JUDGMENT : PARESH UPADHYAY, J. 1. Heard Mr. G.M. Joshi, learned advocate for the petitioner and Mr. B.D. Thakkar, learned advocate with Mr. A.K. Padia for respondent No. 2 workman. Rule. Learned advocates for the respondents waive service of notice of rule on behalf of respective respondents. The matter was heard at length finally with the consent of the parties and judgment was reserved on 24.04.2013. 2. Prayer Clause of this petition is as under: (a) Your Lordships may be pleased to issue a writ of mandamus/certiorari or any other appropriate, writ, order or direction in the nature of mandamus or in the nature of certiorari or any other writ, order or direction by quashing and setting aside the order dated 02.04.2007 passed in Recovery Application No. 44 of 2001 and the consequential order passed in Recovery Application No. 608 of 2007 by which the learned Presiding Officer of the Labour Court at Ahmedabad on their own merits and be pleased to quash and set aside the order passed by the Presiding Officer of the Labour Court in Misc. Application No. 151 of 2010 in Recovery Application No. 608 of 2007 dated 22.02.2012 and be further pleased to quash and set aside order dated 28.02.2011 passed in Misc. Application No. 116 of 2011 in Recovery Application No. 44 of 2001 and be pleased to quash and set aside the recovery certificates issued pursuant to the impugned orders. (b) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice. (c) During the admission, pendency and final disposal of this petition, be pleased to stay the implementation, execution and operation of the orders passed in Recovery Application No. 44 of 2001 and the consequential orders passed in Recovery Application No. 608 of 2007. 3. The facts, as stated by learned advocate for the petitioner and which are not disputed by learned advocate for the respondent and thus, which have emerged as undisputed facts on record, are as under: 3.1. The T. Application No. 307 of 1991 preferred by the Respondent against the Manager, Jagdish Processors Pvt. Ltd. was allowed ex-parte by order dated 05.03.1992, directing the petitioner to reinstate the respondent workman, with full back wages and with continuity of service. The case of the respondent workman was that, he was serving with the petitioner since 14 years at a daily wage of Rs. The case of the respondent workman was that, he was serving with the petitioner since 14 years at a daily wage of Rs. 23.65. That he was placed under suspension pending inquiry and was terminated from service by oral order dated 24.04.1991. 3.2. The application for setting aside the said order was rejected. 3.3. The unit in question was sold to M/s. Weizmaan Industries Private Ltd. Out of the sale consideration of Rs. 1,49,00,000/- and Rs. 1,44,00,000/- were directly paid to the State Bank of Saurashtra by the purchaser. Rs. 5,00,000/- being earnest deposit, paid on 04.03.1993, was spent for paying the dues of workmen working with the petitioner company before closing down and sale of Unit to M/s. Weizmaan Industries Ltd. 3.4. The Payment of Wages Application No. 111 of 1998 preferred by the respondent was dismissed. There is also a reference of Recovery Application No. 169 of 1996. 3.5. The Recovery Application No. 486 of 1996 was filed by the respondent seeking wages from February, 1996 to 24.12.1989 i.e. alleged date of termination, to the tune of Rs. 52,668. Said application was dismissed for want of prosecution by order dated 05.07.2001. 3.6. Another application being Recovery Application No. 44 of 2001 was preferred on 04.01.2001 seeking wages from 24.01.1991 to 31.12.2000 to the tune of Rs. 175095/- against the present petitioner describing him to be the owner of Jagdish Processors and showing the address to be Jagdish Park, Jodhpur Tekra, near the Bungalow of Bosmiya at the same address. No reference was made to the Recovery Application No. 486 of 1996 in the said application. 3.7. On 18.01.2006, when the case was taken up for hearing, the petitioner and his brother were remained absent, hence the case was adjourned to 08.03.2006 and a notice was issued to that effect. 