Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 847 (GUJ)

Manager Zen Pharma v. Lila R Patel

2011-12-20

A.J.DESAI, V.M.SAHAI

body2011
JUDGMENT ( 1. ) THESE Intra-Court Letters Patent Appeals have been filed by the appellants ? original petitioners challenging the judgment and order dated 21.03.2011 passed by the Learned Single Judge in Special Civil Application Nos.16724 of 2010 with Special Civil Application Nos.178 to 190 of 2011 whereby the Learned Single Judge dismissed the writ petitions filed by the appellants herein. ( 2. ) THE undisputed facts are that respondents - workmen were employed by respondent No.2. The appellant took over the unit of respondent No.2. The respondent No.2 terminated the services of the said workmen. Therefore, the said workmen (19 in all) approached the Labour Court, Valsad and filed References being Reference Nos.218 to 235 and 279 of 1997. In the said References, the appellant as well as respondent No.2 were joined as party and both appeared through their counsel. Since the counsel of the appellant i.e. Mr. M. B. Tamle did not remain present on various dates before the Labour Court, Valsad, the Labour Court by separate awards passed on different dates ex-parte decided the said References and directed the appellant to reinstate the workmen with continuity of service and 50% backwages. Award in Reference No.218 of 1997 was decided on 26.04.2006. 2.1 Thereafter, the appellant changed its counsel and engaged another counsel, namely, Mr. Pritesh Desai and filed only one application being Misc. Application No.58 of 2006 in Reference (LCV) Nos.218 to 235 and 279 of 1997 for setting aside the ex-parte award passed in the References. Thereafter also, counsel Mr. Pritesh Desai appearing for the appellant did not remain present before the Labour Court at the time of hearing of Misc. Application No.58 of 2006 inspite of sufficient opportunities having been given to him. Ultimately, the Labour Court vide order dated 23.09.2008 rejected the said application filed by the appellant. The Labour Court also directed the appellant to pay cost of Rs.500/- to each of the 19 workmen, who were joined as opponents in the said application. 2.2 Thereafter, the appellant again changed its counsel and engaged Mr. Kaushik G. Kaptan as its counsel and filed Misc. Application No.75 of 2008 in Misc. Application No.58 of 2006 in Reference (LCV) Nos.218 to 235 and 279 of 1997. The said Misc. Application No.75 of 2008 was filed for restoration of Misc. 2.2 Thereafter, the appellant again changed its counsel and engaged Mr. Kaushik G. Kaptan as its counsel and filed Misc. Application No.75 of 2008 in Misc. Application No.58 of 2006 in Reference (LCV) Nos.218 to 235 and 279 of 1997. The said Misc. Application No.75 of 2008 was filed for restoration of Misc. Application No.58 of 2006 which was filed for setting aside the ex-parte award passed in the References. Along with the said application, application for condonation of delay caused in preferring Misc. Application No.75 of 2008 was also filed. Thereafter, the Labour Court after hearing both the parties vide order dated 20.12.2010 condoned the delay but rejected Misc. Application No.75 of 2008. The Labour Court also directed the appellant to pay cost of Rs.2,000/- to each of the 19 workmen. The Labour Court rejected the said application on two grounds :- (i) absence of the counsel for the appellant and (ii) single application for setting aside ex-parte 19 awards was not maintainable under Rule 26A of the Industrial Disputes [Gujarat] Rules, 1966. ( 3. ) LEARNED Senior Counsel Mr. K. M. Patel assisted by Mr. Hasmukh Thakker appearing for the appellants has urged that in view of decision of the Apex Court, if the counsel does not appear before the Court on various dates, the appellant was helpless and the Apex Court in such cases has held that liberal view should be taken and restoration application should be allowed. He placed reliance on the decision of the Apex Court in the case of Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 wherein it is held that party should not suffer for misdemeanour or inaction of his counsel. He further placed reliance on the decision of the Apex Court in the case of Secretary, Department of Horticulture, Chandigarh and another v. Raghu Raj, (2008) 13 SCC 395 and in the case of Ram Kumar Gupta and others v. Har Prasad and another, (2010) 1 SCC 391 . 3.1 In the above decisions, the law laid down by the Apex Court is that for non-appearance of the counsel, liberal view should be taken and restoration application should normally be allowed. 3.1 In the above decisions, the law laid down by the Apex Court is that for non-appearance of the counsel, liberal view should be taken and restoration application should normally be allowed. 3.2 Counsel for the appellant has further urged that since all the 19 References were consolidated, the appellant filed single restoration application and mentioned all the references numbers and also mentioned names of all the workmen and notices were also issued to all the workmen. However, copy of only one award is annexed along with the restoration application. He has, however, submitted that since the appellant filed only one restoration application, the said restoration application should be confined to the award which was filed along with the restoration application. He has further urged that since while dismissing the restoration application, the cost of Rs.500/- has been awarded to each workmen, therefore, the Labour Court treated the single restoration application to be maintainable. 