which are on record just to show the lethargic approach of the petitioner to remain silent being a public officer not to take care in challenging such award where the reinstatement of 11 employees granted by Labour Court with full backwages of interim period. 6. In the present petitions, the petitioners have pointed out certain parts on merits that these 11 employees were not recruited regularly and they were not permanent employees and they have not completed 240 days continue service. They were engaged on need basis as and when work was available. Therefore, these 11 employees are not entitled for any legal rights to claim against petitioners. The merits which are narrated in the petitions are totally irrelevant, because, petitioner was not remained present before the Labour Court for two occasions and not disclosed the defence before the Labour Court. This Court is examining the matters only on the ground of delay in filing present petitions which is not satisfactorily explained by petitioner in the present petitions. The recovery application being No.37 of 2005 to No.48 of 2005 were filed by 11 employees before the Labour Court, Nadiad. The notice issued by Labour Court in recovery application is challenged by petitioner in the present petitions. The para 3/1 and para 3/2 are relating to merits, but, when petitioner remained absent before the Labour Court while considering the question that whether petitions are to be entertained or not, the merits are totally irrelevant. The delay SCA/2740/2008 6/37 JUDGMENT explained in para 3/3 to para 3/5 and Para 4 which are quoted as under : “3.3 The petitioners most respectfully submit that the petitioner No.1 engaged a lawyer to defend the Reference case before the Labour Court, Nadiad. The petitioners submit that the employee namely, Surabhai Motibhai gave deposition before Labour Court, on 4.4.1989 and in the absence of the representative for the petitioner No.1, the learned Presiding Officer, Labour Court, Nadiad was pleased to allow the Reference (LCN) No.272 of 1984 ex-parte, vide judgment and award dated 28.5.1991 whereby the petitioner No.1 was directed to reinstate the respondent and 11 other workmen with continuity of service and full backwages. The petitioners most respectfully submit that the petitioner No.1 moved an application being Civil Misc. Application No.49 of 1991 for setting aside the ex-parte judgment and award dated 28.5.1991 and the same came to be allowed conditionally vide order dated 23.12.1977, and the Reference (LCN) No.272 of 1984 was restored to files and ultimately, the reference case was numbered as Reference (LCN) No.32 of 1998. 3.4 The petitioners most respectfully submit that all the workmen except Surabhai Motibhai and Aahji Lalabhai filed affidavit SCA/2740/2008 7/37 JUDGMENT before the Labour Court, Nadiad, in support of the statement of claim, sworn on 24.9.1998. The petitioners submit that the representative of the workmen vide Ex.24 purshis declared their evidence as closed and upon an application vide Ex.28, given by the representative of the workmen, the learned Presiding Officer was pleased to pass an order declaring the evidence of the petitioners as closed. The petitioners submit that though the petitioner No.1 engaged an advocate to defend the case, the lawyer did not take adequate care and caution to defend the Reference case on behalf of the District Panchayat and the lawyer did not filed written statement on behalf of the petitioner No.1. The petitioners submit that the further proceedings before the Labour Court, Nadiad went ex-parte and the learned Presiding Officer, Labour Court, Nadiad was pleased to allow the reference (LCN) No.32 of 1998, by common judgment and award dated 21.12.1998, whereby, the petitioner No.1 was directed to reinstate the respondent and 10 other workmen with continuity of service and full backwages. A copy of the impugned judgment and award is annexed hereto and marked as ANNEXURE-B to this petition. 3.5 The petitioners most respectfully submit that the petitioners office do not have the relevant record of the presence of the SCA/2740/2008 8/37 JUDGMENT workmen of the Reference of the workmen of the Reference case, as the workmen were not regularly recruited employees and were employed on purely temporary basis and the none of the employees completed 240 days of continuous service in any of the years and in fact, since the workmen were employed looking to the exigency of work neither muster rolls were maintained nor seniority list was maintained. The petitioners submit that the petitioners could not approach this Honourable Court immediately, as the office of the petitioners was not properly advised and moreover relevant papers were also missing from the office of the petitioners. The petitioners most respectfully submit that the respondent belatedly filed a recovery application before the Labour Court, Nadiad being Recovery Application No.47 of 2005 in August, 2005 for the recovery of Rs.694691.10 for the period upto 30.6.05. The petitioners most respectfully submit that the office of the petitioners realised the gravity and consequences of the ex-parte judgment and award dated 21.12.1998, when the petitioners received the notices issued in the recovery application and the total amount claimed by all workmen under the strength of ex-parte judgment and award dated 21.12.1998 comes around 1 crore approximately. The petitioners submit that the office of the petitioners immediately engaged lawyer to defend the SCA/2740/2008 9/37 JUDGMENT Recovery Application being numbered as 37/2005 to 48/2005, before Labour Court, Nadiad and took steps to challenge the impugned ex-parte judgment and award dated 21.12.1998. The petitioners submit that the delay in approaching this Honourable Court may kindly be condoned in the interest of justice. 