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2014 DIGILAW 1023 (GUJ)

Vadodara Kamdar Union v. Bil Metal Industries Ltd

2014-09-15

C.L.SONI, JAYANT PATEL

body2014
JUDGMENT : Jayant Patel, J. Admit. Mr. Naik for M/s. Trivedi & Gupta for respondents no.1 and 2 waives notice of Admission. 2. With the consent of learned advocates appearing for both the sides, the appeal is finally heard. 3. The short facts of the case appears to be that SCA No. 17236/05 was preferred by the respondents no.1 and 2 for challenging the legality and validity of the order dated 25.04.2005 passed by respondent No. 3. In the said petition, the learned Single Judge had passed the order dated 12.02.2013, whereby it was observed thus - "1. Mr. R.D. Raval, learned advocate for the respondents states that the respondents have no objection, if the petitioner moves an application at this stage, before the Tribunal and they will not raise the ground of delay before the Tribunal. He further contended that the respondents will not file any application for subsistence allowance before the Tribunal. He further states that such application and complaint may be heard together within a period of one year from today. 2. Considering the facts and circumstances of the case and the statement made by the learned advocate Mr. Raval, it is observed that the petitioner-Company shall be at liberty to move appropriate application within a period of six weeks from today. If such an application is moved before the Tribunal concerned, the Tribunal concerned is directed to dispose of the same within a period of one year from the date of filing of such application. It is further directed that the Tribunal concerned will not pass any interim order and shall decide the issue finally and pass a final order. 3. It is made clear that this interim arrangement is for pending adjudication of the dispute before the Tribunal concerned. The aforesaid order has been passed in presence of one of the representative of the workers namely, Sanjay Puroshottam Patel, who is present before this Court and has been identified by Mr. Raval, learned advocate. 4. With the above observations and direction, the petition stands disposed of. Rule is made absolute to the aforesaid extent." It appears that thereafter, based on the order passed by the learned Single Judge in the above referred Special Civil Application, the application was made by the respondent No. 1 before the Tribunal at exhibit 28 and exhibit 30. 4. With the above observations and direction, the petition stands disposed of. Rule is made absolute to the aforesaid extent." It appears that thereafter, based on the order passed by the learned Single Judge in the above referred Special Civil Application, the application was made by the respondent No. 1 before the Tribunal at exhibit 28 and exhibit 30. The Tribunal heard the applications and passed the order dated 02.07.2013, whereby the applications were dismissed. It appears that thereafter, the respondents no.1 and 2 herein preferred MCA No. 1751/13 for recalling of the order dated 12.02.2013 passed in the main Special Civil Application. The learned Single Judge, after hearing both the sides, for the reasons recorded in the order, allowed the application and restored the main Special Civil Application on file for decision on merits. It is under these circumstances, the present appeal before this Court. 4. We have heard Mr. R.D. Raval, learned counsel appearing for the appellant and Mr. Naik for respondents no.1 and 2. 5. It is an undisputed position that based on the earlier order dated 12.02.2013 passed by the learned Single Judge of this Court in SCA No. 17236/05, the respondent acted upon the order inasmuch as the applications before the Tribunal exhibit 28 and exhibit 30 were made for conversion of the application for approval into application for permission. It is also an admitted position that based on the said applications exhibit 28 and exhibit 30 preferred by the respondent no.1, the Tribunal passed the order below the applications after hearing both the sides vide order dated 02.07.2013, whereby the applications were rejected. 6. As per the learned counsel for the appellant, once the Tribunal had passed the order below exhibit 28 and exhibit 30, it was not open to the respondents no.1 and 2 herein to move the application for recalling of the order or in any case, the learned Single Judge ought not have exercised the power for recalling of the order. 7. 7. Whereas, the learned counsel for respondents no.1 and 2 herein submitted that in the earlier order dated 12.02.2013, on behalf of the workmen, concession was given and the declaration was made, but a different stand was taken before the Tribunal when the application exhibit 28 and exhibit 30 were to be heard and decided and therefore, as contrary stand was taken than taken before this Court when the order dated 12.02.2013 was passed, the respondents no. 1 and 2 had preferred application for recalling of the order and the learned Single Judge has exercised the power for recalling of the order. But the relevant aspect is that neither appellant nor the respondents no.1 and 2 have any grievance so far as the order dated 12.02.2013 passed by the Court and on the contrary, both the sides submit that there is no grievance against the order dated 12.02.2013 earlier passed by the learned Single Judge in SCA No. 17236/05. The only grievance on the part of the respondent no.1 and 2 is that the appellant took a contrary stand before the Tribunal than that was taken before this Court and therefore, recalling of the order could be made by the learned Single Judge. 8. Whereas, Mr. Raval for the appellant submitted that there was no contrary stand taken by the workmen as alleged by the respondents no. 1 and 2. 9. In our view, once the order of the learned Single Judge dated 12.02.2013 passed in the main SCA No. 17236/05 was accepted and further acted upon by the respondents no.1 and 2 and Tribunal thereafter based on the application exhibit 28 and exhibit 30 preferred by the respondent no.1, exercised the jurisdiction, it was not open to respondents no.1 and 2 to invoke the jurisdiction of the learned Single Judge for recalling of the order. It is hardly required to be stated that no litigant can approbate or reprobate at the same time while pursuing any proceeding before any court. If the respondent nos. 1 and 2 were aggrieved by the order dated 12.02.2013 passed in the main Special Civil Application, nothing prevented them from carrying the matter before the higher forum by challenging the order of the learned Single Judge. But such a course was not undertaken. If the respondent nos. 1 and 2 were aggrieved by the order dated 12.02.2013 passed in the main Special Civil Application, nothing prevented them from carrying the matter before the higher forum by challenging the order of the learned Single Judge. But such a course was not undertaken. On the contrary, acting upon the order dated 12.02.2013 as if no grievance, the respondent no.1 moved application before the Tribunal at exhibit 28 and exhibit 30. The Tribunal considered the applications exhibit 28 and exhibit 30 and passed the order. It is a different matter that the Tribunal did not accept the applications and rejected the applications. Thereafter, once the order is accepted and acted upon by any litigant, it hardly lies in the mouth of any litigant to back out and to invoke the power of recalling of the order. If such is permitted to any litigant, in our view, it would encourage any litigant to take a contrary stand and it would also result into diluting the sanctity of the order passed by this Court. If the respondents no.1 and 2 are aggrieved by the order of the Tribunal below exhibit 28 and exhibit 30, it may challenge the order, if otherwise, permissible in law by separate proceedings. Merely because respondents no.1 and 2 find that the other side had taken any contrary stand before the Tribunal or that the Tribunal did not properly consider the matter, is not a valid ground to invoke the jurisdiction for recalling of the order passed by the Court in a matter which stands concluded by its decision. 10. In view of the aforesaid, the order passed by the learned Single Judge is set aside with the observation that if the respondents no.1 and 2 are aggrieved by the order passed by the Tribunal below applications exhibit 28 and exhibit 30 and if otherwise permissible in law, the respondents no.1 and 2 may resort to appropriate proceedings and at that stage, rights and contentions of both the sides shall remain open. 11. Appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. Appeal allowed.