J&K Vs. SH. R.K. BAKSHI AND OTHERS

JUDGEMENT

(1.) This Writ Petition is filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir for issuance of an appropriate writ, direction or order in the nature of Certiorari to quash the ex-parte Award of learned Presiding Officer, Industrial Tribunal/Labour Court J &K Jammu dated 13.08.2002 alongwith its judgment/order dated 15.07.2003 rejecting application for setting aside exparte award.

(2.) The case of the petitioner is that the petitioner is a Govt. Company sponsored by Industrial Development Bank of India with registered office at 17 B/B Gandhi Nagar, Jammu engaged in providing consultancy service to the Industrial entrepreneurs. The Presiding Officer, Industrial Tribunal/Labour Court J &K, Jammu passed an ex-parte award dated 13.08.2002 in case File No.697/LC titled Sh. R.K. Bakshi v. managing Director, J &K ITCO Ltd . Jammu holding that the order terminating the services of respondent No.1 was illegal as he was working as Project Associate from July, 1998 till 24th April, 2000, and terms of Section 25-F of Industrial Disputes Act have not been complied with. Respondent No.1 was held deemed to be in service and entitled to all back wages as he was getting before his illegal retrenchment from service. Respondent No.1 was also held entitled to interest on the back wages at the rate of 9% per annum. It is further stated that the petitioner-company on getting knowledge of the passing of ex parte Award, applied for setting aside the ex parte award. Learned Presiding Officer after hearing the parties rejected the application for setting aside ex parte award vide order dated 15.07.2003. It is also stated that the said Award/judgment are not based on facts proved by cogent evidence led by the respondent before the tribunal. These are liable to be set aside on the following grounds:-

(3.) Counter stands filed on behalf of respondent No.1 stating therein that the learned Presiding Officer, Industrial Tribunal/Labour Court, J &K, Jammu summoned the petitioner but the duly authorized officials of the petitioner M/s S.P. Sood and R.K. Sumbali appeared before the Tribunal and the copy of the petition filed by the respondent was supplied to them. The said officials of the petitioner sought opportunity to file objections and accordingly time was granted to the petitioner, thereafter, the petitioner remained absent so there was no alternative with the Presiding Officer of the Industrial Tribunal except to proceed ex-parte against the petitioner. It is further submitted that the petitioner cannot plead in the petition that they were afforded an opportunity of being heard rather they were summoned, appeared on 27.07.2001, sought opportunity to file objections and thereafter petitioner remained absent their intentional absence cannot be a ground for setting aside ex parte award dated 13.08.2002 and the said award was notified in the Government Gazette on 26th of September, 2002. As a matter of fact, petitioner has appointed the respondent as Project Associate on 1st of July, 1998, subsequently petitioner issued Identify Card to the respondent showing designation of the respondent. The petitioner sent the respondent on Tour programme to Udhampur w.e.f. 21.10.1998 to 24.10.21998 for Prime Minister Rozgar Yojna and State Self Training Programme. It is further submitted that the petitioner also sent the respondent for Tour Programme w.e.f. 13.11.1998 to 22.11.1998 to Srinagar in connection with Entrepreneurship Development Programme. Petitioner again sent the respondent on Tour Programme w.e.f. 3rd of June 1999 to 6th of June, 1999 to Srinagar to fill up the forms of the Entrepreneurship Development Programme vide its letter dated 02.06.1999. The petitioner has sent the respondent on tour programme w.e.f. 21.06.1999 to 22.06.1999 at Kathua for the purpose of Prime Minister Rozgar Yojna/State Self Employment Programme vide its letter dated 18.06.1999 and also sent the petitioner on tour programme w.e.f. 10.12.1999 to 14.12.1999 for promotional work of EDP (Science and Technology) and tour programme at Samba w.e.f. 07.08.1999 to 14.08.1999 to assit in promotional work of Rural Entrepreneurship Development Programme (Samba). It is further stated that above mentioned letters and orders issued by the petitioner thereby permitting and directing the respondent to conduct the Tour Programme in different places in the State of J &K in the capacity of Project Associates clearly proves on record that the respondent was working as Project Associate with the petitioner and the respondent was their employee and worked in their office under their employment and was drawing the monthly salary of Rs. 3200/- along with other allowances. Whereas petitioner was appointed and enrolled as permanent regular employee of the petitioner and attendance of the respondent was marked in the register maintained by the petitioner but the petitioner without affording an opportunity of being heard and without serving any show cause notice terminated the service of the respondent even without issuing any termination order in writing, therefore, action of the petitioner was illegal, in-violation of the Rules and guidelines as well as provisions of law. Thereafter, respondent being permanent regular employee of the petitioner filed petition before the Industrial Tribunal/Labour Court J &K, Jammu and agitated all his grievances in the application filed by the respondent. Petitioner appeared through their officials M/s S. P. Sood and R. K. Sumbali in the case on 27.07.2001 and they sought opportunity for filing objections but thereafter petitioner remained absent in the petition filed by the respondent before the Tribunal and ultimately there was no option with the Tribunal except to proceed ex-parte against petitioner. Respondent produced all the cogent evidence before the Tribunal and the Hon'ble Tribunal has passed the legal, valid and appropriate order vide its award dated 13.08.2002. The said Award was also notified in the Govt. Gazette on 26th September, 2002. Now the petitioner cannot say that the petitioner was summoned by the tribunal. The Tribunal had summoned the petitioner, afforded opportunity but the negligent and careless act of the petitioner cannot be a ground to condone their negligent act, therefore, time barred application for setting aside ex parte award was made by the petitioner, which was dismissed by the Tribunal by assigning the reasons and grounds, therefore, the legal and valid award is passed by the Tribunal. It is submitted that respondent has received alleged amount of Rs. 5,000/- from Sh. Sushil R/o Rajouri, client of the petitioner as alleged by the petitioner. It is also stated that the attendance register is always in the custody of the petitioner and their officials so the question of stealing the said attendance register by the respondent does arise at all because said register never remained in the custody of the respondent. Only false allegations are levelled against the respondent with the intention to oust the respondent from service. Petitioner has levelled false report with the police station Gandhi Nagar, Jammu. Neither so far had police of police station Gandhi Nagar called the respondent in the said FIR lodged by the petitioner. With afore stated submissions, respondent has prayed that writ petition filed by the petitioner be dismissed.