Jaipur Kathak Kendra vs The Judge, Labour Court and Others

Mohammad Rafiq, J.—This writ petition has been preferred by the petitioner against the order dated 7.2.2005 by which the application of the petitioner for setting aside the ex-parte award dated 3.10.2002 and granting opportunity to present his case and evidence has been declined.

The respondent No. 2 was appointed on contractual basis on the post of LDC for three months in the petitioner-Kendra on consolidated salary of Rs. 1,600 per month on 16.1.1991. His services were extended by order dated 16.4.1991 till 30.9.1991 and thereafter his services were dispensed with on 30.9.2001. The respondent filed writ petition before this Court. During pendency of the writ petition, the State Government decided to abolish the post of LDC in the petitioner-Kendra and did not grant budget of the year 1992-93 by order dated 19.12.1991. The services of the respondent were again terminated vide order dated 5.6.1992. While the petitioner contends that the services of the petitioner were terminated by making compliance of Section 25-F of the Industrial Disputes Act, the respondent disputed the aforesaid fact. The industrial dispute was referred to the Labour Court, Jaipur as to the validity of his termination. Initially the ex-parte proceedings were directed against the petitioner by the Labour Court on 26.6.2000. Petitioner filed an application for setting aside ex-parte proceeding on 29.8.2000, but the said application was dismissed on 2.4.2002 as no one has appeared to contest the matter on behalf of the petitioner. Thereafter, the ex-parte award was passed on 3.10.2002. In those facts, the petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte award and for allowing him to present his case, which has been dismissed by impugned order dated 7.2.2005.

Shri Arvind Gupta, learned counsel for the petitioner has submitted that the petitioner has engaged Shri N.B. Mathur, Advocate when the ex-parte proceedings dated 26.6.2000 were instantiated. Petitioner instructed him to file application. He accordingly filed the application for setting aside the ex-parte proceeding on 29.8.2000, but unfortunately he died on 1.10.2000. Petitioner did not come to know about his death for quite some time and therefore they could not make any alternative arrangement. The application was dismissed on 2.4.2002 and finally the ex-parte award was passed on 3.10.2002. It is argued that the Labour Court has wrongly rejected the application filed by the petitioner on the premise that after the award has been published, it cannot be set aside and further that the petitioner has merely made a request for setting aside the ex-parte award and not for granting opportunity to adduce evidence. Learned counsel referred to the prayer made in the application (Annexure-8) to dispute correctness of this finding. It is argued that the respondent hardly worked with the petitioner and the post having been abolished by order of the Government, he cannot be reinstated in service. In this connection, he referred to the minutes of BSF (Non-Plan) 1992-93, Academics under Art & Culture Department.

Shri S.C. Gupta, learned counsel for the respondent has opposed the writ petition and submitted that the petitioner terminated the services of the respondent not before the post was abolished but according to them the post was upgraded. The compliance of not only provisions of Section 25-F was not correctly made as the amount paid by way of compensation and notice pay was less than what was required, but also compliance of Section 25G and 25H was not made as the juniors of the respondent were retained and were later regularised in service. The Labour Court was perfectly justified in setting aside the application.

On perusing the impugned order and considering the facts in totality, I find that the fact asserted by the petitioner that their Advocate Shri N.B. Mathur died on 1.10.2000 has not been denied. It was also not denied that when he filed the application for setting aside the ex-parte proceedings on 29.8.2000, in about one month thereafter he died. The application was dismissed on 2.4.2002 and within six months thereafter, the ex-parte award was passed. The view taken by the Tribunal that award once published cannot be said to be correct approach in law. Even if an award is published, if it is an ex-parte award, the Court can be persuaded for good and sufficient reasons to set aside it. It can nevertheless be set aside. Regarding other reason that the petitioner did not make any request to set aside the ex-parte proceedings drawn against him by order dated 26.6.2000 with liberty to file reply to them, the prayer of course is there though it may not be directly to that effect. However, it is prayed that the petitioner be granted reasonable opportunity to present their case before the Tribunal, which includes both the filing of the reply to the statement of claim and the adducing of evidence. Though the impugned order deserves to be set aside, but the respondent-workman deserves to be compensated for the inconvenience caused to him by award of suitable amount of compensation. The impugned order is set aside, subject to payment of Rs. 3,000 to the respondent-workman before the Labour Court. The petitioner shall file his reply to the written statement within one month and shall conclude his evidence within four months from the date next fixed before the Labour Court. The learned Labour Court within three months thereafter pass appropriate order. The parties may appear before the Labour Court on 10.3.2014.

The writ petition is consequently allowed.