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2019 DIGILAW 1122 (BOM)

Dileep Balkrishna Nevatia v. Maniram

2019-04-24

A.S.CHANDURKAR

body2019
JUDGMENT : A.S. CHANDURKAR, J. Rule. Heard finally with consent of counsel for the parties. 2. The petitioner is aggrieved by the order dated 05/04/2017 passed by the learned Member of the Industrial Court whereby the ex-parte judgment and order dated 28/11/2015 passed on the application filed under Section 50 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short, the said Act) has been conditionally set aside subject to deposit of 50% of the adjudicated amount. 3. The facts in brief are that the respondents are the complainants who had filed a complaint under Section 28 of the said Act invoking Item Nos.2, 9 and 10 to Schedule-IV of the said Act and had prayed for grant of wages to which they were entitled. The Industrial Court by its judgment dated 12/03/2012 allowed the said complaint partly. Relief was granted under Item-9 of Schedule-IV to the said Act and the petitioner herein was directed to pay wages in lieu of notice as per the provisions of Section 25F(a) of the Industrial Disputes Act, 1947 (for short, the Act of 1947). Similarly, he was also directed to pay compensation as per provisions of Section 25F(b) of the said Act of 1947. The complainants thereafter filed proceedings under Section 50 of the said Act for grant of recovery certificate. The matter was proceeded ex-parte against the petitioner and thereafter recovery certificate for an amount of Rs.13,56,744/- came to be issued on 28/11/2015. The petitioner thereafter filed application under Section 31(2) of the said Act for setting aside the ex-parte order. The learned Member of the Industrial Court after recording a finding that the petitioner was not provided an opportunity to defend the said proceedings set aside the exparte judgment dated 28/11/2015 subject to the petitioner depositing 50% of the amount as adjudicated. Being aggrieved by the direction as issued to deposit 50% of the amount mentioned in the recovery certificate the petitioner has challenged the same. 4. Shri R. P. Joshi, learned counsel for the petitioner submitted that the learned Member of the Industrial Court committed an error in directing 50% amount of the recovery certificate to be deposited as a condition for setting aside the ex-parte order. 4. Shri R. P. Joshi, learned counsel for the petitioner submitted that the learned Member of the Industrial Court committed an error in directing 50% amount of the recovery certificate to be deposited as a condition for setting aside the ex-parte order. Referring to provisions of Section 31(2) of the said Act it was submitted that no such condition could have been imposed on the petitioner especially when a specific finding had been recorded by the Industrial Court that the petitioner was not provided opportunity to defend the proceedings in question. He further referred to the findings recorded in the complaint filed under Section 28 of the said Act to submit that the Unit in question had been closed and that said closure had not been challenged. He also referred to the provisions of Section 50 of the said Act to submit that such proceedings could have been initiated only by the employee concerned or any person authorised by him. In the light of the fact that a finding was recorded that the respondents were not employees of the petitioner, there was no jurisdiction to direct issuance of the recovery certificate. It was thus submitted that on these counts the direction as issued to deposit 50% of the said amount was liable to be set aside. 5. Shri S. B. Dhande, learned counsel for the respondents on the other hand supported the direction as issued. He submitted that the adjudication in the complaint filed under Section 28 of the said Act had attained finality. Since the monetary aspect of the said order was not complied with, the respondents had initiated proceedings under Section 50 of the said Act. Since the petitioner was seeking an opportunity to contest the proceedings as filed under Section 50 of the said Act, the direction as issued was just and proper not requiring any interference. He also referred to the order dated 08/02/2007 passed in the complaint below Exhibit-102 by which the petitioner was directed to deposit the amount equivalent to the closure compensation that was payable to the respondents. Since these directions were not complied with the condition imposed by the Industrial Court of depositing 50% amount was legal and valid not requiring any interference. 6. I have heard the learned counsel for the parties at length and I have gone through the documents placed on record. Since these directions were not complied with the condition imposed by the Industrial Court of depositing 50% amount was legal and valid not requiring any interference. 