C.R. No.823 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.823 of 2006 Date of Decision: 20.08.2009 Director Food and Supplies Department, Punjab, Chandigarh and another ...Petitioners VERSUS Tul Bahadur C/o Trade Union Council, Patiala and another ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. O. P. Dabla, DAG, Punjab. *** AJAY KUMAR MITTAL J. (ORAL) This revision petition has been filed under Article 227 of the Constitution of India praying for setting aside the orders dated 27.2.2004 passed by the learned Labour Court, Bathinda whereby the petitioner- department was proceeded against ex-parte, and order dated 7.6.2005 vide which their application for setting aside the ex-parte order was declined. The petitioner had filed an application for setting aside the ex- parte proceedings with the averments that the District Food and Supplies Controller was called by the Director, Food and Supplies Department, Chandigarh on 27.02.2004 for some urgent work, and, therefore, he could not appear in the Court and was proceeded against ex-parte. The said plea C.R. No.823 of 2006 -2- was not accepted by the labour Court and the application for setting aside the ex-parte order dated 27.2.2004 was declined by the impugned order dated 7.6.2005. I have heard learned counsel for the petitioners and perused the record. No one has appeared on behalf of the respondent to oppose the revision petition. Learned counsel for the petitioners raised two fold submissions. Firstly, it was contended that there was sufficient cause for the petitioner's non-appearance on 27.2.2004, and therefore, ex-parte order dated 27.2.2004 should have been set aside. Learned counsel for the petitioners has relied upon the judgment of the Supreme Court in G. P. Srivastava v. R. K. Raizada and others, 2000 (2) PLR 544. Alternatively, the learned counsel submitted that written statement had already been filed and, therefore, the Labour Court could not have adjourned the case for ex-parte evidence as the petitioner-District Food and Supplies Controller, Ferozepur was entitled to join the proceedings from the date and stage when he appeared before the Labour Court. Support was drawn from judgment of the Apex Court in Sangram Singh Vs. Election Tribunal, Kotah and another, AIR 1955 SC 425 and of this Court in C.R. No.3320 of 2002, titled as Bijay Kumar and others Vs. Shri Sanathan Dharam through Secretary, Bhiwani, decided on 12.3.2008. The petitioner-department was proceeded against ex-parte on 27.2.2004 due to non-appearance of the District Food and Supplies Controller as on that day he was called by the Director, Food and Supplies Department, Chandigarh. Further, the application for setting aside the ex- parte order dated 27.2.2004 was filed on 14.5.2004 without any delay. It C.R. No.823 of 2006 -3- was also the stand of the Department that there was no malafide or intention on the part of the Department not to appear on 27.2.2004 in the Court. After having considered the facts and circumstances of the case, the Court is satisfied that the non-appearance on the part of the petitioner-department on 27.2.2004 was unintentional and not malafide . Further, the Apex Court in G. P. Srivastava's case (supra) has held as under:- “Under Order 9 Rule 13 C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on C.R. No.823 of 2006 -4- which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” Viewed from another angle, this Court in C.R. No.3320 of 2002, decided on 12.3.2008 (supra) while following the dictum laid down by the Apex Court in Sangram Singh's case (supra) has held that the party who has been proceeded against ex-parte can always join from the stage when he or she appears before the Court. Since no proceedings had taken place before the Labour Court in the main petition from 27.2.2004 upto 14.6.2004 when application for setting aside ex-parte order had been filed, the petitioner can join the proceedings from that date and since written statement has already been filed by them, they can cross-examine the witnesses to be produced by the respondent. Needless to say, after the conclusion of evidence by the respondent, the petitioner-State shall be entitled to lead its evidence. C.R. No.823 of 2006 -5- Accordingly, in view of the above, orders dated 27.2.2004 and 7.6.2005 are set aside and the Labour Court is directed to proceed further in the matter in accordance with law. ( AJAY KUMAR MITTAL ) August 20, 2009 JUDGE ashish