1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9693 OF 2009 R.Rawal Exports Pvt. Ltd. ....Petitioner V/s. Vilas Vayangankar & Anr. ....Respondents Mr.Rahul Nerlekar for the Petitioner. Mr.N.M. Ganguli for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 18TH JANUARY, 2010. P.C. :- 1. Rule. By consent, rule is made returnable and heard forthwith. 2. The Petitioner has challenged an order dated 16.7.2009 passed by the Labour Court, dismissing his application for setting aside an award dated 16.6.2008. 3. Originally the reference was filed against Respondent No.2 – M/s.R. Rawal & Co., a partnership firm. The Petitioner was impleaded pursuant to an amendment in the year 2006. 4. There is also no dispute that no written statement was filed and when the award was made, the Petitioner and Respondent No.2 remained absent. It is in these circumstances, that the Petitioner made an application for setting aside the ex-parte award contending that the same is passed ex-parte. 2 5. The learned Judge has proceeded on the basis that the award is not an ex-parte award and also on the alternative basis that it is an ex- parte award. There was some delay and negligence on the part of the Petitioner and Respondent No.2. In the facts and circumstances of the case, the Petitioner ought to be granted an opportunity of having the matter heard on merits. One Bimal Rawal was attending to the litigation. The Petitioner and Respondent No.2 contended that in the year 2001, he started suffering from Cancer. He therefore, stopped attending the business activities from the year 2001. In the year 2007 he was hospitalized and he ultimately expired in the year 2009. 6. The Labour Court has held that no evidence was led about his illness. However, the evidence was led about his hospitalization. The documents were filed regarding this which indicates the nature of the illness. It is reasonable to presume that the illness was a prolonged one. Further although there were other partners and directors, the main person attending to the litigation having expired, the party ought to be given a chance of having the matter decided on merits. 7. In the circumstances, the impugned order is set aside. Further in the circumstances, the impugned award would also have to be set aside. With a view to ensure that no further delay is caused, Mr.Ganguli states that the Petitioner and Respondent No.2 may be permitted to file the written statement, if they so desire, subject to the payment of heavy costs. 8. In the circumstances, rule is made absolute in terms of prayer (A) subject to the Petitioner and/or Respondent No.2 depositing in the Labour Court a sum of Rs.1,00,000/- and also subject to their paying 3 Respondent No.1 costs fixed at Rs.10,000/- on or before 28.2.2010. In the event of the amount of Rs.1,00,000/- being deposited, the Labour Court shall direct the office to invest the same in fixed deposits of a nationalized bank initially for a period of one year and thereafter for like periods of one year each. 9. The Labour Court shall accord to the above Writ Petitions propriety on the basis of the date on which they were filed. The parties/their advocates shall appear before the concerned Labour Court in the first instance on 2.3.2010 and thereafter as directed by the Labour Court.