S.G. Shah, J.@mdashPursuant to order dated 3-4-2014 it has been agreed by both the sides to decide Civil Application Nos. 98 of 2011 and 846 of 2011 together at first instance before proceeding further with the matter. Therefore, at present only these two applications are decided and disposed of on their own merits irrespective of factual details and real dispute between the parties in the main matter; however, considering their status and issues raised therein. Though both such applications are unique in their nature, they require consideration pursuant to submissions by the respondent No. 1 in main matter and though we do not need to deal with main issue at this stage, at least basic facts need to be recollected here.
2. The main Special Civil Application No. 11186 of 2010 is filed by Gujarat State Fertilizers & Chemicals Limited (G.S.F.C.L.) as petitioner No. 1 with petitioner No. 2 as Shri V.B. Shah, whose identity and details are disclosed as "one of the share-holders in the petitioner No. 1-Company, having his address at C/o. Gujarat State Fertilizers & Chemicals Ltd., P.O. Fertilizer Nagar, District Vadodara". Such petition is preferred against two respondents viz. Vinayakrao Shantilal Desai, in whose favour impugned award was passed by the Industrial Tribunal confirming several service benefits, as respondent No. 1 and Industrial Tribunal, Vadodara as respondent No. 2. Undoubtedly there is no dispute by both the sides i.e. it is an industrial dispute between respondent No. 1 V.S. Desai and petitioner No. 1 G.S.F.C.L. In other words, petitioner No. 2 herein namely V.B. Shah was not a party before the Industrial Tribunal, in the impugned judgment. Such judgment is dated 23-6-2010 in Reference (I.T.) No. 165 of 1994, and as aforesaid, it is confirming several service benefits in favour of respondent No. 1 Mr. V.S. Desai. The main petition was filed on 31-8-2010 and till now the same is not admitted though listed on several occasions before several Courts and there are several orders after hearing both the sides on different issues. However, the fact remains that matter is yet to be heard on its own merits, both for admission and for final determination.
3. Meanwhile, respondent No. 1 who appears as party-in-person and who is an Advocate has also filed Civil Application No. 13646 of 2010 praying decision on several preliminary objections by him against the main petition. In such application though submissions of parties were heard as back as on 28-6-2011, for want of compilation of authorities, no final decision is taken by the concerned Court at the relevant time.
4. It may be recollected here that one another Civil Application No. 13644 of 2010 was also filed by the respondent No. 1 seeking to join State of Gujarat as opponent in the main petition. However, such application was dismissed by reasoned order dated 6-12-2010.
5. At present, we are concerned with Civil Application No. 98 of 2011 which is filed by original respondent No. 1, for deleting respondent No. 2 in such application being Mr. V.B. Shah who is original petitioner No. 2 in main petition.
5.1. Whereas Civil Application No. 846 of 2011 which is required to be decided along with Civil Application No. 98 of 2011 as recorded in the beginning of this order, is filed by the original petitioners to hold and declare that impleading original petitioner No. 2 and respondent No. 2 in this Civil Application is neither violative of any of the provisions of the Constitution of India nor any of the provisions of Gujarat High Court Rules, 1993 nor any other provisions of any other law.
6. Whereas Civil Application No. 11432 of 2011 is regarding listing of the matter wherein Hon''ble the Acting Chief Justice has passed some orders below office note, and therefore, it is not required to be dealt with at present.
7. One another Civil Application No. 12688 of 2011 is filed by original petitioners seeking stay against further proceedings of Reference (I.T.) No. 165 of 1994. However, considering the fact that by Civil Application No. 98 of 2011 original respondent No. 1 has raised preliminary objection regarding nature of the main petition in its present form, when that application, with connected Application No. 846 of 2011 is taken up first, there is no need to enter into factual dispute so far as main petition and other such pending Civil Applications are concerned.
