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2013 DIGILAW 594 (HP)

Roop Kishore v. State of Himachal Pradesh

2013-06-24

RAJIV SHARMA

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JUDGMENT Justice Rajiv Sharma, Judge (oral). Petitioner was engaged in respondent No.4-Company on 1.9.2006. He was retrenched on 26.9.2008. He raised demand notice on 23.10.2008. Petitioner was directed to join his duties vide order dated 23.12.2008. However, the fact of the matter is that the petitioner was not permitted to join his duties. He was ordered to appear before the Labour Officer-cum- Conciliation Officer on 16.1.2009. Since the matter could not be settled, the Labour Officer - cum-Conciliation Officer sent the failure report to respondent No.2. Respondent No.2 has refused to refer the matter to the Labour Officer-cum-Conciliation Officer vide order dated 31.3.2010. Respondent No.2 instead of referring the matter to the Labour Officer-cum-Industrial Tribunal has himself decided the matter on merits. Whether the petitioner has been permitted to join the duties or not could only be adjudicated upon in the reference. 2. The petitioner has placed sufficient material on record that though he was directed to join his duties but was not permitted to join the duties. Respondent No.2 has also erred in law by concluding that the petitioner has remained absent from duties. The plea of abandonment is required to be proved like any other fact. This could only be proved in the reference. The Labour Commissioner only discharges the administrative functions and not judicial or quasi-judicial functions. 3. Their Lordships of the Hon’ble Supreme Court in Sarva Shramik Sangh versus Indian Oil Corporation Limited and others, (2009) 11 SCC 609 have culled out the following principles (para-37) : - the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason.” 4. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-12 dated 3 1.3.2010 is quashed and set aside. Respondent No.2 is directed to refer the matter to the Labour Court-cum-Industrial Tribunal within a period of six weeks from today. Pending application(s), if any, also stands disposed of. No costs. *********************************************************************************************************** 2013 (3) Him L.R. 1560 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Before The Hon’ble Mr. Annexure P-12 dated 3 1.3.2010 is quashed and set aside. Respondent No.2 is directed to refer the matter to the Labour Court-cum-Industrial Tribunal within a period of six weeks from today. Pending application(s), if any, also stands disposed of. No costs. *********************************************************************************************************** 2013 (3) Him L.R. 1560 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Before The Hon’ble Mr. Justice V.K. Sharma, Judge. OMP No.198 of 2013 in Civil Suit No.64 of 2005 Date of decision: 18.7.2013 Yash Pal Singh and others. Versus Tajinder Kaur and others For the plaintiffs: Mr. Neeraj Gupta, Advocate. For the Defendants: Defendants No.1 to 3 ex parte. Mr. Rahul Mahajan, Advocate, for defendant No.4. Mr. Ramakant Sharma, Advocate, for defendant No.5. Code of Civil Procedure, 1908 – application under Order 41, Rule 27 read with Section 151 when permissible—foundation of document sought to be proved, is required to be pleaded in the pleadings —Suit for specific performance of agreement of sale—the settlement has been signed by both the parties in the presence of witnesses out of their free will and consent and both of them shall remain bound by the same— written statement filed and the same defense was there on record— - delay in filing application be condoned by compensating the other party-application is allowed and the defendant No.4, is permitted to produce the deed of settlement dated 14.12.2004 to prove the same in accordance with Law. JUDGMENT V.K. Sharma, J. (Oral). OMP No.198 of 2013 Though this application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), has been moved by the applicant/defendant No.4, seeking permission to bring on record deed of settlement dated 14.12.2004 (Annexure A.1), said to have been executed between him and the non-applicant/plaintiff No.1, yet essentially the prayer in the application is covered under Order 8, Rule 1-A CPC and as such is being dealt with under the latter provision of law, as it is settled that wrong mention of provision of law would not come in the way ofthe Court to impart substantial justice. 2. The main suit is for grant of a decree for specific performance of agreement of sale dated 14.12.2004, Ext.PW.1/ A. The plaintiffs are the proposed vendees under the said agreement. 2. The main suit is for grant of a decree for specific performance of agreement of sale dated 14.12.2004, Ext.PW.1/ A. The plaintiffs are the proposed vendees under the said agreement. The agreement of sale was executed by the applicant/defendant No.4 in favour of the non-applicants/plaintiffs, as general power of attorney of the non-applicants/defendants No.1 to 3. However, later on the power of attorney was cancelled by the non-applicants/ defendants No.1 to 3, who thereafter sold the land in dispute to the non-applicant/ defendant No.5 by way of two sale deeds dated 29.3.2005. 3. It is against the foregoing background that the non-applicants/plaintiffs have filed the suit for specific performance, which is being contested only by the applicant/defendant No.4 and the non-applicant/defendant No.5. The non-applicants/ defendants No.1 to 3 are ex parte. 4. Out of the pleadings on behalf of the contesting parties, the following issues have been settled on 13.3.2007:- 1.Whether the defendants No.1 to 4 executed an agreement of sale dated 14.12.2004 in favour of plaintiffs? OPP. 2.If issue No.1 is proved, whether the plaintiffs have always been ready and willing to perform their part of agreement of sale, as alleged? OPP. 3.Whether the plaintiffs are entitled for the decree of specific performance of agreement dated 14.12.2004? OPP. 4. Whether the plaintiffs have no right to file the present suit and the same not maintainable, as alleged, if so its effect? OPD-5. 