3.8. The petitioner and his brother did not appear whereas the M/s. Weizmaan Industries Ltd. appeared and contested the claim. The Labour Court noted that Payment of Wages Application No. 111 of 1998 was dismissed on the ground of limitation. It also noted that Recovery Application No. 486 of 1996 was filed by the respondent workman, wherein the name of M/s. Weizmaan Industries Ltd. was deleted. The Labour Court noted that Payment of Wages Application No. 111 of 1998 was dismissed on the ground of limitation. It also noted that Recovery Application No. 486 of 1996 was filed by the respondent workman, wherein the name of M/s. Weizmaan Industries Ltd. was deleted. The respondent workman did not point out that Recovery Application No. 486 of 1996 seeking wages from 24.12.1989 to February 1996, was dismissed for default and awarded the wages from 24.04.1991 to 31.12.2000 rejecting the claim from 24.01.1991 to 24.04.1991 directing the petitioner to pay Rs. 1,73,263/-. 3.9. When order passed by the Labour Court was sought to be served, the Bailiff reported on 18.04.2007 that, a complex is constructed at Jagdish Park and therefore, order could not be served. The Bailiff noted on 25.05.2007 that, Pradipbhai had expired. The Bailiff also declared on 28.06.2007 that, order is served by affixing as per the order of the Court. It appears that though the addresses of the petitioner and his brother were given by the respondent. 3.10. Pradipbhai Bosamiya, brother of the petitioner, died on 22.10.2006. Recovery Application No. 608 of 2007 was preferred by the respondent workman for getting Recovery Certificate issued against present petitioner and his brother, which fact was known to the respondent at least on 25.05.2007. The said application was allowed by the learned Presiding Officer of the Labour Court by order dated 15.10.2008 directing issuing of Recovery Certificate to the tune of Rs. 1,73,263/- against both the opponents i.e. present petitioner and Pradipbhai Bosamiya. 3.11. The petitioner preferred two applications for setting aside the ex-parte orders passed in Recovery Application No. 44 of 2001 as well as in Recovery Application No. 608 of 2007, on 27th December, 2010. Petitioner also preferred applications for condonation of delay, which were numbered as Application No. 150 of 2010 in Recovery Application No. 44 of 2001 and Application No. 151 of 2010 in Recovery Application No. 608 of 2007. Application No. 150 of 2010 was allowed and the delay was condoned. The application for setting aside ex-parte order was numbered as Application No. 116 of 2011 in Recovery Application No. 44 of 2001, whereas the application for condonation of delay being Application No. 151 of 2010 was rejected by order dated 22.02.2012 as submitted by the respondent in the Affidavit in Gujarati. The application for setting aside ex-parte order was numbered as Application No. 116 of 2011 in Recovery Application No. 44 of 2001, whereas the application for condonation of delay being Application No. 151 of 2010 was rejected by order dated 22.02.2012 as submitted by the respondent in the Affidavit in Gujarati. The application being Application No. 116 of 2011 is also rejected by the order dated 28.02.2012. 4.1. In this factual background, learned advocate Mr. G.M. Joshi has contended that T. Application was preferred against Jagdish Processors Pvt. Ltd., whereas Recovery Application No. 44 of 2001 was preferred against Bhupendra Bosamiya as owner of Jagdish Processors and Pradipbhai Bosamiya, as per the judgment of this Honourable Court reported in 2009 (2) GLR 1820 , the Managing Director of the Company cannot be made personally liable for payment of gratuity of the Company, however, he would be responsible for payment of gratuity from assets of the Company unless the control of affairs is entrusted to some other person. The relevant paragraph 5 wherein the Honourable Court has cited with approval judgment of Honourable Punjab & Haryana High Court Kundan Singh vs. Moga Transport Cases, 1987 (62) Comp Case 600, wherein the Honourable Court has cited with approval the following declaration of law: Neither in the company law nor in the Industrial Disputes Act does any provision making the managing director personally liable for recovery of dues against the limited company exist. 4.2. Therefore, even if the order passed in T. Application No. 307 of 1991 stands confirmed, it can be enforced only against the Company and its assets and not against the petitioner in his personal capacity. Jagdish Park, where the petitioner was residing, never belonged to the Company. Therefore, the order passed in Recovery Application, which was filed against the petitioner, is without jurisdiction, as the same was not preferred against the Company, which was party in T. Application. 4.3. The workman had conceded the material fact of having filed Recovery Application No. 486 of 1996 while preferring Recovery Application No. 44 of 2001, wherein dual claims were made in respect of period between 24th January, 1991 to 31st December, 1996. Further, the claim was rejected when application No. 486 of 1996 was dismissed for default. 