8. It is undisputed fact that original petitioner No. 1 is an employer and original respondent No. 1 is employee. It is also undisputed fact that there is an industrial dispute between them which was referred to Industrial Tribunal and primary or part of award regarding status of the employee is in favour of the employee. It is undisputed fact that employer has challenged all such part award pending final decision in such Reference (I.T.) No. 165 of 1994 (which is pending for adjudication for more than 20 years), by joining one V.B. Shah as co-petitioner disclosing him as one of the share-holders of the company, though he was not a party in impugned judgment and award before the Industrial Tribunal. For joining him as such, what is averred in the petition is only in following terms in Para 1 of the main petition:
"1. The petitioner No. 1 is a company incorporated and registered under the Companies Act, 1956 and is inter alia engaged in manufacturing various fertilizers and chemicals and has one of its factories at the address shown in the cause title. The petitioner No. 2 is a share-holder of the petitioner-Company and also an officer in the Company and is, therefore, vitally interested in the conduct of its business and affairs as well as in the outcome of the present petition. The petitioner No. 2 is also a national and citizen of Indian and is, therefore, entitled to the fundamental rights guaranteed under Part-III of the Constitution of India."
8.1. Except disclosure as above, there is nothing in the petition to disclose anything about petitioner No. 2 and petitioner No. 2 has not signed an affidavit, baring his signature in the V.P. which is filed in the main petition with the petitioner No. 1. There is no reason and cause shown that how and why he is entitled to challenge the order which is nowhere touching him personally, in any manner. It is also undisputed fact that by impugned judgment of the Industrial Tribunal, there is confirmation of status of the respondent No. 1, so far as his post is concerned, as ''Research Assistant'' instead of ''Research Assistant Trainee''. Thereby it affects the service conditions and financial benefits of respondent No. 1 and it would nowhere connect or affect the rights of the petitioner No. 2 in any manner whatsoever. Even if he is one of the share-holders, it is nowhere disclosed that how many shares he holds and thereby what financial disadvantage would be resulted to him, if position of respondent No. 1 is confirmed as ''Research Assistant'' as against ''Research Assistant Trainee''. Surprisingly, it is stated that he is one of the officers of the Company and also because he is Indian national citizen, he has fundamental right. However, none of the specific fundamental right has been claimed to be infringed in any manner whatsoever.
9. In addition to absence of disclosure of rights of such petitioner No. 2 to challenge the impugned judgment as such, the respondent No. 1 has, in Civil Application No. 98 of 2011 specifically averred that respondent No. 2 (petitioner No. 2 in main petition) though being a citizen of India and share-holder of petitioner No. 1-Company and also its officer in his personal capacity as:
(i) not an employer in relation to the industry;
(ii) not a party to the industrial dispute;
(iii) not a party to the record of the proceedings in the reference;
(iv) not a party on the record thereof;
(v) not conferred statutory right against the applicant and the opponent No. 3 under the I.D. Act, 1947;
(vi) not aggrieved by breach thereof, thereunder or otherwise; and
(vii) not entitled either against the present applicant and the opponent No. 3, to any fundamental right, much less aggrieved of a breach thereof, far less entitled to a protection thereagainst from the case being the Reference (I.T.) No. 165 of 1994; purportedly under Arts. 14 , 19(1)(g) and 226 of the Constitution of India or otherwise in the petition herein.
9.1. It is also contended that since original petitioner No. 2 is not a party to the proceedings before the Industrial Tribunal under the Industrial Disputes Act, he is disentitled to invoke Art. 226 of the Constitution of India.
10. Similar objections are raised so far as original respondent No. 2 i.e. Industrial Tribunal is concerned. But, at present I am restricting the objections so far as original petitioner No. 2 is concerned. Therefore, it is contended by respondent that original petitioner No. 2 is neither necessary party nor a proper party in the main petition, and therefore, his joinder as such is a case of misjoinder and thereby he is unnecessarily, improperly and wrongly joined in the petition. For taking such objections, he is relying upon sub-rule (ii) of Rule 51 of the Gujarat High Court Rules 1993. Entire Rule 51 of the High Court Rules reads as under:
"Rule 51. Parties in Appeals and Applications:
(i) All parties to the proceedings from which the appeal or application arises shall ordinarily be made parties to the appeal or application. If any such party is not made a party to the appeal or application, an explanation in this regard shall be made in a foot-note below the memorandum of appeal or application.
