Shivender Singh vs Secretary, Labour And Anr.
2007 Latest Caselaw 1686 Del

JUDGMENT

G.S. Sistani, J.

1. This is a writ petition under Articles 226 and 227 of the Constitution of India. The petitioner prays for a writ in the nature of certiorari or any other appropriate writ or directions for quashing the order dated 22.01.2004 passed by the Labour Court in I.D. No. 210/89.

2. The relevant facts of this case are that the petitioner/workman was working with respondent No. 2 since 24.01.1982. Due to sudden illness, he took leave from 17.11.1988 to 04.12.1988. However, when the petitioner resumed his services, respondent No. 2 refused to take him on the job. Despite the intervention of the Labour Department, respondent No. 2 declined to employ the petitioner. Consequently, the petitioner raised an industrial dispute assailing the respondent for illegally terminating his services.

3. The industrial dispute raised by the petitioner/workman was referred by the State Government to the Industrial Tribunal vide notification dated F.24/893/89-Lab/8253-58 dated 09.03.1983 in terms of the following reference:

Whether the services of Sh. Shivender Singh have been terminated illegally and/or unjustifiably by the management and if so to what relief is he entitled and what directions are necessary in this respect?

4. When the matter first came up for hearing on 09.09.1992, the petitioner tendered his evidence by way of an affidavit in the presence of respondent No. 2. The matter was thereafter adjourned to 02.03.1993 and subsequently to 07.03.1994. Despite repeated adjournments, respondent No. 2 did not turn up and, thus, the Labour Court vide order dated 07.03.1994 proceeded ex parte and fixed the case for final arguments on 06.07.1994.

5. At the time when the matter was pending final disposal, respondent No. 2 in August, 1995, moved an application for setting aside the ex parte order dated 07.03.1994 on the ground that its authorized representative had wrongly noted the date of hearing.

6. In view of the fact that no final award had yet been passed in the matter, the Labour Court vide order dated 10.07.1996 allowed the said application and permitted respondent No. 2 to cross-examine the petitioner. As per the order dated 10.07.1996, the Labour Court fixed 13.11.1996 as the date for cross-examination of the workman/petitioner. However, respondent No. 2 yet again failed to turn up and the matter was adjourned. Even subsequently, the matter kept getting adjourned from one date to another, but to no avail. On 29.07.1999, respondent No. 2 was proceeded ex parte. Finally, the Labour Court vide award dated 18.02.2000 decided the matter in favor of the petitioner by directing respondent No. 2 to reinstate the petitioner with full back wages.

7. In July 2000, respondent No. 2 moved an application for setting aside the ex parte award dated 18.02.2000. A reply to this application was filed by the petitioner. However, the Labour Court vide order dated 22.01.2004 set aside the ex parte award dated 18.02.2000.

8. Aggrieved, the petitioner has filed the present writ petition for quashing the order dated 22.01.2004. According to the petitioner, the Labour Court, while setting aside the ex parte award dated 18.02.2000, has not justified its stand with sufficient and cogent reasons.

9. In order to examine whether there is any substance in the contentions of the petitioner thereby entitling him to the relief prayed for, I have gone through the application filed by the respondent No. 2 for setting aside the ex parte award dated 18.2.2000 as well as the impugned order of the labour court dated 22.01.2004 allowing the said application.

10. Let us first look at the application filed by the respondent No. 2, for setting aside the award dated 18.2.2000. The respondent No. 2 in his application has cited various reasons for not being able to appear before the Labour Court. According to respondent No. 2 in the year 1993 his business activities were extended overseas and most of the time he was out of the country in connection with his business. On 3.11.1993, he appointed one of his employees, Ms.Monika Sachdeva @ Monika Ahluwalia, the Accounts Executive as his attorney to manage his business in India and subsequently he promoted Ms.Monika to the post of General Manager to look after the business. According to the application clear instructions were given to Ms.Monika to pursue the Court cases pending against respondent No. 2 including the present matter. It is further stated in the application that in the year 1995 when the respondent No. 2 returned to India and contacted his authorized representative, he was informed that the cases were not being pursued properly in his absence and that on account of mis-appropriation of money, the said Ms.Monika had absconded and the business of the respondent No. 2 had got closed. In July 1996 the power of attorney given to Ms.Monika was cancelled and withdrawn. In view of this, the authorized representative did not get necessary instructions and he finally stopped appearing in the matter.

