Rajasthan High Court

Chairman, Nagar Palika Bayana vs Labour Court, Bharatpur ... on 11 January, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:2782]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                    S.B. Civil Writ Petition No. 4987/2006

1.       The Chairman, Nagar Palika, Bayana, District Bharatpur
2.       The Executive Officer, Nagar Palika Bayana, District
         Bharatpur
                                                                      ----Petitioners
                                       Versus
1.       The Labour Court, Bharatpur
2.       Udai Bhan Sharma S/o. Chhail Bihari,                       Surajpole Gate,
         Bharatpur
                                                                    ----Respondents

For Petitioner(s)            :     Mr. Satyapal Poshwal
For Respondent(s)            :     Mr. Prem Kumar Sharma



                HON'BLE MR. JUSTICE SAMEER JAIN

                                        Order

11/01/2024

1. By way of the instant petition, a challenge is made to

the order impugned dated 26.05.2006, passed by the learned

Labour Court in L.C.R. (Misc.) No. 46/2003 titled as Nagar Palika,

Bayana vs. Udai Bhan, whereby the application preferred by the

petitioner for setting aside the ex-parte award dated 12.02.1998,

was dismissed.

2. The ineluctable and concise factual matrix, necessary

for the adjudication of the instant petition, is noted herein-under:-

2.1 That on 19.09.1993, the respondent-Udai Bhan was

appointed as a daily wage worker on the post of Junior Engineer.

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2.2 That on 01.08.1995, the services of the respondent-Udai

Bhan were terminated by the petitioner by way of an oral/verbal

order.

2.3 That being aggrieved, the respondent-Udai Bhan filed an

application under Section 12 of the Industrial Disputes Act before

the Conciliation Officer.

2.4 That conciliation between the petitioner-Department and the

respondent-Udai Bhan culminated without arriving at a consensus.

Accordingly, as per Section 12(4) of the Industrial Disputes Act,

the matter was referred to the Labour Court, Bharatpur.

2.5 That on 07.08.1996, the respondent-Udai Bhan filed his

statement of claim.

2.6 That upon receiving notice(s), the counsel for the petitioner-

Department before the learned Labour Court filed his vakalatnama

and thereafter, marked his appearance.

2.7 That on 20.08.1997, the learned Labour Court initiated ex-

parte proceedings against the petitioner-Department as after filing

the vakalatnama, the counsel for the petitioner-Department did

not repeatedly appear before the court.

2.8 That on 12.02.1998, the learned Labour Court passed an ex-

parte award holding the termination of services of the respondent-

Udai Bhan as illegal, thereby directing his reinstatement with

continuity of service and full back-wages.

2.9 That being aggrieved, the petitioner-Department filed S.B.

Civil Writ Petition No. 5699/1998 before this Court. The said

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petition was dismissed by the learned Single Judge vide order

dated 16.11.1998 whereby without expressing any view on merits,

the petitioner-Department was directed and/or given the liberty to

file an application before the learned Labour Court itself with

regards to the setting aside of the ex-parte award dated

12.02.1998.

2.10 That being further aggrieved of the order dated 16.11.1998,

as passed by the learned Single Judge, the petitioner-Department

filed a D.B. Special Appeal No. 325/1999, which also came to be

dismissed vide order dated 08.09.2003.

2.11 That resultantly, the petitioner-Department, in light of the

liberty so granted, moved an application before the learned Labour

Court for setting aside the ex-parte award dated 12.02.1998.

2.12 That after hearing learned counsel for both the sides, the

learned Labour Court, vide order impugned dated 26.05.2006,

rejected/dismissed the application preferred by the petitioner-

Department.

2.13 That as a result, the instant petition is filed by the petitioner-

Department for setting aside the order impugned dated

26.05.2006.

3. It is submitted by learned counsel for the petitioner-

Department that the order impugned is neither sustainable in law,

nor in the facts of the instant case. In this regard, it is averred

that after receipt of the notices of the reference made by the

learned Labour Court, the petitioner-Department immediately

appointed Sh. Mohan Sharma as their counsel before the learned

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court below to plead their case. However, unfortunately, pursuant

to the filing of his vakalatnama, the counsel so appointed could

not appear before the learned Labour Court. Therefore, taking

note of the continued absence, an ex-parte award was passed by

the learned Labour Court. In order to draw a case for setting aside

the ex-parte award, it was conclusively argued that as per the

principles of natural justice, the litigating party cannot suffer for

the negligence of his counsel or representative.