(ii) If any person who is not a party on the record of the proceedings in the Lower Court, is made a party to an appeal or application against any decree or order in such proceedings, the appeal or application shall be accompanied by a regular stamped application supported by affidavit for making such person a party to the appeal or application.
(iii) The provision of sub-rule (ii) above, shall apply where the legal representatives of any party who has died pending the presentation of the appeal or application were not brought on the record of the proceedings in the Lower Court but are made parties to the appeal or application."
11. Therefore, original respondent No. 1 prays to direct deletion of the original petitioner No. 2 as well as original respondent No. 2 from the main petition.
12. It is matter of record that no affidavit-in-reply is filed by the opponent being original petitioner No. 2 to the present application though learned Advocate for the petitioners has accepted the copy of such application in the month of December 2010. However, they have filed written submissions at the time of final arguments.
12.1. But most surprising is Civil Application No. 846 of 2011 preferred by the original petitioners in the month of January 2011 i.e. after accepting the copy of Civil Application No. 98 of 2011. In such Civil Application petitioners have contended that application is filed under Art. 226 of the Constitution of India read with the Gujarat High Court Rules, 1993, whereby a person aggrieved may approach this Court for enforcement of the fundamental right conferred by Part III of the Constitution of India and prayed to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari against any of the person or authority including any Government or a person on arising of any cause of action, may approach this High Court under Art. 226 of the Constitution of India.
13. Now first time they came with the case that the petitioner No. 2 in his capacity as share-holder would by any adverse decision against petitioner No. 1 be aggrieved by the order of the Industrial Tribunal and he being a citizen of India, is entitled to the fundamental rights conferred by Part III of the Constitution of India including Art. 19(1)(g) of the Constitution of India. Surprisingly, petitioner has failed to realize that provisions of Art. 19(1)(g) which is not attracted at all in present situation. It reads as under:
"19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions; or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) xxx xxx xxx xxx
(g) to practise any profession, or to carry on any occupation, trade or business."
13.1. It is thus submitted that writ petition at the instance of petitioner No. 2 is also maintainable and in support of such submissions they have quoted sub-rule (iii) of sub-rule (1) of Rule 180 of the Gujarat High Court Rules 1993, which is as under:
"180(1)(iii). Where the members of any Tribunal against whose decision or order the application is made are made party-respondents to the application as such, only one typed copy of the application with the prescribed annexures may be supplied for service on the said members of the Tribunal collectively, and service of a copy on the Registrar of the Tribunal if he is appointed, or any one of them shall be deemed to be service on all."
14. I have perused such rule and failed to understand that how this rule attracts original petitioner to join any third party as a party in any such proceedings when such rule deals with the manner of services upon any Tribunal, member of which is made party-respondent to any such application. In short, such sub-rule deals with the manner of services upon such Tribunal, and therefore, it does not confer any right in favour of petitioner No. 2.
14.1. The original petitioner has gone further in submitting that Art. 226 of the Constitution of India has given a right to any aggrieved person to invoke jurisdiction and there is no prohibition under such Art. against any person from invoking the same by any person who is not a party to the proceedings before any Court or any quasi-judicial authority and thereby submitted that even if a person is not a party to the proceedings before an authority, writ petition is maintainable on his behalf. Therefore, it is contended that since both the original petitioners are affected by impugned judgment they have filed a petition jointly, instead of filing two separate petitions at the behest of each of them, which may result into multiplicity of proceedings.
14.2. Original petitioners have further contended that Chapter XVII of the High Court Rules does not prohibit the filing of petition by such person and Rule 188 permits to file an application by such person who joins him as a petitioner, and therefore, it is contended that they have already incorporated the Rule 51(ii) read with Rule 188 of High Court Rules, in the Civil Application and since provisions of such rules specify the requirement of additional stamping for which they are ready and willing to pay additional fees by providing requisite stamp.
