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2011 DIGILAW 588 (GUJ)

P. N. N. International v. Premkumar Chotala

2011-08-04

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : G.B. SHAH, J. 1. Leave to correct the name and address of the respondent in Letters Patent Appeal No. 1190 of 2011 and Civil Application No. 8499 of 2011 is granted. The sufficient cause has not been defined in the Code. As observed by the Apex Court, sufficient cause is an elastic expression for which, no hard and fast guideline is prescribed. The question in this group of cases arises that whether the management in labour matter can stretch this elastic expression to such an extent that the elastic expression loses its elasticity forever? 2. This group of Letters Patent Appeals involves common points and prayers, hence they are heard together and are being disposed of by this common judgment and order. 3. The appellant, PNN International Company, has preferred these Letters Patent Appeals challenging order dated 30.6.2011 passed by learned Single Judge dismissing the writ petitions, being Special Civil Application No. 1917 of 2011 with Special Civil Application No. 6562 of 2011 to Special Civil Application No. 6584 of 2011 filed by the appellant with cost of Rs. 710,000/- to be paid to each respondent. The appellant filed the above-referred writ petitions, challenging:- (i) ex-parte award and order dated 1.11.2004 (original order dated 6.3.2000) passed by the Labour Court, Valsad in Reference (LCV) Nos. 623 of 2001 to 647 of 2001 (original Nos. 246 of 1995 + 24 cases), allowing the references and directing the appellant to reinstate the respondents with continuity of service from 25.9.1994 and to pay full back wages and cost of 7750/- to each respondent. (ii) order dated 6.10.2010 passed by the Presiding Officer, Labour Court, Valsad rejecting the application for restoration, being Misc. Application No. 25 of 2008, filed in the main Reference (LCV) Nos. 623 of 2001 to 647 of 2001 (Original Nos. 246 of 1995 + 24 cases). 4. Heard learned Counsel Mr. Hasmukh Thakkar for the appellant. He has vehemently submitted that the learned advocate of the appellant did not remain present before the Labour Court and therefore, the appellant could not attend the proceedings before the Labour Court. Moreover, the award and order was passed by the Labour Court in absence of the advocate for the appellant and therefore, it is an ex-parte award and order and is deserved to be quashed and set aside. 5. Moreover, the award and order was passed by the Labour Court in absence of the advocate for the appellant and therefore, it is an ex-parte award and order and is deserved to be quashed and set aside. 5. The above submission of the learned Counsel for the appellant sounds very attractive and prima facie, it appears to be maintainable under law because, it is a well settled legal position that for default of the appellant's advocate, party should not suffer for his misdemeanour or absence/inaction of his advocate. We are asking a question to ourselves that when application for setting aside an ex-parte award/decree is made third time, i.e. again and again by the appellant, still the above-referred cause can be said to be a sufficient cause for proceeding further with their cases before the Labour Court? We are quite aware with the legal position that if the Court has power to dismiss a suit or to proceed ex-parte against a party who fails to appear, it is also the duty of the Court to restore a suit dismissed for default or to set aside an ex-parte decree if the defaulting party satisfies the Court that there was sufficient cause for his non-appearance. But, we are of the opinion that if the case on hand be allowed casually, the Court cannot be absolved from blame for growing tendency amongst litigants to take ex-parte decrees casually and making applications for setting them aside leisurely on bald, general and vague averments which are rarely scrutinized, ascertained and adjudicated. In the case on hand, now, we will see the facts of the cases and then the specific averments made by the appellants therein be scrutinized and ascertained for deciding the same. 6. Facts of the present case are that Reference (LCV) No. 246 of 1995 and other 24 cases have been filed against the appellant it company, which came to be allowed by the learned Judge of the Labour Court on 6.3.2000. Paragraph No. 5 of the said award, from which we can easily gather the fact that the appellant had remained absent before the Labour Court of its own volition, reads as under: 5. Notice has been issued to the First Party Company vide exh.3 for producing statement of defence and notice has also been issued vide Exh.4 for hearing. Paragraph No. 5 of the said award, from which we can easily gather the fact that the