Kirti Chandulal Shah v. Ramesh B. Awasthi — 1996 DIGILAW 68 (GUJ)

ORDER : H.L. Gokhale, J. Heard Shri R.V. Desai for the petitioner and Shri. K.V. Ghadia for the respondent. The petitioner herein as one Kitibhai Chandulal Shah, Managing Partner of one Kirti Weaving Factory. The respondent is Rameshbahi Babubahi Avasthi, who has been a workman working in a firm known as Sidharth Textiles. It is the case of the respondent that he was wrongfully terminated from service and therefore, on his raising a dispute reference came to be made to the Labour Court at Ahmedabad being Reference (LCA) No. 1850 of 1992. During me course of hearing of that Reference, certain orders came to be passed. They are sought to be challenged by the petitioner Kirtibhai Chandulal Shah, Managing partner of Kirti Weaving Factory. 2. It is the case of the petitioner that Kirti Weaving Factory has nothing to do with the pending Reference. That is not even the case of the respondent workman. The case of the respondent-workman that he is a workman of Sidharth Textiles. Shri. Desdai, learned Adv. for the petitioner pointed out to me that the statement on claim of the respondent - workman was sent with the packet bearing the following address: Shri Kirtibhai Chandulal Shah, S-16/17, 20th Municipal Industrial Estate Comer Bapunagar, Ahmedabad-23. Shri. Ghadia on the other hand pointed out that though that might be the address on the packet, mat was so done because in the understanding of the respondent-workman this Kirtibhai Chandulal Shah was the proprietor of Sidharth Textiles and the Acknowledgment along with the packet bore the following address of the recipient: Shri Kirtibhai Chandulal Shah, Siddharth Textiles, 2-16/17, 20th Municipal Industrial Estate Comer, Bapunagar, Ahmedabad-23. The packet shown by Mr. Desai bears the outward No. 1363 Dated September 21, 1993 and the same number appears on the acknowledge which bears the signature of this Kirtibhai C. Shah of having received the notice. 3. Thereafter Shri. Ghadia has also drawn my attention to the certified copy of the Vakalatnama which was filed in the said proceedings for the employer. The Vakalatnama bears the Reference No. SC A 1850/92. Thereafter names of the parties are mentioned as Siharth Textiles and Kirti Textiles, Ahmedabad v. Ramesh babubhai Avasthi. The Vakalatnama is issued by one Mr. P.M. Pandya, Manager for Kirti Weaving Factory. The Vakalatnama bears the Reference No. SC A 1850/92. Thereafter names of the parties are mentioned as Siharth Textiles and Kirti Textiles, Ahmedabad v. Ramesh babubhai Avasthi. The Vakalatnama is issued by one Mr. P.M. Pandya, Manager for Kirti Weaving Factory. This Vakalatnama is in favour of Shri R.V. Desai, Advocate, who has accepted the same, tendered it in the Court and since the Vakalatama bears the number of the proceedings and also the names of the parties the same has been accepted and Shri. R.V. Desai has been allowed to appear on behalf of Sidharth Textiles. 4. During the course of the labour Court proceedings it appears that Shri. R.V. Desai while cross examining the workman put a question to him as to whether the workman had the I-Card and the answer given by the workman on September 28, 1995 was "I have I- card. It is issued by Pradipbhai Mehta who is Accountant, under the employer and that presently also he (Pradipbhai) is working over there." At that stage it appears that Shri. R.V. Desai tendered an application in his understanding that a question further sought to be put by him was disallowed namely, me I Card does not belong to the first party. Shri R.V. Desai who was allowed to appear in the said proceedings on behalf of Sidharth Textiles is the same Advocate who has filed the present petition on behalf of Kirti Weaving Factory. Shri. R.V. Desai states before me that when that application was given what was sought to be contended was that the workman was not working under Kirti Textiles and that question was sought to be put. Nothing of the kind is specifically stated in the endorsement made on Purshis filed by the workman seeking to close his evidence on September 28, 1995 nor is it stated in the separate application filed on that day by Shri RV. Desai. In that situation inasmuch as no such specific statement was made that by first party Shri. R.V. Desai meant Kirti Textiles, no fault can be found with the learned under standing that the application was made on behalf of Sidharth Textiles. In any event what seems to have transpired is that on the very day the matter was again called out in the second sitting and the learned Judge has recorded that no body was present on behalf of the first party employer. In any event what seems to have transpired is that on the very day the matter was again called out in the second sitting and the learned Judge has recorded that no body was present on behalf of the first party employer. This is on page-15 of the present petition. On the very day the workman has given the Purshis to close the evidence, but no order is passed by the learned Judge on that application which was given on September 28, 1995 and which is marked as Exhibit -11. Shri R.V. Desai has drawn my attention to the certified true copy of Exhibit 11 in the margin of which the learned Judge has made the endorsement "Recorded". 5. It appears that on the subsequent date of bearing, mat is on December 7 1995 the workman has filed another application stating mat if the first party employer not bringing their wit-nesses then the stage of evidence be closed. The workman was entitled to make that application, but the learned Judge has not passed any order on that date. As pointed out by both the learned Advocates, on the subsequent date of hearing i .e. January 18, 1996 the learned Judge has passed the order allowing the application filed of the workman and recording that evidence of the first party employer is to be treated as closed. The learned Judge has thereafter fixed the matter for arguments on February 8, 1996 which is clear from the certified copy of the order passed on January 18, 1996 produced by Shri. Ghadia for my perusal. 