4. Per contra, learned counsel for the respondents has

submitted that the order impugned is passed after having taken

into consideration the comprehensive facts of the case as well as

the corresponding law, duly applicable. Therefore, no interference

is called for with the order impugned.

5. Heard learned counsel for both the sides and perused

the record of the instant petition.

6. It is trite law that there is limited scope of interference

with a well-reasoned order while exercising jurisdiction under

Article 227 of the Constitution of India.

7. Upon a perusal of the order impugned, it is noted that

the learned Labour Court, vide order impugned dated 26.05.2006,

dismissed the application preferred by the petitioner-Department

for setting aside the ex-parte award dated 12.02.1998, on the

primary ground of delay and laches. In this regard, it is evidently

noted that the ex-parte award was passed on 12.02.1998.

Thereafter, liberty was given by this Court to file the requisite

application for setting aside the said order on 16.11.1998.

[2024:RJ-JP:2782] (5 of 11) [CW-4987/2006]

8. In this regard, it is noted that even if the factum of the

petitioner-Department preferring S.B. Civil Writ Petition No. No.

5699/1998 is taken note of, even then, it would be prudent to

appreciate the fact that the said petition, granting the liberty

and/or directing the petitioner to file an application before the

learned Labour Court, was passed on 16.11.1998. Therefore, even

pursuant to the dismissal of the writ petition and the consequent

grant of liberty to file the requisite application, the petitioner-

Department remained inactive in their actions and slacked in filing

the requisite application for a period of approximately 3 years and

3 months.

9. On the aspect of delay, reliance can be placed upon the

dictum of the Hon'ble Apex Court as enunciated in (2014) 4 SCC

108 titled as Chennai Metropolitan Water Supply and

Sewerage Board and Ors. vs. T.T. Murali Babu as well as

Union of India & Ors. vs. N. Murugesan reported in (2022) 2

SCC 45 and Bichitrananda Behera vs. State of Orissa and

Ors.:2023/INSC/902. In Chennai Metropolitan (Supra), it

was held as under:-

"The doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most

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circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant- a litigant who has forgotten the basic norms, namely "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."

10. Even otherwise, it is noted that during the pendency of

the proceedings before the learned court below, the petitioner-

Department was given ample opportunities in order to plead their

case. In this regard, it is noted that the following opportunities

were given to the petitioner-Department for filing their reply

before the court below, namely:

Opportunity 1: 19.12.1996 Opportunity 2: 13.03.1996 Opportunity 3: 08.05.1997 Opportunity 4: 04.06.1997 Opportunity 5: 01.09.1997

11. In this background, this Court must take it upon itself

to note that it cannot be disputed that due to the delay in access

to justice and not getting the timely justice, the trust and

confidence with which the Courts are placed, may be shaken

and/or distorted. Many a times, the task of repeated non-

appearance or adjournments is used to kill the tenets of

comprehensive justice. Repeated non-appearance or

adjournments break the back of litigants, who seek to remedy

their purported injustice. However, it is noted at the same time,

that the litigants must also be vary of the conduct and/or stage of

the proceedings of their case. The Courts are entrusted to perform

their duties with the object of strengthening the confidence of

common man in the institution encumbered with the

[2024:RJ-JP:2782] (7 of 11) [CW-4987/2006]

administration of justice. Any effort which weakens the system

and shakes the faith of the common man in justice dispensation

must be discouraged. Therefore, the Courts shall not be a party to

the cause for delay, either caused by way of adjournments or

repeated non-appearance, in dispensing justice. The Courts have

to be diligent and take timely action in order to usher in an

efficient justice dispensation system, which appreciates and

maintains the faith in rule of law.

12. In this regard, reliance can be placed upon the dictum

of the Hon'ble Apex Court as enunciated in Shiv Cortex vs.

Tirgun Auto Plast P. Ltd. and Ors.: (2011) 9 SCC 678,

wherein it was held as under:-

"14. ... Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?

15. It is sad, but true, that the litigants seek--and the courts grant--adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.