appellant had remained absent before the Labour Court of its own volition, reads as under: 5. Notice has been issued to the First Party Company vide exh.3 for producing statement of defence and notice has also been issued vide Exh.4 for hearing. As the First Party Company did not remain present on the date of hearing i.e. 24.6.1998, the notice vide exh.12 has been forwarded by R.P.A.D. informing the date of adjournment for hearing i.e. the date 20.7.1998 and which has been served upon the Company by acknowledgment slip of Postal Department Exh.13. However, no one has remained present on behalf of the Company. The notice has been issued to the First Party Company by the Court by R.P.A.D. vide Exh.18 informing the date of adjournment i.e. 25.11.1998 which has also been served by acknowledgment slip of the Postal Department vide Exh.19. However, no one has remained present on behalf of the Company and the reply has not been filed. From the above observation, we can safely come to the conclusion that sufficient and enough opportunities were given by the Labour Court to the appellant at the initial stage on different dates but the appellant has chosen to remain absent and to us, considering the entire conduct as a whole, now it appears a calculative move of the appellant so that in future, the matter can easily be restored. Under the above circumstances, the learned Judge was left with no alternative but to pass an award and order dated 6.3.2000 in absence of the appellant-Company. It is important to note that though it has been argued that the ex-parte award and order has been passed but in strict sense of the term, it is not so. 7. The appellant-company after considerable long time, preferred Misc. Application Nos. 1 of 2001 to 25 of 2001 through its advocate Mr. S.C. Desai for restoration of the above-referred References. The grounds taken by the appellant Company for restoration are required to be looked into, so that we can get idea regarding functioning of the Court matters in the appellant-Company. .....Many cases of the Institution are pending in the Honourable Court. 1 of 2001 to 25 of 2001 through its advocate Mr. S.C. Desai for restoration of the above-referred References. The grounds taken by the appellant Company for restoration are required to be looked into, so that we can get idea regarding functioning of the Court matters in the appellant-Company. .....Many cases of the Institution are pending in the Honourable Court. In the said each case, the Institution and their advocate have been remaining present at the time of every adjournment and following the necessary legal procedure and lawful defence has also been made in the concerned case. Any notice or statement of demand has not been forwarded to the applicant Institution by the opponent of this case. In this case, the notice or intimation might have been forwarded to the Institution by the Honourable Court before ex-parte order was passed but the clerk who was in-charge of the work pertaining to Court cases of the Institution, left his job and due to the said reason, even if the notice or intimation of the Court has been forwarded by the Court, it could not be received by the concerned responsible officer at a proper time in the aforesaid circumstances. Thus, for the above-stated reasons and circumstances, the applicant-Institution could not be intimated about the order which was passed in this case. Thus, as the order dated 6.1.2000 of the Honourable Court was sent by the opponent Union and the same was received by the Institution and it was informed them therein, to conduct the proceeding in respect of compliance of the order, the Institution has known about the said fact.... In the order, as such the Labour Court has given negative findings regarding Issue Nos. 1 and 2 however, ultimately, the learned Judge of the Labour Court had taken lenient view in the matter and allowed the above-referred Misc. Applications on condition that the appellant Company shall pay a sum of Rs. 12,000/- to each workman to pacify the agony of the respondent workmen. 8. References on restoration came to be numbered as Reference (LCV) Nos. 623 of 2001 to 647 of 2001. Learned advocate Mr. S.C. Desai, who had preferred the above-referred Misc. Applications, appeared and filed his Vakalatnama. Learned advocate Mr. S.C. Desai has filed his written statement on 22.1.2002. 12,000/- to each workman to pacify the agony of the respondent workmen. 