11. Now let us examine the objections of the petitioner to the application filed by the respondent No. 2 for setting aside the award dated 18.2.2000. The petitioner had raised a two-fold objection to the application of the respondent No. 2, namely: (1) the application was belated; and (2) the application did not constitute sufficient cause for setting aside the exparte award dated 18.2.2000. According to the petitioner, the respondent No. 2 was negligent in pursuing the case inasmuch the respondent No. 2 had previously been proceeded exparte on 7.3.1994 and an application for setting aside the said ex parte order had been moved in by the respondent No. 2 in August, 1995. The said application was allowed by the Labour Court on 10.7.1996, subject to costs in the sum of Rs.300/-. However, neither the costs were paid nor the management cross examined the workman and further costs of Rs.300/- were levied vide order dated 30.9.1997. In the absence of non-payment of costs, the order dated 10.7.1996 being a conditional order became infructuous and the ex parte order dated 7.3.1994 became operative. The petitioner had also submitted that the respondent No. 2 was aware of the ex parte order dated 7.3.1994, as after passing of the order various notices were sent to the respondent No. 2 at different addresses. The petitioner submits that the respondent No. 2, admittedly, had appointed Ms.Monika as his attorney. He even gave her a promotion from Accounts Executive to the post of General Manager. However, at the time when the respondent was proceeded ex parte which was in the year 2000, the attorney of the said Ms.Monika was cancelled and withdrawn as stated in para 3 of the application; the respondent also filed criminal complaints against her for mis-appropriation of funds. It is also mentioned in para 2 of the application that the authorized representative of the respondent No. 2 had informed that the cases were not being pursued properly by Ms.Monika, which clearly shows that the respondent No. 2 was aware of the pendency of the cases and also aware that Ms.Monika was not pursuing the same diligently. Admittedly, the case was listed for cross-examination of the workman. No reason has been shown as to why the authorized representative either stopped appearing and did not cross examine the witness of the workman.

12. From a mere reading of the objections raised by the petitioner to the application of the respondent No. 2 for setting aside the ex parte order dated 18.2.2000, it becomes crystal clear that the respondent No. 2 has indeed been negligent and careless in pursuing the present case. However, let us now examine how the labour court in its order dated 22.1.2004 has dealt with the objections raised by the petitioner. For felicity of reference the order dated 22.1.2004 is reproduced as under:

22.1.2004

Present: AR for the parties.

Arguments heard. As sufficient cause is shown the setting aside the ex parte award, the same is set aside on cost of Rs. 5,000/-.

Put of on 6.4.2004 for cross-examination of workman on payment of cost.

Sd./-

D.K. Malhotra

Presiding Officer

Karkardoma

13. Bare perusal of the impugned order dated 22.01.2004 clearly shows that the Labour Court has not applied its mind and simply passed a one line order. The Labour Court has not even dealt with any of the objections raised by the petitioner including the fact that the earlier order dated 10.7.1996 of setting aside the ex parte order dated 7.3.1994 was a conditional order upon payment of costs. Inasmuch as costs were not paid, the exparte order dated 7.3.1994 remained operative. Further, it is the admitted position of respondent No. 2 that he became aware of the pendency of the cases against him only in 1995 when he returned to India. To further vindicate his stand, the respondent No. 2 has submitted that upon becoming aware that his cases were not being pursued diligently, he sacked his attorney Ms.Monika in the year 1996. Considering that the respondent No. 2 became aware of the pendency of cases against him in 1995 itself, he had no reason to be proceeded ex parte in the year 2000 vide the ex parte order dated 18.2.2000. It is unfathomable indeed as to how the Labour Court in its impugned order dated 22.1.2004 has not considered the abject callousness on the part of the respondent No. 2.

14. It is trite that although the Labour Court enjoys vide discretion whilst adjudicating any industrial dispute, the law is well-settled that the Labour Court cannot exercise such vide discretion arbitrarily or fancifully and without paying obeisance to the sacrosanct rules of reasons and justice. In the present case, despite the glaring negligence exhibited by the respondent No. 2 in pursuing the present matter and despite the valid objections raised by the petitioner in response to the application of the respondent No. 2 for setting aside the ex parte award dated 18.2.2000, the labour court has found "sufficient cause" in allowing the said application. Merely using the expression "sufficient cause" was not good enough on the part of the labour court to set aside the ex parte award dated 18.2.2000. Once having used the expression sufficient cause, the labour Court ought to have given reason as to how and on what basis the grounds it had inferred sufficient cause in the application of the respondent No. 2 for setting aside the exparte award dated 18.2.2000. It appears to me that the Labour Court has passed the impugned order dated 22.01.2004 in haste without assigning any reason whatsoever for setting aside the ex parte award dated 18.02.2000. This is a grave error apparent on the face of the record, which can be atoned only if the impugned order dated 22.1.2004 is quashed.

15. However, before disposing of the present application, I have no hesitation in bringing to light that the callousness on the part of respondent No. 2 has yet again been demonstrated in the present petition, wherein, despite notice, respondent No. 2 has chosen not to appear. I am thus of the view that respondent No. 2 cannot be allowed to take advantage of its recalcitrance, especially at the expense of the petitioner who has already faced great hardships in pursuing the industrial dispute.

16. For the reasons stated above, I find no merit in the impugned order dated 22.01.2004, and accordingly, it is quashed and set aside.