4. The petitioners most respectfully submit that the office of the petitioners have initiated steps to find out the employee guilty of lethargy and delay in forwarding the file to the superior officer for challenge before the appropriate forum against the ex- parte judgment and award dated 21.12.1998 and the petitioners submit that once the guilty employee is traced out, appropriate departmental proceedings shall be initiated against the same and shall be taken to recover the amount from the employee. The petitioners submit to stay the impugned judgment and award and recovery proceedings in the interest of justice and as otherwise, the public money and granted received from the Government shall have to be disbursed due to the fault of the erring officer. The petitioners submit that since the case is old, it is difficult for the petitioners to hold particular employee guilty with firmness, within a short span of time, however, steps have been initiated to trace out the erring officer.“ 7. In view of aforesaid averments made by SCA/2740/2008 10/37 JUDGMENT petitioner which is not correct and it cannot consider to be a sufficient cause to condone the delay of about ten years. The advocate was not engaged by petitioner, because, who was not appearing on behalf of petitioner. So, in appearance, the name of advocate is not given by petitioner and no affidavit of such advocate is filed in support of prayer of condoning the delay. No affidavit of any responsible officer, who is dealing with such matter, was filed by explaining the delay of about ten years. Merely, receiving the notice from Labour Court in recovery application cannot consider to be a challenge under Article 226 of the Constitution of India. Merely, receiving the notice is not an award or order passed by Labour Court, Nadiad. The Labour Court has issued notice and calling the petitioner to remain present in recovery application. Whether petitioner has filed any appearance in recovery application or engaged any advocate in recovery application which is not clear from averments made in petitions. If the notice received from Labour Court in recovery application, then, petitioner can engage advocate to appear before Labour Court as opportunity is available which has been given by Labour Court to the petitioner. So, petition filed by petitioner challenging the notice of recovery, such kind of petition is not maintainable in law as no decision is given by Labour Court and petitioner was having opportunity to appear before the Labour Court. As per Para 4 to search an erring officer has no defence, but, petitioner has to SCA/2740/2008 11/37 JUDGMENT approach immediately to Labour Court after receiving the ex-parte award from the Labour Court. The petitioner has purposefully and deliberately remained silent that award dated 21st December 1998 received by petitioner on which date and what steps have been taken thereafter and what advise received by petitioner from whom, no record has been produced by petitioner though averments are made to the effect that petitioner was not properly advised, but, by whom, no detail is given. The defence which was raised to find out the erring officer is not an explanation to condone the delay. The petitioner has given vague explanation without detail and without record which cannot fill up the gap of ten years continuously delay without taking any steps in between by the petitioner. After receiving the award dated 21st December 1998, no detail was given by petitioner as the file has been moved from which table-to-table, office-to-office and person-to- person, therefore, it is a clear case of deliberate delay which can consider to be a culpable negligence on the part of petitioner. During the ten years period, if position of respondent workman is to be considered, then, it is more serious. The service of workmen terminated on 21st September 1983, in between, two ex-parte award passed by Labour Court in favour of petitioner i.e. (i) 28th May 1991 and (ii) 21st December 1998, even though, 11 employees are remained without service and benefits. The respondents are out of job since 21st September 1983 i.e. for more than 25 years and still, workmen are waiting for justice SCA/2740/2008 12/37 JUDGMENT because of lethargic approach, inaction, deliberate delay and culpable negligence on the part of the petitioner. The delay may defeat the justice which is sought by the respondents workmen. The respondents' right to life includes livelihood covered by Article 21 has been violated by public body and public officer without any legal base who is answerable for breach committed by petitioner violating the award under Section 29 of the Industrial Disputes Act, 1947. The legal right is already accrued in favour of respondents to get reinstatement and full backwages as per ex-parte award, it will have a great prejudice if this Court will entertain the petitions filed by petitioners after a period of ten years. The award if it is not implemented by petitioners, then, it amounts to an offence committed by petitioners. For that, prosecution can be filed by labour commissioner on the basis of complaint from workmen. The petitioners remained silent about ten years, then, now, to challenge being legally estopped under the principles of estopel. The principles of equity is also not applicable in such a gross case of delay. The petitioner has not explained satisfactorily the entire period of ten years and no sufficient cause is shown to this Court, no material produced before this Court which satisfied this Court being a sufficient cause to condone the delay. 