1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6362 OF 2009 Dnyaneshwar s/o Anantrao Kulkarni Age: 42 Yrs., occu. Nil r/o Ter, Tq. And District Osmanabad. - PETITIONER VERSUS 1) the Superintendent Engineer, Public Works Division, Osmanabad, Dist.Osmanabad. 2) The Executive Engineer, Public Works Division, Osmanabad, Dist. Osmanabad. 3) The Deputy Engineer, Public Works Division, Osmanabad, Dist. Osmanabad. - RESPONDENTS ***** Mr.Pradip R.Patil, Advocate for Petitioner; Mr.T.S.Londhe,AGP for Respondents. ----- CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) Heard. This Writ Petition challenges the order dated 25.5.2009 passed by learned Presiding Officer for Industrial Adjudication and Judge, 2 Labour Court, Latur in Misc. Ref.I.D.A.No. 23/2006, rejecting the application filed by the petitioner/employee for condonation of delay caused in filing restoration application. As a result, the application for restoration also stood dismissed, hence, the petitioner has preferred this writ petition, challenging both orders. 2) Notice was issued by this Court on 24th September, 2009 and the learned AGP waived service for the respondents. The Counsels agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, returnable forthwith by consent of parties. 3) The undisputed factual position is that, Reference IDA 90/1996 (old) 22/2004 (new)was decided exparte against the petitioner/employee on 11.8.2004. A notification in that respect, as required, was issued by the Commissioner, on 13.12.2004, publishing the Award. It was observed in the notification that the Award be communicated to the parties, as required under the Rules. 4) The petitioner/employee preferred Misc. IDA No.23/2006 for condonation of delay caused in filing an application seeking setting aside the 3 exparte award. In paragraph 4 of the said application, it is stated that the applicant/petitioner came to know about the Judgment and Award, for the first time, on 22.9.2006 and he, therefore, applied for a certified copy of the award which was delivered to him on the same day. On 25th September, 2006, this application for condonation of delay was filed. The learned Judge of the Labour Court, by order dated 25th May, 2009 dismissed the said application on the ground that there is no provision for condonation of delay in preferring the application for restoration of Reference IDA, even if such reference is decided ex parte. This view is based upon the decision of this Court reported in 2005 (2) Bom.LC 389 (Bom) – (Vasant Govind Shirsekhar Vs. M/s Mhatre Pen and Plastics (P) Ltd. And Ors. 5) Shri Patil, the learned Counsel appearing for the petitioner/employee, relied upon the provisions of Rules 26 and 31-A of the Industrial Disputes (Bombay) Rules and has urged that the Award, order or decision made in the Reference is required to be communicated to the concerned employee and if the Award is exparte then a period of 30 days is prescribed for filing an application seeking setting aside the exparte award. According to him, although the application 4 for condonation of delay was filed, in fact, there was no delay as such and for the first time he came to know about the award on 22.9.2006 and he filed the application on 25.9.2006. Such application was presented along with an application for restoration. According to him, there was no delay and hence the the learned Judge of the Labour court ought to have allowed the application for restoration and ought not to have dismissed the same. 6) The learned AGP appearing for the respondents has already urged that in the notification itself, there is a reference that the Award be communicated to the parties concerned and it must have been communicated pursuant thereto in the year 2004 when the notification was issued. He has referred to the address given by the petitioner and submits that the Award was communicated to the petitioner/employee. 7) It is not in dispute that exparte award was passed on 11.8.2004. Notification as regards publication of the award was issued on 13.12.2004. Rule 26(2) of the said Rules, relied upon by Shri Patil the learned Counsel for the petitioner, clearly contemplates that where any award, order or decision is made exparte, the 5 aggrieved party, may, within thirty days of the receipt of a copy thereof, make an application to the concerned authority. Hence, the question is whether the petitioner was communicated the Award or whether the petitioner has acknowledged receipt of copy of the award, needs to be dealt with. The finding on this point is crucial to decide as to whether the application for setting aside the ex parte award was maintainable or not. 8) After going though the order passed by the Labour court, it is apparent that there is no finding that the petitioner was communicated or had received a copy of the Award after 11.8.2004 till 22.09.2006 when the petitioner, on his own, approached the Labour court to obtain a copy of the Award. A finding is required to be recorded after giving an opportunity to the parties to lead documentary or oral evidence. It seems from the order that no such exercise is carried out by the Labour court. In fact, there is no finding as to receipt of copy of the award by the petitioner. Hence, on this sole ground, the impugned order in this petition is liable to be set aside with directions to the Labour Court to decide the application afresh, after giving requisite opportunity to the parties to lead evidence, if they so desire and an opportunity of being heard. 6 9) In the result, the instant writ petition succeeds. The order dated 25.5.2009 passed by the Labour court, Latur, rejecting Misc. Ref.I.D.A.No.23/2006 is hereby quashed and set aside, with direction to the learned Judge to decide the said application, along with application for condonation of delay afresh on its own merits, after giving an opportunity to lead evidence, if any and opportunity of hearing. Rule is made absolute in the aforesaid terms with no order as to costs. 10) In view of the decision in the writ petition, nothing survives in CA No.558/2010, the same is disposed of as infructuous. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp6362.09 Authenticated copy (BD VADNERE,PS )