SHIV RATAN PAL Vs. PRESIDING OFFICER

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for the respondent no. 2 and perused the record. By means of the present writ petition, the impugned order dated 9.7.2013 passed by the respondent no. 1 Presiding Officer, Labour Court (I), U.P., Kanpur has been challenged by which the restoration/recall application for recall of the award was allowed. Learned counsel for the petitioner submitted that the petitioner was appointed in the month of May, 2002 on the post of Stitcher by the respondent no. 2 and he continued to work continuously up to 31.7.2008. On 1.8.2008, there was holiday and when he came to join his duties on 2.8.2008, he was not permitted to work by the respondents. Since it was an industrial dispute, hence, the reference was made by the State Government under Section 4(K) of the Industrial Disputes Act. The case was registered as adjudication case no. 22/2010, notices were issued to the respondents. Though representative of the respondent no. 2 appeared, however, neither written statement was filed nor any document was filed against the claim of the petitioner. The award was passed in favour of the petitioner on 12.4.2012, which was published on 27.8.2012 allowing the claim of the petitioner directing for reinstatement with back-wages. The award was published on 27.8.2012, however, when the petitioner was not reinstated, an application under Section 6H(1) of the Industrial Disputes Act was filed for payment of the back-wages as awarded by the labour court. The notice was issued and served upon the respondent no. 2 by the Deputy Labour Commissioner, however, the respondent did not appear. Hence, the application was allowed by order dated 4.3.2013. When recovery certificate was issued in pursuance of the order then writ petition no. 26750 of 2013 was filed by the respondent no. 2. The petitioner was directed to deposit the entire amount as per recovery certificate before Assistant Labour Commissioner, Kanpur Region, Kanpur and further it was directed that the petitioner would be reinstated within four weeks, however, till date the entire amount has not been paid in compliance of the order passed by the labour court as well as by this court and even the petitioner has not been reinstated though the order is passed by this court also on stay application on 13.5.2013. In the meantime, the application for recall of the exports award was also filed before the labour court and this fact was not disclosed in the writ petition. The labour court believed the averment of the respondent no. 2 that when recovery certificate was issued and the respondent no. 2 came to know the same on 19.3.2013, then within 30 days restoration application was filed on 15.4.2013 and as such the award dated 12.4.2012 published on 27.8.2012 was recalled merely on the payment of cost of Rs. 500/-.

(2.) Learned counsel for the petitioner further submitted that in view of the provisions of Section 6(A) and 6(D), the labour court will have the power only within 30 days after publication of the award to restore/recall the order and in view of the judgment of the Supreme Court in the case of Sangham Tape Com v. Hans Raj, 2004 103 FLR 699 will become functus officio after 30 days of the publication of the award and as such the labour court has no power to recall the ex-parte award after 30 days. He also submitted that in spite of the notice, neither the respondent no. 2 contested before the labour court nor when the notice was served on the application under 6H(1) of the Industrial Disputes Act, he raised any objection or filed any restoration application. Subsequently, when recovery certificate was issued then after about a month, the application was moved for restoration/recall of the ex-parte award. The writ petition was also filed and since there is no compliance of the award, the impugned order passed by the labour court is liable to be set aside by which the award was recalled.

(3.) Learned counsel for the respondent no. 2 submitted that two representatives who were appointed to decide the case on behalf of the employer respondent no. 2 left the job and as such pairvi could not be done on behalf of the respondent. When respondent no. 2 came to know regarding recovery certificate, then the application was filed for restoration and recall of the ex-parte award. Since the application was within 30 days from the knowledge and as such the same was maintainable and rightly the ex-parte award was recalled by the order dated 9.7.2013 and as such in the interest of justice, no interference is required. He also contended that a part of the amount in compliance of the award and order passed by this Court on 13.5.2013 has already been paid and the proceeding has been initiated to reinstate the petitioner.