Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 1120 (MP)

Shankar Prasad Gupta v. Somshekhar Shukla

2006-09-19

ABHAY M.NAIK

body2006
Judgment ( 1. ) THIS petition has been preferred by the petitioner against the order dated 28-3-2005 contained in Annexure P-6 dismissing thereby an application for setting aside ex parte order dated 12-8-2004 passed by the Labour Court (Authority under Minimum Wages Act, Rewa), in Case No. 154/m. W. Act/04. ( 2. ) IN short, the Labour Inspector (i. e. , respondent) submitted an application for recovery of Rs. 1,19,130/- for being disbursed to the labourers towards wages with interest and penalty. This was allowed ex parte and the petitioner was directed to pay a sum of Rs. 10,830/- towards wages to the labour Kaushal Prasad within 30 days. In case of failure he was directed to pay a sum of Rs. 1,19,130/- which was inclusive often times penalty. ( 3. ) THE petitioner submitted an application under Order 9 Rule 13, CPC for setting aside the ex parte order on the ground that no notice from Labour Court was served upon and no such notice was tendered/offered to him. The labour, namely, Kaushal Prasad informed the adjoining shopkeepers on 20-8-2004 that he had obtained a decree against the petitioner for huge money from the Labour Court who further disclosed it to the petitioner. Relevant information was collected and an application for obtaining certified copy of the order was submitted on 23rd August, 2004, which was delivered on 2-9-2004. Thereafter on 3rd September, 2004, the application for setting aside the order was submitted on the ground that the petitioner was neither served with any notice nor was aware of any such case. Apart from this, the factual averments made about the employment of Kaushal Prasad were also denied. ( 4. ) AFORESAID application was opposed by the respondent. Ultimately, the learned Presiding Officer of the Court of Authority under the Minimum Wages Act, Labour Court, Rewa dismissed the aforesaid application on the ground that the Labour Court has no jurisdiction to entertain an application under Order 9 Rule 13, CPC, in view of the provisions of the Minimum Wages Act, 1948. This order has been challenged in the present writ petition. ( 5. ) SHRI P. S. Gaharwar, learned Counsel for the petitioner contended that the learned Labour Court committed an illegality in holding the application to be not tenable. He further contended that an enquiry ought to have been conducted on the application for setting aside ex parte order. This order has been challenged in the present writ petition. ( 5. ) SHRI P. S. Gaharwar, learned Counsel for the petitioner contended that the learned Labour Court committed an illegality in holding the application to be not tenable. He further contended that an enquiry ought to have been conducted on the application for setting aside ex parte order. It is really painful to observe that the learned Counsel appearing for the petitioner did not refer to any provision of law and/or ruling. ( 6. ) CONSIDERED the submissions and perused the record. ( 7. ) LEARNED Presiding Judge of the Labour Court has observed that in view of Section 20 (6) and (7) of the Minimum Wages Act, the Labour Court has limited power and it is not invested with the power to entertain an application under Order 9 Rule 13, CPC. Sub-section (6) and Sub-section (7) are reproduced below for convenience: (6) Every direction of the Authority under this section shall be final. (7) Every Authority appointed under Sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Civil Procedure, 1898 (5 of 1898 ). It is clear from the aforesaid provisions that the said Court was not invested thereunder with a power to proceed exparte as a Civil Court is invested by virtue of Order 9 Rule 6 (1) (a) of CPC. Before entering into the merits of case in hands, I feel it proper to make it clear about the powers of the Court to set aside the exparte proceedings. In case, if there is no express provision to proceed exparte and yet a Court chooses to proceed exparte against the non-applicant/defendant, the same power may well be exercised for setting aside exparte in proper and suitable cases. It is implicit in the term opportunity of hearing" that the nonapplicant must be served in due manner with the notice. The service on the non-applicant in due manner is a condition precedent for the exercise of power of the Court to proceed with the case. It is implicit in the term opportunity of hearing" that the nonapplicant must be served in due manner with the notice. The service on the non-applicant in due manner is a condition precedent for the exercise of power of the Court to proceed with the case. Similarly, in case of absence of service, it is always open for the Court to set aside exparte in order to do justice between the parties. In such matters, it would be the prime duty of the Court to ensure before entertaining the application on merits that the parties to the case are duly served with the notice. The power which is exercised by the Court despite absence of the specific provision to proceed exparte, the same is available with the Court for setting it aside in case of absence of service of notice. I may derive strength from the Apex Court decision in the case of Satnam Verma v. Union of India AIR1985 SC 294 , [1985 (50 )FLR6 ], 1985 Lablc738 , (1985 )I LLJ79 SC , 1984 Supp (1 )SCC712 wherein it has