Bridge and Roof Company vs H.K. Prasad

Untwalia, J.—An application filed u/s 15(2) of the Payment of Wages Act by Shri H. K. Prasad, Inspector of Factores, was dismissed on 21-4-69 under Rule 8(3) of the Bihar Payment of Wages Procedure Rules, 1965, hereinafter called the rules. The case has been restored by the Sub-Divisional Magistrate, Begusarai, the authority under the Act, by his order dated 7-1-70. The employer has come up in revision to This Court u/s 115 of the Code of Civil Procedure.

The argument put forward on behalf of the petitioner is that the application for restoration was barred under the proviso to Sub-rules (2) and (3) of Rule 8 of the Rules and that no statement was there before the Authority either on affidavit or on oath in Court to satisfy it that a good cause has been shown for restoration of the case dismissed for default.

On examination of the records of the Court of the Sub-Divisional Magistrate, it appears that there has been some confusion in the matter. And, taking an overall picture, I do not feel persuaded to upset the order of restoration in exercise of the revisional powers of This Court. The case was filed by Shri H.K. Prasad, Inspector of Factories, Samastipur, within whose jurisdiction Barauni lay at the time the case was filed. Shri H. K. Prasad was transferred. Barauni was put under the jurisdiction of the Inspector of Factories, Monghyr. On 21-4-69, after the dismissal of the case, the Inspector of Factories, Monghyr, filed a restoration application. Of course, he could not state in detail any cause, as he was not aware as to why Shri H.K. Prasad was absent on that date. Although Shri H.K. Prasad has been transferred, he was a material witness in this case. A telegram had been sent on his behalf on the 20th of April, 1969, stating therein that he could not attend on the 21st. That telegram was, however, received after the case was dismissed for default under Sub-rule (3) of Rule 8 of the rules. Thereafter Shri H.K. Prasad appeared in person, made his submissions orally and ultimately was asked to file a written petition by order dated 6-8-69. Two petitions were filed on 27-8-69 explaining the matter in detail as to why Shri H.K. Prasad could not be present on 21-4-69. The learned Magistrate has accepted the statements to be correct and restored the case.

Rule 8 of the Rules reads as follows:

(1) If the application is entertained the Authority shall call upon the employer by a notice in Form ''E'' to appeat before him on a specified date together with all relevant documents and witnesses, if any, and shall inform the applicant of the date so specified.

(2) It the employer or his representative fails to appear on the specified date, the authority may proceed to hear and determine the application ex parte.

(3) If the applicant fails to appear on the specified date, the authority may dismiss the application:

Provided that an order passed under Sub-rule (2) or Sub-rule (3) may be set aside and the application re-heard on good cause being shown within one month of the date of the said order, in which case fresh notice shall be served on the parties specifying the date fixed for re-hearing.

The language of the proviso is not at par with the language of either Rule 4, Rule 9 or Rule 13 of Order 9 of the Code of Civil Procedure. This is a summary power given to the authority to re-hear a case. The application in writing was asked for on 6-8-69, and it was filed on 27-8-69. It does not mean on the facts of this case that really good cause was attempted to be shown after the expiry of the period of one month prescribed in the proviso, for one cause was shown on 21-4-69 by the Inspector of Factories, Monghyr, supplemented by the telegram which was received later and then fuller statements were made in the two petitions filed on 27-8-69, I am, therefore, not feeling inclined to say that, on the facts of this case, the prayer for restoration was made out of time.

No hard and fast rule of evidence is to be applied for exercise of the power under the proviso under Sub-rules (2) and (3) of Rule 8 of the rules. The statements of fact were there signed by Shri H.K. Prasad himself. If the authority has chosen to believe these statements I do not feel persuaded to interfere with his discretion in exercise of the revisional powers of This Court.

In the result, the application in revision fails and is dismissed but I shall make no order as to cost.