CWP No. 11236 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11236 of 2009 Date of decision: 27.01.2010 Jasmer Singh s/o Sh. Karta Ram ...... PETITIONER VERSUS Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Naveen Daryal, Advocate, for the petitioner. Mr. B.R.Mahajan, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for setting aside the award dated 27.09.2005 (Annexure P-1) passed by the Industrial Tribunal-cum- Labour Court, Panipat as also the order dated 02.04.2009 (Annexure P-4) passed on an application for restoration of the reference wherein the said application has been dismissed. Counsel for the petitioner submits that the services of the CWP No. 11236 of 2009 2 petitioner were terminated by respondent No. 2. On a dispute having been raised, the matter was referred by the appropriate Government for adjudication to the Industrial Tribunal-cum-Labour Court, Panipat on 03.09.2004. Notice of the reference was issued to both the parties. The petitioner submitted a claim statement and in response thereto, the written statement was filed by respondent No. 2-Management, wherein the claim of the petitioner was denied. Thereafter, three opportunities were granted to the petitioner to file replication. None appeared for the petitioner before the Industrial Tribunal-cum-Labour Court on 27.09.2005 leading to the reference being dismissed in default for want of prosecution and accordingly, the award was passed, which is dated 27.09.2005 (Annexure P-1). The petitioner, thereafter, preferred an application for setting aside of the award dated 27.09.2005, which is dated 10.01.2007. Notice having been issued in the said application, the Management contested the submissions as made in the application leading to the dismissal of the said application vide order dated 02.04.2009 (Annexure P-4). The application was dismissed on the ground that no reasonable cause for delay has been explained and further it was submitted that since the application was preferred by the petitioner beyond the period of 30 days' from the date of the publication of the impugned award, the Industrial Tribunal-cum-Labour Court had been rendered functus officio and, therefore, could not entertain the said application. Counsel for the petitioner contends that the absence of the petitioner before the Court below was not intentional. It is correct that on the date when the award dated 27.09.2005 (Annexure P-1) was passed, the petitioner had not come to the Court and this was the only occasion when the petitioner had failed to appear before the Court. The case was at CWP No. 11236 of 2009 3 the initial stage and non-appearance of the petitioner before the Court was only on this very occasion, otherwise he had been pursuing the case diligently. Despite his making efforts to contact his counsel and to know the fate of the case, no information was supplied by his counsel and he was always informed that the matter was pending. Ultimately, in December, 2006, the petitioner came to know that an award dismissing his reference in default was passed. He made frantic efforts to get the copy of the award and on receipt of the certified copy of the award, he moved an application for restoration of the reference and for setting aside the award. He contends that for non-supply of the information by the counsel, the petitioner should not be made to suffer. He, on this basis, prays for setting aside the award dated 27.09.2005 (Annexure P-1) as also the order dated 02.04.2009 (Annexure P-4) passed by the Industrial Tribunal-cum- Labour Court on the application for restoration of the reference. On the other hand, counsel for respondent No. 2-Management submits that the petitioner had been, all through, not diligent in espousing his claim before the Court below. Firstly, he was granted three opportunities to file the replication but on none of the occasions, replication was filed. On the date when the award was passed i.e. 27.09.2005, none had put in appearance on behalf of the petitioner. The case was called on various occasions but due to non-presence of the petitioner or his Authorized Representative, the Court had no option but to proceed to pass an order and the award dated 27.09.2005 has rightly been passed by the Court. He, therefore, supports the award passed by the Industrial Tribunal-cum-Labour Court. As regards the application for restoration of the reference, counsel for respondent No. 2-Management submits that there is a delay of 1 year and 3 months' on the part of the CWP No. 11236 of 2009 4 petitioner in approaching the Court for setting aside the award and restoration of the reference. No explanation whatsoever has come on record which would justify that the petitioner had been pursuing his claim diligently and earnestly. The order passed by the Court below is fully justified dismissing his application for setting aside the award. His further contention is that this Court may not entertain the present petition after a period of almost 3 years and 10 months. The present petition is belated and, therefore, the award dated 27.09.2005 (Annexure P-1) deserves to be upheld on this ground alone. I have heard the counsel for the parties and have gone through the records of the case. Dealing with the order dated 02.04.2009 (Annexure P-4) first, a perusal of the same shows that the order passed by the Court is based on the records and, therefore, stands fully justified. The observation of the Court that it has been rendered functus officio in the light of the fact, that the application dated 12.01.2007 has been filed after a delay of 1 year and 3 months from the date of the publication of the award, therefore, for that, no interference is called for. In any case, the Labour Court could not have entertained the application after 30 days' of publication of the award and, therefore, the order dated 02.04.2009 does not call for any interference as the Court had been rendered functus officio. The contention of the counsel for respondent No. 2 that the petitioner has approached this Court after a delay of 3 years and 10 months and, therefore, this Court may not entertain the present writ petition on this ground alone, cannot be accepted for the reason that the petitioner, on his coming to know about the passing of the award dated 27.09.2005, preferred an application for setting aside of the said award on 10.01.2007. The said application was decided by the learned Industrial Tribunal-cum- CWP No. 11236 of 2009 5 Labour Court on 02.04.2009 and thereafter, the petitioner has approached this Court and filed the present petition on 24.07.2009. The petitioner has explained the delay as is apparent from the records and, therefore, the present petition cannot be said to be one which is belated with no explanation on the part of the petitioner which would disentitle the petitioner to avail the remedy of writ petition. Now coming to the award dated 27.09.2005 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, it is not in dispute that on all earlier occasions, the petitioner or his Authorized Representative was appearing before the Court. It is true that three opportunities were granted to the petitioner to file his replication. On none of the earlier occasions, there was any default on the part of the Authorized Representative or the petitioner in appearance before the Court. The case was at the very initial stage where written statement has been filed by respondent No. 2- Management and, therefore, one more opportunity was required to be given to the petitioner. As has been stated herein above, the petitioner was required to be diligent enough to pursue his claim before the Labour Court. The legislation being a beneficial legislation, the petitioner deserves an opportunity to put forth his claim before the Court for adjudication. The petitioner, therefore, deserves a chance to get the decision on merits of the case and, therefore, the counsel for the petitioner has prayed that for the default on the part of the petitioner some cost may be imposed. Keeping in view the totallity of the facts and circumstances of the case, I am of the opinion that the interest of justice would be duly served if cost of Rs. 10,000/- is imposed on the petitioner and the award dated 27.09.2005 passed by the Industrial Tribunal-cum-Labour Court (Annexure P-1) is set aside. CWP No. 11236 of 2009 6 Ordered accordingly. The parties are directed to appear before the Industrial Tribunal-cum-Labour Court, on 18.02.2010. ( AUGUSTINE GEORGE MASIH ) JUDGE January 27, 2010 pj