Hari Singh vs M/s. Pooja Forging Pvt. Ltd. and Another

Rameshwar Singh Malik, J.—The present writ petition is directed against the order dated 26.7.2012 (Annexure P-3) vide which the reference was dismissed for want of prosecution by the learned Labour Court, Faridabad, and also against the order dated 28.1.2013 (Annexure P-6), dismissing the application for restoration. Brief facts of the case are that the petitioner workman sought reference of industrial dispute and the same was referred by the appropriate authority. When the reference was pending decision before the learned Labour Court, Faridabad, on 26.7.2012, none appeared on behalf of the claimant-workman and the reference was dismissed for want of prosecution. An application was moved on the same day seeking restoration of the case, explaining reasons for bonafide absence. However, the expiration given on behalf of the petitioner did not find favour with the learned Labour Court and the application was dismissed vide impugned order dated 28.1.2013 (Annexure P-6). Hence this writ petition.

Notice of motion was issued and having been duly served, learned counsel appeared on behalf of respondent No. 1. However, no written statement was filed on behalf of the respondent No. 1 -Management.

Learned counsel for the petitioner submits that the impugned award dated 26.7.2012 (Annexure P-3) as well as the impugned order dated 28.1.2013 (Annexure P-6) passed by the learned Labour Court, Faridabad, were, on the face of it, patently illegal. The absence on the part of the petitioner in pre-lunch session on 26.7.2012, had been duly explained giving bonafide reasons by way of an application for restoration moved on the same day. However, the learned Labour Court has miserably failed to appreciate the bonafide reasons for non appearance, while passing the impugned order, thereby rejecting the application for restoration. Finally, he prays for setting aside the impugned orders by allowing the present writ petition.

On the other hand, learned counsel for respondent No. 1 submits that the absence on the part of the petitioner was not bonafide, but, in fact, he had been intentionally delaying the proceeding of the case. He further submits that the petitioner was not entitled for any benefit because of his own fault. There was no illegality in the impugned order passed by the learned Labour Court and the writ petition was liable to be dismissed.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders passed by the learned Labour Court are neither justified on facts nor in law and the present writ petition deserves to be allowed. To say so, reasons are more than, which are being recorded hereinafter.

The very fact that the application for restoration of the case was moved on 26.7.2012 itself, the day when the impugned order Annexure P-3 was passed, dismissing the reference for want of prosecution, clearly establishes that the petitioner workman was not negligent, as such. Further, the authorised representative of the petitioner disclosed bonafide reasons explaining his non appearance in the application Annexure P-4, moved on 26.7.2012 itself. The impugned award dismissing the reference for want of prosecution was, as a matter of fact, a cryptic one and the same reads as under:--

The present reference was received for deciding the issue whether the services of the claimant were terminated illegally and if so what relief could be granted to him.

No one appeared for the claimant today. The claim is dismissed for want of prosecution. Reference is answered accordingly.

The explanation given for bonafide non appearance, in the pre-lunch session on behalf of the petitioner, reads as under:--

That the A.R. Of the claimant was busy in court No. 3 to cross-examination of two witnesses in the case of Sh. K.B. Nigan v. J.C. Auto Pvt. Ltd. Faridabad. The under signed could not appear before your honour at the time of calling the case.

The under signed was freed at 1:00 P.M. Then 1 came to know that the Hon''ble court has passed the order against the workman due to non appearance.

That non appearance in this case of A.R. Of the claimant was neither intentional nor deliberately but the reason as stated above which is beyond his control.

In view of the above said fact situation of the present case, the learned Labour Court has proceeded on a wholly misconceived approach while passing the order, because of which the impugned order dated 28.1.2013 (Annexure P-6), dismissing the above said application of the petitioner, cannot be sustained. It is so said, because it is the settled principle of law that every court should make an endeavour to decide the case on merits.

Nobody should be forced to go home with a grouse that he was not granted due opportunity to pursue his case. Passing of such an order, as has been passed in the present case, hardly serves any purpose. Had the learned Labour Court accepted the application of the petitioner for restoration of the case on 26.7.2012 itself, the reference could have been decided on merits, within a period of two or three months thereafter. However, the learned Labour Court has misdirected itself while passing the impugned order, which have resulted in miscarriage of justice. Thus, the impugned orders cannot be sustained.

During the course of argument, learned counsel for the respondent Management painstakingly argued that the impugned orders passed by the learned Labour Court were not liable to be set aside, because the petitioner workman had been delaying the proceeding before the learned Labour Court. However, neither any written statement has been filed on behalf of the respondent Management, nor any zimini order has been produced by the respondent Management to substantiate the arguments. Thus, the argument raised by the learned counsel for the respondent Management is without any force and the same is hereby rejected. Having said that, this Court feels no hesitation to conclude that the orders passed by the learned Labour Court cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned orders passed by the learned Labour Court are illegal and the same are ordered to be set aside. Consequently, application for restoration of the case moved on behalf of the petitioner workman is allowed. Reference is ordered to be restored to its original number. The matter is remitted back to the learned Labour Court-I, Faridabad, with a direction to decide the case at an early date, preferably within a period of six months from the date of receipt of a certified copy of this order.

Resultantly, with the aforementioned observations made and directions issued, the present writ petition stands allowed, however, with no order as to costs.