Gurmeet Singh vs Managing Director, Punjab Tractors Ltd.

S.S. Sudhalkar, J.—By this writ petition, the workman is challenging the ex-parte award passed by the Labour Court against him on 21.5.1985. Copy of the award is at Annexure P/1. The Labour Court held that from the ex-parte evidence of the management it stood proved that the workman was employed with the respondent as a Mechanic and services were terminated after holding a fair and proper enquiry and as such the order of termination was justified and therefore, the petitioner was not entitled to the relief and the reference was disposed of accordingly.

The case of the petitioner is that the issues were framed on 12.11.1984 and the case was adjourned to 11.12.1984. Copy of the zimni order has been reproduced in para No. 5 of the petition. By the zimni order dated 11.12.1984, as reproduced in the writ petition, the petitioner was present in person and Mr. V.K. Gupta was present for the respondent-Management and the evidence of the respondent was not present and the matter was adjourned to 15.4.1985. The order dated 11.12.1984 was passed by the Presiding Officer who was camping at Rajpura.

The contention of the petitioner is that the case was adjourned for evidence on that day. It is further contended that though on 11.12.1984, the Case was adjourned to 16.4.1985, but in that order it was not mentioned where the next proceedings will be conducted. The zimni order of 16.4.1985 is also reproduced in the petition. The said order shows that the petitioner was not present, he was ordered to be proceeded against ex-parte. Ex-parte evidence of respondent-management was taken. The matter was adjourned for arguments to 21.5.1985. The petitioner has contended that on 11.12.1984, the proceedings were held at Rajpura and the case was adjourned on 16.4.1985 for the evidence of respondent but it was not mentioned in the order as to where the proceedings were to be held on the adjourned date. He has further contended that even orally he was not informed regarding the place of proceedings. Hence he went to Rajpura on 16.4.1985 and waited there till 2.00 pm and after the publication of the award, he came to know that on 16.5.1985 he was proceeded against ex-parte at Patiala. The respondent in reply to para No. 5 of the written statement as mentioned as under :-

"Para 5 :- is admitted to the extent it reproduces the various orders passed by the Presiding Officer, Labour Court respondent. The other averments in this para have not been correctly stated. Since the reference had been made to the Presiding Officer, Labour Court, Patiala all the proceedings in the instant case were held at Patiala, except on December 11, 1984, when the case was fixed at Rajpura and it was so mentioned in the Zimni order dated November 12, 1984. It may be mentioned that as per the practice of the Labour Court- respondent all proceedings are held at Patiala unless otherwise specified and this practice had been made known to the parties by the Presiding Officer himself. When the case was adjourned on December 11, 1984 to April 16, 1985 it was understood by the parties, as per the practice of the Labour Court which was known to all concerned, that the case would be taken upon April 16, 1985 at Patiala."

However, when the zimni orders are not in dispute and it is not mentioned as to where the proceedings had to take place on 16.4.1985, it is not possible to dis-be-lieve the say of the petitioner and it is thus clear that the petitioner has made out a case for his remaining absence and not knowing about the award.

Counsel for the respondent has vehemently argued that ex-parte award cannot be set-aside by this Court in writ jurisdiction. According to him, the petitioner has failed to give an application for setting aside the ex-parte award and hence this writ petition is not maintainable. He has relied on the judgment of the Supreme Court in the case of Satnam Verma Vs. Union of India (UOI), . In that case, it has been held by the Supreme Court that when ex-parte award is made and published in the official Gazette, the Labour Court has the jurisdiction to entertain an application for setting it aside if sufficient cause is shown. In the said case, the ex-parte award was made on 23.3.1982 and the petitioner moved an application for setting-aside the ex-parte award on 26.2.1982 i.e. even within one month of passing of the award, before the Labour Court.

Learned counsel for the respondent has also relied on the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, . In that case, it has been held by the Supreme Court that the contention that the Tribunal has become functus officio and therefore, no jurisdiction to set-aside the ex-parte award and that the Central Government alone could set it aside, could not be accepted. The facts of the case were that the award was published in the official Gazette on December 25, 1976 and the application for selling aside the ex-parte award was filed on 19.1.1977 i.e. before the expiry of 30 days of the publication. It was held by the Supreme Court that the application was rightly entertained by the Tribunal. It has been further held that the jurisdiction to entertain the application for setting-aside the award and decide it on merits, was therefore, with the Tribunal. The Supreme Court also considered the argument that on April 12, 1977 the date on which the impugned order is passed, the Tribunal had become functus officio. This argument was not accepted by the Supreme Court. It has been held that the jurisdiction of the Tribunal has to be seen on the date of application made to it and not the date on which it passed the impugned order.

This judgment will at the most go to show that the petitioner at some point of time had a right to approach the Tribunal for setting aside the ex-parte award. However, the quest ion is whether this Court should close its door to the petitioner because the petitioner has not approached the Labour Court wilhin 30 days of the publication of award. The answer has to be in negalive. If a bipartite award can be set-aside by this Court then why not an ex-parte award, moreso, when on the date of filing of this writ petition, period of 30 days had already elapsed after the publication of awared. After 30 days of publication of award, certainly, the petitioner would have found it difficult to get an order of setting aside the award from the Labour Court. So when he has approached this Court, the Court cannot throw the petition out on the ground that he has not approached the Labour Court for setting aside the ex- parte award. Moreover, the grounds stated by the petitioner in his petition appear to be quite genuine. Otherwise, there was no reason why the petitioner should have absented himself from the proceedings before the Labour Court.

This being the position, I accept this writ petition and set-aside the impugned order and remand the case to the Labour Court for deciding it in accordance with law after giving the parties necessary opportunity to lead their evidence.

Parties to appear before the Labour Court on 5.2.001.

Petition allowed.