14.3. Therefore, prima facie there is an admission on the part of the original petitioners that they had failed to follow the provisions of Rule 51(ii) of Rules by filing stamp application to join petitioner No. 2 as such and now they are ready and willing to pay additional stamp. Therefore, without prejudice to their rights and contentions they have filed such Civil Application with a prayer to seek declaration that impleading of original petitioner No. 2 and respondent No. 2 is in accordance with law.
15. Such application is resisted by original respondent No. 1 by filing a detailed reply, contents of which is not required to be reproduced, for the simple reason that it shall be taken care of while determining the main petitions.
16. I have heard learned Advocate Mr. Krunal Naik appearing for M/s. Trivedi and Gupta Associates for original respondent No. 1 and Mr. V.S. Desai as party-in-person at length. Both of them have vehemently submitted their views and original petitioner-Company has also submitted their written submissions with list of citations. However, before dealing with the submissions by both the sides, it is also necessary to recollect here that considering the above position, wherein it is undisputed and admitted position that though petitioner No. 1 Company has filed main petition together with petitioner No. 2 as a joint petitioner without following Rule of law and procedure as prescribed under the Rules, inasmuch as by not filing a stamp application to allow the petitioner No. 2 to join as such in the main petition, more particularly when original petitioners have admitted such petition and come forward with Civil Application No. 846 of 2011 and disclosed that they are ready to pay the duty of stamp and sought an order of the Court to regularize the joining of petitioner No. 2 as such, this Court by an order dated 10-3-2015 called upon the report of the Registry that how and why Registry has registered main petition as such and why office has not objected in the form of office objections though petition cannot be registered in the name of petitioner No. 2. Pursuant to such directions, Registry has forwarded its report, which is signed by concerned Deputy Sec. Officer, Sec. Officer, Assistant Registrar, Deputy Registrar and finally endorsed by Registrar (Judicial) being Judicial Officer confirming that objection No. 13 regarding whether names of the parties was not raised through oversight and contended that it was bona fide mistake on the part of the Registry. It is further contended that in such report dated 18-3-2015 the petitioner No. 2 V.B. Shah is required to be deleted; who was not a party before the Labour Court, Vadodara, making it further clear that if at all petitioner No. 2 wants to join as party in the petition, he has to file separate regular stamp application supported by affidavit as laid down under Rule 51(ii) of the Rules.
17. In background of the aforesaid factual details, now if we consider the rival submissions, one thing is crystal clear that Rule 51(ii) of the Rules specifically provides that if any person, who is not a party on record of the proceedings in the lower Court, is to be made a party to an appeal or an application against any decree or order in such proceedings, the appeal or application shall be supported by an application with affidavit for making such person a party to the appeal or application.
18. Thereby irrespective of any of the aspects of the matter, it is crystal clear that joining of the original petitioner No. 2 as such is not permissible under Rule 51(ii) of the Rules and it is admitted position that such provision has not been followed. Therefore, practically original petitioners are seeking to hold that now once petitioner No. 2 is joined as such it is not violative of provisions of Constitution of India, but they also admit that it is by mistake, and therefore, they came forward to pay the additional cost in the form of stamp. The fact remains that value of stamp is not material and the fact also remains that the law and rule is to be followed in its proper perspective and strictly, and nobody is allowed to take short-cuts for their lacuna or negligence or any other drawback or default in approaching the law, though it is well settled that ultimately Court has to do justice to resolve the dispute between the parties, but at the same time Courts are bound to follow rule and law and cannot travel beyond the scope of law and rules for extending any relief in favour of any litigant whoever and whatsoever they may be. In simple words, neither citizens nor the company neither authority can get relief without following due process of law. If such practice is permissible, then it would result into chaos in judicial administration, inasmuch as, every authority may pass any order against any person irrespective of his presence before the law of Court and it may result into absence of extending reasonable opportunity either to such person to represent his case or to his rival to safeguard his interest.