3.3 The other argument of learned counsel for the appellant is that the appellant had no opportunity to meet with the objections of the Labour Court that single restoration application was not maintainable as the Labour Court reserved the judgment and when the order was served upon the appellant, then the reasons are known to the appellant. He has, therefore, submitted that the present Letters Patent Appeals may be allowed and the Labour Court may be directed to decide the References on merits. ( 4. ) LEARNED Counsel Mr. P C. Chaudhary appearing for . the workmen has submitted that as per Rule 26A of the Industrial Disputes [Gujarat] Rules, 1966, the appellant was required to file separate restoration applications and since only one restoration application was filed, the impugned order passed by the Labour Court is just and proper and does not require any interference by this Court. He has, therefore, submitted that all these Letters Patent Appeals may be dismissed with cost. 4.1 In support of his submissions, Mr. Chaudhary relied on the decision of the Apex Court in the case of Salil Dutta v. T. M. and M.C. Private Limited, (1993) 2 SCC 185 wherein the Apex Court held that the advocate is the agent of the party and his acts are within the limits of authority given to him. However, no such absolute rule could be laid down that for mistake of counsel, the matter has to be restored. However, no such absolute rule could be laid down that for mistake of counsel, the matter has to be restored. It depends on fact situation of each case. 4.2 Mr. Chaudhary further placed reliance on the decision of the Delhi High Court in the case of Rajesh Wire Industries v. Umesh and another, 2009 (IV) LLJ 715 (Delhi) wherein Delhi High Court has held that the duty of the client does not end by engaging a counsel. He ought to have followed up with the counsel about the outcome of the matter and checked from the Labour Court as well, as to what was happening in the matter. However, the appellant appears to be sleeping over the matter by engaging different counsel who did not appear for the reasons best known to the appellant or his counsel. ( 5. ) WITH regard to first contention of the appellant that for non-appearance of the counsel, liberal view should be taken and restoration application should be allowed, we are of the view that in this case, number of dates were fixed on which counsel for the appellant did not appear. It appears that the appellant was not attending to the Court otherwise he would have known that his counsel was not appearing. For whatever reason, it was a matter between the appellant and his counsel. If a professional misconduct was committed by the counsel, then the appellant should have lodged a complaint in the Bar Council of Gujarat against the concerned counsel that inspite of payment of fees, the counsel was not appearing and, therefore, action may be taken against the counsel. But this was not done and the award was passed ex- parte by the Labour Court due to continuous absence of the counsel of the appellant. The appellant was throughly negligent in prosecuting his remedy and the restoration applications had rightly been rejected. We do not find any error in the impugned orders. ( 6. ) WITH regard to the second contention that since the References were consolidated and since names of all the workmen were mentioned in the restoration application along with numbers of all the references, single restoration application was maintainable, we are of the view that Rule 26A of the Industrial Disputes [Gujarat] Rules, 1966 (hereinafter referred to as 'Rules') is very clear. Rule 26A is extracted below for ready reference :- Setting aside ex-parte orders awards "26A. and Reports. (1) On an application made within thirty days from the date of knowledge of an ex-parte order, award or report by the party concerned, the board, Court, Labour Court, Tribunal or Arbitrator may, for sufficient cause; set aside after notice to the opposite party such order, award, or report as the case may be. (2) The Board, Court, Labour Court, Tribunal or Arbitrator may on sufficient cause being shown, extend the period referred to in sub-rule (1). (3) An application under sub-rule (1) shall be supported by an affidavit." ( 7. ) THE Rule clearly provides that for setting aside ex- parte award, an application has to be filed duly supported by an affidavit. This means that for each award, a separate restoration application is required to be filed supported by an affidavit. Counsel for the appellant has urged that since the references were consolidated, therefore, single restoration application was filed. Though References were consolidated, separate awards were passed in each References and hence, by no stretch of imagination, it can be said that single application for setting aside 19 awards was maintainable. The said restoration application was not maintainable as per Rules 26A of the Rules. ( 8. ) WITH regard to the third contention of the appellant that since while dismissing the restoration application, the cost of Rs.500/- has been awarded to each workmen, therefore, the Labour Court treated the single restoration