The Chairman vs Sri C N Sriramana
2022 Latest Caselaw 2870 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 21ST DAY OF FEBRUARY, 2022
                        BEFORE
        THE HON'BLE MS. JUSTICE JYOTI MULIMANI
     WRIT PETITION NO.33464 OF 2017 (L-RES)
BETWEEN:

1.     THE CHAIRMAN
       BMS INSTITUTE OF TECHNOLOGY
       AND MANAGEMENT,
       BMS EDUCATIONAL TRUST,
       NO.1908, BULL TEMPLE ROAD,
       BASAVANAGUDI, BANGALORE - 78.

2.     THE PRINCIPAL,
       BMS INSTITUTE OF TECHNOLOGY
       AND MANAGEMENT,
       DODDABALLAPURA ROAD,
       AVALAHALLI, YELAHANKA,
       BANGALORE - 64.

3.     THE CHIEF WARDEN,
       BMS INSTITUTE OF TECHNOLOGY
       AND MANAGEMENT,
       DODDABALLAPURA ROAD,
       AVALAHALLI, YELAHANKA,
       BANGALORE - 64.             ... PETITIONERS

(BY SRI VENKATESH DALWAI, ADVOCATE)

AND:

SRI C.N.SRIRAMANA
S/O LATE NANDAGIRI RAO,
AGE:MAJOR, OCC:NOT KNOWN,
ADD: NO.697, 1ST FLOOR,
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32ND MAIN, 14TH CROSS,
J.P.NAGAR, 1ST PHASE,
BANGALORE - 78.                             ... RESPONDENT

(BY SMT.GIRIJA, ADVOCATE FOR
    SRI S.P.RAMESHA, ADVOCATE)


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                            ORDER

Sri.Venkatesh Dalwai, learned counsel for petitioners

and Smt.Girija, learned counsel on behalf of

Sri.S.P.Ramesha, for respondent have appeared through

video conferencing.

2. For the sake of convenience, the ranking of the

patties is referred to as their ranking before the labour

court.

3. The facts are stated as under:

It is stated that the applicant filed an application

under section 33 (C) (2) of the Industrial Disputes Act,

1947 against the respondents before the Labour Court,

Bengaluru in Application No.01/2016. The respondents

were placed ex-parte. Hence, they were constrained to file

an application under Order 9 Rule 7 read with section 151

of CPC to recall the ex-parte order.

It is averred that the Labour Court without

considering the parameters of granting opportunity and

also prejudice being caused to the applicant rejected the

application and posted the matter for judgment on

29.07.2017.

Aggrieved by the order dated:20.06.2017 passed by

the Labour Court, the petitioners having left with no other

of alternative and efficacious remedy has filed this Writ

Petition under article 226 and 227 of the Constitution of

India.

4. Sri.Venkatesh Dalwai, learned counsel for

petitioners submits that the order is illegal and contrary to

law.

Next, he submitted that the Court ought to have

granted an opportunity to contest the proceedings as no

prejudice would have been caused to applicant.

A further submission was made that the Court has

taken a hyper technical view for alleged absence of

reasons in the memorandum of facts.

Learned counsel vehemently contended that the non-

appearance is not intentional or deliberate but due to

administrative exigency and related work pressure. Hence,

the denial of opportunity is unjust and unfair as the

applicant could have been compensated with costs if any

for the alleged delay of non-appearance.

Lastly, he submitted that viewed from any angle, the

order lacks judicial reasoning. Accordingly, he submitted

that the matter requires a remand and hence, appropriate

Writ may be issued.

5. Smt.Girija, learned counsel on behalf of

Sri.S.P.Mahesh for respondent justified the order. She

submitted that the Labour Court in extenso referred to the

material on record and passed the order. Accordingly, she

submitted that the petition is devoid of merits and hence

the Writ Petition may be dismissed.

6. Heard the contentions urged on behalf of

petitioners and respondent and perused the writ papers

with care.

The short point which requires consideration is

whether the Labour Court is justified in not affording an

opportunity for the petitioners to contest the matter?

Suffice it to notice that the respondent filed

application under section 33 (C) (2) of the I.D Act on

10.02.2016 and prayed for an order directing the

petitioners to pay the amount of Rs.7,59,624/- (Rupees

Seven Lakhs Fifty Nine Thousand Six Hundred and Twenty

Four only) together with interest at the rate of 18% with

costs of the proceedings. The case stood posted to

21.10.2016 for appearance of respondents. It is contended

that the respondents entrusted the matter to Advocate and

believed that the same will be taken care of. It is said that

the Advocate did not defend the case. The respondents

were placed ex-parte as there was no representation.

Immediately, on 24.01.2017 the respondents filed an

application to recall the order placing the respondents ex-

parte and permit them to contest the case.

It is significant to note that the respondents also

filed objections to Section 33(C)(2) application. The

applicant opposed the application to recall the order by

filing objections. The Court rejected the application on the

ground that the notice issued to respondents were duly

served. The Court also concluded that the application is

not maintainable since no affidavit was filed in support of

the application to satisfy the Court that there are sufficient

reasons prevented them to appear before the Court.

It is relevant to note that the application filed under

Order 9 rule 7 of read with section 151 of CPC is filed on

24.01.2017. The same is accompanied by memorandum of

facts. I have perused the same with care. It is at

Annexure-B. One Sri.Panchakshraiah the second

respondent has filed memorandum of facts.

I have also perused the statement of objections filed

by the applicant for recalling the order. The applicant has

not stated in what manner, prejudice will be caused to him

if the application is allowed. It is significant to note that if

sufficient reasons are accorded and no prejudice is caused

to the applicant, there is no impediment to recall the order

and permit the respondents to contest the application on

merits. It is needless to say that the reasons assigned are

sufficient to recall the order.

In my considered opinion, the Court has failed to

have regard to relevant considerations and disregarded

relevant matters. Hence the matter requires a remand.

In the result, the Writ petition is allowed. The order

dated 20.06.2017 passed by the Labour Court, Bangalore

in Application No.01/2016 is quashed.

The matter is remitted to the Labour Court. The

Labour Court is directed to consider the application and

pass appropriate order on the merits of the case within six

months from the date of receipt of certified copy of this

order.

Since petitioners and respondent are represented

through their respective counsel, they are hereby directed

to appear before the Labour Court on 21.03.2022 without

expecting any notice from the Labour Court.

The petitioners are directed to pay cost of Rs.5,000/-

(Rupees Five Thousand only) payable to the Advocates

Welfare Fund.

Sd/-

JUDGE VMB