6. Shri. R.V. Desai who has filed the present petition for Kirtibhai Chandulal Shah has made a grievance that the learned Judge ought to have allowed him to put the question on behalf of Kirti Weaving Factory. He has so stated clearly before me that, that was the intention while asking the questions on September 28, 1995. If it was so, then certainly no fault could have been found with the learned Judge and no prejudice can be said to have been caused to Kirti Textiles if that question was disallowed by the learned Judge, this is because Kirti Textiles has no focus whatsoever in the pending reference. There is nothing to indicate that the learned Judge has disallowed any question asked by Shri. Desai. There is nothing to indicate that the learned Judge has disallowed any question asked by Shri. Desai. That seems to be the impression drawn by Shri. R.V. Desai and on that footing that application was made on September 28, 1995. However, from the petition itself it is seen that after the cross examination of the workman by Shri. R.V. Desai, the learned Judge has recorded that Shri. R.V. Desai has submitted an application which is received by the learned Judge. It appears that thereafter the matter was called out in the second sitting and nobody was present on behalf of the first party. That is what is recorded on Exhibit-9 which is the evidence of the workman. 7. As far as the things which transpired in the court are concerned, it is well settled that whatever statement of facts is recorded in the judgment of the Court is conclusive of the facts so stated and no one can contradict such statement by affidavit or other evidence. If a party thinks that happening in the Court has been wrongly re corded, that party is supposed to apply to that Court and not anybody else. This is well settled principle which is recorded by the Supreme Court of India in Para-4 of its judgment in the case of State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 where the relevant paragraph reads as follows: ".... The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very judges who have made the record to his conduct was a statement mat had been made in error (per Lord Buck master in Madhusuckui v. Chadrabati.) AIR 1917 PC 30 . That is the only way to have the record corrected...." 8. In this view of the matter, in my view, there is no reason for me to form any such impression that any such question was disallowed by the learned judge. That is the only way to have the record corrected...." 8. In this view of the matter, in my view, there is no reason for me to form any such impression that any such question was disallowed by the learned judge. The first party and their advocate have not remained present when the matter was called out in the second sitting. The workman has given an application to close his evidence on that very day. The workman gave the application to treat that the management evidence is also closed which application was given on a subsequent date i.e. December 7, 1995 and the order thereon was passed on the date there after i.e. January 18, 1996. 9. As stated earlier, this petition which is filed by Kirti Textiles to challenge the recording of evidence between Sidharth Textiles and its workman is totally non maintainable and the challenge to whatever that has been recorded in the Labour Court is on facts also untenable, as stated above. The petition, therefore, deserves to be dismissed and the same is hereby dismissed with cost which is quantified at Rs. 1500/-.The cost to be paid on or before February 15, 1996. 10. The matter is now kept in the Labour Court on February 8, 1996 for arguments. Mr. Desai for the petitioner states that he has been appearing in the Labour Court on behalf of Kirti Weaving Factory and not on behalf of Sidharth Textiles. Mr. Desai is a learned Advocate. He has signed the Vakalatlama on the top of which the name of the party is mentioned as Sidharth Textiles". The number of Reference is also correctly mentioned on the Vakalatnama. In that view of the matter Mr. Desai cannot be allowed to say that he was not appearing in the said proceeding on behalf of Sidharth Textiles. The learned Judge has allowed him to appear in that matter on behalf of Sidharth Textiles. Sidharth Textiles has engaged an advocate and is allowed through Shri. Desai. Shri. Desai states that he so appeared on behalf of Kirti Textiles so that a decree, if any, passed against Sidharth Textiles may not be executed against Kirti Textiles. The workman knows the place where he was working. He knows the name of the employer. The acknowledgement at the notice bore the name of the company, its address and the name of Kirtibhai Chandulal Shah. The workman knows the place where he was working. He knows the name of the employer. The acknowledgement at the notice bore the name of the company, its address and the name of Kirtibhai Chandulal Shah. That acknowledgement is signed by Kirtibhai Chandulal Shah and thereafter a Vakalatnama is caused to be filed on behalf of Sidharth Textiles. If Kirtibhai Chandualal Shah or Kirti Weaving Factory had nothing to do with the matter they ought to have applied separately to the Court. They had no reason to file Vakalatnama which they have filed leading the learned judgment to form an opinion that the same is on behalf of Sidharth Textiles. The learned Judge cannot be faulted format in any manner. 11. If Kirti Weaving Factory wants to make any application. It will be at liberty to do so and me learned Judge will decide the same in accordance with law. 12. On my query, Mr. Ghadia is good enough to state that although the Labour Court has passed the order directing the evidence of the management to be closed, if Sidharth Textiles wants to lead any evidence on the next date of hearing i.e. February 8, 1996, he will have no objection to that This order a rid the writ (sic) down to the second respondent Labour Court forthwith. Writ Petition dismissed with costs.