been held that: if the Authority has the power to proceed exparte, it should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. It has been further held that: powers to proceed exparte was interpreted to comprehend that if sufficient cause was shown which prevented a party from appearing, then the Tribunal will have had no jurisdiction to proceed exparte and consequently, it must necessarily have power to set aside the exparte award. ( 8. ) EARLIER in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors. AIR1981 SC 606 , 1981 (29 )BLJR104 , [1981 (42 )FLR88 ], (1981 )I LLJ327 SC , 1980 Supp (1 )SCC420 , [1981 ]2 SCR341 , 1981 (1 )SLJ510 (SC ), 1981 (13 )UJ42 (SC ), it has been observed by the Honble Supreme Court of India that: It is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Honble Supreme Court of India has further observed that: the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. ( 9. ) THUS, let a message be conveyed to the Courts below that even in the case of absence of specific provision to set aside exparte proceedings, if the Court proceeds exparte in a particular case, in the absence of any provision of exclusion it has got the requisite power to set aside exparte proceedings. It is on the basis of the analogy that the Court which proceeds ex parte without any express and specific provision has an inherent power to set it aside in order to impart justice. ( 10. ) THE Division Bench of this Court in the case of Nav Bharat and M. P. Chronicle Group of Newspapers v. Krishna Sharan Shrivastava and Anr. reported as 1988 JLJ 228 has observed that: There can be no dispute today about the settled law that an application lies before the Labour Court for setting aside an exparte award. However, it is also settled law that in disposing of such application, the Labour Court shall be well within its jurisdiction to reject the same if the applicant fails to make out sufficient cause for his default. ( 11. ) NOW coming to the case in hands, learned Authority under the Minimum Wages Act (Labour Court) has acted illegally in overlooking the relevant provisions of law. Sub-sections (6) and (7) of the Minimum Wages Act are preceded by Sub-section (3) which lays down that when any application under Sub-section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard. Service of notice of the case is implicit in the grant of opportunity of being heard. If the opposite party is not duly served with the notice, the power of the Authority to entertain the Claim case ceases. Service of notice of the case is implicit in the grant of opportunity of being heard. If the opposite party is not duly served with the notice, the power of the Authority to entertain the Claim case ceases. In view of this, it would be the prime duty of the Labour Judge to ensure before entertaining the application on merits that the parties to the Claim case are duly served with the notice of the case. Granting of opportunity under Sub-section (3) of Section 20 of the Minimum Wages Act is wide enough to ensure the due service on the parties to the case and to set aside an exparte order in case of absence of due service on the party concerned. ( 12. ) LEARNED Labour Judge has further erred in ignoring Rule 29 of the Minimum Wages (Central) Rules, 1950 and Rule 34 of Minimum Wages (Madhya Pradesh) Rules, 1958. Both the rules are identical. Rule 34 is reproduced below: Appearances of parties:- (1) If an application under Sub-section (2) of Section 20 or Section 21 is entertained, the Authority shall serve upon the employer by registered post a notice in Form IX to appear before him on a specified date with all relevant documents and witness, if any, and shall inform the applicant of the date so specified. (2) If the employer or his representatives fails to appear on the specified date, the Authority may hear and determine the application exparte. (3) If the applicant or his representatives fails to appear on the specified date the Authority may dismiss the application. (4) An order passed under Sub-rule (2) or Sub-rule (3) may be set aside on sufficient cause being shown by the defaulting party within one month of the date of the said order, and the application shall then be re-heard after service of notice on the opposite party on the date fixed for re-hearing, in the manner specified in Sub-rule (1) Sub-rule (2) empowers the Authority to hear and determine the application exparte if the employer or his representative fails to appear on the specified date. Sub-rule (4) thereof empowers the Authority to set aside the ex pane proceedings. Sub-rule (4) thereof empowers the Authority to set aside the ex pane proceedings. In view of this, the Authority has clearly committed a grave mistake in dismissing the application under Order 9 Rule 13, CPC without taking into consideration the enabling provisions contained in Rule 34 of Minimum Wages (Madhya Pradesh) Rules, 1958. ( 13. ) IN view of this, it is held that the Authority is well empowered to hear and decide the application for setting aside ex parte proceedings and impugned order contained in Annexure P-6 is held to be unsustainable in law and is liable to be set aside. Accordingly, the order contained in Annexure P-6 is set aside and the Court of Authority under the Minimum Wages Act, Labour Court, Rewa is directed to decide the application under Order 9 Rule 13 in accordance with law. No order as to costs.