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Judgment
K. Vinod Chandran, J.—The petitioner in the writ petition is a Union representing the workmen in an Industrial dispute. The reference made by the Government was with respect to the denial of employment of the workman who claimed to be a salesman of the Management. Once the matter was disposed of by the Labour Court by Ext. P4 Award dated 30.11.2009 answering the reference holding that the workman was entitled to reinstatement and restricting the back wages to 50%. The workman filed a writ petition numbered as W.P. (C). 27942/2010. The same was heard along with W.P. (C). 19359/2010 filed by the Management. By Ext. P5 judgment this Court remanded the matter to the Labour Court to decide afresh; after affording parties to adduce evidence. The grievance in the above writ petition is the dismissal of the Industrial Dispute as per the Award produced at Ext. P10 after declaring the Union ex-parte for reason of non appearance.
Ext. P12 is the Award passed which is seen dated 07.12.2013. Ext. P13 is the order in I.A. 201/2013 which application was filed to set aside the order declaring the Union ex-parte. I.A. 202/2013 was an application to recall the only witness examined on the side of the Management after declaring the workman ex-parte (MW1). The said I.A. was also dismissed by Ext. P14 since the application to set aside the ex-parte decision had already been dismissed.
What assumes relevance in the present writ petition is Ext. P13 order. Ext. P13 is the order which dismissed the application for setting aside the ex-parte order. On a reading of the order it is clear that after the remand made by this Court as per Ext. P5, the case was posted on various dates and eventually on 07.12.2013 for examination of witnesses. One witness was also present on the said date. However, neither the workman, Union or the counsel representing the Union were present before the Court. It was in such circumstances that an ex parte order was passed and the Labour Court passed the impugned Award.
The reason stated for the non appearance of the witness was that on 02.12.2013 workman had sustained injury in a road traffic accident and had been undergoing treatment. The O.P. ticket relating to the treatment was also produced along with the application. It was the specific contention that the workman could not hence meet his counsel and give proper instruction and the counsel himself had entrusted a junior counsel for making proper representation. It was only on the failure of the junior counsel to make a prayer for adjournment, that the ex-parte order was passed, is the specific contention raised.
The Management is seen to have filed a detailed counter affidavit pointing out that, the remand order was passed in the writ petitions directing conclusion of the proceedings within a period of six months and it was expedient for the Labour Court to have concluded the proceedings within the time stipulated. On remand, the Management and the Union appeared on 18.10.2013 and the matter was adjourned to 01.11.2013 for steps. On 01.11.2013 the Management filed an additional statement as also produced additional documents and sought for summoning two witnesses. The case was then posted to 18.11.2013 for the objections of the Union. On 18.11.2013 the Union filed re-joinder and counter to the I.As. filed by the Management. The case was then posted to 25.11.2013 and the Labour Court issued summons to the two witnesses sought to be examined by the Management.
On 07.12.2013, the case was specifically posted for appearance of the witnesses and examination of such witnesses. Though one of the witnesses were present in Court and the other made a request for adjournment, since the Union was not represented, the Labour Court went ahead and examined the Management witness after declaring the Union ex-parte. On the basis of the Management evidence, the Award was passed as seen in Ext. P12.
Immediately thereafter, the Union filed an I.A. under Rule 23 of the Kerala Industrial Disputes Rules for setting aside the ex-parte order. The said I.A., even according to the Labour Court as indicated in Ext. P13, was filed on 10.12.2013 within the period prescribed under the Rule. On a reading of Ext. P13 it is also evident that the ex-parte evidence was taken on 07.12.2013 and the matter was adjourned for pronouncing the Award. Admittedly, the Award was pronounced on 28.02.2014, when the I.A. filed by the workman was pending before the Court.
On a consideration of the entire facts as stated above, this Court is of the opinion that the Labour Court ought to have favourably considered the application filed by the Union especially since the same was filed within time and when the I.A. was filed, the Award itself was not passed.
True, the Union was representing the workman and there was counsel representing the Union before the Labour Court. However, when the specific contention of the workman was that he was involved in a traffic accident and he was not able to instruct his counsel, necessarily, a lenient view should have been taken especially since the contention raised by the workman with respect to his injury and treatment, were substantiated by evidence produced before the Court. It is also pertinent that the application filed to set aside the ex-parte Award was well within the time provided for the same, as found by the Labour Court itself in Ext. P13.
In such circumstances, this Court is of the opinion that the Industrial Dispute has to be restored to the files of the Labour Court and adjudicated afresh. Exts. P12, P13 and P14 hence, are set aside; however on terms. Petitioner Union shall pay cost of Rs. 2,500/- to the respondent and produce memo before the Labour Court within a period of one month from the date of receipt of a copy of this judgment. I.D. 14 of 2008 shall be restored to the files of the Labour Court, and the parties shall appear before the Labour Court, Kozhikode on 10.10.2014. If memo is produced with respect to the payment of cost, I.D. 14 of 2008 would stand restored and the matter would be considered afresh as expeditiously as possible. Parties shall co-operate in the expeditious disposal of the Industrial Dispute. If the cost is not paid, then Ext. P12 shall hold the field. Needless to say that MW1 shall be recalled and the Union shall be permitted to cross-examine him.
The writ petition is disposed of, leaving the parties to suffer their respective costs.