application to be maintainable, the said argument is misconceived. Merely because numbers of 19 References were mentioned in the single restoration application and since names of 19 workmen were mentioned and they were awarded cost by the Labour Court would not make the single restoration application maintainable as it was contrary to Rule 26A of the Rules. So far as the award of cost of Rs.500/- to each workmen is concerned, cost was awarded as each workman was issued notice and they were harassed to come to the Labour Court to oppose the restoration application which was not maintainable. The award of cost will not make the restoration application of the appellant maintainable. ( 9. So far as the award of cost of Rs.500/- to each workmen is concerned, cost was awarded as each workman was issued notice and they were harassed to come to the Labour Court to oppose the restoration application which was not maintainable. The award of cost will not make the restoration application of the appellant maintainable. ( 9. ) WITH regard to the fourth contention of the appellant that since the appellant filed only one restoration application, the said restoration application should be confined to the award which was filed along with the restoration application, the said contention is also liable to be rejected. It has not been stated in the restoration application that the said restoration application may be confined to the award which was filed along with the said restoration application and the appellant would be filing separate 18 restoration applications. Further at the time of argument before the Labour Court also, the appellant did not pray that the appellant will be filing 18 separate restoration applications and, therefore, the present restoration application should be confined to the award which has been filed along with the restoration application. Though this contention regarding maintainability of the restoration application was raised by the learned counsel for the workmen before the Labour Court and it was hotly argued between the parties, no such request was made that the restoration application be confined to the award which was filed along with the application. As a matter of fact, it was always open to the appellants to file separate restoration applications before the Labour Court after the impugned order dated 20.12.2010 was passed by the Labour Court. After the order dated 20.12.2010 was passed by the Labour Court, no application was filed by the appellant that the restoration application be confined only to the award which has been filed along with the application. Therefore, the appellant was all throughout insisting that single restoration application was maintainable whereas Rule 26-A of the Rules provides otherwise. ( 10. ) AT this stage, learned Senior Counsel Mr. K. M. Patel appearing for the appellant has submitted that some cost may be imposed on the appellant and the Labour Court may be directed to hear the References on merits and the restoration application be allowed. This case has a chequred history as narrated above. ( 10. ) AT this stage, learned Senior Counsel Mr. K. M. Patel appearing for the appellant has submitted that some cost may be imposed on the appellant and the Labour Court may be directed to hear the References on merits and the restoration application be allowed. This case has a chequred history as narrated above. Though the workmen were fighting since 1997 for their wages, still they have not enjoyed the fruits of their litigation. The awards were passed in the year 2006. Thereafter, Labour Court dismissed restoration applications on 23.09.2008 and 20.12.2010 respectively. In the meantime, the appellant engaged three different counsel at three different stages. None appeared before the Labour Court either on the instruction of the appellant or otherwise. Therefore, in view of peculiar facts and circumstances of the case, the application for restoration was rightly rejected by the Labour Court and the said order was rightly confirmed by the Learned Single Judge. Therefore, the request of Mr. Patel cannot be accepted. ( 11. ) LASTLY, learned counsel for the appellant urged that the Learned Single Judge has not dismissed the writ petitions on the grounds stated in this judgment. It has been held by the Apex Court in Management of the Northern Railway Co-operative Credit Society Limited, Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur and another, AIR 1967 SC 1182 in paragraph 11 that learned counsel for the respondents is justified in urging before us that the respondents are entitled to support the decision of the Tribunal setting aside the order of Kanraj even on grounds which were not accepted by the Tribunal or on other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record. ( 12. ) SINCE we agree with the view taken by the Learned Single Judge, the same could be supported on the ground that single restoration application was not maintainable. In the above view of the matter, for the aforesaid reasons recorded by us, we do not find any illegality or infirmity committed by the Learned Single Judge or by the Labour Court. These appeals are devoid of any merits. These Letters Patent Appeals fail and are accordingly dismissed. Parties to bear their own costs. ( 13. ) IN view of dismissal of Letters Patent Appeals, Civil Applications also stand rejected.