5. Whether the suit has been filed by the plaintiffs in collusion with defendants No.1 to 4, as alleged, if so, its effect? OPD-5. 6. Whether defendant No.5 is bona fide purchaser for consideration, as alleged, if so, its effect? OPD-5. 7.Relief. 5.The non-applicants/plaintiffs have already led evidence. The case is now at the stage of evidence on behalf of the applicant/defendant No.4, which is yet to begin. It is at this stage that the application for bringing on record the aforesaid deed of settlement dated 14.12.2004 has been filed. 6. It shall be pertinent to notice at the very outset that both the agreement of sale and the deed of settlement, annulling the same, were apparently executed on the same very day, that is, 14.12.2004. It is at this stage that the application for bringing on record the aforesaid deed of settlement dated 14.12.2004 has been filed. 6. It shall be pertinent to notice at the very outset that both the agreement of sale and the deed of settlement, annulling the same, were apparently executed on the same very day, that is, 14.12.2004. The deed of settlement, which has been filed along with the application, as Annexure A.1, reads as under: “Deed of settlement This deed of settlement is being executed on this 14th day of December 2004 between:- Yashpal Singh Son of Sh. Rai Singh resident of village Geora, Tehsil Nurpur, Distt. Kangra. 2..(hereinafter referred as party No.1) And Gurpal Singh S/o Sh. Harnam Singh resident of Mcleodganj, Tehsil Dharamshala, District Kangra, Himachal Pradesh. 2..(hereinafter referred as party No.2) Whereas an agreement to sell dated 14.12.2004 i.e. today is being executed by party No.2 in favour of party No.1 in respect of the land situated at village Mahal Pakka Tyala as attorney of Smt. Tejinder Kaur & Others, the original owners of the land. No consideration amount is being paid by the party No.1 to party No.2 nor this agreement carries any legal force and is being executed by the party No.2 without any intention of selling the land to the party No.1 and as such the party No.1 shall not be filing any civil or criminal proceedings against party No.2 in any Court of law or before any authority on the basis of said agreement to sell under any circumstances, as the same being executed with consent of both the parties so as to wriggle out of the agreement dated 2-11-2004. All the facts regarding the consideration, earnest money, name of the purchasers and date of sale deed are superficially mentioned in the agreement to sell dated 14.12.2004, considering the friendly relationship between the parties to the present deed of settlement. This deed of settlement has been signed by both the parties in the presence of witnesses out of their free will and consent and both of them shall remain bound by the same. Executants Witnesses Party No.1 B.D. Gandhi son of Sh. Jai Dev, R/o Sd/- H.No.39, Durga Nagar, Rajpura Town, Tehsil Rajpura, Distt. Patiala. Sd/- Party No.2. Jatin Jindal S/o Kaushal Kumar Sd/- Jindal R/o H. No.47, Hem Bagh Colony, Patiala. Sd/-li 7. Executants Witnesses Party No.1 B.D. Gandhi son of Sh. Jai Dev, R/o Sd/- H.No.39, Durga Nagar, Rajpura Town, Tehsil Rajpura, Distt. Patiala. Sd/- Party No.2. Jatin Jindal S/o Kaushal Kumar Sd/- Jindal R/o H. No.47, Hem Bagh Colony, Patiala. Sd/-li 7. The prayer for bringing on record the aforesaid deed of settlement dated 14.12.2004, is opposed on behalf of the non-applicants/plaintiffs on three fold grounds. Firstly, that even in case the document is permitted to be taken on record, there is no foundation in the written statement to this effect and it being so, any evidence beyond the pleadings would be liable to be excluded from consideration. In this regard, suffice it to say that the pleadings set up by the applicant/defendant No.4, vide preliminary objection No.1 and paras 3 to 7 on merits by necessary implication indicate that the entire transaction purported to have been entered into vide agreement of sale dated 14.12.2004, was a sham transaction and the non-applicant/plaintiff No.1, who was a friend of the applicant/ defendant No.4 had agreed to treat the same accordingly. Furthermore, issue No.4 also impliedly covers this aspect of the matter. Thus, it cannot be said that there is no foundation in the written statement qua which the aforesaid deed of settlement dated 14.12.2004 can be adduced in evidence by the applicant/defendant No.4. 8. Now while adverting to the second objection that the deed of settlement dated 14.12.2004, cannot be treated to be a valid document at this stage, it appears that this submission has been made only with a view to take an additional ground of contest. It goes without saying that taking of deed of settlement dated 14.12.2004 on record at this stage, is simply for the purpose of allowing the applicant/defendant No.4 to produce the same in terms of sub clause (3) of Rule 1-A of Order 8 CPC with leave of the Court and the same shall have to be proved by the applicant/defendant No.4 in accordance with law. . . 9.As far as the third submission that this Court is precluded from making any observation with regard to there being any foundation having been laid in the written statement for bringing this document on record is concerned, needless to say that when a Court is to return a finding on rival submissions on a point, it is incumbent upon it to meet that point in accordance with law and return a finding on the same. It is in discharge of such obligation that the finding to this effect has been returned. 10.In view of the above, the application is allowed and the applicant/defendant No.4, is permitted to produce the aforesaid deed of settlement dated 14.12.2004 (Annexure A.1) and prove the same in accordance with law. However, since the prayer in this regard has been made at a belated stage, the non-applicant/ defendant No.4, is saddled with costs of 22000/- (rupees two thousand only), which be deposited with the H.P. High Court Bar Association within four weeks from today. The application stands disposed of.