Milano Makroni Simi Factor Thru. ... vs Shri Daya Ram Yadav
2007 Latest Caselaw 2270 Del

JUDGMENT

J.M. Malik, J.

1. As prayed dusty notice was given to the petitioner to serve the respondent/workman, Daya Ram Yadav through All India Engineering and General Mazdoor Union, E-127, Karampura, New Delhi 110015 for 27th November, 2007. Yesterday, nobody appeared on behalf of the respondent. However, the respondent was given one more opportunity to appear and argue his case today, that is, 28th November, 2007. Despite second call, nobody appears for the respondent today.

2. I have perused the impugned order dated 28th September, 2007. It reveals that on 6th February, 2006, the case was fixed for cross-examination of workman and last opportunity was given to the Management. On 6th February, 2006, the case was transferred from the Court of Sh. Gurdeep Kumar, POLC-I to the Court of Sh. Chandra Bose, POLC-16, which was adjourned to 8th March, 2006. On 8th March, 2006, the authorised representative for workman as well as the authorised representative for Management were present but the learned Presiding Officer was on leave. Therefore, the case was adjourned for proper order for 25th April, 2006. On 25th April, 2006 the authorised representative for workman was present but none was present on behalf of the Management and the case was adjourned to 15th July, 2006 for workman's evidence. On 15th July, 2006 and 13th September, 2006 both the parties were absent. Consequently, the court notices were issued to both the parties for 26th October, 2006.

3. On 26th October, 2006, the authorised representative for workman was present but none was present on behalf of the Management despite service of the court notice. The Management was ordered to be proceeded against ex parte and the case was adjourned to 22nd December, 2006.

4. Thereafter, the petitioner moved an application on 7th September, 2007 for setting aside the ex parte order dated 26th October, 2006. The petitioner made the following explanation. Its partner, Sh. Prithvi Vallabh, was unable to attend the Labour Court due to some personal reasons beyond his control. It was explained that, as a matter of fact, he was held up for some time in Tis Hazari Court.

5. The Labour Court dismissed the above-said application on the grounds that in case Sh. Prithvi Vallabh was busy, other partners could have attended the Court, Sh. Prithvi Vallabh did not explain as to why he was held up in Tis Hazari Courts, in which court did he appear and as to why he did not appear in Karkardooma Court first of all. Again, the petitioner did not explain as to why no one appeared on its behalf on 25th April, 2006, 15th July, 2006 and 13th September, 2006.

6. I have heard the counsel for the petitioner. He explained that due to unavoidable circumstances, the petitioner's partner could not appear before the Labour Court on 26th October, 2006. The Court itself did not take any action on 25th April, 2006, 15th July, 2006 and 13th September, 2006 when none was present for the Management on the first hearing and both the parties were not present on the next two hearings. Moreover, when the petitioner ultimately appeared along with the application to set aside the ex parte order, the application should have been allowed subject to payment of costs.

7. It is now well settled that where a party is prevented to appear on any hearing due to sufficient cause and is faced with the ex parte proceedings, the Labour Court has power to set aside the ex parte proceedings. In a case reported in Anil Sood v. Presiding Officer, Labour Court , it was held, The power to proceed ex parte is available under Rule 22 of the Central rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.

8. The Labour Court has yet to pass the final order. The case is fixed before the Labour Court for final hearing on 30th November, 2007. Keeping in view the facts and circumstances of the case, I allow the writ petition subject to petitioner's paying cost of Rs. 3000/- to the workman before the Labour Court on 30th November, 2007. Parties are directed to appear before the Labour Court on 30th November, 2007, when the Labour Court will permit the petitioner to cross-examine the workman or its witnesses. If the workman does not appear on 30th November, 2007, he should be granted one more opportunity to produce his evidence. The Labour Court is further directed not to grant more than two opportunities to the petitioner for leading its evidence.

9. A copy of this judgment be given dusty to counsel for the petitioner under the signatures of Court Master.

10. A copy of this judgment be also sent to the Labour Court forthwith.