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Gujarat High Court · body

2021 DIGILAW 868 (GUJ)

Legal Heirs Of Dipakbhai J Shukla, Alpaben Dipakbhai Shukla v. State Of Gujarat

2021-09-27

A.S.SUPEHIA

body2021
ORDER : 1. In the present group of petitions, the petitioners are seeking implementation of the recovery certificates. 2. The statement showing the details of petitioners, the recovery certificates as well as reference IT number, date of approval etc. are incorporated in the written submissions of the petitioners. 3. Learned advocate for the petitioners has submitted that the aforesaid recovery certificates are not being implemented only for the reason that Letters Patent Appeal No.1053 of 2019 challenging the order dated 12.04.2019 is pending. He has further submitted that the respondent-Company is already in default in complying with the various orders passed by this Court and hence, as per the directions issued by the Division Bench of this Court in the order dated 10.12.2019 passed in Civil Application (for vacating interim relief) No.2 of 2019 in Letters Patent Appeal No.1053 of 2019 in Special Civil Application No.2524 of 2017; the writ petitions may be taken up for hearing. He has submitted that the recovery certificates are required to be implemented as per the law even if the aforesaid LPA before the Division Bench is pending. It is submitted that the recovery certificates are issued by the Labour Court after examining the entitlement of the workmen. 4. In response to the aforesaid submissions, learned advocate Mr.Parikh appearing for the respondent-Company has submitted that the petitions may not be disposed as the Division Bench is examining the issue with regard to the validity of the approval applications, which were decided by the Labour Court. He has submitted that the decision of the Division Bench will have direct bearing on his liability with regard to the payment of the amount as stated in the recovery certificates and hence, no orders may be passed in the present petitions. He has referred to the various orders passed by the Coordinate Benches of this Court with regard to the depositing of the amount mentioned in the recovery certificates. He has also referred to the order passed by the Coordinate Bench passed on 05.07.2021 and has stated that the same is complied with. Finally,it is submitted that by the learned advocate Mr.Parikh that the said Letters Patent Appeal was finally taken up for hearing and adjourned was to 30.06.202, however, thereafter, it has not been listed. 5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. Finally,it is submitted that by the learned advocate Mr.Parikh that the said Letters Patent Appeal was finally taken up for hearing and adjourned was to 30.06.202, however, thereafter, it has not been listed. 5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. Before the matter is decided, it would be apposite to refer to the orders passed by the Division Bench of this Court as well as Coordinate Bench of this Court. It appears that the respondent-Company filed Special Civil Application No.2524 of 2017 before this Court challenging the decision of rejecting the approval application filed by the respondent-Company seeking approval for the action of termination of the respondent-workmen. All the aforesaid approval applications were decided in 2011 by the Industrial Tribunal rejecting the approval applications of the respondent-Company. Thereafter, the respondent-Workmen filed recovery certificates seeking their legal dues under the provisions of section 33C(2) of the Industrial Disputes Act, 1947 (I.D. Act). All these recovery certificates were filed in the year 2013 and accordingly, the Tribunal passed various orders in the year 2014. Thereafter, since nothing were paid and the orders were not implemented, the respondent-Workmen were constrained to file proceedings for issuance of the recovery certificates under the provisions of section 33C(1) of the I.D. Act in the year 2015 and accordingly, recovery certificates have been issued in the year 2016 fixing the payment of the amounts. Since the aforesaid recovery certificates are not implemented, the petitioners are constrained to file captioned writ petitions seeking implementation of the recovery certificates. During the intervening period, the respondent-Company filed Special Civil Application No.2524 of 2017 with allied matters after delay of five years challenging the original orders passed rejecting their approval applications. Thus, the approval applications which are rejected in the year 2011 are challenged before this Court in the year 2017. Be that as it may, since the aforesaid orders are under scrutiny before the Division Bench, this Court refrains itself from observing anything further. 7. Vide common judgment and order dated 12.04.2019, while deciding Special Civil Application Nos.2524 of 2017 and 2780 of 2017, the Coordinate Bench rejected the writ petitions filed by the respondent-Company. Be that as it may, since the aforesaid orders are under scrutiny before the Division Bench, this Court refrains itself from observing anything further. 