1 wp 9119.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9119 OF 2010 M/s Siddheshwar Sahkari Sakhar Karkhana Ltd., At Post Maniknagar, Tq. Sillod, Dist. Aurangabad, through its Manager Director .. Petitioner Versus Sillod Taluka Sakhar Kamgar Union, Maniknagar, Tq. Sillod, Dist. Aurangabad, through its General Manager .. Respondent Shri V. N. Upadhye, Advocate for the Petitioner. Shri A. A. More, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 23RD JUNE, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent has filed complaint ULP alleging unfair labour practice on the part of the present petitioner. The 2 wp 9119.10 respondent led its evidence. Thereafter, the petitioner did not cross examine the witness of the respondent, eventually the Court decided the matter on merits and allowed the complaint. The petitioner filed an application for restoration and setting aside the said order bearing Miscellaneous Application No. 09/2008. The said application is rejected. Aggrieved thereby the present petition has been filed. 2. Shri Upadye, the learned counsel states that the petitioner could not cross examine the witness of the respondent as the counsel appearing for the petitioner was not well. Even a certificate to that effect was filed. But the Member Industrial Court has not considered the said aspect in its correct perspective. The matter deals with the service condition and liability of the petitioner to pay any amount to the respondent. The petitioner is not at all liable to pay any amount to the respondent. The Industrial Court has taken a very hyper technical approach in rejecting the said application. The petitioner deserves to be given an opportunity to cross examine the respondent's witness and to adduce evidence. 3. Shri More, the learned counsel for the respondent has 3 wp 9119.10 vehemently opposed the petition and submits that the petitioner has intentionally prolonged the matter. There are huge dues against the petitioner, so as to scuttle the liability the petitioner is indulging in tactics to prolong the matter. The Tribunal has considered all these aspects and has rejected the application. If the petitioner remains absent, the Industrial Court has no option but to decide the matter on merits and in view of that the present restoration petition is not maintainable U/Sec. 31 (1) and (2) of the Act. The order is not ex-parte order. 4. It is a fact that the petitioner has not cross examined the respondent's witness and has not led its evidence. The Industrial Court has observed that said proceedings are not ex-parte proceedings, as the petitioner has filed the written statement and the respondent also led evidence. This observation is not in tune with the legal proposition as has been held by the Apex Court in a case of Prakash Chander V. Janki Manchanda reported in AIR 1987 S.C. 42. 5. As can be seen, the advocate of the petitioner was not keeping well and as such, could not remain present and prosecute the matter. The fault cannot be directly attributed to 4 wp 9119.10 the petitioner. It is desirable that the matters are decided on merits. The Industrial Court has taken a very technical approach while rejecting the application of the petitioner for restoration of the complaint and setting aside the ex-parte order. 6. In view of above conspectus, I am inclined to grant one more opportunity to the petitioner to cross examine the respondent's witnesses and to adduce the evidence. At the same time the respondent deserves to be compensated with cost for the delay that has been caused. 7. In the result, the writ petition is allowed. The impugned order rejecting the Misc. Application No. 09/2008 is quashed and set aside and the Complaint ULP No. 99/2004 is restored to its original position on condition that the petitioner pays cost of Rs. 10,000/- to the respondent within a period of three weeks from today to be deposited in the Industrial Court. The respondent is entitled to withdraw the cost. The parties shall appear before the Industrial Court in Complaint ULP No. 99/2004 on 11th July, 2011. Taking into account the fact that the complaint is of 2004, the Industrial Court shall decide the said complaint as expeditiously as possible and within a period of three months 5 wp 9119.10 from the date of appearance. The parties shall co-operate in the disposal of the complaint. The rule is accordingly made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/June 11