19. Since, original petitioners are relying upon several decisions; before entering into the factual details it would be appropriate to discuss such decisions, so as to decide that whether they are touching the issue and thereby helpful to present petitioners or not; since, this is simple but unique position where a well settled company has probably failed to follow law and then seeks direction from the Court of realizing their mistake or lacuna or negligence whatever it may be. Original petitioners are relying upon following decisions:
(1)
(2)
However, if we look into the entire judgment, on the contrary we failed to understand that how such judgment would help the employer. As per this judgment joining of petitioner No. 2 is necessary, inasmuch as, the first petitioner being limited company and since relief claimed can only be available to the citizen of India which limited company is not, therefore, presence of petitioner No. 2 is must and once this petition is numbered as such by the Registry, now he should not be deleted as prayed for by the present petitioner and thereby they are claiming to treat this petition as filed by petitioner No. 2 also and agree to pay cost of stamp duty pursuant to Rule 51(ii) of the Rules.
19.1. In addition to citations as above, the employer i.e. petitioner No. 1 company has referred several decisions in its written submissions. But as aforesaid, reference of all such citations are pertaining to some observations in particular paragraph, and therefore, all such citations cannot be treated as overruling the provisions of Rule 51(ii) of the Rules and it cannot be held that irrespective of presence of Rule 51 in this rule book, employer-original petitioner is entitled to continue all such proceedings as such by holding them under Art. 226 of the Constitution of Indian, which would prevail over Rule 51 of the Rules.
20. For the reasons aforesaid and which is discussed hereinafter. There is no substance in the above submissions. At the cost of repetition, it is to be recollected herein that even after all such submissions, original petitioner No. 1 has shown his readiness and willingness to comply with the Rules and sought indulgence of this Court to exercise its jurisdiction to hold that joining of original petitioner No. 2 is justified.
21. Several other judgments, which are quoted in Para 12 of written submissions are on different issues viz. Company cannot be said to be a citizen, share-holder of the company has right to participate in the profit of the company and thereby it is necessary to implead share-holder as party, which are proper grounds of issuance of a writ of certiorari though procedures must be fair, just and reasonable, Court is empowered to add any person as a party under Order 1, Rule 10 of the Code of Civil Procedure, issue of locus standi to invoke Art. 226 even in absence of fiduciary interest. I have gone through all such citations, however, none of them are relevant to decide the issue on hand or to help the original petitioners either to dismiss the Civil Application No. 98 of 2011 or to allow Civil Application No. 846 of 2011.
22. Though original respondent has argued at length and though I have heard him peacefully being party-in-person, it would not be necessary to reproduce each and every submissions except to refer the submissions which are otherwise necessary to decide the present application inasmuch as Mr. Desai has argued on concept of jurisdiction in detail. However, the sum and substance of his argument is to the effect that:
(1) There is no reference or role of share-holder either under Industrial Disputes Act or under the Companies Act which leads to the prosecution that even if they are different or joint with the company, they have no separate locus standi so far as provisions and litigation under the Industrial Disputes Act is concerned.
(2) Mere hype is created by the original petitioner and it is only myth that share-holder is necessary party.
(3) He has referred Sec. 29(g) of the I.D. Act as well as Sec. 18(3)(A) and Rule 2(1)(g) of the Industrial Disputes (Gujarat) Rules 1966, which makes it clear that share-holder is not necessary party and has no locus standi.
(4) No affidavit is filed by petitioner No. 2.
(5) No details of petitioner No. 2 or other members or share-holders are disclosed in the petition.
(6) Mr. V.B. Shah is pro-litigant and he has filed several litigations viz. Special Civil Application Nos. 3473 of 2009, 11258 of 2009 and 11186 of 2010 i.e. three litigations in the period of 18 months.
(7) He also refers Sec. 32 and provisions of Sec. 2(1) submitting that all such other persons are excluded from such litigation.
