-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1983 OF 2009 M/s.Hindustan Motors Mfg. Co. : Petitioner V/s. Sadashiv Tuklaram Salunke & Ors. : Respondents ... WITH WRIT PETITION NO.1984 OF 2009 M/s.Hindustan Motors Mfg. Co. : Petitioner V/s. Mr.Jayram Atmaram Shetkar : Respondent ... Mr.Dilip N. Mandavia for the petitioner. Mr.Vinod Shetty for the respondents. ... CORAM : S.A. BOBDE, J. DATE : MARCH 02, 2009. ORAL ORDER Rule, returnable forthwith. Mr.Shetty for the respondents waives service. Heard by consent. 2. In these petitions, the petitioner-employer has challenged the orders of the learned Industrial Court, Mumbai, rejecting the petitioner’s applications for -: 2 :- restoration of the original complaints to the file. 3. The undisputed facts are that in both these petitions, the Industrial Court, in the absence of any appearance on the part of the petitioner, proceeded to decide the respondents’ complaints after taking into account the Written Statement and evidence on record. It is not necessary in this case to go into the validity of the reasons or otherwise given by the petitioner for not appearing before the Court because the learned Industrial Court has rejected both the applications on the ground that its order is not an ex parte order and, therefore, the applications for restoration are not maintainable. The learned counsel for the petitioner submitted on the basis of section 31 of the MRTU & PULP Act that the order is an ex parte order. Section 31 reads as follows:- "31. Consequences of non-appearance of parties:-(1) Where in any proceeding before the Court, if either party, inspite of notice of hearing having been duly served on it, does not appear, when the matter is called on for hearing the Court may either adjourn the hearing of the matter to a subsequent day, or proceed ex parte, and make such order as it thinks fit. -: 3 :- (2) Where any order is made ex parte under sub-section (1), the aggrieved party may, within thirty days of the receipt of the copy thereof, make an application to the Court to set aside such order. If the Court is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it may set aside the order so made, and shall appoint a date for proceeding with the matter: Provided that, no order shall be set aside on any such application as aforesaid, unless notice thereof has been served on the opposite party." 4. The contention on behalf of the petitioner is correct. When the Industrial Court or a Labour Court hearing a complaint under the MRTU & PULP Act finds that though served, a party does not appear when the matter is called on for hearing, the Court can either adjourn the hearing or proceed ex parte. In all cases where a party does not appear, the law gives one of the above options to the Court. If the party has not appeared and the Court has not adjourned the matter, it must be taken that -: 4 :- the Court has proceeded ex parte. In these circumstances, it was not open for the Court not to adjourn the matter, but proceed to decide it in the absence of the other party and then reject the application on the ground that the Court has not proceeded ex parte. This has resulted in manifest error of law apparent on the face of the order of the Industrial Court. 5. In this view of the matter, without going into the merits of the applications for setting aside the ex parte orders, the impugned orders rejecting the petitioner’s applications for setting aside the ex parte orders are hereby quashed and set aside. Both the matters are remitted back to the Industrial Court for a fresh decision, in accordance with law. The Industrial Court shall proceed to decide the applications for setting aside the ex parte orders on their own merits. Order accordingly. 6. Rule is made absolute in the aforesaid terms. S.A. BOBDE, J.