Bombay High Court
M/S. Sayonara Creations And Ors vs Mr. Ranjeet Permanand Pathak on 28 September, 2016
Bench: R.M. Savant
wp-10105-16-(909)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10105 OF 2016
1 M/s. Sayonara Creations )
2 Mr. Suresh Ganeshmal Jain )
3 Mr. Dinesh Tejraj Jain )
Dashrath Patil Compound )
H. No.1630/3, 1630/1, 1630/4 )
Babla Compound, Kalyan Bhiwandi )
Road, Bhiwandi, Dist Thane ) ..Petitioners
Vs.
Mr. Ranjeet Premanand Pathak ig )
C/o Bhiwandi Kamgar Sangh )
238, Heera Complex, Chandan Baug, )
Bharat Colony, Kamatghar, Bhiwandi )
Dist Thane ) ..Respondent
Mr. Rahul Oak for the Petitioners
Mr. A. S. Rao for the Respondent
CORAM : R. M. SAVANT, J.
DATE : 28th SEPTEMBER, 2016
ORAL JUDGMENT
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order
dated 4-8-2016 passed by the Learned Judge Fourth Labour Court, Thane, by
which order, the application being M.A. (ULP) No.5 of 2015 came to be
rejected.
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3 It is not necessary to burden this order with unnecessary details
having regard to the nature of final directions to be issued. Suffice it would be
to state that the Reference in respect of the termination of the services of the
Respondent herein was referred for adjudication to the Labour Court Thane
and was numbered as Reference IDA No.36 of 2007. The Respondent herein
filed his Written Statement on 6-11-2009 through his Advocate. The reference
was thereafter posted for hearing from time to time on which dates the
Advocate appearing for the Petitioners had remained present except for a few
dates. The Advocate for the Petitioner intermittently remained present up to
16-12-14, however thereafter did not remained present till the date when the
Award was passed on 17-2-2015. It seems that though the Advocate had
remain present, reference was required to be proceeded exparte as no steps
were taken to lead evidence and even arguments were not advanced on behalf
of the Petitioners. The Award was therefore passed without there being any
evidence led on behalf of the Petitioners as also any arguments being advanced
on behalf of the Petitioners and without the witness of the Respondent being
cross-examined. The Respondent received the Award from the Commissioner
of Labour and on receipt of the Award the Petitioner realised that the
Reference was answered in favour of the Respondent workman. This resulted
in the Petitioners filing MA(ULP) No.5 of 2015 for setting aside the Award on
the ground that it was exparte. The reason put forth in the application was
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that the Petitioners were informed by their Advocate that it was not necessary
to remain present and that he would take care of the Reference. It is the case
of the Petitioners that believing the said statement, the representative of the
Petitioners had not remained present until 17-2-2015. The Petitioners
accordingly sought setting aside of the said Award. The said application was
replied to on behalf of the Respondent. It was stated in the reply that the
Applicants i.e. the Petitioners herein were aware of the proceedings as it had
engaged two Advocates one Mr. Dalish Bajaj and Mr. Atul Shelke. The said
Advocates have also filed Written Statement and therefore it cannot be said
that the Award has been passed exparte.
4 The said application being MA (ULP) No.5 of 2015 came to be
considered by the Learned Judge of the Fourth Labour Court Thane who by the
impugned order dated 4-8-2016 has rejected the same. The rejection is
principally on the ground that the representatives of the Petitioners are
businessmen and they ought to be aware of the legal consequences of not
remaining present in the proceedings. The Learned Judge has also held that it
was incumbent upon the Petitioners to make inquiries with their Advocates as
regards the status of the proceedings. Since the Petitioners have not been able
to satisfy the court on the aforesaid aspects, the cause shown by the Petitioners
cannot be said to be sufficient for setting aside the exparte Award on the
ground of non appearance of the Advocate for the Petitioners on the said day.
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5 Heard the Learned Counsel for the parties. The Learned Counsel
for the parties would urge contention for and against the application be
allowed and the reference being restored to file.
6 In my view, case for setting aside the Award dated 4-8-2016
passed by the Learned Judge Fourth Labour Court Thane is made out. As
indicated above, the Written Statement was filed on behalf of the Petitioners in
the year 2009 and thereafter the Advocate engaged by the Petitioners has
appeared in the reference on most of the dates except a few. Significantly it
appears that on the dates when the evidence was being recorded or arguments
were to be advanced, no appearance was put up on behalf of the Petitioners
resulting in the Reference being decided exparte. It is well settled by the
judgments of the Apex Court that a party should not be made to suffer on
account of the acts of its Advocate. A final indulgence is therefore required to
be shown to the Petitioners so that the Reference is adjudicated on merits. The
same would obviously be on the pains of imposing costs. The impugned order
dated 4-8-2016 is accordingly set aside, resultantly the application MA(ULP)
No.5 of 2015 would stand allowed. The consequences of the same would be
that the Reference in question would stand restored to file and would be dealt
with denovo by the Learned Judge Fourth Labour Court, Thane by giving
proper opportunity to the parties.
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7 In the facts and circumstances of the case the Petitioners to pay
costs of Rs.25,000/- to the Respondent within 8 weeks from date. The
payment of the said costs is a condition precedent. If the costs are not paid as
directed by the instant order, then the benefit of this order would not enure to
the Petitioners and resultantly the Petition would be deemed to have been
dismissed and the Award would then stand revived. It the costs are paid then
the parties to appear before the concerned Judge of the Fourth Labour Court
on 30-11-2016 who would then proceed to adjudicate the Reference in
accordance with law.
8 The Petition is allowed to the aforesaid extent. Rule is accordingly
made absolute with parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
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