16. No litigant has a right to abuse the procedure provided in Code of Civil Procedure. Adjournments

[2024:RJ-JP:2782] (8 of 11) [CW-4987/2006]

have grown like cancer corroding the entire body of justice delivery system.

17.... A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit--whether the Plaintiff or the Defendant--must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril."

13. Similarly, in Nandlal vs. Abdul Hamid and Ors.: D.B.

Special Appeal Writ No. 811 of 2014, it was held as under:-

"1. ... The application was rejected on the grounds that the Power of Attorney was not produced, and also that, sufficient opportunities have been given for producing the evidence. Learned Tribunal noticed that on 13.3.2013, Nandlal was operated for cataract. He sought repeated adjournments in following six months period on the ground that he has been asked for checkups by the doctor, after every fifteen days. Learned Tribunal thereafter, fixed 10.4.2013, 7.5.2013, 9.7.2013 & 13.8.2013. Shri Nandlal did not appear and made a request to examine his son on his behalf, for which, the original Power of Attorney was not produced.

2. We do not find any error in the order passed by the Tribunal, rejecting the application for examining of the son as a Power of Attorney, in the absence of the original Power of Attorney. Sufficient opportunity was given to the appellant, after he had recovered from cataract operation. More than six months had passed, after the cataract operation, in which several dates were fixed for evidence. The appellant, did not avail the opportunities, on which the evidence is closed.

3. There is no error in the opinion of learned Single Judge that in the circumstances, the tenant wanted to delay and prolong the proceedings, on which the Tribunal rightly exercised his discretionary powers to close the evidence. The Special Appeal is dismissed"

14. Even in Jubeda vs. Chand Khan and Ors.: S.B. Civil

Writ No. 11294/2015, it was held as under:-

[2024:RJ-JP:2782] (9 of 11) [CW-4987/2006]

"4. ... Despite giving many opportunities, again one more opportunity on 5.4.2013 was granted for cross-

examination while rejecting the objections raised by defendant. Again one application came to be filed by the defendant, which was also rejected on 31.05.2013 with the direction to the defendant to positively cross-examine the (5 of 9) [CW-

11294/2015] plaintiff, else the same will be closed. Despite that no cross- examination was done. Again an opportunity on 04.09.2013 was granted to the defendant but no cross-examination was done. On 18.10.2014, the plaintiff was present for the cross- examination since morning but counsel for the defendant prayed for time and the same was granted at the cost of Rs. 500/-. Ultimately, the cross- examination was closed on 08.01.2015.

5. While mentioning this history of so many opportunities having being granted to the defendant, learned trial Court has observed that more than adequate opportunities were granted to the defendant for cross-examination of plaintiff but in vein. It was also observed that recalling the order dated 08.01.2015 and further giving the opportunity to cross-examination will certainly amount to abuse of judicial process and will hamper the quick dispensation of justice. In these facts and circumstances, the application filed by the petitioner defendant came to be rejected.

13. If the impugned order is scrutinized on the touch stone of the principles propounded by Hon'ble Apex Court in aforesaid judgment, it is obvious that no such circumstance exists for which it can be assumed that the trial Court has exceeded its jurisdiction or has not properly exercised the same, which may warrant exercise of supervisory jurisdiction. In the facts and circumstances of the case in hand, there was no justification for the trial Court to allow the application filed by the petitioner defendant under Article 151 CPC. Thus, the order impugned rejecting the same is perfect. In view of above, the petition filed under Article 227 of the Constitution of India is bereft of any merit and deserves to be dismissed. Thus, the petition is accordingly dismissed."

15. Therefore, considering that delay was caused of over 3

years and 3 months in filing the application for setting aside the

[2024:RJ-JP:2782] (10 of 11) [CW-4987/2006]

ex-parte award passed by the learned Labour Court i.e. liberty to

file the application was granted by this Court on 16.11.1998

whereas the application was filed by the petitioner-Department on

24.04.2002; that the task of adjournments and/or repeated non-

appearance is used to kill the tenets of comprehensive justice;

that ample opportunities, as noted above, were granted to the

petitioner-Department to furnish their reply, before the initiation

of ex-parte proceedings; that repeated non-appearance breaks the

back of litigants, who seek to remedy their purported injustice