The Management Of M/S Hotel ... vs Its Workmen Through All India ...
2013 Latest Caselaw 1410 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on: 19.03.2013
                               Judgment pronounced on: 21.03.2013
+      LPA 593/2012


       THE MANAGEMENT OF M/S HOTEL JANPATH ..... Appellant
                       Through: Mr. Karunesh Tandon, Adv.

                          versus

       ITS WORKMEN THROUGH ALL INDIA
       PRAYATAN JAN
       MAZDOOR SABHA AND ORS                ..... Respondents
                       Through: Mr. S.S.Upadhyay, Adv.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. At the instance of respondent No.1--Union, representing the

employees of the appellant/writ petitioner, a reference was made to the

Industrial Tribunal with respect to payment of officiating allowance to

certain workers, who claimed to be performing the duties of higher posts,

without their having been promoted to the said post. Notice of the claim

being issued to the appellant/petitioner-Management, a representative of

the Management Shri Shiv Tiwari, Senior Assistant, (HR Department)

appeared before the Tribunal, but, thereafter no one having appeared for

the Management, it was proceeded ex parte since 30.05.2003. An ex

parte award was passed by the Tribunal on 16.03.2004.

2. An application under Order 9 Rule 13 of CPC, seeking recall of the

said award was filed by the appellant/petitioner through one Shri S.N.

Khanna. The respondent No. 1-Union filed a reply opposing the

application and inter alia submitted that the application was liable to be

outrightly rejected and the award passed by the Court should be

implemented as the same had been referred to the Government for its

publication and implementation.

3. It would thus be seen from the reply that by the time the said reply

was filed on 20.09.2004, the award had not been notified. The Industrial

Tribunal vide order dated 04.05.2005, rejected the application filed by the

Management solely on the ground that there was nothing on record,

including the file of the case, which would show that Shri S.N. Khanna

was an authorized representative of the Management at any point of time.

The Tribunal, therefore, did not examine the application of the

Management on merits and did not go into the question as to whether

there was any sufficient cause for absence of the Management with effect

from 30.05.2003 onwards or not.

4. The learned counsel for the appellant has drawn our attention to the

application dated 17.12.2004 filed by respondent No. 1-Association

before the Tribunal. Para 3 of the said application reads as under:

"That the Management of Janpath Hotel have only authorize Mr S.N. Khanna in the month of February 2004 therefore question of his appearance earlier in the same case does not arise."

The award came to be passed on 16.03.2004 and the application

under Order 9 Rule 13 of CPC having been filed only thereafter, the

Tribunal was not correct in saying that there was no material on the case

file to show that Shri S.N. Khanna was authorized to represent the

Management in the matter pending before him. Since Shri S.N. Khanna

was duly authorized to act on behalf of the Management, the application

filed by him on behalf of the Management under Order 9 Rule 13 of CPC

was certainly competent. The Tribunal as well as the learned Single

Judge, therefore, fell into an error in holding that there was no material on

record to show the authority of Shri S.N. Khanna to act on behalf of the

Management.

5. Since neither Tribunal nor the learned Single Judge has gone into

the merits of the application under Order 9 Rule 13 of CPC, we are of the

view that the matter needs to be remitted back to the Tribunal for

considering the said application afresh and passing an order on its merit.

We, therefore, set aside the impugned order of the learned Single Judge

dated 08.05.2012 as well as the order of the Tribunal dated 04.05.2005,

dismissing the application of the Management under Order 9 Rule 13 of

CPC. The Tribunal shall consider the said application on its merit and

pass an appropriate order thereon, within eight weeks of receipt a copy of

this order. The appeal stands disposed of.

There shall be no order as to costs.

V.K.JAIN, J

CHIEF JUSTICE MARCH 21, 2013 bg