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Jharkhand High Court · body

2014 DIGILAW 183 (JHR)

Balram Kundu v. State of Jharkhand

2014-01-29

N.N.TIWARI

body2014
ORDER In the Interlocutory Application, the petitioner has prayed for stay of the further proceeding in the Labour Court in P.W. Case No. 01 of 2011. 2. When the Interlocutory Application is taken up, both the parties addressed the Court on the merit of the writ petition as well. 3. According to the petitioner, the proceeding was fixed ex-parte against him by order dated 19.08.2011 on the ground that the notice sent was not accepted by him. It has been submitted that the notice was never served on him, as would also be evident from the report of the postal peon mentioning “the notice was not claimed.” It has been further submitted that the proceeding is still going on and for the ends of justice, opportunity ought to have been given to the petitioner to file his written statement and contest the proceeding but his prayer was rejected by order dated 19.08.2011. 4. The petitioner, thereafter, filed an application for recalling the order dated 19.08.2011 but the same has also been rejected by the impugned order dated 06.06.2012 on the ground that petitioner's son (opposite party no.4) had knowledge about the case. Learned counsel submitted that the petitioner lives elsewhere on a different address. He does not live with his son. The petitioner had denied service of notice and onus was on the respondents to prove proper service of notice, but there is no such evidence on record. Learned Court below, without any such cogent material/reason, has erroneously rejected the petitioner's prayer by the impugned order. 5. Learned counsel appearing on behalf of respondents opposed the writ petition as well as interlocutory application. 6. It has been submitted that the petitioner had knowledge about the proceeding. Notices were sent to him and others including his son. The petitioner's son received the notice and appeared in the Court. But the petitioner avoided appearance. Learned court below, in that circumstance, fixed the case for ex-parte proceeding. Learned Court below did not find any sufficient reason for not appearing in the case on notice and rightly rejected the petitioner's prayer by the impugned order dated 06.06.2012. 7. I have heard learned counsel for the parties and considered the facts and materials on record. 8. Learned court below, in that circumstance, fixed the case for ex-parte proceeding. Learned Court below did not find any sufficient reason for not appearing in the case on notice and rightly rejected the petitioner's prayer by the impugned order dated 06.06.2012. 7. I have heard learned counsel for the parties and considered the facts and materials on record. 8. On perusal of the impugned order, I find that learned court below has rejected the prayer mainly on the ground that the notices were issued to the opposite parties including the petitioner and his son. The petitioner's son (O.P. No.4) appeared in the case and filed a written statement, but the petitioner did not appear. The petitioner in his petition had specifically stated that he had no knowledge about the case. That plea has been rejected by learned Court below saying that the plea was opposed to the natural human probabilities and there was no plausible reason showing that he was prevented from appearing in the Court due to non service of notice. 9. The reason recorded by learned Court below is not supported by any cogent material on record. There is no evidence to establish that the petitioner had knowledge of the proceeding. Finding of knowledge of the case is based on the assumption that since the petitioner's son had knowledge, it is natural human probability that the petitioner must have knowledge. 10. Right to defend is a valuable right of a person. It is not proper to refuse such right on mere assumption and probability. Such decision has to be based on cogent evidence and material on record. Impugned order, thus, suffers serious infirmity and can not be sustained. 11. The impugned order dated 06.06.2012 is set aside and the petitioner's prayer for recall of the order dated 19.08.2011 is allowed, subject to payment of cost of Rs. 5,000/-(rupees five thousand) to the claimants in the court below [Respondent Nos.3, 3(i) and 3(iii)] within two weeks. 12. Since, the case is sufficiently old, learned court below shall see the same be expeditiously disposed of. Accordingly, the writ petition is allowed and I.A. No. 6320 of 2013 is disposed of. Petition allowed.