Madhya Pradesh High Court
Sachiv Krishi Upaj Mandi Samiti Sironj ... vs Ramkaran Singh Raghuvanshi on 29 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 29th OF APRIL, 2025
WRIT PETITION No. 6584 of 2013
SACHIV KRISHI UPAJ MANDI SAMITI SIRONJ
DIST.VIDISHA M.P.
Versus
RAMKARAN SINGH RAGHUVANSHI
Appearance:
Shri S.P.Jain - Advocate for the petitioner.
None for the respondent.
ORDER
1. This petition under Article 226/227 of the Constitution of
India has been filed against the order dated 30.10.2012 passed by
Labour Court No.2, Bhopal in Case No.2/I.D.R.33-C(2)/96 by
which the Labour Court has allowed the application filed by the
Workman under Section 33-C(2) of the Industrial Dispute Act and
has directed the petitioner/employer to pay a sum of Rs.5,07,700/-
to the respondent-workman within a period of 15 days towards the
wages of alleged delayed period.
2. The facts necessary for disposal of the present petition in
short are that the Workman raised a dispute and award dated
19.08.1992 was passed in favour of the Workman by the Labour
Court No.2 Bhopal in Case No.5/90 I.D. Act (Reference). The
aforesaid award was passed ex-parte. Thereafter the Workman
filed an application under Section 33-C(2) of I.D. Act. Thereafter,
the petitioner filed an application on 18.01.2000 for setting aside
of ex-parte award. The said application was rejected by the Labour
Court vide order dated 11.11.2003. The order passed by the
Labour Court on 11.11.2003 was challenged by the petitioner by
filing W.P. No.47/04 (s) which was dismissed by this Court by
order dated 13.12.2011. It is not out of place to mention here that
application under Section 33-C(2) of I.D. Act was filed by the
Workman on 28.10.1996. However, on account of interim order
passed by this Court the further proceedings in the application
filed under Section 33-C(2) of I.D. Act were stayed. Although,
W.P. No.47/04 (s) was dismissed by this Court by order dated
26.12.11 but the copy of the same was filed by the workman
before the Labour Court on 22.06.2012. From the record of the
Labour Court it is clear that although W.P. No.47/04(s) was
dismissed by passing a byparte order in the presence of counsel
for the petitioner but still the petitioner did not appear before the
Labour Court on 16.12.11, 6.2.12, 3.5.12. 10.05.12 and ultimately
on 22.06.12 the Workman filed the copy of the order passed by
this Court. Even on the said date none had appeared for the
petitioner. Accordingly, the Labour Court fixed the case for
recording of evidence of the Workman on 22.08.12. On 22.08.12
the counsel for the petitioner did not appear and accordingly the
petitioner was proceeded ex-parte and the case was fixed for
24.09.12 for recording of statement of the Workman. On 24.09.12
the statement of the workman was recorded and the case was fixed
for final arguments on 17.10.12. On 17.10.12 the workman filed
an application under Order 6 Rule 17 CPC for amending the
application filed under Section 33-C(2) of I.D. Act thereby
including the arrears of salary which had become due to the
Workman in the light of award dated 19.08.1992.
3. As already pointed out the application under Section 33-
C(2) of I.D. Act was filed on 28.10.1996. Therefore, in the said
application whatever salary had become due was mentioned but
later on on account of stay of further proceedings the Workman
could not amend the application filed under Section 33-C(2) of
I.D. Act and could not clarify the salary which became due during
the pendency of the proceedings under Section 33-C(2) of I.D.
Act. However, by amendment the Workman clarified the salary
which had become due after the institution of the proceedings
under Section 33-C(2) of I.D. Act and from 1.1.97 till 31.03.2004
claimed that a further amount of Rs.3,54,100/- has also become
due. Since the amendment was only in respect of the calculation of
the salary which had accrued during the pendency of the
proceedings under Section 33-C(2) of I.D. Act, therefore, the said
application was allowed and the case was fixed for 30.10.12 for
final arguments. On 30.10.12 the final arguments were heard and
final order was passed.
4. Challenging the order dated 30.10.12 by which the Labour
Court has directed the petitioner to pay a sum of Rs.5,07,700/-, it
is submitted by counsel for petitioner that whenever a plaint is
amended then a fresh notice has to be issued even to a party
against whom ex-parte proceedings were already drawn and relied
upon the judgment passed by a coordinate Bench of this Court in
the case of Chairman, M.S. Banga Hindustan Lever Limited
vs. M/s Heera Agencies, reported in 2018 (1) MPLJ 43.
