JUDGMENT : SUBHASH VIDYARTHI, J. 1. Heard Dr. R.K. Srivastava and Sri Nishchal Jagdhari, the learned counsel for petitioner in Writ (C) No. 1004625 of 2008, Sri Satish Chandra Kashish, the learned counsel for the petitioner in Writ (C) No. 1001062 of 2013, Sri Hemant Kumar Pandey, the learned Standing Counsel appearing for the State and Sri Virendra Mishra, the learned counsel for the private opposite party Concrete Fabricators Karmchari Union, Burhwal, Barabanki in both the Writ Petitions and perused the records. 2. Writ (A) No. 1004625 of 2008 had been dismissed for want of prosecution by means of an order dated 08.04.2019. An application for recall (IA-No. 7 of 2024) along with an application for condonation of delay (IA No. 6 of 2024) in filing recall application have been filed by the petitioner. The applications are supported with duly sworn affidavits. Accordingly, the applications are allowed. Delay in filing recall application is hereby condoned and the order dated 08.04.2019 is hereby recalled. Writ (A) No. 1004625 of 2008 is restored to its original number. 3. Writ (C) No. 1004625 of 2008 has been filed challenging validity of an order dated 11.09.2008, passed by the Presiding Officer, Industrial Tribunal-2, Uttar Pradesh Lucknow rejecting an application dated 20.12.2007 filed by the petitioner for setting aside the ex-parte award dated 17.10.2007 on the ground that the same was passed without service of notice of proceedings on the petitioner after transfer of the same from Gorakhpur to Lucknow. Writ (C) No. 1001062 of 2013 has been filed challenging a recovery certificate dated 09.10.2012 sent by the Deputy Labour Commissioner, Faizabad to the Collector, Barabanki for recovery of an amount of Rs.2,70,000/- in furtherance of an ex-parte award dated 17.10.2007. 4. As the order under challenge in Writ (C) No. 1001062 of 2013 is consequential to the order dated 11.09.2008, both the petitions are being decided together. 5. A perusal of the order-sheet of the proceedings before the Industrial Tribunal indicates that the petitioners-employer was appearing in the proceedings when the same were pending initially before the Industrial Tribunal-2 at Lucknow and it is recorded in the order sheet that on 18.01.2000 and the learned Tribunal had heard submissions on behalf the parties and had reserved the award. A perusal of the order-sheet of the proceedings before the Industrial Tribunal indicates that the petitioners-employer was appearing in the proceedings when the same were pending initially before the Industrial Tribunal-2 at Lucknow and it is recorded in the order sheet that on 18.01.2000 and the learned Tribunal had heard submissions on behalf the parties and had reserved the award. However, the Presiding Officer was changed before the award could be delivered and the new incumbent of the office passed an order dated 25.07.2000 for rehearing the matter. On 14.02.2001 the matter was transferred to Industrial Tribunal-VI, Gorakhpur and it was re-transferred to Industrial Tribunal-2, Lucknow on 18.07.2006 where it was registered afresh as Award Case No. 302 of 2006. The Industrial Tribunal had sent notice to the petitioner through registered post, which was not received back unserved and therefore the service of notice was held to be sufficient. The matter was heard ex-parte and an ex-parte award was passed on 17.07.2007. It was published on 14.11.2007. 6. On 20.12.2007 the petitioner filed an application for setting aside the ex-parte order dated 17.10.2007 stating that the notice sent to it after transfer of the case to Lucknow was not served upon it and, therefore, it could not appear in the proceedings. The award was ex-parte and it should be set aside. 7. The aforesaid application has been rejected by the Presiding Officer, Industrial Tribunal-2, Lucknow by the impugned order dated 11.09.2008 on the ground that the Industrial Tribunal has no authority to set aside an order which has been passed after taking into consideration the merits of the case. 8. The learned counsel for the petitioner has submitted that the petitioner was continuously participating in the proceedings and submissions had been advanced on its behalf and the award had been reserved. After the Presiding Officer was changed after hearing submissions again submissions were advanced on behalf of the petitioners. Thereafter, the case was transferred to Gorakhpur in the year 2001 and it was retransferred to Lucknow in the year 2006 and it was allotted a new number. Keeping in view the past conduct of the petitioner in diligently participating in the proceedings, it cannot be presumed that the petitioner had deliberately avoided participation in the proceedings and the only reason for its nonappearance was non-service of notice sent after transfer of the proceedings to Lucknow. 