IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1521 of 2001 (M/S) Kripal Singh S/o Ayodhaya Singh ..……… Petitioner Versus Deputy Labour Commissioner and other ……… Respondents. Mr. Z.U. Siddiqui, Advocate for the petitioner. Mr. Ajay Singh Bisht, Advocate for the respondent No.3. Hon’ble Tarun Agarwala, J. Heard Mr. Z.U. Siddiqui, the learned counsel for the petitioner and Mr. Ajay Singh Bisht, the learned counsel for the respondent No.3. The petitioner has prayed for the quashing of the orders dated 30th March, 1996 and the order dated 29th August, 1995. The facts leading to the filing of the writ petition is, that the respondent-workman filed a claim for delayed wages under the Payment of Wages Act, 1936. On 28th March, 1995, the petitioner was present when the case was called out and the claimant/opp. party was not present. The Presiding Officer, accordingly, after recording the presence of the employer-petitioner and the absence of the workman, dismissed the case for want of prosecution. But before the order could be signed by the Presiding Officer, the ordersheet indicates that subsequently the workman appeared and, accordingly, the Presiding Officer directed that the matter would be listed on the next day, i.e. 29th March, 1995 for the evidence of the workman. On 29th March, 1995, the workman appeared but the employer did not appear and it transpires that the proceedings went on ex-parte on subsequent days. Eventually, the Deputy Labour Commissioner allowed the claim of the workman by an 2 order dated 29th August, 1995. Pursuant to the said order, recovery proceedings were initiated and it is alleged that at this stage the employer came to know about the ex-parte order and, accordingly, filed a restoration application. In paragraph 3 and 4 of the restoration application, it has been stated that the petitioner was present on 28th March, 1995 when the case was dismissed for default. In paragraph 4 of the restoration application, it has been stated that around 4:00 p.m., the workman tried to serve the summons to the petitioner’s counsel which he refused to accept instructing the workman to send the same by post. In the light of these assertions made in paragraph 3 and 4 of the restoration application, the petitioner contended that the ex-parte order should be recalled since no opportunity of hearing was provided to the petitioner. This application was, however, rejected by the Presiding Officer by an order dated 30th March, 1996. The petitioner, being aggrieved, field an appeal u/S 17 of the Payment of Wages Act which was rejected by an order dated 31st March, 1998. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition. The contention of the learned counsel for the petitioner is that after the order was passed by the Presiding Officer on 28th March, 1995 dismissing the case for want of prosecution in the absence of the workman, he had signed the ordersheet and had left the premises and that when the copy of the summons was tried to be served upon him at around 4:00 p.m. he had no power to accept the application and, accordingly, he refused to accept it and directed the workman to send the same by registered post. These facts as submitted by the learned counsel for the petitioner apparently is not borne out from the record. The record indicates that the case was dismissed for want of prosecution. But before the ordersheet could be signed by the Presiding Officer, the workman appeared and, accordingly, the next day was fixed for 3 evidence of the workman, namely, 29th March, 1995. A photocopy of the ordersheet has been filed as an annexure to the writ petition which indicates that after the entire order was passed, the Presiding Officer has signed and the endorsement of the petitioner as well as of the workman is indicated on the margin of the ordersheet. If the petitioner had signed the ordersheet before the Presiding Officer had signed the order and before the last three lines of the order was transcribed, it should have been specifically stated with precision in the recall application. This fact is missing and has not been stated for reasons best known to the petitioner. Consequently, the submission of the learned counsel for the petitioner that he had left the premises after the dismissal of the case and was not aware that the order was subsequently recalled and the case was fixed for next day cannot be believed. The fact that the petitioner was aware that 29th March, 1995 was fixed for evidence of the workman is borne out from paragraph 4 of the restoration application. The petitioner himself stated that summons were tried to be served upon him at 4:00 p.m. on 28th March which he refused to accept. What was that fact indicated in the summons is not known but apparently it must be an intimation that the order of 28th March, 1995 dismissing the case in default has been recalled and that 29th March has been fixed for evidence. The petitioner refused to acknowledge the intimation that was being served by the workman. Consequently, the court finds that the petitioner was aware of the proceedings that was going to be held on the next date, i.e., 29th March, 1995. The contention of the petitioner that after the dismissal of the case, he had no jurisdiction to accept the application or the summons is bereft of merit. In the first instance, it was not a summon which was to be served privately by the workman to the petitioner. The summons can only be served through a court process by an order of the Court. In the instant case, there was no 4 such order for issuance of the summons. On the other hand, the ordersheet indicates that the case was not dismissed in default but was listed on the next day and the ordersheet indicates that the petitioner had signed the ordersheet. Consequently, an irresistible conclusion is drawn that the petitioner was aware of the fixing of the date, i.e. 29th March. In the light of the aforesaid, an irresistible conclusion is drawn that the petitioner having knowledge of the fact that 29th March, 1995 was fixed for evidence of the workman, the petitioner deliberately chose not to appear and allowed the matter to proceed ex-parte. Consequently, the Presiding Officer was justified in rejecting the restoration application. The appeal arising out of that order was rightly dismissed. This Court does not find any error in the impugned orders. The writ petition is dismissed. (Tarun Agarwala, J.) Dated 30.06.2010 Shiv