7. Vide common judgment and order dated 12.04.2019, while deciding Special Civil Application Nos.2524 of 2017 and 2780 of 2017, the Coordinate Bench rejected the writ petitions filed by the respondent-Company. From the order dated 12.04.2019, it appears that during pendency of these group of petitions, negotiations were held for settlement and pursuant to which a sum of Rs.47,49,961/- was deposited but, however, subsequently when the workmen had taken objection to the settlement, the aforesaid amount of Rs.47,49,961/- was ordered to be refunded to the respondent-Company. The aforesaid order is challenged by the respondent-Company by filing Letters Patent Appeal No.1053 of 2019. In the Civil Application (for stay) No.1 of 2019 in Letters Patent Appeal No.1053 of 2019 while issuing notice on 12.06.2019, the Division Bench granted interim relief in terms of paragraph No.7(B) till the next date of hearing. It appears that thereafter, Civil Application (for vacating interim relief) No.2 of 2019 was filed by the legal heirs of the respondent- Workmen. By the order dated 10.12.2019, the Division Bench while hearing Civil Application (for vacating interim relief) filed by the legal heirs of the respondent-Workmen passed the following order: “Considering the facts and circumstances of the case, we are of the considered view that interim order dated 12.06.2019 cannot prohibit or restrain the learned Single Judge from proceedings to hear Special Civil Applications filed by the workmen fro execution of the recovery certificate. Accordingly, the interim order dated 12.06.2019 is vacated.” 7.1 Thus, the Division Bench, while vacating the interim order has specifically observed that the interim relief dated 12.06.2019 granted by it cannot prohibit or restrain the learned Single Judge from proceedings to hear SCAs filed by the workmen for execution of the recovery certificates. The Letters Patent Appeal No.1053 of 2019 is still pending before the Division Bench. 8. It would be apposite to refer to the orders passed by the Coordinate Bench during pendency of the aforesaid writ petitions filed by the respondent-Workmen. The first order dated 27.01.2020 passed in Civil Application (for stay) No.1 of 2019 in the captioned Special Civil Application No.1072 of 2017 by the Coordinate Bench is as under; “2. 8. It would be apposite to refer to the orders passed by the Coordinate Bench during pendency of the aforesaid writ petitions filed by the respondent-Workmen. The first order dated 27.01.2020 passed in Civil Application (for stay) No.1 of 2019 in the captioned Special Civil Application No.1072 of 2017 by the Coordinate Bench is as under; “2. Firstly, the amount, which is to be paid to the original petitioner and other similarly situated persons is Rs.91,48,243/- and, therefore, the direction contained in the order of this Court dated 27.12.2019 to deposit 7 installments of Rs.15,00,000/- each, is an error. 3. Bearing in mind that the total amount to be paid is Rs.91,48,243/-, it is clarified that the present applicant-original respondent No.2 shall deposit 6 (six) installments of Rs.15,00,000/- each. 4. So far as the second aspect, whereby, this Court has provided that, if, the appeals are not proceeded with for the fault on the part of the applicant-original respondent No.2, the original petitioners shall be at liberty to make a request for disbursement is concerned, said condition, itself, is self-explanatory, since, the question of disbursement would arise, only if, the applicant-original respondent No.2 commits default. Hence, the said condition remains UNALTERED. 9. Thus, the respondent-Company was directed to deposit an amount of Rs.91,48,243/- before this Court in equal installments, each of Rs.15,00,000/-. It appears that thereafter, pursuant to the aforesaid order, two installments were deposited by the respondent-Company and thereafter, the Misc. Civil Application No.1 of 2020 was filed by the respondent-Company seeking deletion of such condition. By an order dated 09.03.2020, the Coordinate Bench declined to accept the proposal of the respondent- Company and all the applications were dismissed. The Coordinate Bench extended the time for depositing the aforesaid amount till 23.03.2020. The respondent-Company challenged the aforesaid order before the Division Bench of this Court and the Division Bench by the order dated 20.03.2020 passed in Letters Patent Appeal No.258 of 2020 and allied matters rejected the Letters Patent Appeal on the ground of maintainability. 9.1. After the respondent-Company was unsuccessful in obtaining any order against the depositing of the amount, the captioned writ petitions were listed for taken up for final disposal. On 22.01.2021, the Coordinate Bench passed the following order: “Heard learned advocate Mr. D. G. Shukla for the petitioner and learned advocate Mr. Rasesh H. Parikh for the respondent through video conference. 