5. Considered the submissions made by counsel for the
petitioner.
6. In the case of Heera Agencies (supra), it has been held as
under:-
"23. The Division Bench of Patna High Court in the case of
Messrs. Jharkhand Mines and Industries Ltd. (supra), held as
under:
"The Code of Civil Procedure, in my opinion, casts a duty on
the Court to see that the defendants are made aware of any
amendment in the plaint, whether the amendment be in regard to
the addition of parties or in regard to the contents thereof.
Unfortunately, the learned Subordinate Judge, who passed the ex
parte decree, did not direct any notices to be issued to the
defendants with a view to make them aware about the
amendment of the plaint. He should have issued such notices
and awaited the service report, and, if the defendants so desired,
granted them an opportunity to file a written statement before
putting up the suit for hearing and disposal, whether ex parte or
otherwise. On this ground alone, lam of the opinion that the ex
parte decree is vitiated and must be set aside. ".
[Emphasis Supplied]
24. The apex Court in MANU/SC/0891/2003 : AIR 2004 SC
1084, [Ramnik Vallabhdas Madhvani and others v. Taraben
Pravinlal Madhvani], poignantly held as under:
"On amendment of pleadings being allowed, the opposite party
has to be given a chance to respond to the amended pleading and
if the plea is contested the Court has to give its decision thereon.
Not affording an opportunity to the contesting party to contest a
plea, which has been allowed to be amended, is negation of
justice."
25 . Similarly, in MANU/SC/0168/1993 : AIR 1993 SC 1182,
[Tahil Ram Issardas Sadarangani and others v. Ramchand Issardas
Sadarangani and another], the apex Court held that in cases of
withdrawal of power of Advocate when client is present and not
aware of the date of hearing, dismissal of petition for want of
prosecution is improper.
26. Justice Fakhruddin in the case of Mahesh Singh (supra),
followed the principles laid down in the case of Ganesh Prasad
Ramprasad (supra), and opined as under:
"9. Having considered the rival contentions advanced by
the parties and having gone through the record, it is
borne out from the record that though the counsel
pleaded no instructions on 10.11.1986, but the notices
were not issued to the parties. In view of the decisions
reported in MANU/SC/0168/1993 : 1993 Supp (3) SGC
256: AIR 1993 SC 1182 Tahil Ram Issardas Sadarangani
v. Ramchand Issardas Sadarangani and
MANU/SC/0914/1998 : (1998)2 SCC 206, Malkiat
Singh v. Joginder Singh and in view of the facts and
circumstances of the case discussed elaborately in earlier
paras especially that of 3 to 6, in the opinion of this
Court, the appellants deserve opportunity to contest the
suit, on merits in the ends of justice. It is specifically so
as the respondents/plaintiffs filed the application on
24.11.1990 changing cause of action from 28.8.1984 to
28.8.1974, which was allowed without notice to the other
side. It is pertinent to mention here that where defendant
is absent, no amendment should be allowed as has been
done in this case. In view of the decision reported in
MANU/NA/0152/1945 : 1946 NL J 81 : AIR (33) 1946
Nagpur 60,Ganesh Prasad Ram Prasad v. Damayanti w/o
Ganesh Prasad, the Court ought to have issued notice,
before allowing amendment. In view of the discussion
aforesaid, the first substantial question of law is
answered in favour of the appellants and the exparte
judgment and decree passed are set aside.
[Emphasis Supplied]
27. To counter, the said argument of learned counsel for the
appellants that the stand of Mr. Fakhruddin was that although
amendment application and application to take documents on
record were allowed subsequently to the date of proceedings ex
parte, the said applications were formal in nature.
28. Suffice it to say, that the Division Bench of Patna High Court
in no uncertain terms held that a duty is cast on the Court to
ensure that the defendants are made aware of any amendment in
the plaint. In the considered opinion of this Court, only after
receiving the copy of amendment application and application to
take documents on record, the other party can examine and decide
whether they need to contest the suit in view of amendment
proposed and documents proposed to be filed. Thus, I find
substance in the argument of appellants that common
string/principles in the said judgments is that the Court below
should put the other side to notice before putting the suit for
hearing and disposal. For this reason alone, in my judgment, the
impugned orders dated 9.4.2009 and 22.01.2009 cannot sustain
judicial scrutiny.
