Harish Enterprise Private Limited vs Dattubhai Fakirbhai Dubala and Others

S.R. Brahmbhatt, J.—Rule. Mr. Shah, learned advocate waives service of notice of Rule on behalf of Respondents. By consent, Rule is fixed forthwith.

The Petitioner, who is applicant employer in Delay Misc. Application No. 29 of 2007 in the Labour Court at Valsad, has approached this Court under Articles 226 and 227 of the Constitution of India challenging the order dated 9.8.2010 whereunder, the court rejected the application for condonation of delay filed for seeking condoning delay in preferring the restoration application, wherein, ex-parte award was passed. The delay was about 60 days but the Court declined to condone the same for the reasons stated there under.

Learned advocate for the Petitioner submitted that appropriate cost could be imposed so that the Petitioner may get a chance and opportunity to make out his case on merits before the Court. The delay in itself is not so exorbitant as to deprive the Petitioner of his otherwise legitimate rights of being heard in the matter, wherein, the elaborate evidences are required to be taken. The total workmen involved in this group of References are around 49 and if there is a need be, each of the workman be awarded cost individually. He further submitted that the Court may remand the matter after awarding appropriate cost and direct the concerned Court to decide the References afresh by quashing and setting aside the ex-parte judgment and order dated 16.1.2007 in this group of References so that without taking courts time in arguing the restoration application, straightway the References themselves could be taken up on merits.

Shri Shah, learned advocate for the Respondents contended that there could be in fact no objection to such a suggestion. In the instant case, the conduct of the employer itself go to show that ex-parte award was passed indicating scant regard for the industrial dispute machinery. The workmen have been languishing in the present plight since long and in case if this Court is of the view that the ex-parte award made in the References may be set aside so as to afford an opportunity to the employer for leading its evidence, then, appropriate order of cost be made and payment by this Court to the individual workman be made for condition precedent for restoring the References on the file of the Court. He further submitted that in case if the Court is of the view that matter is required to be remanded, then, let there be a time limitation fixed for deciding the References so that the workmen may not have to continue in the present plight. Shri Shah further submitted that cost that may be awarded by the Court may not be in any case ordered to be set of against the final outcome, if any, ordered to be paid under the Reference at the time of final decision and this cost may be awarded to the workmen as cost for condoning delay and restoration of the References itself.

The Court has perused the award, which is made ex-parte in the References and the order made by the Court on delay condonation application, the Court is of the view that when the employer Petitioner is ready to accept costs for availing an opportunity of leading evidence and being heard in the Reference and when the delay is not so inordinate as to dissuade the court from passing the appropriate order. It would be appropriate for this Court not to dwell upon the merits of the court i.e. merit of the References, merit of the order ex-parte made in the Reference as well as merits on the delay. Suffice it to say that delay, which was not inordinate, could have been condoned and if the delay was condoned, the time of the Court would have been saved. However, let things rest at they are. The employer is required to afford an opportunity and therefore the matter is remanded and the order impugned namely orders made ex-parte in the References as well as Restoration Application are required to be quashed and set aside. The quashing of this orders would not amount to this Court endorsing any contentions made by the Petitioner challenging those awards and orders. It is essentially passed with a view to see that the parties i.e. workmen as well as employer may receive opportunity to put forward their respective cases before the Court. The Labour Court on receiving the writ of this Court would be at absolute liberty to decide the matter on merits after affording due opportunity of being heard to the respective parties. The impugned orders are quashed and set aside on a condition that the employer Petitioner shall pay Rs. 5000/-to each of the workman. The total amount be deposited in the concerned court, which in turn, shall disburse to each of the workman by account payee cheque after proper identification and verification and this amount being cost and shall not be in any event ordered to be adjusted against the dues of the workmen in the ultimate final order of the Reference, which are ordered to be decided on merits. The Court shall decide the References only after the amount is deposited and disbursed to the workmen. The said amount shall be deposited within four weeks from today and the same shall be disbursed to the workmen thereafter. The Court will be at liberty to fix the References for hearing after the amount is deposited in the Court. The court shall endeavor to dispose of the References within six months from the date of deposit of the money by the employer Petitioner. At this stage, it is required to be observed and directed that in case if there is failure on the part of the employer in depositing the amount of the cost within four weeks, then, the order under challenge in this petition would be stand revive automatically and workmen will be at liberty to avail the remedy available to them for enforcement of the same.

With this observation, the petition is partly allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.