9.1. After the respondent-Company was unsuccessful in obtaining any order against the depositing of the amount, the captioned writ petitions were listed for taken up for final disposal. On 22.01.2021, the Coordinate Bench passed the following order: “Heard learned advocate Mr. D. G. Shukla for the petitioner and learned advocate Mr. Rasesh H. Parikh for the respondent through video conference. Both the learned advocates agrees to the fact that if the matter is listed on 03.02.2021 considering the short issue involved in the matter, it can be taken up for final disposal and entire issue can be put to an end. Considering the joint request, S.O. to 03.02.2021.” 9.2 Thus, it was agreed upon by the both the learned advocates for the respective parties for taking up final disposal of the matter. On 03.02.2021, when the matter was taken up, the Coordinate Bench has recorded the concession of the learned advocates appearing for the respective parties. On 18.06.2021, the learned advocate Mr.Parikh has submitted that the respondent-Company is ready to deposit an amount of Rs.10,00,000/- every month in the first week of calendar month, as per the affidavits filed by the Managing Director. Accordingly, it is not in dispute that the respondent-Company has deposited an amount of Rs.30,00,000/- before the Registry of this Court and the same is recorded by the Coordinate Bench vide order dated 05.07.2021. 10. Today, when the matter is taken up for hearing, learned advocate Mr.Parikh has submitted that the respondent-Company is ready and willing to deposit the amount as directed by this Court however, the matter may not be heard. In view of the order passed by the Division Bench on 10.12.2019 as well as the order dated 22.01.2021 passed by the Coordinate Bench, when this Court is inclined to finally taken up the matter, an objection is raised by the learned advocate Mr.Parikh not to proceed with the matter in view of the pendency of the aforesaid Letters Patent Appeal No.1053 of 2019. 10.1 The aforesaid submission/objection raised by learned advocate Mr.Parikh is rejected in view of the aforenoted orders passed by the Division Bench as well as the Coordinate Bench. The learned Advocate Mr.Parikh cannot take a volte face now, when he had agreed for final disposal of the matter. 11. 10.1 The aforesaid submission/objection raised by learned advocate Mr.Parikh is rejected in view of the aforenoted orders passed by the Division Bench as well as the Coordinate Bench. The learned Advocate Mr.Parikh cannot take a volte face now, when he had agreed for final disposal of the matter. 11. The Division Bench in the order dated 10.12.2019, while vacating the interim relief in Letters Patent Appeal has observed that the learned Single Judge can further proceed to hear Special Civil Applications filed by the workmen. Thus, this Court in light of the aforesaid observations and aforementioned orders has taken up the matter for final hearing and final disposal. The aforesaid recovery certificates fixing liability of the respondent-Company are not in dispute. It is also not in dispute that the payment of amount of Rs.44,99,991/- is also received by the respondent workmen. 12. Learned Assistant Government Pleader has submitted that an amount of Rs.91,48,243 as well as surcharge @ 5% of the said amount is Rs.7,32,873/- i.e. total approximately amount of Rs.98,81,116/- is required to be recovered from the respondent-Company. 13. In these circumstances and in light of the aforesaid observations, the respondent-State is directed to undertake necessary proceedings for implementation of the recovery certificates. The amount, which is deposited before this Court i.e. Rs. 60,00,000/- with accrued interest if any, shall be remitted to the concerned Collector after due verification. The Collector after receipt of the said amount shall individually settle the total amount of the concerned employee and accordingly, pay the same to him or her. For the remaining amount, which is yet to be recovered, appropriate proceedings shall be undertaken by the Collector for implementing the recovery certificates. The entire exercise shall be completed within a period of three (03) months from the date of receipt of the writ of this order. It is clarified that the implementation of the recovery certificates and the payment of the amount specified therein shall be subject to the result of the Letters Patent Appeal No.1053 of 2019. 14. At this stage, learned advocate Mr.Parikh requests for stay on the proceedings of the present order for the reason that the same will incur huge financial liability and it would be difficult to pay the aforesaid amount immediately. 14.1 In order to see that the rights of the either parties are not jeopardized, the order is stayed for a period of 10 days. 14.1 In order to see that the rights of the either parties are not jeopardized, the order is stayed for a period of 10 days. 15. The matters stand disposed of. Rule made absolute to the aforesaid extent. Direct service is permitted. Registry shall place a copy of this order in each of the connected matters.