1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6023 OF 2009 The Child Development Officer, Ekatmik Balvikas Seva Yojana, Bhoom, Taluka Bhoom, District Osmanabad .. PETITIONER VERSUS Smt.Mahananda w/o Kisan Lavte, Age 40 years, Occu.Nil, R/o Dukarwadi, Taluka Bhoom, District Osmanabad .. RESPONDENT Shri P.S.Chavan, Advocate for petitioner Mrs.M.A.Kulkarni, Advocate holding for Shri A.M.Kulkarni, Advocate for respondent CORAM : S.V. GANGAPURWALA,J. DATE : 1st April, 2010 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. With the consent of parties, the petition is taken up for final hearing at the stage of admission. Heard learned Counsel for the petitioner and respondent. 2. The present writ petition questions the judgment and order passed by the Presiding Officer, Industrial Disputes Act and Judge, Labour Court, Latur dated 2.7.2009, in Misc.Reference I.D.A.No.2/2004 whereby the learned Presiding Officer was pleased to reject the application of the present petitioner for restoration of Reference I.D.A. which was dismissed in default. 2 3. The Reference was filed by the present respondent and vide order dated 16.8.1999 the award came to be passed. The proceedings went ex parte. On 20.11.1999, the said award was published. Thereafter on 3.12.1999, the petitioner filed Misc.Reference I.D.A.No.14/1999 for setting aside the ex parte award. On or about 10th July 2000, the said Misc.Reference I.D.A.No.14/1999 was dismissed in default. The petitioner thereafter on 10.8.2000 filed Misc.Reference I.D.A.No.4/2000 (Old) New No.Misc.Reference I.D.A.No.2/2004 for restoration of Misc.Reference I.D.A.No.14/1999. Vide its order dated 2.7.2009 the learned Presiding Officer for Industrial Disputes Act and Judge, Labour Court, Latur was pleased to reject the said application. 4. The learned Advocate for the petitioner submitted that the reasonings given by the learned Presiding Officer while passing the impugned order were totally unsustainable. The learned Presiding Officer has dilated itself upon the factum of he becoming functus officio on the lapse of one month after publication of award. 5. The learned Advocate for the respondent supported the said order. 6. The learned Presiding Officer ought to have considered that he was dealing with an application for restoration of Misc.Reference I.D.A.No.14/1999. While dealing with the said application the learned Presiding Officer should have confided himself as to whether any case is 3 made out for restoration or not. But, without going to the same, has rejected the application on the premise that he is bereft of jurisdiction as he became functus officio. The said reasoning is absolutely incorrect. The Presiding Officer was not called upon at this stage to dilate on the said issue, he would required to consider the same only when at the time of hearing of an application for setting aside ex parte order and not at this stage. The learned Presiding Officer has absolutely not given any reason for not considering the application of the petitioner. 7. It is the contention of the petitioner that when the Misc.Reference I.D.A.No.14/1999 came to be dismissed in default, he was not intentionally absent but due to official reasons the petitioner could not remain present in the Court and he could not notice the said date. 8. Taking into account the reasons given, the order dated 2.7.2009 passed by the Presiding Officer for Industrial Disputes Act and Judge, Labour Court, Latur in Misc.Reference I.D.A.No.2/2004 is set aside and the said Misc.Reference I.D.A.No.2/2004 for setting aside the dismissal in default order is allowed and the Misc.Reference I.D.A.No.14/1999 is restored to its original position. The learned Presiding Officer for Industrial Disputes Act and Judge, Labour Court, Latur shall decide the Misc.Reference I.D.A.No.14/1999 on its own merits after giving opportunities to the parties. He shall decide the same within a period of six months from today. 4 9. The parties to appear before the Presiding Officer for Industrial Disputes Act and Judge, Labour Court, Latur on 19th April 2010. 10. During the pendency of the writ petition, some offer was exchanged between the parties, but it seems the same has not materialized as such the offer given by the petitioner stands withdrawn. 11. Rule made absolute in above terms with no orders as to costs. ( S.V. GANGAPURWALA, J.) (vvr/6025.2009wp)