29. This Court will be failing in its duty if the other judgments
cited by Mr. Fakhruddin are not considered. Mr. Fakhruddin,
relied on the cases of Indrasen Jali, Swaran Kali, Narmada
Motors, Parmanand and Ramesh Chandra Jain (supra). In these
cases, the Courts considered the meaning of words "liberal
approach". The Courts also held that the litigant even after
engaging the counsel cannot be permitted to sleep over his duty.
Litigant should be vigilant and contact his counsel in order to
gather knowledge regarding progress of litigation. The said
principle cannot be applied in the facts and circumstances of the
present cases because in the present cases, admittedly, no fresh
notices were issued to the present appellants/defendants after
filing of applications under Order 6 rule 17 and Order 7 Rule
14(3) of CPC. As analyzed in catena of judgments, it was held
that it is the duty of the trial Court to put the parties to a fresh
notice when such amendments were filed. Pertinently, in the said
judgments cited by M r. Fakhruddin this point was absent and,
therefore, the said judgments cannot be mechanically pressed into
service in the present case. It is apposite to remember the
judgment of apex Court reported in MANU/SC/0105/2011 :
2011(3) SCC 545, [Parimal v. Veena alias Bharti], wherein it was
held as under:
"To determine the applicant under Order 9 rule 13 CPC, the test
that has to be applied is whether the defendant honestly and
sincerely intended to remain present when the suit was called on
for hearing and did his best to do so. Sufficient cause is thus the
cause for which the defendant could not be blamed for his
absence. Sufficient cause is a question of fact and the Court has
to exercise its direction in the varied and special circumstances
in the case at hand. There cannot be a straight jacket formula of
universal application."
30. This is equally settled that precedent is what is actually
decided by the Courts and not what is logically flowing from it.
The single different fact may change the presidential value of
the judgment (See: MANU/SC/1092/2002 : (2003)2 SCC 111,
[Bhavnagar University v. Palitana Sugar Mill (P) Ltd.]). As
discussed above, the Court below has erred in disallowing the
applications filed under section 5 of the Limitation Act and
applications filed under Order 9 rule 13 CPC. The rejection
orders dated 22.1.2009 cannot sustain judicial scrutiny. However
it is noteworthy that plaintiffs were put to serious inconvenience
by the present appellants. The delay is also caused for no fault
on the part of the plaintiffs. Thus, this Court deems it proper to
allow the present appeals subject to payment of Rs. 50,000/- as
cost in each of the cases which shall be payable to the plaintiffs
by the present appellants. The applications under section 5 of
the Limitation Act and applications under Order 9 Rule 13 CPC
are allowed. Subject to aforesaid, civil suits are restored to their
original numbers. Appeals are allowed."
7. So far as the question of applicability of the aforesaid
judgment to the facts of the case is concerned, this Court is of the
considered opinion that in view of the nature of proceedings
initiated under Section 33-C(2) of I.D. Act the Labour Court did
not commit any mistake by not issuing a fresh notice to the
petitioner after the application for amendment was allowed. The
proceedings under Section 33-C(2) of I.D. Act are in the nature of
execution. The rights of the parties were already decided by the
Labour Court by award dated 19.08.1992. Nothing more was to be
decided by the Labour Court except the calculation in the
proceedings which were initiated under Section 33-C(2) of I.D.
Act. Even during the course of arguments the counsel for
petitioner had claimed that the Workman was reinstated in the later
part of January, 2004. Whenever an execution proceedings are
initiated then whatever amount accrues during the pendency of the
execution proceedings is not required to be specifically pleaded
and proved. The award dated 19.08.1992 will remain in force
unless and until the workman is reinstated and the salary is paid.
Award dated 19.08.92 reads as under:-
**mijksDr foospu ds vk/kkj ij f}rh; i{k dks funsZ'k fn;k tkrk gS fd os
izFke dks iqu% laLFkkfir djsa rFkk leLr iqjkus osru dk Hkqxrku djsa rFkk
izkFkZuk i= ds [kpsZ ds :i esa lkS :i;s vnk djsa A"**
8. Therefore, it is clear that the petitioner was under obligation to
pay the salary till the Workman is reinstated. Admittedly,
according to the petitioner the Workman was reinstated in the
month of January, 2004. From the amendment which was carried
out by the Workman in his application under Section 33-C(2) of
I.D. Act it is clear that he had merely calculated the arrears of
salary which became due to him from 1.1.97 till March, 2004.