4.4. 4.3. The workman had conceded the material fact of having filed Recovery Application No. 486 of 1996 while preferring Recovery Application No. 44 of 2001, wherein dual claims were made in respect of period between 24th January, 1991 to 31st December, 1996. Further, the claim was rejected when application No. 486 of 1996 was dismissed for default. 4.4. The Unit, wherein the Company was carrying on its industrial activities, was closed down at least on 30th December, 1993 i.e. the date of sale Weizmaan Industries Ltd. The Labour Court records and accepts the fact that the Unit is closed down and there was only land and building when the Unit was purchased by them and purchaser cannot be fastened with the liability of the Respondent workman. Still completely ignores the fact that, industry is closed down or at the most transferred on 30th December, 1993 and goes on awarding Rs. 1,73,263/-. No reasoning is given as to how the petitioner and his brother can be held responsible for the dues of the Company when the order in T. Application, sale deed and the factum of closure were all on record. 4.5. The submission is that the respondent would be disentitled from claiming any amount as preferring two applications seeking the wages for the same period i.e. 24th January, 1991 to 30th December, 1996, is gross misuse of the process of law. 4.6. The same person namely the respondent had preferred payment of wages application No. 191 of 2002 against one M/s. Ronak Printers Pvt. Ltd. seeking the wages from January, 1996 to August, 2002. Again showing that the wages from 1996 to 2000 are claimed from two employers simultaneously. 4.7. There is no suppression of any fact as Application No. 150 of 2010 was preferred for getting the delay condoned. The Labour Court condoned the delay in respect of one application but did not condoned in respect of another. Further, there is no challenge to the order passed by the Labour Court in T. Application and thence, rejection of application, seeking setting aside of that order, has no material bearing on the present case, therefore, failure to mention that fact is not suppression much less material suppression as it is not a material fact. 4.8. Further, there is no challenge to the order passed by the Labour Court in T. Application and thence, rejection of application, seeking setting aside of that order, has no material bearing on the present case, therefore, failure to mention that fact is not suppression much less material suppression as it is not a material fact. 4.8. The workman had full knowledge that the residential house of the family was demolished and as per the report of Bailiff, a commercial complex was standing there. Still, in 2006, the notice are shown to have been served at Jagdish Park depriving the petitioner of his right to defend including the right to point out that Recovery Application against him was not maintainable. 4.9. As Recovery Application No. 608 of 2007 was preferred for the purpose of getting Recovery Certificate issued, it was a consequential relief prayed by the Respondent as the original application could not be maintained against the petitioner. The subsequent application to get the Recovery Certificate issued, should also fail. 5.1. On the other hand, learned advocate Mr. Thakkar for the respondent workman has taken this Court through the entire record and has submitted that the Labour Court has not committed any error and this Court may not interfere with the impugned orders. 5.2. Learned advocate for the respondent workman, when was asked by the Court as to what he has to say with regard to the claim of the respondent, with regard to claiming wages from one more company viz. Ronak Printers, for almost the same period, it is stated that the Labour Court has observed that though documents were there, this point was not specifically pleaded and therefore it can not be taken into consideration, and beyond that, he has not to say anything in that regard. 6.1. At this stage, it also needs to be recorded that, this Court had also the benefit of observing the demeanour of the respondent workman all throughout, and in my judgment, on the whole, the demeanour of the respondent workman was not of the victim or sufferer, but appeared more to extract something from his erstwhile employer, the petitioner. It is also recorded that, initially the respondent had requested that on his behalf, one Mr. Shantaram Gangaram Chaudhari, his power of attorney holder, be permitted to argue his case. It is also recorded that, initially the respondent had requested that on his behalf, one Mr. Shantaram Gangaram Chaudhari, his power of attorney holder, be permitted to argue his case. The same was held to be impermissible, as recorded by this Court (Coram: Hon'ble Smt. Justice Abhilasha Kumari) in order dated 13.09.2012. The respondent thereafter stated that he would make his submissions as party in person. 