9. Keeping in view the past conduct of the petitioner in diligently participating in the proceedings, it cannot be presumed that the petitioner had deliberately avoided participation in the proceedings and the only reason for its nonappearance was non-service of notice sent after transfer of the proceedings to Lucknow. 9. Opposing the writ petitions, Sri Virendra Mishra, the learned counsel for the private opposite party Concrete Fabricators Karmchari Union, Burhwal, Barabanki has submitted that the notice was sent to the petitioner at its correct address which was mentioned in its written statement and therefore the Industrial Tribunal has rightly raised a presumption regarding due service of notice sent at the petitioners’ correct address. He has submitted that non-appearance of the petitioner in these circumstances was not for any sufficient reason. Sri Mishra has drawn attention of this court to the amendment made in Order IX, Rule 13 C.P.C. by this High Court so as to add a proviso, which reads as under: “Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff’s claim.” 10. Sri. Virendra Mishra has placed reliance on a judgment rendered by a coordinate bench of this Court in the case of Block Development Officer Vs. Radhey Shyam and others, 2017 (35) LCD 254 , wherein this court took into consideration the aforesaid proviso inserted in Order IX, Rule 13 C.P.C. by amendment made by this court. However, after taking into consideration peculiar facts of that case wherein the court was dealing with the third recall application whereas two earlier applications filed by the other respondents had already been rejected, this court did not find any infirmity or illegality in the findings recorded by the learned trial court. 11. In the present case, the petitioners are not alleging any irregularity in the issuance of summons. The petitioners simply contend that the notice issued by the registered post was not served upon it. Although, there is a legal presumption that the official acts were performed in a regular manner, this presumption is a rebuttable presumption. 11. In the present case, the petitioners are not alleging any irregularity in the issuance of summons. The petitioners simply contend that the notice issued by the registered post was not served upon it. Although, there is a legal presumption that the official acts were performed in a regular manner, this presumption is a rebuttable presumption. When there is nothing on record to indicate that the notice issued to the petitioner was actually served and it was stated on oath on behalf of the petitioner that the notice was not served, the petitioner has rebutted the presumption that the notice was served upon it. 12. The proceedings were going on since the year 1997 and the petitioners had participated in the proceedings till the final submissions were heard and the award was reserved. Thereafter it was transferred to Gorakhpur and again to Lucknow and after retransfer of the matter to Lucknow, the notice was sent to the petitioner through registered post only once and a presumption was drawn regarding due service of notice as the unserved notice was not received back. The Industrial Tribunal did not issue a fresh notice through registered post or by any other mode and it did not adopt the procedure for substituted service of notice on the petitioner. 13. In these circumstances, this court finds no good ground to raise a presumption against the petitioner that it knew about the proceedings after transfer thereof to Lucknow and it deliberately avoided participation in the proceedings. 14. Therefore, the judgment rendered by the coordinate Bench in the case Block Development Officer (supra), which was given in the light of peculiar facts and circumstances of that case, does not apply to the facts and circumstances of the present case. 15. Keeping in view the aforesaid peculiar facts and circumstances of the case, it would be just and proper that the impugned order dated 11.09.2008 rejecting the petitioner’s application for setting aside the ex-parte award dated 17.10.2007 be set aside and the application be allowed and the ex-parte award dated 17.10.2017 be set aside and the matter be directed to be decided afresh after giving an opportunity of hearing to the parties. 16. At this stage, the learned counsel for the opposite party-Union stated that the petitioner has merely challenged the order rejecting its application for setting aside the ex-parte order and it has not challenged the ex-parte award. 16. At this stage, the learned counsel for the opposite party-Union stated that the petitioner has merely challenged the order rejecting its application for setting aside the ex-parte order and it has not challenged the ex-parte award. 