IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.23386 of 2008 and C.M.No.23585 of 2008 and C.W.P.No.781 of 2007 (O&M) Date of Decision:- 26.02.2009 Gian Jyoti Public School ....Petitioner(s) vs. Presiding Officer, Labour Court ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.R.K.Sharma, Advocate for the petitioner. Mr.Mukand Gupta, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) C.M.No.23585 of 2008 Written statement on behalf of respondent No.2 is taken on record. C.M.stands disposed of. C.M.No.23386 of 2008 This application is listed for hearing before this Court wherein a prayer has been made for taking up the main case for final disposal. Application is allowed, the main case is taken up for hearing for final disposal. C.W.P.No.781 of 2007 Counsel for the petitioner contends that the award passed by the Labour Court was ex-parte wherein the petitioner-Management was not served and, therefore, the proceedings before the Labour Court ordering ex parte proceedings against them is not justified. He further states that the petitioner filed an application after coming to know about the award having been passed ex parte against the Management, but the said application was C.W.P.No.781 of 2007 -2- rejected by the Labour Court by holding that the same has not been filed within a period of 30 days of publication of the award and, therefore, was not maintainable. Counsel on this basis, contends that the award itself deserves to be set aside and the matter be remanded to the Labour Court for decision on merits. On the last date of hearing, the records of the Labour Court were called for. I have gone through the records of the Labour Court. As regards the date on which the petitioner management was proceeded against ex parte, nothing has come on record that as a matter of fact, service was effected on the petitioner-management. That being so, the impugned order dated 6.9.2005 vide which the petitioner was proceeded against ex parte, cannot be sustained and is hereby set aside. As a result thereof, award dated 17.1.2006 passed by the Labour Court, the Mall, Patiala (Annexure P-2) being not sustainable, is also set aside. The writ petition stands allowed accordingly. Parties are directed to appear before the Labour Court on 19.3.2009. Records of the Lower Court be sent back forthwith. Faced with this situation, Counsel for the respondent-workman contends that stay of the award was granted by this Court vide order dated 22.1.2007 subject to the compliance of provisions of Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). He contends that the petitioner-management has not complied with the provisions of Section 17-B of the Act as the respondent-workman has not been paid the last wages drawn during the pendency of the writ petition. On C.W.P.No.781 of 2007 -3- a categoric question being put to him as to whether the workman has filed an affidavit in compliance with Section 17-B of the Act, as mandated, in this Court, counsel for the respondent states that the said affidavit has not been filed. He further contends that he had already moved a contempt petition before this Court that the respondent-workman was not gainfully employed. This contention of the counsel for the respondent cannot be taken into consideration as Section 17-B of the Act requires the filing of an affidavit in the proceedings with regard to which the claim of Section 17-B has been made. Since the workman has not filed the affidavit in the present writ petition ,as mandated, for claiming benefit under Section 17-B of the Act, the contention of the counsel for the respondent cannot be sustained and, therefore, deserves to be rejected. It is ordered accordingly. Counsel for the respondent after the above order stood dictated, has then stated that since the main case was not fixed for hearing, therefore, he has not prepared the case. He further contends that he was to file reply to the application which he has not filed today. As regards his contention with regard to his non-preparation of the case, the same only deserves to be noticed and rejected for the reason that he had moved an application for placing on record the written statement and therefore, he was very much aware of the fact that the main case is fixed for arguments as on the last date of hearing, the records of the Labour Court were called for and after perusing the records of the Labour Court, the order has been passed. In any case adjournment cannot be claimed as a matter of right by any of the parties especially when there is no reasonable ground for the same and more so when the decision of the case is to be based on the records of the Labour Court which were called for on the last date of C.W.P.No.781 of 2007 -4- hearing in the presence of the counsel. Further, adjournment has to be prayed at the very outset and in nay case not when the order on the case has been passed on merits and the same goes against it. February 26, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No