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2003 DIGILAW 930 (RAJ)

Settlement Officer, Sirohi v. Dilip Kumar

2003-07-09

ANIL DEV SINGH, H.R.PANWAR

body2003
JUDGMENT 1. (Oral) - This appeal is directed against the order of the learned Single Judge dated 21.3.2002 passed in S.B. Civil Writ Petition No. 4058/2001. The respondent workman was employed on daily wage basis by the appellant by its order dated 16.4.1993. Subsequently, after about a period of ten months, on 7.2.1994 his services were terminated. The order of termination came to be challenged by the respondent workman by means of writ petition before this Court, being S.B. Civil Writ Petition No. 836/1994. After issuance of the notice in the writ petition, the appellants filed a reply. In the reply, it was stated to the effect that the writ petition was not competent as the to respondent workman had an alternative remedy available to him under the Industrial Disputes Act, 1947 (for short, referred to hereinafter as 'the Act'). In support of its submission, the appellant relied upon the decision of this Court in Gopilal Teli's case, reported in 1895(2) WLC (Raj.) 1. On 19.9.1995, the learned Single Judge dismissed the writ petition by upholding the plea of the appellant. While dismissing the writ petition, the learned Single Judge also observed that the respondent was free to avail the alternative remedy within one month in accordance with law. 2. As a sequel to the dismissal of the writ petition, the respondent workman approached the appropriate Government for referring the industrial dispute to the Labour Court. The State by its order dated 6.9.1996 referred the dispute viz., whether or not the termination of the workman's services is valid and whether the workman was entitled to any relief, to the Labour Court. On 5,2.1997, when the matter was listed before the Labour Court the appellant sought time to file reply to the claim petition of the respondent workman. On the next date i.e., 5.3.1997, no one appeared on behalf of the appellant. On 06.09.1997, again there was no appearance on behalf of the appellant. Due" to the absence of the appellant, the matter was set ex-parte and the same was directed to be listed for final disposal on 27.9.1997. Thereupon, the appellant filed an application for setting aside the order dated 27.9.1997. On 2.12.1997, the order setting the appellant ex parte was set aside by the Labour Court subject to payment of costs of Rs. 400/- by the appellant. Thereupon, the appellant filed an application for setting aside the order dated 27.9.1997. On 2.12.1997, the order setting the appellant ex parte was set aside by the Labour Court subject to payment of costs of Rs. 400/- by the appellant. On 2.12.1997 itself, the appellant filed reply to the claim petition and the matter was fixed for 13.2,1998. On 13.2.1998, the Presiding Officer was on leave, therefore, the matter could not be taken up on that date and it was fixed for 7.3.1998. It is important to note that on 13.2.1998 no one was present on behalf of the appellant and even costs were not deposited. On 7.3.1998 again no one appeared on behalf of the appellant. In the circumstances, the Labour Court proceeded to hear the arguments in absence of the appellant and directed listing of the matter on 28.3.1998 for pronouncement of the order. On 28.3.1998, the Labour Court passed an ex parte award setting aside the order terminating the services of the respondent workman. 3. After about a period of 39 days from the date of pronouncement of the award, the appellant on 7.5.98 filed an application under Order 9 Rule 13, to C.P.C. before the Labour Court for setting aside the ex parte award mainly on the ground that one of the Officers Vijay Raj, who was to appear in the Court on behalf of the appellant suddenly fell ill and was not able to attend the Court on 7.3.1998. The Labour Court rejected the application on 9.8.2001 Since the appellant failed to implement the award passed by the Labour is Court, the respondent workman filed an application under Section 33C(ii) of the Act seeking implementation of the award. The appellant then moved a writ petition before this Court on 24.9.2001 calling in question the ex parte award of the Labour Court and its order dated 9.8.2001 rejecting the application of the appellant for setting aside the ex parte award. The learned tingle Judge, on hearing learned counsel for the parties, dismissed the writ petition by order dated 21.3.2002 inter alia on the ground that the State was negligent in prosecuting its case before the Labour Court. The learned Single Judge was of the opinion that there was no justification for the absence of the appellant on 7.3.1998. The learned tingle Judge, on hearing learned counsel for the parties, dismissed the writ petition by order dated 21.3.2002 inter alia on the ground that the State was negligent in prosecuting its case before the Labour Court. The learned Single Judge was of the opinion that there was no justification for the absence of the appellant on 7.3.1998. The learned Single Judge pointed out that mere illness of one of the Officers cannot absolve the other officer-in-charge from the responsibility to appear before the Court. In this regard, the learned Single Judge observed as follows: "At the outset, I may observe that as found above, the award Annexure- 3 was made on 28.3.98, and the application Annexure- 4 has been submitted on 7.5.98, which is clearly beyond the period of 15 days. A look at the contents of para 4 to 7 of the application does show that the cause given for absence on 7.3.98 is sudden ailment of the Asst. Officer-in-charge Shri Vijay Raj, and his being on causal leave, but then according to para 5, on making informal inquiries about the proceedings of 7.3.1998, it was learnt that on the next date of hearing being 28.3.98, ex-parte award has been made. It is not disclosed as to when this award came to their notice, or as to why the application has not been filed within aforesaid period of 15 days, much less any such thing as contemplated by sub- rule (2) of Rule 22-A has been done. This is one aspect of the matter." 4. We do not find any illegality or error in the order passed by the learned Single Judge. It was the case of the appellant that on 7.3.1998 one of the Officers who was supposed to be present in the Court was not able to appear on account of illness. Assuming that the Officer was unwell on 7.3.1998, no plausible reason has been advanced by the appellant as to why it was not possible for that officer or any other officer to find out the correct date on which the matter was again listed before the Labour Court. It was submitted by the learned counsel for the appellant that after 7.3.1998 the officer tried to ascertain the next date fixed in the matter and was informed of a c lie which actually was not the correct date fixed by the Labour Court. It was submitted by the learned counsel for the appellant that after 7.3.1998 the officer tried to ascertain the next date fixed in the matter and was informed of a c lie which actually was not the correct date fixed by the Labour Court. It needs to be noticed that the stand that the officer tried to ascertain the date fixed by the Labour Court is merely an after-thought. in case any effort was made to find out the date, full facts would have been disclosed by the appellant, namely, when he tried to find out the date, who was the person who was approached for ascertaining the same etc. Between 7.3.1998 and 27.3.1998 there were 21 days. Thus there was sufficient time for ascertaining the date and moving an application for setting aside the ex parte order passed on 7.3.1998. This also reflects callous disregard on the part of the officers of the appellant in respect of the proceedings which were pending in the Court. 5. The learned counsel submitted that the appellant was not an 'industry' and, therefore, the Industrial Disputes Act did not apply. This contention as pointed out by the learned Single Judge, was not raised before the Labour Court. it needs to be pointed out that when the earlier writ petition was filed before this Court by the respondent, challenging his order of termination, an objection was raised by the appellant that the respondent had an alternative remedy available to him under the Industrial Disputes Act. This plea of the appellant was accepted in that writ petition. In the circumstances, therefore, the submission that the appellant was not an 'industry' within the meaning of Industrial Disputes Act, is not available to it. The appellant cannot be allowed to take contrary pleas according to its convenience. 6. Learned counsel for the respondent workman fairly conceded that the respondent shall not claim any back- wages as directed by the Labour Court. The outcome of the concession of the respondent is that the respondent shall be entitled to wages from the date he joins the service. The appellants shall allow the respondent workman to join the services within 30 days.The special appeal is accordingly disposed of.Special Appeal Dismissed. *******