SCA/755420/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7554 of 2008 With CIVIL APPLICATION No. 8179 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= ROJ LAB LIMITED - Petitioner Versus RABARI BABUBHAI SANKABHAI - Respondent ================================================= Appearance : MR DIPAK R DAVE for Petitioner : MR SHAILESH C SHARMA for Respondent : ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 03/12/2008 ORAL JUDGMENT 1. Heard learned counsel for the petitioner. Rule. Shri Sharma, learned counsel for the respondent waives service of notice of rule. With the consent of the counsels for the parties petition is heard & finally disposed of. SCA/755420/2008 2/6 JUDGMENT 2. The petitioner-employer has assailed in this petition the order dated 5/8/2005 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 740 of 1997 and the order dated 3/12/2007 passed in Restoration Application No. 360 of 2006 on the ground that the Labour Court has not passed the ex parte award in consonance with law and the application for restoration has also been wrongly rejected. 3. Facts in brief deserves to be set out as under for appreciating the controversy in this matter. It was the case of the respondent workman as per his Statement of Claim before the Labour Court that he was serving in the petitioner concern since last 9 years at a salary of Rs.1250/- per month. As he demanded his legitimate dues and other rights flowing from the employment he was terminated orally by order date 3/1/1997. Hence the industrial dispute was raised which was referred to the Court wherein it was numbered Reference (LCA) No. 740/1997. The workman filed Statement of Claim enlisting his demands and justification thereof. Present petitioner also filed exhibit- 6 written statement contesting the claim of the respondent workman. The respondent workman closed his evidence and thereafter the petitioner evidence was closed. Labour Court has recorded that despite repeated opportunities afforded to the present petitioner, no one has bothered to defend the case of the employer, in this background the Labour Court has accepted the version of the workman as his testimony has remained SCA/755420/2008 3/6 JUDGMENT uncontroverted as no cross examination was filed by the present petitioner. 4. The Reference was allowed vide order dated 5/8/2005 wherein Labour Court ordered reinstatement with full back wages and continuity of service with cost of Rs. 1000/-. As record indicate, said award was published on 18/10/2005. As it is appearing in the record the award has remained un-pleaded and therefore some recovery proceedings were taken up. The petitioner thereafter filed restoration application under Rule 26-A of Gujarat I.D. Rules in December 2006 contending that their advocate has retired and thereafter no information was available with regard to the case, the case remained undefended. Labour Court has rejected said application vide its order dated 3/12/2007 which has also been impugned in this petition. 5. Shri Dave for the petitioner submitted that the award impugned is absolutely unsustainable in eye of law as though there was written statement filed the Court has not taken note of any contention in the written statement. The Court therefore ought not to have mechanically allowed the reference in favour of the workman only on the ground that there was no one to defend the version of the employer. The advocate of the petitioner had retired and therefore the case had remain undefended. Shri Dave submitted that the restoration application is not filed after long delay and the restoration application did contain reasons for not approaching the Court in time. The Labour Court has SCA/755420/2008 4/6 JUDGMENT rejected the same and therefore present petition deserves to be allowed. 6. Shri Dave has submitted that the petitioner is ready & willing to deposit cost which may be disbursed to the workman as the workman has not to be prejudiced in any manner though the award is there but the same award is under challenge and therefore the workman may be compensated. He submits for awarding appropriate cost and the matter be remanded to the Labour Court for deciding it afresh as the award though ex parte is not enforcible even on merits. 7. Shri Sharma learned advocate appearing for the respondent workman contended that the inordinate delay in filing restoration application except the fact that the workman was terminated since January 1997 and he was languishing in the plight of unemployment was sufficient to persuade any Court from entertaining the application of restoration. The Labour Court has recored in unequivocal terms in regard to opportunities given to petitioner for defending its case. Despite those opportunities if the petitioner has not chosen to defend its case then the Labour Court was justified in accepting the version of the workman and allowing the reference. 8. He further submitted that even the ex parte award though passed against the petitioner they have not bothered to comply with the same nor did they bother to file restoration application until they were served with copy of notice in recovery proceedings that were SCA/755420/2008 5/6 JUDGMENT required to be undertaken. In view of this, the award and order impugned deserve to be sustained as they do not suffer from any infirmity so as to call for any interference under Article 227 of the Constitution of India. 9. This Court has heard learned counsels for the parties and perused impugned award as well as the order passed in restoration application. Ordinarily the Court would have accepted submission canvased on behalf of the respondent workman looking to the fact that workman is out of job atleast as per his own say since January 1997 and there is a finding of the Labour Court with regard to opportunities given to the petitioner. But the impugned ex pare award on the case of it indicate that the Labour Court has not taken care to examine dispassionately the aspects with regard to granting of back wages and reinstatement nor has the Labour Court even made any reference to the version narrated in the written statement by the employer. The cryptic award passed by the Labour Court indicate that the Labour Court has not recorded its satisfaction with regard to the version of the workman entitling him for reinstatement with back wages. In view of this when the award impugned in this petition itself is not sustainable this Court in this peculiar facts & circumstances of the case inclined to remand the matter to Labour Court on a condition that the petitioner shall deposit cost of Rs.10,000=00 in the Labour Court which may be disbursed to the workman by account payee cheque and the matter be decided on merits. The ex parte award of the Labour Court is being set aside the order made on SCA/755420/2008 6/6 JUDGMENT restoration application also will have to be set aside. This court hasten to add here that the award is set aside on the ground that the bare minimum principle of law required to be borne in mind while adjudicating the dispute has been not taken care of while rendering the award and therefore this Court is constrained to quash the impugned award. 10.In view of this the petition succeeds. The award impugned dated 5/8/2005 passed in Reference (LCA) No. 740 of 1997 and the order dated 3/12/2007 passed in Restoration Application No. 360 of 2006 are hereby quashed and set aside. The Labour Court is hereby directed to decide Reference (LCA) No. 740/1997 on merits within a period of six months from the date of receipt of writ of this Court as both the counsels have assured this Court that their respective counterparts will cooperate in deciding the matter on merits. Rule made absolute to the aforesaid extent. However there shall be no order as to cost, except the cost of Rs.10000/- awarded to the workman to be deposited by the petitioner before the Labour Court as stated herein above. 11. In view of the order passed in main matter, no order is passed in Civil Application No. 8197 of 2008 and the civil application stands disposed of. [ S.R. BRAHMBHATT, J ] /vgn