6. I have heard the learned counsel for the parties at length and I have gone through the documents placed on record. In the complaint as filed by the respondents under Section 28 of the said Act, the Industrial Court by its judgment dated 12/03/2012 recorded a finding that the petitioner alone was responsible to satisfy the claim as made in the complaint. It was held that the respondents were not the employees of the respondent Nos.2 and 3 in the complaint. It was then held that the notice of closure dated 11/08/2000 was legal and valid not requiring any interference. The Unit in question had been closed and the action of closure was justified. However, as the respondents were found entitled to compensation under provisions of Section 25FFF of the Act of 1947, the complaint was partly allowed. The respondents were granted monetary relief under provisions of the Act of 1947 after holding that failure to pay compensation on closure of the Unit amounted to an unfair labour practice under Item-9 of Schedule-IV to the said Act. After seeking implementation of that order the respondents filed proceedings under Section 50 of the said Act. The petitioner was proceeded ex-parte in those proceedings and by the order dated 28/11/2015 it was held that the petitioner was liable to pay an amount of Rs.13,56,745/- in that regard. The petitioner thereafter made an application under Section 31(2) of the said Act for setting aside the exparte order dated 28/11/2015 under provisions of Section 31(2) of the said Act. 7. If any ex-parte order is made under Section 31(1) of the said Act, the aggrieved party can within period of thirty days of receiving a copy of such order apply to the Court for setting aside that order. If the Court is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it can set aside the order so made and appoint a date for proceeding with the matter. In the present case the learned Judge of the Industrial Court in paragraph 15 of the impugned order has recorded a finding that the petitioner was not provided an opportunity to defend the cause as he was not served with the notice in the said proceedings. In the present case the learned Judge of the Industrial Court in paragraph 15 of the impugned order has recorded a finding that the petitioner was not provided an opportunity to defend the cause as he was not served with the notice in the said proceedings. In other words the Court was satisfied that there was sufficient cause for non-appearance of the petitioner. This finding as regards absence of service of notice in the recovery proceedings on the petitioner has not been challenged by the respondents. The only aspect to be considered is whether the petitioner could have been directed to deposit 50% of the amount as adjudicated in the ex-parte proceedings under Section 50 of the said Act. 8. It is to be noted that Section 31(2) of the said Act does not empower the Court to impose any condition for setting aside the ex-parte order. The provision merely states that if the Court is satisfied of there being a sufficient cause for non-appearance of the aggrieved party it may set aside the ex-parte order. When this provision is read in comparison with the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 it can be immediately noticed that under said provision the Court can set aside an exparte decree on such terms as to costs, payment into Court or otherwise as it thinks fit. (emphasis supplied). The said provision therefore indicates the power given to the Court while setting aside an ex-parte decree to impose terms upon such defendant as regards costs, payment into Court or otherwise as it thinks fit. These words are absent in Section 31(2) of the said Act. That however cannot mean that the Court does not have the power even to impose costs on the party while setting aside an ex-parte order. However, said provision cannot be read in a manner requiring such party to deposit 50% of the adjudicated amount to show its bonafides. In the present case having recorded a finding that the petitioner was not provided due opportunity to defend the cause in absence of due service of the notice, there was no justification on the part of the Court to call upon the petitioner to demonstrate his bonafides. In the present case having recorded a finding that the petitioner was not provided due opportunity to defend the cause in absence of due service of the notice, there was no justification on the part of the Court to call upon the petitioner to demonstrate his bonafides. As a case for setting aside the ex-parte order was made out, that ex-parte order was liable to be set aside and an opportunity to contest the proceedings ought to have been granted. In that view of the mater the direction as issued by the Industrial Court requiring the petitioner to deposit 50% of the amount adjudicated does not find statutory support. That direction is therefore liable to be set aside. 9. Hence in the light of the aforesaid discussion the following order is passed : (i) The direction issued by the Industrial Court in the order dated 05/04/2017 of depositing 50% of the amount adjudicated under Section 50 of the said Act while setting aside the ex-parte judgment is set aside. (ii) In the light of direction No.6 issued in the impugned order, the proceedings in Misc. Application (ULP) No.9/2013 are directed to be decided within period of four months from today. The petitioner shall not seek unnecessary adjournments and the Industrial Court shall take necessary steps to decide that application within period of four months as directed. (iii) Respective rights and contentions of the parties on merits are kept open for being considered by the Industrial Court. Rule is made absolute in aforesaid terms with no order as to costs.