8. References on restoration came to be numbered as Reference (LCV) Nos. 623 of 2001 to 647 of 2001. Learned advocate Mr. S.C. Desai, who had preferred the above-referred Misc. Applications, appeared and filed his Vakalatnama. Learned advocate Mr. S.C. Desai has filed his written statement on 22.1.2002. In the reply, the appellant has raised preliminary issue to the effect that there was no employer-employee relationship between the appellant and the respondents and therefore, the Labour Court has no jurisdiction to entertain the references. It is observed in the award dated 1.11.2004 passed in Reference (LCV) Nos. 623 of 2001 to 647 of 2001 that on 18.12.2001, the said matter was taken up on board. Vide Exh.26, learned advocate Mr. S.C. Desai has filed his Vakalatnama on behalf of the appellant-company. Thereafter, no further representation or progress had been made on behalf of the Company and therefore, the workmen had requested vide Exh.29 to pass order in pursuance of the earlier order. Thereafter also, none remained present on behalf of the company. Thereafter, vide Exh.30, on behalf of the appellant-company, a request was made to re-open the right of cross-examination of workmen which was allowed awarding cost to the workmen. Thereafter, nothing further had been carried out regarding the progress of the case by the Company and therefore, again, the learned Labour Judge, in helplessness, had to decide the matters in absence of the appellant company. This absence of the appellant-Company was also termed as absence of its own volition and accordingly the award and order was passed on 1.11.2004. 9. Thus, on the basis of the award dated 1.11.2004, published on 2.12.2004, the respondent workmen through their Union had written a letter dated 24.1.2005 and sent it through registered post A.D. and postal acknowledgment, duly signed by the appellant, has been received back. However, the appellant Company having learnt from the earlier experience and having separate staff for Court proceedings, did not move any application for setting aside the award and order dated 1.11.2004. The respondent workmen had filed Recovery Application No. 120 of 2005 u/s 33-C (1) and (5) of the Industrial Disputes Act, 1947 on 19.7.2005. In the said recovery application, vide Exh.5, the Labour Court had issued notice and the same has been duly served and Exh.7 has been given to the postal acknowledgment. The respondent workmen had filed Recovery Application No. 120 of 2005 u/s 33-C (1) and (5) of the Industrial Disputes Act, 1947 on 19.7.2005. In the said recovery application, vide Exh.5, the Labour Court had issued notice and the same has been duly served and Exh.7 has been given to the postal acknowledgment. Vide Exh.9, right to file written statement has been closed and it is shocking that the appellant-Company did not appear in the recovery application and allowed the application to be proceeded in its absence. On 25.8.2008, the learned Judge of the Labour Court passed order directing the appellant-Company to pay a total sum of Rs. 61,53,240/- as detailed in the order along with cost of Rs. 500/- to each workman. 10. It is thereafter that the appellant-Company woke up from its alleged or artificial slumber and after the aforesaid order dated 25.8.2008 was passed in Recovery Application, filed Misc. Application No. 25 of 2008 on 23.9.2008 inter alia praying for condonation of delay in filing the restoration application and for quashing and setting aside the ex-parte order dated 1.11.2004 passed in Reference (LCV) Nos. 623 of 2001 to 647 of 2001. But, the learned Judge of the Labour Court has rejected Misc. Application No. 25 of 2008 filed for restoration of Reference (LCV) Nos. 623 of 2001 to 647 of 2001. 11. The learned Judge of the Labour Court was pleased to pass order dated 6.10.2010 in Misc. Application No. 25 of 2008, whereby the delay in challenging the order passed in Reference (LCV) Nos. 623 of 2001 to 647 of 2001 was condoned, but Misc. Application No. 25 of 2008 filed for restoration of Reference (LCV) Nos. 623 of 2001 to 647 of 2001 had been rejected. It is tinder these facts and circumstances, the appellant preferred writ petitions, being Special Civil Application No. 1917 of 2011 with Special Civil Application No. 6562 of 2011 to Special Civil Application No. 6584 of 2011, challenging the said order dated 6.10.2010. The learned Single Judge by order dated 30.6.2011, dismissed the writ petitions and upheld the award and order dated 1.11.2004 and order dated 6.10.2010, as referred above. While rejecting the said Misc. The learned Single Judge by order dated 30.6.2011, dismissed the writ petitions and upheld the award and order dated 1.11.2004 and order dated 6.10.2010, as referred above. While rejecting the said Misc. Application and the writ petitions respectively, the learned Judge of the Labour Court and the learned Single Judge of this Court, have carefully considered the aforesaid facts forthcoming on the record and observed as under:- 3.4. It will be appropriate to put it on record that every time though the order and award is branded as ex-parte, it is not an ex parte award and order because it is an award and order passed in 'absence' of the petitioner-company or its Advocate which was of their own volition as mentioned hereinabove. 