Anupambhai B. Patel vs Mafatlal Apparels

C.L. Soni, J.—This appeal filed under Clause 15 of the Letters Patent is directed against the order dated 19.4.2006 passed in Misc. Civil Application No. 1152 of 2006 preferred by the appellant seeking to revive the main petition as well as against the order dated 3.8.2005 passed by learned Single Judge for disposal of the main petition.

The petition was filed by the respondent-original petitioner against the order dated 12.12.1994 passed by the Labour Court declining approval to the order passed by the respondent for removal of the appellant from service.

Learned Single Judge, after recording that the advocate for the appellant had retired from the matter, made following observation in para 4 of the impugned order dated 3.8.2005:-

"4. Mr. Dave for the petitioner submitted that the unit is closed and large number of workers have accepted the settlement arrived at between the company and the Union. In that view of the matter I am of the opinion that the respondent is entitled only what is agreed in the settlement. It is therefore held that the respondent is entitled to the benefits granted in the settlement. It is clarified that the petitioner is not liable to pay any other benefits to the respondent in view of the settlement. This petition is accordingly disposed of. Rule is made absolute to the aforesaid extent with no order as to costs. Liberty to apply in case of difficulty."

The appellant-original respondent then moved Misc. Civil Application No. 1152 of 2006 seeking revival of the petition on the ground that there was no settlement and the applicant never signed any settlement and that no settlement was acceptable to the applicant. It was further stated in the application that the appellant was also not made aware that his advocate had retired.

Learned Single Judge, however, rejected such application on the ground that the order in the main petition was passed as the unit had been closed and large number of workers had accepted the settlement and the contention that the appellant had not signed the settlement was raised after a period of 11 years.

The appellant has thus challenged the above-said orders passed in the application for revival of the petition as also in the main petition.

We have heard learned advocates for the parties.

Learned advocate Mrs. Sangeeta Pahwa for the appellant submitted that the appellant was never made aware about retirement of his advocate from the proceedings of the main petition. Mrs. Pahwa submitted that the petition was disposed of just on the basis of the statement made by the learned advocate for the petitioner that the unit was closed and the settlement was arrived at between the Company and the Union. Mrs. Pahwa submitted that the settlement was not placed on record. Mrs. Pahwa submitted that the appellant had never signed any settlement nor even any settlement was made known to the appellant. Mrs. Pahwa submitted that the rights of the appellant were put to serious prejudice by accepting the bare word of learned advocate for the petitioner that there was a settlement. Mrs. Pahwa submitted that when the Labour Court did not approve the order terminating the services of the appellant, the appellant was entitled to many other rights and such rights were required to be adjudicated as against the plea of the settlement put forth on behalf of the petitioner before the learned Single Judge. Mrs. Pahwa thus urged that the learned Judge ought to have recalled the order passed in the petition and revived the petition so as to see that the settlement could be placed on record and the rights of the parties could be decided on merits.

As against the above arguments, learned advocate Mr. R.D. Dave for the petitioner submitted that when the there was a settlement between the Company and the Union, the appellant had no right to call in question the settlement. Mr. Dave submitted that the learned Judge committed no error in holding that the only right available to the appellant was in terms of the settlement. Mr. Dave submitted that after the learned advocate for the appellant retired, the appellant never bothered to appear and oppose the petition either by himself or by engaging another advocate. Mr. Dave submitted that when the settlement was acted upon for the large number of workmen, there was no question of reviving the petition at the belated stage as the same would cause lot of prejudice as regards the spirit with which the settlement was arrived at. Mr. Dave therefore, submitted that the learned Judge committed no error in refusing to revive the petition. He thus urged to dismiss the appeal.

Having heard learned advocates for the parties, it appears that though it is recorded in the order dated 3.8.2005 passed in the petition that learned advocate Mr. Shahani (deceased), who appeared for the appellant, has retired from the matter, however whether such retirement was after informing the appellant or in his presence is not found stated in the order.

The appellant in his application, being Misc. Civil Application No. 1152 of 2006, filed to revive the petition has stated that he was not made aware about such retirement of his advocate and was also not made aware about the disposal of the petition on the basis of the settlement. Be that as it may, the fact which could not be disputed by learned advocate Mr. Dave is that no copy of the settlement between the Company and the Union was placed on record of the petition when the petition was disposed of. Though learned advocate Mr. Dave stated that the copy was placed in other matters, however so far as the record of the petition is concerned, undisputed position is that no such copy was on the record of the petition. The petition was disposed of just by relying on the submission of learned advocate Mr. Dave for the petitioner that the unit was closed and large number of workers had accepted the settlement arrived at between the Company and the Union.

It is required to be noted that after recording above such submission, learned Single Judge expressed his opinion that the appellant was entitled only what is agreed in the settlement and further held that the appellant was entitled to the benefits granted in the settlement and that the petitioner was not liable to pay any other benefits to the appellant in view of the settlement. Such findings were recorded in absence of the appellant. Even if it is taken that the learned advocate for the appellant had retired in the knowledge of the appellant and that the appellant had not made any alternative arrangement, then also, learned Single Judge could not have held that the appellant was entitled only what is agreed in the settlement without having the settlement on record of the petition and without adjudication of the rights of the appellant vis-a-vis the settlement after hearing the appellant. In such view of the mater, what we find is that the learned Single Judge has exceeded in his jurisdiction by dwelling upon the rights of the appellant only on the basis of the statement of the learned advocate for the petitioner and in terms of the settlement, which was never placed before the learned Single Judge. The order passed in the main petition therefore, clearly prejudiced the rights of the appellant and in such facts situation, when the appellant had moved the application for revival of the petition, the learned Single Judge ought not to have refused revival of the petition on the ground that the appellant had raised contention that he had not signed the settlement after a period of 11 years. It is not understood, how the period of 11 years is mentioned in the impugned order dated 19.4.2006 passed in Misc. Civil Application No. 1152 of 2006. The impugned order dated 3.8.2005 passed in the petition has not recorded the date of settlement. When the petition was disposed of in the month of August 2005 and the Misc. Civil Application for revival of the petition was disposed of in April 2006, there was no question of the appellant raising the contention of not signing the settlement after a period of 11 years, especially when it is the case of the appellant that he had no knowledge about such settlement and especially when no date of settlement was ever mentioned in the order by learned Single Judge. We are therefore, of the view that impugned order dated 3.8.2005 passed in Special Civil Application No. 4288 of 1995 and the impugned order dated 19.4.2006 passed in Misc. Civil Application No. 1152 of 2006 both are required to be quashed and set aside.

The appeal is thus allowed. The impugned orders dated 3.8.2005 passed in Special Civil Application No. 4288 of 1995 and dated 19.4.2006 passed in Misc. Civil Application No. 1152 of 2006 are quashed and set aside. The petition, being Special Civil Application No. 4288 of 1995, is restored to file for hearing the same on merits. No order as to costs.

In view of the order passed in the main appeal, no orders are required to be passed on the Civil Application. The Civil Application stands disposed of accordingly.