Even otherwise the Labour Court was required to calculate the
arrears of salary upto the period when the Workman was reinstated
by the petitioner. Whatever salary had accrued to the Workman on
account of non-compliance of award dated 19.8.1992 can be said
to be the salary which accrued in future after the institution of
proceedings under Section 33-C(2) of I.D. Act. By allowing the
application for amendment under Order 6 Rule 17 CPC the
Labour Court has not decided any independent right of the
Workman or liability of the petitioner.
9. It is submitted by counsel for the petitioner that the
petitioner was wrongly proceeded ex-parte. It was also submitted
that the petitioner could have disputed the amount of salary
claimed by the Workman from 1.1.1997 till March 2004.
10. Heard the learned counsel for the petitioner.
Whether petitioner was rightly proceeded ex-parte or
not?
11. This Court has already held that W.P. No.47/04(s) was
dismissed by this Court by order dated 13.12.11. It was a byparte
order and the case was argued by the counsel for the petitioner.
Thus the petitioner was aware of the fact that W.P. No.47/04(s) has
already been dismissed but inspite of that the petitioner did not
appear before the Labour Court from 16.12.11 onwards. Although,
the argument of the counsel for the petitioner is that it was
obligatory on the part of the labour Court to issue a fresh notice to
the petitioner before proceeding ex-parte, but the counsel for the
petitioner could not justify his said stand. The stay on the
proceedings under Section 33-C(2) of I.D. Act was obtained by the
petitioner. The petition was dismissed by a byparte order after it
was duly argued by counsel for the petitioner. The petitioner was
aware of the fact that once his petition has been dismissed,
therefore, the interim order has already come to an end. Needless
to mention that after the application under Section 33-C(2) of I.D.
Act. was filed, the petitioner had appeared before the Labour
Court on 21.07.98 and continued to participate in the proceedings
till the further proceedings were stayed by the High Court. Under
these circumstances, it was not obligatory on the part of the
Labour Court to invite the petitioner to participate in the
proceedings after the stay was vacated. It was for the petitioner
itself to appear before the Labour Court and the expectation
expressed by the counsel for the petitioner that the Labour Court
should have invited the petitioner is misconceived and it is hereby
rejected.
Whether the quantum of back wages claimed by the
Workman are proper or not?
12. The submission of counsel for the petitioner that the
petitioner could have disputed the amount of back wages claimed
by the Workman in his application under Order 6 Rule 17 CPC
appears to be bonafide. Therefore, the counsel for the petitioner
was directed to point out as to whether the amount claimed by the
Workman in his application for amendment has been disputed by
the petitioner in this petition or not and whether the petitioner has
submitted his own separate calculation in that regard or not?
13. It is fairly conceded by the counsel for the petitioner that the
calculation done by Workman in his application for amendment
has not been disputed by the petitioner in this writ petition.
Against an ex-parte order the petitioner had two opportunities
either to file an application for setting aside the ex-parte order or
to challenge the order on merits. The petitioner had decided to
challenge the order passed by the labour Court on merits by
approaching this Court. Once the petitioner has not challenged the
amount calculated by the Workman in his application for
amendment then this Court is of considered opinion that no
prejudice was caused to the petitioner in case if no notice was
issued to it.
14. No other argument was advanced by counsel for the
petitioner.
15. Considering the totality of the facts and circumstances of the
case, this Court is of the considered opinion that no case is made
out warranting interference.
16. This Court by interim order dated 3.11.2016 had directed
that subject to deposit of amount of Rs.5,07,700/- before the
Labour Court, the execution of the order dated 30.10.12 shall
remain stayed and the amount so deposited shall not be disbursed
to the respondent without leave of the Court. It was further
directed that the Labour Court shall deposit the amount in the
Fixed Deposit Account in a Nationalized Bank fetching maximum
interest fortified as per rules. Thus it is held that the Workman is
entitled to withdraw the amount if deposited by the petitioner.
17. It is made clear that if the amount has not been deposited in
compliance of order dated 3.11.2016 then the amount of
Rs.5,07,700/- shall carry an interest at the rate of 6% per annum
from the date of the original award i.e. 19.08.92 till the amount is
actually paid.
18. With aforesaid observation, the petition is disposed of.
(G.S. AHLUWALIA)
JUDGE
Van
VANDAN
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Date: 2025.05.01 11:01:08 +05'30'
