AHMEDBAD MUNICIPAL CORPORATION Vs. RASHIDMIYA MAHAMADMIYAN

JUDGEMENT

(1.) The present petition has been filed by the petitioner under Articles 14, 226 and 227 of the Constitution of India against the order dated 29.04.2011 passed by the Industrial Tribunal, Ahmedabad (hereinafter be referred to as the "Tribunal") in Misc. Application (I.T.) No.18 of 2010 in Approval Application (I.T.) No.508 of 2003 in Reference (I.T.) No.137 of 2001 whereby the Tribunal has allowed Misc. Application (I.T.) No.18 of 2010 preferred by the respondent and ordered to rehear Application (I.T.) No.508 of 2003 on merits .

(2.) The main contention of the petitioner herein is that the respondent was appointed as Acting Driver and he has unauthorizedly absent continuously and, therefore, after departmental inquiry, he was dismissed from the service w.e.f. 02.12.2003. It is contended by the petitioner that at that time, Reference (I.T.) No.137 of 2001 was pending before the Industrial Tribunal and, therefore, the petitioner has filed Approval Application (I.T.) No.508 of 2003 on 02.12.2003, which came to be allowed on 07.09.2005. It is further contended that thereafter, the respondent has filed Misc. Application with an application for condonation of delay on 03.09.2009 which came to be allowed vide order dated 03.09.2010. Being aggrieved with the said order, the petitioner herein has preferred Special Civil Application No.15724 of 2010 before this Court, which was finally disposed of on 03.02.2011 with direction to the Tribunal to proceed with the Approval Application for restoration with conditions that the respondent would not claim any monetary benefit for the intervening period. It is also contended that thereafter, the Tribunal heard the parties and on 29.04.2011 quashed and set aside its earlier order dated 07.09.2005 and ordered to rehear Approval Application (I.T.) No.508 of 2003 on merits. This order has been challenged by way of present petition by the petitioner herein on the grounds that earlier, the Tribunal allowed the Approval Application, as the respondent herein did not appear for long time and there was almost huge gap and delay in filing the said application. Now, the Tribunal has allowed the same and doing so, the Tribunal has committed error of facts and law in passing the order of rehearing of the Approval Application. It is contended that when the respondent was absent right from 04.01.2002 and never bothered to enter into any correspondence with the management of the employer, then, the Tribunal ought not to have interfered with the impugned order of granting application for approval and to order to rehear the Approval Application No.508 of 2003 which was earlier accepted by it. That conduct of the respondent ought to have been taken into consideration. It is contended that the Approval Application has been filed on 02.12.2003 and there was no right accrued to the respondent as at any stage during the hearing and passing of order of allowing the said application, more particularly, when the respondent was served with the notice issued by the Tribunal, he did not take part in the proceedings. On all these grounds, it is prayed to quash and set aside the order dated 29.04.2011 passed by the Tribunal in Misc. Application (I.T.) No.18 of 2010 in Approval Application (I.T.) No.508 of 2003 in Reference (I.T.) No.137 of 2001. It is prayed to allow the present petition.

(3.) Heard Mr. H. S. Munshaw, learned advocate for the petitioner and Mr. Yogen Pandya, learned advocate for the respondent, at length, through video conferencing.