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2019 DIGILAW 276 (UTT)

EURO LIFE HEALTH CARE PVT. v. ARJUN SINGH

2019-04-04

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. (Oral) Petitioners have approached this Court seeking the following reliefs: i) Issue a writ, order or direction in the nature of certiorari calling the record of the case and quash the order dated 07.10.2017 and the order dated 5.2.2018 passed by Labour Court Haridwar in a proceeding u/s 33-C(2) of the Industrial Dispute Act. ii) Issue a writ, order or direction in the nature of mandamus commanding the respondentto give a opportunity of hearing to petitionerbefore taking any decision on the application moved by the respondent no.1 under section 33-C(2) of Industrial Dispute Act. 2. Facts leading to filing of present writ petition are that the respondent workman moved an application u/s 33c(2) of U.P. Industrial Disputes Act, 1947 (for short, the Act). On the application, misc. case no.14 of 2017 was registered. Learned Labour Court, vide order dated 07.10.2017, allowed the application ex-parte and directed the petitioner to pay the claimed dues within a period of 30 days from the date of order. Order dated 07.10.2017 being an ex-parte order, petitioner moved restoration application before the Labour Court u/s 16(2) of the Act. In the application, petitioner contended that the petitioner was not aware about the proceeding before the Labour Court and that no notice was ever received by it. Respondent no.1-workman filed objections to the recall application. Learned Labour Court, vide order dated 05.02.2018, dismissed the recall application on the ground that the summons sent to the petitioner through registered post were not returned back inspite of period of more than one month, so it was deemed served on the petitioner/employer. Learned Labour Court also observed that there is no provision under this Act which may provide setting aside of an ex-parte order. 3. Learned counsel for the petitioner would submit that the impugned orders have been passed by the learned Labour Court against the principle of natural justice inasmuch as the notices were not served upon the petitioner/employer before passing of the ex-parte award. He would also submit that while dismissing the recall application learned Labour Court recorded a perverse finding that there is no provision to recall the ex-parte order. He would invite attention of this Court to sub-rule (2) of Rule 16 of the U.P. Industrial Disputes Rules, 1957, which reads as under:- “16. He would also submit that while dismissing the recall application learned Labour Court recorded a perverse finding that there is no provision to recall the ex-parte order. He would invite attention of this Court to sub-rule (2) of Rule 16 of the U.P. Industrial Disputes Rules, 1957, which reads as under:- “16. Labour Court or Tribunal or Arbitrator may proceed ex parte.- (1) … (2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order." 4. A plain language of aforesaid Rule would make it clear that the Labour Court may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. In the present case, admittedly the petitioner/employer was not served and only on the basis of presumption of service of notice, the learned Labour Court has proceeded ex-parte against the petitioner/employer and passed the impugned order dated 07.10.2017. Learned Labour Court has further committed illegality in dismissing the restoration/recall application of the petitioner having considered that there is no provision to set-aside an ex-parte order. 5. For the reasons as stated aforesaid, impugned orders dated 07.10.2017 and 05.02.2018 are hereby set-a-side. Matter is remitted back to Labour Court, Haridwar to decide the claim petition afresh on merit, after affording reasonable opportunity of hearing to both the parties. Labour Court shall decide the claim petition, as expeditiously as possible, if preferably, within a period of three months from the date of production of a certified copy of this order. Parties are directed to appear before the Labour Court, Haridwar on 22.04.2019.