CW 6455/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.6455/07 M/s. Samurai Software Limited Versus Judge, Labour Court & Industrial Tribunal & Anr. DATE OF ORDER : 12/08/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. A.K. Sharma, for petitioner Mr. Reashm Bhargava, for respondent *** Matter has come up on application under Article 226(3) of the Constitution for vacation of ex-parte stay order passed by this court dated 24th August, 2007, but with the consent of parties, the matter is finally decided at this stage. Instant petition has been filed by petitioner assailing the ex-parte award passed by Labour Court-cum-Industrial Tribunal, Ajmer dt.27th September, 2005 and so also application setting aside the ex-parte award which has also been rejected vide order dt.11th July, 2007. Respondent-workman who as alleged while serving as Driver, his services were dispensed with w.e.f. 1st July, 2003. The appropriate government made a reference on 18th January, 2005 of which notice as alleged was served upon CW 6455/07 [2] petitioner, but since no one appeared despite service on behalf of petitioner, ex-parte proceedings were initiated on the next date of hearing which was 10th August, 2005 and on further date of hearing i.e. 27th September, 2005 ex-parte award was passed by the Tribunal holding alleged termination to be illegal with the direction to reinstate him in service with full consequential benefits. The award impugned Ann.1 was published on 3rd July, 2006 and respondent-workman moved application u/s.33C(2) of the Act, 1947 for his claim in terms of award. At this stage petitioner filed application for setting aside the ex-parte award on 6th October, 2006 but the same was rejected on 11th July, 2007 on the premise that since the award has already been published, application for setting aside the ex-parte award in these circumstances is not maintainable and accordingly, dismissed. Counsel for petitioner submits that land and building of the petitioner Company situated in Industrial Area, Parbatpura-II, Ajmer, was sold on 12th May, 2004 and the possession thereof was also handed over to the purchaser M/s. Jalori CW 6455/07 [3] Tablewares Pvt. Ltd. and the petitioner had no control over the said property thereafter and certain authorities like Employees State Insurance Company and so also Superintendent, Central Excise Range, Ajmer were also informed with the further request for cancellation of registration certificate of the company dt.30th June, 1992. Counsel further submits that notices must have been served in the office but petitioner could not appear because of aforesaid reason that has deprived him of fair opportunity of hearing and to make submission before the Tribunal and in such circumstances, initiating ex-parte proceedings and passing of award is in clear violation of principles of natural justice. Counsel further submits that it was never in their knowledge that ex-parte award has been passed by the Tribunal and after the respondent has approached by filing application u/s.33C(2) immediately when this fact came to their notice, application was filed for setting aside ex-parte award which has been rejected. Thus, at no stage they had an opportunity to submit their defence for consideration before the Tribunal. Counsel for respondent, on the other hand, submits that notices were served upon the CW 6455/07 [4] registered address of the petitioner company on 26th July, 2005 since no one appeared thereafter, the Tribunal proceeded ex-parte against the petitioner and since application was filed for setting aside the ex-parte award after it was published, as such no error has been committed by Tribunal in rejecting their application. I have heard counsel for parties and with their assistance examined material on record. The averment which has been made by petitioner in Para 2 of rejoinder about the Company being sold to M/s. Jalori Tablewares Pvt. Ltd. and property has been handed over having no control over the company thereafter and information sent to the respective statutory authorities prim facie shows that notice might have been served/sent on registered address of the company, but since no one was available to defend the case on behalf of petitioner, in opinion of this court, certainly that has deprived the petitioner of a reasonable opportunity of hearing which is always required to be afforded since natural justice is a cardinal principles of administrative law which the authority is expected to adhere to. CW 6455/07 [5] I find justification in the submission made by counsel for respondent that if one fails to appear despite service the Tribunal has no option but to proceed and initiate the ex-parte proceedings against the defaulting person, but at the same time in the facts of the instant case this fact cannot be ruled out that petitioner has been deprived of their reasonable opportunity of hearing to put their defence before the Tribunal for fair adjudication of the dispute. Since the respondent as alleged had served for 11 years as a Driver and he is prosecuting remedy available under law since 2003, this court considers it appropriate to impose cost upon the petitioner since for their inaction great inconvenience has been caused to the respondent-workman in seeking adjudication. Consequently, the writ petition stands allowed. The ex-parte award Ann.1 dt.27th September, 2005 and so also rejecting their application for setting aside the ex-parte award dt.11th July, 2007 are hereby quashed and set aside. The matter is remitted back to the Tribunal for adjudication of the dispute afresh after affording opportunity of hearing in accordance with law provided the petitioner makes CW 6455/07 [6] payment of Rs.20,000/- by demand draft to the respondent-workman within one month from today – receipt whereof may be submitted to Tribunal also. Parties are directed to appear before the Tribunal on 13th October, 2008. It is expected from the Tribunal to decide the reference expeditiously. [AJAY RASTOGI], J. FRBOHRA6455CW2007 12-8.doc