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2023 DIGILAW 2221 (ALL)

Fortis Hospitals Limited Noida v. State of U. P.

2023-09-26

SAURABH SRIVASTAVA

body2023
JUDGMENT Saurabh Srivastava, J. Heard Sri Atul Mehra, learned counsel for petitioner and Sri Raj Kumar Singh, learned Standing counsel for respondent no. 1 and 2. 2. Even in the revised call none appeared on behalf of respondent no. 3 although detailed counter-affidavit has already been preferred on behalf of respondent no. 3 which is available in the records. 3. The present petition has been instituted for challenging the award dated 11.11.2014 passed by respondent no. 2 which was published on dated 27.03.2015 and the same was pasted on the notice board on dated 15.05.2015. While challenging the sanctity, genuineness and correctness of the award which impugned the present petition on several other grounds inter alia specifically on the ground that the award has been passed as an ex parte and there was no discussion of the stand taken up by the petitioner being the sole employer of respondent no. 3. 4. After receiving copy of the ex parte award on dated 20.06.2015, petitioner appointed Sri Y.K Gupta, Senior Consultant (H.R. and Legal) and Sri V.K. Gupta, Labour Law Advisor to take appropriate action and also appear and plead the proceedings before the respondent no. 2. After inspection of the file and obtaining certified copy of the documents from the respondent no. 2 on dated 09.07.2015, petitioner preferred a recall application on dated 14.07.2015 with the categorical statement that the entire proceedings culminated into award dated 11.11.2014 was completely ex parte and as such the same may be recalled in the interest of justice. 5. By way of rebutting the stand taken up by the petitioner, written statement/objection to the recall application was filed by the respondent no. 3 and thereafter petitioner preferred their written arguments. 6. The adjudication made by respondent no. 2 which culminated into order dated 05.06.2017 through which the recall application preferred by the petitioner has been dismissed by way of recording the reasonings that the intimation in shape of notices have already been sent to the address which has been mentioned and it was the duty of the petitioner to attend the proceedings by way of deputing any of the employees of the petitioner and as such the petitioner failed to reply the notice/intimation which is a deliberate action carried out by the petitioner and as such the recall preferred by the petitioner is not liable to be accepted. 7. 7. During course of the arguments, learned counsel for petitioner relied upon the judgment rendered by Hon'ble Supreme Court in case of M/s Haryana Suraj Malting Ltd. v. Phool Chand [ 2018 (158) FLR 589 ] passed in Civil Appeal no. 5650 of 2018 decided on 18.05.2018, wherein the Hon'ble Apex Court has held that for an award to become biding, it should be passed in compliance of the principles of nature justice. An award passed denying an opportunity of hearing when there was a sufficient cause for nonappearance can be challenged on the ground of it being nullity and as such an award which is nullity cannot be and shall not be a binding award. Operative portion of the above-mentioned judgment M/s Haryana Suraj Malting Ltd (supra) is quoted herein-below: "35. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its nonappearance in the Labour Court/ Tribunal when it was ex parte, the Labour Court/ Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/ Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent." 8. By bare perusal of the order which impugned the present petition, it is crystal clear that the entire proceedings carried out in Case no. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent." 8. By bare perusal of the order which impugned the present petition, it is crystal clear that the entire proceedings carried out in Case no. 119 of 2013 (Manager M/s Fortis Hospital v. Smt. Pinki Sharma) decided by respondent no. 2 in shape of award dated 11.11.2014 was completely ex parte and the same has been accepted also while passing the order dated 05.06.2017 over the recall application preferred by the petitioner and as such the case relied upon by learned counsel for the petitioner is fully applicable in the instant matter. 9. In view of the aforementioned facts and circumstances, order dated 05.06.2017 is hereby set aside. Matter is remitted back to respondent no. 2 for deciding afresh on merits and the entire proceedings may be initiated as de novo. The above mentioned exercise shall be completed as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order. 10. Writ petition stands allowed accordingly.