8. According to my opinion, whatever averments made in petitions by the petitioners are vague and irresponsible averments, as if, the petitions can be SCA/2740/2008 13/37 JUDGMENT filed by petitioners being a State authority at any time and at any moment having privilege as a State authority under Article 12 of the Constitution of India. The respondents are really sufferer for more than 25 years and from ex-parte award for more than ten years and not able to get the fruits of award because of inaction, deliberate delay and culpable negligence on the part of petitioners. Such efforts/attempts cannot be encouraged by this Court while exercising the power under Article 226/227 of the Constitution of India, otherwise, a right which was accrued in favour of respondents will prejudice. 9. The apex Court has considered the same in case of State of Orissa v. Sri Pyarimohan Samantaray and others reported in AIR 1976 SC 2617 in Para 6 which is quoted as under : “6. It would thus appear that there is justification for the argument of the Solicitor General that even though a cause of action arose to the petitioner as far back as 1962,on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India, (1970) 2 SCR 697 = (AIR 1970 SC 470) the making of repeated representations, after the rejection of one representation, could not be SCA/2740/2008 14/37 JUDGMENT held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was 'strenuously' urged for its consideration on behalf of the Government of India.” 10. The Gujarat High Court (Coram : H.K. Rathod, J.) in case of Gujarat Water Resources Development Corporation Ltd. v. Baldevji Mohanji Solanki reported in 2006(2) GLH 472 in Para 6 observed which is quoted as under : “6. The law on the question raised in the present petitions, has been examined by the Apex Court as well as various High Courts. SCA/2740/2008 15/37 JUDGMENT That has been discussed as under : 6.1 In case of Bishnu Charan Mohantry Vs. State of Orrisa, reported in AIR 1973 Orissa 1999, the following general principles relating to delay and laches has been laid down: (i) The Limitation Act has no application to writ petitions. Where, however, a suit for identical relief would be barred by the law of limitation, the court would ordinarily refuse to exercise discretion to grant relief under Article 226. (ii) Even if a suit for the same relief is not barred by limitation under the Limitation Act, yet the High Court may refuse to issue a writ, if otherwise the delay is not explainable by satisfactory reasons. (iii) Two important circumstances to be borne in mind in all such cases are : the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy. (iv) Where by the conduct of the party, the delay might fairly be regarded as equivalent to a waiver of the remedy, the relief under Article 226 would be refused. SCA/2740/2008 16/37 JUDGMENT (v) Even if the conduct or act is not equivalent to a waiver, if the neglect of the petitioner put to opposite party in a situation in which it would not be reasonable to place him if the remedy is afterwards granted, the relief under Article 226 should be refused on account of delay and laches. (vi) Utmost expedition is the essence for a claim under article 226; and (vii) no hard and fast rule can be laid down. Each case is to be determined on its own facts and circumstances. 6.2 The further view has laid down by the Supreme Court in case of P.S.Sadasivaswamy Vs. State of Tamil Nadu, reported in (1975) 1 SCC 152. Relevant observations of the said decision is quoted as under: “It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters,” SCA/2740/2008 17/37 JUDGMENT (emphasis supplied). 6.3 In the case of Eastern Coal Fields Ltd. Vs. Central Government Industrial Tribunal, reported in 2000 III LLJ 3, the Calcutta High has held in Para, 6, 7 and 8 as under : “6. Having heard the learned counsel for the parties we are of the opinion that it is not a fit case where this Court should interfere with the impugned judgment and order as apart from the fact that the learned trial Judge has refused to exercise its power of judicial review it had also recorded a finding as regards the question of delay in the following terms : “Before parting with this case it should be noted that though the learned Tribunal passed the award as far back as March 28, 1984 th writ application was not filed before February 8, 1990 on the plea that delay was due to the fact that Government permission could not be obtained before February 7, 1989. The explanation is not satisfactory. The plea of delay on the ground of office formalities is absolutely untenable especially in case of Industrial Disputes where there was illegal termination of service about 20 years ago. It was submitted on behalf of the respondent union that this long delay on the part of the management of all the workmen not only the wasting of their valuable years of lives but SCA/2740/2008 18/37 JUDGMENT have also caused death to some of them. It is true, that there is no limitation in filing the writ application but that shall not automatically entitle the petitioner to make limitless delay in filing the writ application, especially, in case of the present nature, where such delay brought untold miseries to the workmen. There being unreasonable delay in filing the application on frivolous ground the writ Court would have refused to grant any relief to the petitioner, even if it had been otherwise entitled to it. Th writ petition is liable to be rejected on the ground of delay also” 7. Mr.Ginwala submits that delay cannot be considered to be a ground for