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Judgment
R.M. Chhaya, J.—The present appeal is directed against common order passed by learned Single Judge dated 25.08.2010 whereby Special Civil Application No. 6992 of 2008, filed by the Respondent herein was partly allowed, and Special Civil Application No. 2563 of 2008, filed by the Appellant herein was dismissed. The Appellant also seeks to challenge order dated 29.11.2010 passed by learned Single Judge of this Court in Misc. Civil Application No. 2482 of 2010 in Special Civil Application No. 6992 of 2008 filed by the Appellant herein for reviewing/recalling the aforesaid common order dated 25.08.2010 passed in the aforesaid writ petitions.
The facts arising out of this appeal can be summarized that: the Appellant had submitted an application before the District Employment Office for recruitment of conductor with the Respondent-Corporation. Pursuant to the said application, the Appellant was called for interview on 02.10.1981 vide call letter dated 17.09.1981. That the Appellant was selected as conductor on 07.10.1981.
It further transpires that the Appellant was issued a memo for the incident of alleged misconduct on 25.11.1986 and ultimately, after inquiry, the Appellant was dismissed from service w.e.f. 22.07.1987.
The order of dismissal was challenged by the Appellant by raising an industrial dispute and the same was referred to by Assistant Commissioner of Labour Court, Porbandar vide letter dated 28.09.1987 to Labour Court, Rajkot, which was dismissed by Labour Court, Rajkot vide order dated 13.10.1995. Against the said order, the Appellant herein preferred a writ petition being Special Civil Application No. 928 of 1996 before this Court, which was allowed vide order dated 23.04.1996 and the matter was remanded back for its fresh adjudication on merits. Thereafter, because of change of jurisdiction the said reference was transferred to Labour Court, Junagadh and was registered as Reference Case No. 995 of 1990. The Labour Court framed an issue to the effect that whether the workman was entitled to reinstatement on his original post with back wages and after hearing the parties and after appreciating the evidence adduced by both the parties, vide judgment and award dated 08.01.2008 passed the following order:
Reference is partly allowed. The first party is directed to pay the workman Rs. 50,000/- (Rupees Fifty Thousand only) in lieu of reinstatement within 30 days from the date of publication of this order. No order as to costs.
Being aggrieved by the aforesaid judgment and award, the Appellant had filed Special Civil Application No. 2563 of 2008 and prayed for appropriate writ, order or directions quashing and setting aside the said judgment and award passed by Labour Court, Junagadh dated 08.01.2008 and also prayed for reinstatement with back wages. Similarly, the Respondent-Corporation also challenged the aforesaid judgment and award by way of filing Special Civil Application No. 6992 of 2008 and both the aforesaid writ petitions were heard together.
From the record it transpires that the writ petitions were firstly fixed for hearing on 09.08.2010 and on the said day the Appellant herein appeared in person and sought time for filing written argument and the matter was kept for further hearing on 25.08.2010. However, as the Appellant was not present on the said day, learned Single Judge was pleased to partly allow the writ petition filed by the Respondent-Corporation, being Special Civil Application No. 6992 of 2008 and was pleased to reduce the amount of compensation of Rs. 25,000/- instead of Rs. 50,000/- and by the said common order dismissed Special Civil Application No. 2563 of 2008 filed by the present Appellant.
Being aggrieved by the said common order dated 25.08.2010, the Appellant herein filed Misc. Civil Application No. 2482 of 2010 for reviewing and/or recalling the said order, which also came to be dismissed vide order dated 29.11.2010.
Being aggrieved by both the aforesaid orders dated 25.08.2010 as well as 29.11.2010, the Appellant, party-in-person, has filed the present appeal. The Appellant appears in person today and has submitted written argument along with plethora of documents.
The main ground raised by the present Appellant is that he has not been afforded an opportunity of being heard and as such an ex-parte decision has been taken by the learned Single Judge by partly allowing the aforesaid writ petition of the Respondent-Corporation and dismissing the writ petition of the Appellant.