6.2. Thereafter, on 21.03.2013, he requested the Court that he would like to take help of some advocate. He was also offered legal aid by the Court, as reflected in the order dated 21.03.2013, to which he had said no. 6.3. Thereafter, on 01.04.2013, the respondent has asked for further time. 6.4. On 09.04.2013, Mr. P.H. Pathak, learned advocate appeared for respondent workman and the matter was adjourned to 16.04.2013 for further consideration. 6.5. On 16.04.2013, it was informed that Mr. P.H. Pathak is not to appear on behalf of the respondent workman, but in his place, Mr. A.K. Padia, learned advocate, is to file appearance. 6.6. Thereafter, Mr. B.D. Thakkar, learned advocate, has appeared with Mr. A.K. Padia on behalf of the respondent workman, and has made submissions as recorded above. 6.7. Though, the stand on behalf of the respondent, and the demeanour of the respondent workman has been, as recorded above, still in my view, the interest of the respondent workman needs to be protected, while passing the final order. 7.1. Having heard learned advocates for both the parties and having gone through the record and more particularly in view of the undisputed facts, which are recorded hereinabove, I find that the Tribunal has committed error by not taking into consideration relevant material, and has also considered irrelevant material, and thereby the impugned order dated 02.04.2007 passed in Recovery Application No. 44 of 2001 suffers from the vice of perversity and needs to be quashed and set aside, and the Labour Court needs to be asked to decide the application afresh, in accordance with law. 7.2. 7.2. On merits also, I find that the Labour Court has committed errors, but since the matter is to be reconsidered by the Labour Court on merits, for the reasons recorded above, expressing any opinion on merits at this stage by this Court may prejudice the case of one of the parties before the Labour Court and therefore, I consider it just and proper not to record the reasons in that regard. 7.3. It also needs to be recorded that, while setting aside the impugned order of the Labour Court, the interest of the respondent workman also needs to be protected appropriately. 8.1. In the facts and circumstances, and for the reasons recorded above, the following order is passed. 8.2. The impugned order dated 02.04.2007 passed by Labour Court, Ahmedabad in Recovery Application No. 44 of 2001 is quashed and set aside. In view of setting aside of this order, consequential orders dated 28.02.2011 passed in Miscellaneous Application No. 116 of 2011 in Recovery Application No. 44 of 2011 and dated 22.02.2012 passed in Miscellaneous Application No. 151 of 2010 in Recovery Application No. 608 of 2007, which are also challenged in this petition, would also not survive and are quashed and set aside. Consequential recovery certificates would also not survive and are quashed and set aside. 8.3. The petitioner shall deposit the amount of Rs. 1,50,000/- before the Labour Court within a period of two months from today. This amount is over and above the amount of Rs. 50,000/- which is already recovered by the Revenue Authorities, from the petitioner and which is already deposited before the Labour Court by the said Authorities. It is further clarified that inspite of the recovery certificates having been set aside, above referred amount of Rs. 50,000/- will not be refunded to the petitioner and the same shall be dealt with along with the additional amount of Rs. 1,50,000/- which is ordered above, in accordance with law. 8.4. The Labour Court shall consider and decide Recovery Application No. 44 of 2001, afresh, on merits, in accordance with law, after hearing the petitioner on merits, and after taking into consideration all the contentions raised before it by both the parties, as expeditiously as possible, preferably within a period of nine months from today. The petitioner is directed to pay Rs. 10,000/- to the respondent No. 2 workman as cost. The petitioner is directed to pay Rs. 10,000/- to the respondent No. 2 workman as cost. This amount shall be paid by the petitioner to the respondent within a period of one month from today. Rule is made absolute.