17. In Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 , the Hon’ble Supreme Court reiterated the well settled principle regarding the scope of power conferred by Article 227 of the Constitution of India in the following words: “91. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must “advance the ends of justice and uproot injustice.” 18. When this court has come to a conclusion that the Case was wrongly proceeded ex-parte and the order rejecting the application for setting aside the ex-parte order is not proper, relegating the parties to the stage where application for setting aside ex-parte award is to be decided afresh, will merely protract the proceedings and cause further delay in final disposal thereof. While dealing with a petition under Article 227 of the Constitution of India, if this court is satisfied that an order would cause failure of justice to the parties this court is under an obligation to mould the relief and pass appropriate orders in the interest of justice without a proper relief having been prayed for. 19. Therefore, the court deems it appropriate to secure the interest of justice and to avoid further prejudice being caused to either of the parties, to set aside the order dated 11.09.2008, passed by the Presiding Officer, Industrial Tribunal-2, Uttar Pradesh Lucknow rejecting an application dated 20.12.2007 filed by the petitioner for setting aside the ex-parte award dated 17.10.2007 and also to set aside the ex-parte award dated 11.09.2008 passed by the Presiding Officer, Industrial Tribunal-II, Uttar Pradesh Lucknow in Award Case No. 302 of 2006. 20. 20. The learned counsel for the private opposite party next submitted that the private opposite party-Concrete Fabricators Karmchari Union is a Union of workmen, who have not been paid any wages since long and a huge sum of money is payable to them towards the arrears of wages. In the order dated 26.09.2008 passed in Writ (C) No. 1004625 of 2008, this court had recorded the submission made on behalf of the petitioner that the petitioner was ready to pay 50% amount and furnish bank guarantee for the remaining amount before the Deputy Labour Commissioner. The learned counsel for the opposite party-Union states that the petitioner has complied with the aforesaid order in respect of merely 14 employees whereas 53 employees are members of the Union and all of them are entitled to get the amount. 21. The learned counsel for the petitioner state that the petitioner has made payment of the amount in respect of 27 more employees. 22. In these circumstances, it would be just and proper to make the order setting aside the ex-parte award subject to the condition that the petitioner shall pay a sum of Rs.10,000/- per member of the Concrete Fabricators Karmchari Union, Burhwal, Barabanki after adjusting the amount already paid in respect of some of the members of the Union. The amount lying in deposit, if any, in this court or before the Industrial Tribunal, should be released forthwith in favour of the opposite party-Concrete Fabricators Karmchari Union, Burhwal, Barabanki. The recovery certificate dated 09.10.2012 issued consequently for enforcing the ex-parte award dated 17.10.2007 is also liable to be set aside. 23. In view of the foregoing discussion, both the petitions are allowed. The order dated 11.09.2008, passed by the Presiding Officer, Industrial Tribunal-2, Uttar Pradesh Lucknow rejecting an application dated 20.12.2007 filed by the petitioner for setting aside the ex-parte award dated 17.10.2007 as well as the ex-parte award dated 17.10.2007 passed by the Presiding Officer, Industrial Tribunal-II, Uttar Pradesh Lucknow in Award Case No. 302 of 2006 are set aside, subject to the condition that the petitioner shall pay a sum of Rs.10,000/- per member of the Concrete Fabricators Karmchari Union, Burhwal, Barabanki after adjusting the amount already paid in respect of some of the members of the Union. The recovery certificate dated 09.10.2012 sent by the Deputy Labour Commissioner, Faizabad to the Collector, Barabanki in furtherance of the ex-parte award dated 17.10.2007 is also set aside. The amount lying in deposit, if any, in this court or before the Industrial Tribunal, shall be released forthwith in favour of the opposite party- Concrete Fabricators Karmchari Union, Burhwal, Barabanki. The parties are directed the parties to appear before the Presiding Officer, Industrial Tribunal-II, Uttar Pradesh Lucknow for hearing in the matter on 23.09.2024, on which date, the Presiding Officer, Industrial Tribunal-II, Uttar Pradesh Lucknow shall hear the parties’ submissions in respect of their respective claims and defence and pass a fresh award expeditiously, without granting any unnecessary adjournments to any of the parties.