Haryana State Agricultural Marketing Board vs Presiding Officer and Another

Rajesh Bindal, J.—The petitioner management has filed the present writ petition impugning the ex-parte award dated 27.8.2004 and order dated 25.2.2011 whereby the application filed by it for setting aside of the ex-parte award was dismissed. The proceedings in the case arise out of an industrial dispute raised by respondent No. 2/work-man claiming that his services were dispensed with in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short, ''the Act''). He claimed that he was appointed on 15.4.1998 for 89 days. Thereafter he continued working upto 16.7.1999. As he had completed more than 240 days before his termination, provisions of Section 25-F of the Act were required to be complied with before his termination. The matter was referred to the learned court below. The petitioner management was proceeded against ex-parte and the learned court below vide award dated 27.8.2004 directed reinstatement of the workman with continuity of service and full back wages from the date of demand notice i.e. 6.3.2003. The application filed by the petitioner management for setting aside the aforesaid ex-parte award was dismissed on 25.2.2011. The aforesaid two orders are impugned before this court.

Learned counsel for the petitioner submitted that the respondent-workman in the present case was appointed for the first time vide letter dated 15.4.1998 for a period 89 days as Arrival Recorder purely on contract basis and posted in Market Committee, Tarori. Thereafter, his services were engaged vide letter dated 11.9.1988 for 89 days basis on the same terms and conditions. Again in the next wheat crop, the petitioner was appointed for 89 days vide letter dated 12.4.1999 on same terms and conditions. He was engaged only during the season for recording arrival of the crop in Mandi. Though he was posted in Market Committee, Tarori, from where he was drawing his salary, however, deliberately, he did not implead the Market Committee, Tarori, as party in his claim petition.

After the respondent-workman filed his claim petition before the learned court below, notice was directed to be issued to the petitioner on 13.10.2003 for 21.11.2003 by registered cover. On the next date of hearing while recording that the registered cover had not been received back served or otherwise, the petitioner was directed to be proceeded against ex-parte. The petitioner came to know about the case when notice in execution proceedings was received. No evidence was led by the workman, except his own statement which did not prove that the workman had worked for 240 days in a calendar year preceding his alleged termination. But still he has been directed to be reinstated back in service with full back wages. Notice issued by the learned court below was not received by the petitioner. In the circumstances, the petitioner could not be represented before the learned court below. Application for setting aside of the ex-parte award was filed when notice was received in execution. The absence is neither willful nor intentional. Even if the evidence produced by the workman is perused, the same does not make out a case in his favour. The respondent-workman was appointed in the present case only for 89 days basis during the time of crop. He had not completed 240 days in a calendar year preceding his alleged termination. He had merely worked for 178 days.

No one appeared for the respondent-workman despite service.

Heard learned counsel for the petitioner and perused the paperbook.

The case set up by the petitioner is that it could not put in appearance before the learned court below as the notice allegedly issued was not served. A perusal of the order dated 13.10.2003 shows that notice was directed to be issued to the petitioner by filing registered cover. In the next order, it is mentioned that notice was sent by registered cover on 14.10.2003 but the same has not been received back served or otherwise. Treating it to be deemed service, the petitioner was directed to be proceeded against ex-parte. When notice issued in the execution was received by the petitioner, the petitioner filed application for setting aside the ex-parte award dated 27.8.2004 which was also dismissed.

The only evidence produced by the respondent-workman before the learned court below was in the form of three letters of appointment issued to him on 15.4.1998, 11.9.1998 and 12.4.1999 (Ex. W-1 to W-3), in terms of which on every occasion, the respondent-workman was appointed only for 89 days during the crop time. There is no other material produced by him to show that he worked beyond this period. If the period is calculated, apparently during a calendar year preceding his termination, the workman had worked only for 178 days. Hence, violation of Section 25-F of the Act could not be alleged.

The learned court below has recorded that the workman had worked from 15.4.1998 to 16.7.1999. Even if a respondent or defendant in any proceeding remain ex-parte, the necessity of proof by the petitioner plaintiff of his case to the satisfaction of the court is not dispensed with. In the absence of denial of the averments made in the petition, the burden may not be heavy but still he is required to lead evidence in support of the pleadings. Merely because respondent is absent, the court is not to admit evidence, the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence. In case a respondent is ex-parte, the court has to be more careful in passing the orders. For the purpose, reference can be made to judgment of this court in M/s. Karvy Consultants Limited v. Umesh Jain and others 2012 (3) PLR 639.

In view of my aforesaid discussion, the impugned orders passed by the learned court below are set aside. The matter is remitted back to the learned court below for decision afresh on merits without being influenced by the observations made above, which are tentative. As the respondent workman remained unrepresented, fresh notice be issued to him by the learned court below. The writ petition stands disposed of.