STATE OF GUJARAT Vs. NARBHERAM GOVIND FULTARIYA

JUDGEMENT

(1.) Learned AGP Ms. Talati is appearing for the petitioner and the learned advocate Mr. Thakkar is appearing for the respondent workman. The facts of the present case, in short, are that the respondent workman was appointed with the petitioner from 14.12.1979 to 29.3.1981 on the post of Junior Clerk on the basis of 28 to 29 days of each month. In each month, one or two days' break was given to the petitioner. The service of the petitioner was terminated on 29/03/1981 by the department. Said order of termination was challenged by the respondent workman before the labour court by filing reference no. 921 of 1987. Before the labour court, the workman has filed the statement of claim in support of the industrial dispute raised by him. The labour court served the department vide notice Exh. 7 to 9 by Registered Post A.D. and in response to the said notice issued by the labour court, the petitioner department had wrote a letter to the labour court and pointed out that the department has submitted a letter dated 24th August, 1987 before the labour court. The petitioner has not appeared before the labour court inspite of service of three notices from the labour court. Thereafter, vide Exh. 10, the labour court issued a notice of hearing to the petitioner and the AD Slip was received back which is on record at Exh. 11 before the labour court. Inspite of that, none had appeared before the labour court to contest the matter. Thereafter, the labour court has examined the respondent workman vide Exh. 13 and the workman deposed before the labour court that he was engaged and appointed with effect from 14.12.1974 to 29.3.1981 as junior clerk and that his services were terminated by oral order and at the time of termination of his service, no notice in writing was given to him nor any retrenchment compensation in lieu of such notice was offered to him. The respondent workman has produced the letter of appointment vide Exh.14 to 19 before the labour court and has also produced certificate issued by the Executive Engineer, Shri S. M. Patel vide Exh. 20 wherein it was certified that the respondent had continuously worked for the period from 14th December, 1`974 to 2 9/03/1981. The respondent further deposed that one workman junior to him Shri S.V.Tank at Morbi was continued in service and, thereafter, he was transferred from Morbi. Said deposition of the respondent workman has gone unchallenged and has not been cross examined by the petitioner since no one had appeared on behalf of the petitioner before the labour court. Not only that but the petitioner has also not led any oral evidence before the labour court nor any documentary evidence was produced before the labour court by the petitioner. Thereafter, the labour court has considered the evidence of the respondent workman and the documents which were produced on record were also considered and after considering the decisions reported in 1985 GLR page 946, 28 GLR page 1146, 1985 GLH page 41, the labour court came to the conclusion that the services of the respondent workman were illegally terminated and the same is in violation of the provisions of section 25F of the Industrial Disputes Act, 1947 ("the ID Act" for short) and, therefore, the respondent is entitled to the reinstatement with continuity of service with full back wages for the intervening period under its award dated 27/11/1989. Said award was published on 8.12.1989 by the Section Officer of the Labour and Employment Department. Thereafter, the petitioner had filed Miscellaneous Application No. 220 of 1990 for setting aside the said ex parte award passed by the labour court in the aforesaid reference in which it has been pointed out by the petitioner that on 24th August, 1987, detailed reply was produced by the petitioner and at the time of passing the award, the reply which was produced by the petitioner was not considered by the labour court. It was also pointed out that the office in which the respondent was employed was closed as the activities which were being carried out by the said office had stopped from 31/03/1981 and, therefore, the respondent is not entitled to raise the dispute against the closed establishment. In the said application, the respondent workman had filed reply vide Exh. 5 pointing out inter alia that in support of the miscellaneous application filed by the petitioner, no affidavit was filed by the officer and there was delay in filing of the application and, therefore, the application is required to be rejected.

(2.) The labour court, after considering the submissions made from both the sides, has come to the conclusion that though reasonable and sufficiently enough opportunities were given to the petitioner to represent its case before the labour court, no one had appeared for the petitioner and there was no justification for remaining absent in the proceedings before the labour court. Not only that but no sufficient cause has been pointed out or shown for remaining absent before the labour court in the reference proceedings and, therefore, ultimately, the labour court has rejected the said miscellaneous application by its order dated 31st August, 1990.

(3.) The petitioner has challenged both the orders namely the order passed in the award and the order passed by the labour court in the said miscellaneous application for setting aside the ex parte award by filing the present petition under Article 226 and 227 of the Constitution of India. This Court, at the time of admitting the petition by issuing rule thereon, has granted the interim relief in terms of paragraph 11(B) subject to the provisions of section 17B of the ID Act.