23. Original opponent No. 1 and party-in-person is relying upon following decisions between
23.1. He is also relying upon a decision of
24. In view of above factual and legal discussion, it becomes clear and obvious that pursuant to Rule 51(ii) read with Rule 188 of the Gujarat High Court Rules, in any application, if any person who is not a party before any lower Court is made a party to such application against any order in such proceedings, such application shall be coupled with regular stamp application for making such person a party to the application.
25. It is not disputed that Rule 51 is regarding parties in appeals and applications under Chapter 4 of Part II regarding presentation of appeals and applications and Rule 188 of the Rules falls in Chapter 17 regarding application under Arts. 226 , 227 and 228 of the Constitution of India and Rules in issuance of orders under such Articles, wherein it is specifically provided that the rules in other Chapter shall apply mutatis mutandis to petitions and applications under this chapter with a provision regarding extension with of time which we are not concerned at present.
26. Rule 188 of the Gujarat High Court Rules makes it clear that rules in the other Chapters shall apply, thereby Rule 51 in chapter IV regarding presentation of appeals and applications under Arts. 226 , 227 , and 228 of the Constitution of India shall apply mutatis mutandis to the petitions and applications under Chapter XVII, wherein Rule 181 falls. Chapter XVII relates to the applications under Arts. 226 , 227 and 228 of the Constitution of India. Therefore, now pursuant to Rule 188 when Rule 51 applies to such applications also, the stand taken by the original petitioner that Rule 51 does not apply to such writ petition has no substance. The heading of Rule 51 also makes it clear that it is relating to parties in appeals and applications, and thereby, it is not restricted for appeals alone. Rule 51 also falls within Chapter IV which also regarding presentation of appeal and applications. Therefore, it require to be followed While dealing with petition under Art. 226 of the Constitution. It is not disputed fact that in title of the main Special Civil Application, the original petitioners have at first instance disclosed that it is in the matter under Art. 226 of the Constitution, though it is further stated that it is also under Arts. 14 and 19(1)(g) and also under Revision Application of Industrial Disputes Act and Rules. Therefore, so far as practice and procedure to be followed for presentation of such application before the High Court is concerned, provisions of Rule 51(ii) of the Rules need to be followed. It is admitted position that such rule is not followed. It is also now admitted position that even Registry has accepted that petitioner No. 2 is not required to be joined as he is not a party to the proceedings before the Industrial Court, Vadodara whose award is under challenge and if at all he is required to be joined as party, they have to file separate application for making such a person party to the appeal or application as provided in Rule 51(ii) of the High Court Rules, 1993.
27. In view of such clarity, there is no option but to allow the Civil Application No. 98 of 2011, as prayed for in Para 5 by directing to delete the name of petitioner No. 2 from the petition. However, so far as prayer to delete the opponent No. 3 Tribunal is concerned, it is altogether a different issue and there are different judgments both by the Division Bench and Hon''ble Supreme Court, and therefore, at present it would not be appropriate to check legality and validity of joining of opponent No. 2 in the main petition. So far as application praying to delete such opponent No. 2 is concerned it is to be taken care of while deciding the main Special Civil Application. Therefore, Civil Application No. 98 of 2011 needs to be partly allowed as aforesaid.
28. Whereas, there is no substance in Civil Application No. 846 of 2011 to hold and declare that impleading of original petitioner No. 2 is violative of provisions of law, and therefore, such Civil Application needs to be dismissed keeping the issue regarding presence of opponent No. 3 Tribunal as such, which is to be determined while deciding the main petition finally.
29. In view of aforesaid discussion, Civil Application No. 98 is partly allowed, as aforesaid, whereas Civil Application No. 846 of 2011 is dismissed. Therefore, original petitioner and Registry is directed to delete the name of petitioner No. 2 from the cause title of Spl.C.A. No. 11186. Registry shall list the main matter before appropriate Court as per roster, as main petition was not adjudicated or heard before this Court and it is not to be treated as part heard before this Court.
