Allahabad High Court
Smt. Indira Devi And Another vs State Of U.P. And 4 Ors. on 29 April, 2014
Bench: Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 23945 of 2014
Petitioner :- Smt. Indira Devi And Another
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Govind Krishna
Counsel for Respondent :- C.S.C.
Hon'ble Abhinava Upadhya,J.
Learned counsel for the petitioners is permitted to correct the description in the array of the parties to the writ petition during the course of the day.
By means of this writ petition along with the amendment application the petitioners have challenged the order dated 21.11.2013 which is a citation of recovery issued by the Sub Divisional Magistrate, Sadar, Azamgarh. The petitioners are also seeking a writ of mandamus to the Labour Court to decide the application dated 2.2.2001 which is said to be an application under Order IX Rule 13 of the CPC for recalling the ex parte award dated 24.8.1999. By way of amendment the petitioners have challenged the ex parte award dated 24.8.1999 and orders passed in execution proceedings under Section 6-H(1) of the Industrial Disputes Act, 1947 being orders dated 7.9.2010 and 7.7.2011.
The brief facts are that the petitioners have come up to this Court challenging the ex parte award instituted by respondent no.4 claiming that his services were terminated without any notice and without complying with the provisions of Section 6-N of the Act. The workman before the Labour Court contended that he was engaged on 1.8.1989 as Class-IV employee and continuously worked as Beldar for two years. On 20.4.1991 his services were terminated illegally.
The notices were issued to the petitioners, who appeared before the Labour Court and it is submitted that for seeking further instruction in the matter moved an application for adjournment of the case for filing written statement.
It appears that in the meantime, the Office of the Deputy Labour Commissioner was bifurcated from Gorakhpur to Azamgarh and in this confusion and with the change of the authorities of the Nagar Palika Parishad no written statement could be filed and ultimately an ex parte award was pronounced on 24.8.1999.
When the petitioners came to know of the ex parte award, they immediately moved an application on 2.2.2001 under Order IX Rule 13 CPC for the recall of the award. That application remained pending and was not being decided and, therefore, the petitioners approached this Court by filing a writ petition being Writ Petition No. 43825 of 2004 which was disposed of vide judgment and order dated 15.10.2004 directing the Labour Court to decide the application within a period of three months. Immediately after the order dated 15.10.2004 an application was moved on 15.10.2004 itself before the Labour Court annexing therewith the certified copy of the order to consider and decide the application under Order IX Rule 13 CPC for recalling of the ex parte award. That application remained pending. In the meantime, the workman instituted a proceeding for execution of the award and it appears that the petitioners filed an objection before the executing court stating therein that for the recall of the award the application under Order IX Rule 13 CPC is still pending and till the application is decided, the execution may not be proceeded with. However, the executing court proceeded with the matter and passed an order dated 7th September, 2010 directing that a sum of Rs. 2,59,125/- be recovered from the period that the workman was not allowed to work and thereafter again by another order dated 7.7.2011 further directed as arrears of wages for a sum of Rs. 8,71,343/- to be recovered.
I have considered the submissions of the learned counsel for the petitioners and perused the orders impugned.
From the award, which is one page order, the only reason for passing of the award in favour of the workman was non appearance of the petitioners. No consideration was made as to how the workman has proved that he has worked for 240 days in a calender year for granting him the award. That apart, when the petitioners' application under Order IX Rule 13 CPC was moved the same was not being considered and, therefore, a direction was issued by this Court by order dated 15.10.2004 which was filed before the Labour Court on 15.10.2004 itself yet the application for recall of the award till date has not been considered and the execution is being proceeded with and now the recovery certificate has been issued.
The matter requires consideration.
Respondents no.1,2,3 and 5 are represented by the learned Standing Counsel.
Issue notice to respondent no.4 returnable at an early date.
The petitioner shall take steps for service of notice upon respondent no.4 within a week.
The respondents may file counter affidavit within one month.
List thereafter.
Till the next date of listing, the operation of the orders dated 21.11.2013, 7.9.2010 and 7.7.2011 shall remain stayed.
Order Date :- 29.4.2014
SKM
Case :- WRIT - C No. - 23945 of 2014
Petitioner :- Smt. Indira Devi And Another
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Govind Krishna
Counsel for Respondent :- C.S.C.
Hon'ble Abhinava Upadhya,J.
(Order on amendment application dated 28.4.2014)
Heard.
Allowed.
The applicants may incorporate necessary amendment in the body of the petition within ten days.
Order Date :- 29.4.2014
SKM
