Delhi High Court
The Management Of M/S Janapath ... vs All India Parayatan Jan Mazdoor ... on 8 May, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P. (C) 19898/2005
+ Date of Decision: 8th May, 2012
# THE MANAGEMENT OF
M/S JANAPATH HOTEL ....Petitioner
! Through: Mr. Karunesh Tandon, Advocate
Versus
$ ALL INDIA PARAYATAN JAN
MAZDOOR SABHA & OTHERS .....Respondents
Through: Mr. S.S. Upadhyay, A.R.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J:
This writ petition has been filed by the petitioner-
management for setting aside the order dated 30th May, 2003
passed by the Industrial Tribunal whereby the application
filed by it for setting aside of the ex-parte Award dated
16.03.2004 whereby the workmen concerned awarded the
relief of payment of officiating allowance for the period they
were asked by their employer, the petitioner herein, to
perform the duties of higher posts without their having been
promoted to those posts, has been rejected. The petitioner has
also challenged the Award.
2. The ex-parte Award dated 30th May, 2003 came to be
passed by the Industrial Tribunal upon receipt of a Reference
from the appropriate Government under Section 10 of the
Industrial Disputes Act in respect of the demand of some of
the workers employed at Janpath Hotel for regular pay scales
in respect of the posts held by them. The term of Reference
made to the Industrial Tribunal reads as under:-
"Whether the workmen S/Sh. V.P. Bhatia & 14 others, as
shown in Annexure A are entitled to the regular pay-scale and
post held by them if so, what direction are necessary in this
respect?
3. The statement of claim was filed on behalf of the
workmen wherein they had claimed that even though they
were performing the duties of higher posts but they were not
getting the pay scales attached to those posts and not even
that they were not even getting officiating allowance by the
management for taking work from them meant for higher
posts.
4. The petitioner - management did not contest the claim
of the workmen by not entering appearance before the
Industrial Tribunal and consequently it was ordered to be
proceeded against exparte. After recording ex-parte
evidence of the workmen the Industrial Tribunal passed an
Award in favour of the workmen and the relief given to them
in para no. 15 of the Award is as under:-
"15. In view of the evidence adduced, it is held thus workman
Shri V.P. Bhatia, Sohan Singh, Shiva Nand, Baldev Singh,
Satya Pal Singh and Satish Kumar Meena whose names also
find reference in Annexure A are entitled for the officiating
allowance for the period they held the higher posts referred to
in their statements under the orders/instructions of the
management. This reference is answered accordingly in case of
these workmen in their favour and against the management."
5. The petitioner - management subsequently filed an
application for setting aside of the afore-said ex-parte Award
on 8th May, 2004 giving reasons for its non-appearance
during the trial. The workmen opposed that application and
the Industrial Tribunal rejected that application vide order
dated 16th March, 2004. That order is re-produced below:
"The application for setting aside ex parte proceedings and
recalling the award was filed in May, 2004, by means of an
application which was signed by one Mr. S.N. Khanna Advocate.
The application was also supported by an affidavit of Shri S.N.
Khanna and one clerk Chaman Lal Clerk of M/s Sikri &
Company. However, this application was neither filed by the
management nor there is anything on record including the file of
the original case which may show that Shri S.N. Khanna was an
authorized representative of the management at any point of time.
The application has been opposed by the workman on this ground
as also on the ground of delay.
Despite several opportunities granted to the management. The
management has not taken any action to correct the mistake. The
have not filed nay new application signed by the departmental
representative or by the authorized representative on whose
prayer or application the relief sought for can be granted or even
considered.
In these circumstances, application under Order 9 Rule 13 CPC is
dismissed with no orders as to cost."
6. Feeling aggrieved this writ petition was filed by the
petitioner - management in which its main grievance was
that the workmen were not entitled to get any officiating
allowance as had been granted to them by the Industrial
Tribunal and further that the Industrial Tribunal was not
justified in rejecting its application under Order IX Rule 13
CPC on a hyper-technical ground that it had failed to show
the authority of the person who had moved the said
application. Same submissions were adopted on behalf of
the petitioner - management by its counsel during the course
of hearing of this writ petition.
7. From the side of the respondents their authorized
representative while supporting the impugned order dated
16th March, 2004 and the earlier Award dated 30th May, 2003
submitted that there was no infirmity, illegality or perversity
in the decision of the Industrial Tribunal in refusing to set
aside the ex-parte Award for the reason that the person who
had moved the application under Order IX Rule 13 CPC had
failed to satisfy that he had the authority from the
management to move such an application.
8. After giving my thoughtful consideration to the rival
submissions of the parties I see no merit in this writ petition
and the same is liable to be dismissed for the reason that the
impugned order dated 16th March, 2004 shows that the
person who had moved the application under Order IX Rule
13 CPC had failed to show that he had been authorized by the
petitioner - management to move that application. In this
writ petition also nothing has been claimed as to who was
that person by the name of Mr. S.N. Khanna who had moved
that application. Thus, it cannot be accepted that the
application under Order IX Rule 13 CPC had been rejected
on hyper-technical ground justifying interference by this
Court in exercise of its writ jurisdiction.
9. This writ petition is, therefore, dismissed.
P.K. BHASIN, J
May 8, 2012