12. As discussed above, at the initial stage, in 1995 also, enough opportunities and notices and letters from the Labour Court had been issued and served through registered Post to the appellant, but no one remained present and in our view, this silence on the part of the appellant is nothing but willful absence of the appellant, presumably for creating a good ground for restoration in future. From the averments made in Misc. Application Nos. 1 of 2001 to 25 of 2001, it has come on record that as per the say of the appellant, many cases of the appellant Institution are pending in the Hon'ble Court. In the said each case, the Institution and its advocate have been remaining present at every adjournment and following the legal procedure and the lawful defence has also been made in concerned case. If this be so, how the advocate is only liable for the alleged absence. Moreover, the appellant has engaged clerks and staff who were in charge of the work pertaining to the Court cases only and considering the above facts, it is clear that hardly one can put blame on its advocate and it is very difficult to swallow the ground of the appellant that the advocate did not remain present before the Labour Court and therefore, the appellant could not attend the proceedings before the Labour Court. 13. 13. From the above narrated facts, one can easily presume that in connivance with each other, i.e. the appellant and its advocate, both remained absent at all the crucial stages of the case with a view to see that the decision of the Apex Court can help the appellant that because of the negligence on the part of its advocate, the party should not suffer. As per the say of the appellant, if the concerned advocate only remained negligent then the appellant shall have taken due, proper, active and positive actions against the said advocate before the appropriate Bar Council. But, nothing has forth-come on the record. On the contrary, the appellant itself has stated that the Institution was connected with advocate Shri S.C. Desai for a very long period and the appellant has boldly stated that there was no reason to suspect him. Thus, in our view, as discussed by the learned Judge of the Labour Court and the learned Single Judge, the appellant Company stands proved as willful inactive and negligence from beginning, i.e. from 1995, and just to get benefit of the legal position, the appellant Company has filed Misc. Application No. 25 of 2008, by finding all faults of its advocate purposely for getting the benefit from their own mistake and with evil intention just to prolong the matter for years together and in order to deprive the respondents from getting the benefit of the judgment and award delivered in favour of the respondents. The test which should be applied is whether the appellant honestly and sincerely intended to remain present when the matter was called on for hearing number of times and did his best to do so. Considering the above facts on the cases on hand, in our opinion, answer is very easy to say no. 14. We are of the firm opinion that so far as the cases on hand are concerned, now, it is enough and mercy cannot be showered repeatedly on the appellant because it is also the duty of the Court to see that while showing more and more leniency, injustice may not be caused to the other side, i.e. the respondents. Though all the time, the cost has been awarded, the appellant, thereafter, remained more negligent and more inactive with a view to deprive the legitimate monetary gain of the respondents by depositing token amount of cost. Though all the time, the cost has been awarded, the appellant, thereafter, remained more negligent and more inactive with a view to deprive the legitimate monetary gain of the respondents by depositing token amount of cost. So, we are not agreeable with the submission of the learned Counsel for the appellant to allow these appeals by awarding cost because we are of the opinion that there should be limit and end to everything. Therefore, restoration application filed again and again by the appellant is nothing but abuse and misuse of the process of the Court and that is why, in the present cases, we stood firm against such tactics with a view to see that such tactics will not see the light of the day and the leniency granted earlier cannot again be misused. 15. In view of the aforesaid, we do not find any illegality either in the impugned order passed by the learned Single Judge or in the order passed by the learned Judge of the Labour Court, Valsad. Thus, these Letters Patent Appeals are dismissed. 16. In view of the order passed in the main Appeals, the Civil Applications do not survive and they stand disposed of accordingly.