DEPUTY EXECUTIVE ENGINEER Vs. VAGHELA BHALABHAI BAHUBHAI

JUDGEMENT

(1.) THE present petition is directed against the order dated 25.1.2006 passed by the Labour Court in Misc. Application No. 1/2005, whereby the Labour Court has dismissed the application for restoration of the main matter, which had proceeded ex parte. The short facts of the case are that the respondent was engaged as per the petitioner on temporary basis as workman, whereas as per the respondent the appointment was given as workman in the year 1993 and 1994. As per the respondent, his services were terminated without following the legal procedure and, therefore, the dispute was raised under the Industrial Disputes Act (hereinafter referred to as "ID Act"). The said dispute was referred to the Labour Court for adjudication being Reference (LCS) No. 154 of 1995. Before the Labour Court, statement of claim was submitted by the respondent and the reply was submitted by the petitioner, but when the respondent workman was examined none remained present for cross -examination of the workman and thereafter nobody represented on behalf of the petitioner. The Labour Court, therefore, proceeded ex parte and passed the award on 24.11.2004, wherein the Labour Court found that the workman had completed 240 days and no retrenchment compensation was paid and, therefore, the reinstatement with 40% back -wages was awarded.

(2.) THE petitioner submitted application under Rule 26A of the Gujarat Industrial Disputes Rules and prayed that opportunity may be given and the matter be reconsidered again by setting aside the ex parte award. The Labour Court found that after the evidence was closed on behalf of the petitioner, the matter was fixed for arguments and thereafter, award was passed and there was carelessness on the part of the petitioner and hence, the application was dismissed. Under these circumstances, the present petition before this Court.

(3.) IT does appear that pending the aforesaid proceedings as stated by the petitioner in the petition itself the recovery application was preferred by the respondent workman for recovery of the amount of Rs. 1,03,260/ -, and it further appears that on account of the present proceedings of the petition, the matter remained as it was. It further appears that after the award was passed within the prescribed time limit, the application for setting aside of the ex parte award was made, but the Labour Court did not exercise the discretion for restoration. Resultantly, the matter has remained pending for about eight years. In normal circumstances, when the application is made for setting aside of ex parte award or order, it may also be required for the Court to examine as to whether appropriate cost for restoration would meet with the ends of justice or not and further if the Court finds that there was lethargy on the part of any party to the proceedings, who was at fault, the Court may put additional condition of depositing a reasonable amount in order to see that such practice on the part of defaulting party to allow the order to be passed and thereafter to move for restoration is not encouraged. It appears that the Labour Court did not exercise the discretion accordingly and the aforesaid both the aspects are totally lost sight of. It appears to me that when the matter is to be restored in the year 2014, apart from the aspect of cost, appropriate amount, which was prayed by the workman in the recovery application of Rs. 1,03,260/ - is also to be deposited by the petitioner and the amount may remain invested, subject to ultimate decision, which may be taken by the Labour Court in the Reference.