An affidavit-in-reply dated 29.04.2011 is filed by the Respondent-Corporation in this appeal and has mainly contended that as per the common order of this Court dated 25.08.2010, the Respondent-Corporation had sent an amount of Rs. 25,000/- by way of a cheque to the present Appellant. However, the same was refused by the Appellant and has also submitted that the Respondent-Corporation is ready and willing to hand over the said cheque to the Appellant and the said fact is also placed on record by producing photocopy of the cheque as well as photocopy of the envelope which shows that the Appellant has refused to accept the said envelope from the postal authority.
Heard the party-in-person as well as Mr. H.S. Munshaw, learned advocate for the Respondent-Corporation.
Over and above the contention raised in the written argument, the party-in-person invited attention of this Court to the entry pass dated 25.08.2010 issued by the Gate Clerk of the Security Department of this Court and submitted that in fact the Appellant, who stays at a distance of more than 400 Kms. at Porbandar, did come to the court on 25.08.2010, the date on which the writ petition of the Appellant was dismissed ex-parte, but because of circumstances beyond his control, he could not reach in time and by the time he reached the premises of this Court the Hon'ble Court had passed the order in the writ petitions as aforesaid. He therefore mainly urged that the Appellant should be given an opportunity of being heard and, therefore, prayed that this Court may be pleased to allow the present appeal and remand the matters to the learned Single Judge for fresh adjudication on merits. He further submitted that while passing the common impugned order dated 25.08.2010, so far as the writ petition filed by the present Appellant is concerned, no reasons were assigned, neither any submissions seem to have been made by the Respondent-Corporation as regards the writ petition filed by the Appellant and, therefore, on that count also, the order of dismissal of the writ petition of the Appellant, being Special Civil Application No. 2563 of 2008, is without assigning any reasons. He, therefore, prayed that the appeal be allowed.
As against this Mr. Munshaw submitted that the order passed by the learned Single Judge dated 25.08.2010 is legal and proper and after taking into consideration the fact that the compensation awarded in lieu of reinstatement should not exceed 14 month's salary and, therefore, the learned Single Judge was right in reducing Rs. 50,000/- to Rs. 25,000/-. He further submitted that even the Labour Court, after considering the age of the the present Appellant, more particularly considering the fact that if the Appellant is reinstated he would have hardly six years of service has rightly not granted reinstatement. He, therefore, submitted that the order of awarding Rs. 25,000/- as compensation in lieu of reinstatement is legal and proper and, therefore, prayed that the appeal is devoid of any merits and deserves to be dismissed.
On perusal of the record we do find that the Appellant, party-in-person, is staying at a distance of about 400 Kms. at Porbandar, did come to this Court on the date of hearing i.e. 25.08.2010. However, as stated by him, he could reach the court only after the common order, impugned in the present appeal, dated 25.08.2010 was passed by this Court. We also find that so far as dismissal of Special Civil Application No. 2563 of 2008 filed by the present Appellant is concerned, no reasons are assigned by the learned Single Judge.
Considering the peculiar facts and circumstances of the case as narrated aforesaid, we are of the opinion that the interest of justice would be served if the Appellant is granted one more opportunity by quashing and setting aside the impugned order dated 25.08.2010 passed by learned Single Judge in Special Civil Application No. 6992 of 2008 with Special Civil Application No. 2563 of 2008 as well as order dated 29.11.2010 in Misc. Civil Application No. 2482 of 2010 in Special Civil Application No. 6992 of 2008 filed by the Appellant herein for reviewing/recalling common order dated 25.08.2010 passed in the aforesaid writ petitions and remanding both the writ petitions to the learned Single Judge for fresh adjudication on merits.
In view of the above, we allow this appeal and quash and set aside the impugned common order dated 25.08.2010 passed by learned Single Judge in Special Civil Application No. 6992 of 2008 with Special Civil Application No. 2563 of 2008 as well as order dated 29.11.2010 in Misc. Civil Application No. 2482 of 2010 and restore both the writ petitions to its file.
Considering the fact that the Appellant is to attained age of superannuation within a year or so, Registry is directed to place both the writ petitions for final hearing on an early date. We, however, make it clear that we have not expressed any opinion on merits of the case and the impugned orders are quashed only on the ground that the Appellant, party-in-person, did not get an opportunity to present his case on merits.
The appeal is allowed to the aforesaid extent. There shall be no order as to costs.