WRIT PETITION 15883 of 2004 on 9 August 2002

CIVIL MISC. NO.10915 of 2009 andCIVIL WRIT PETITION NO.15883 of 2004

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CIVIL MISC. NO.10915 of 2009 andCIVIL WRIT PETITION NO.15883 of 2004DATE OF DECISION: AUGUST 26 , 2010

M/s Barnala Textile, Ludhiana

.....Petitioner

VERSUS

The Presiding Officer, Labour Court, Ludhiana and others

....Respondents

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

PRESENT:Mr.Gurdeep Singh, Advocate, for the petitioner.

Mr. M.K. Bhatnagar, Advocate,for respondent No.3.

****

RANJIT SINGH, J.

M/s Barnala Textile has filed this writ petition challenging the award passed by the Labour Court, Ludhiana on13.3.2002, which was published on 9.8.2002 on the ground that thesame is an ex parte award.

Respondent No.3 workman joined as Weaver withthe petitioner-management. As per the averment, respondent No.3-workman had worked for a few months only and thereafter, takingadvance did not report for duty. As per the petitioner, this amounted to abandonment of service.

Respondent No.3-workman sought reference of thedispute of his termination from service and the dispute was referredto Labour Court Ludhiana. Labour Court, has passed an ex parteaward on 13.3.2002, which was published on 9.8.2002. After morethan one year, respondent No.3-workman filed an application forpayment of back wages under Section 33-C (1) of the IndustrialDisputes Act, 1947(in short 'the Act') and never approached thepetitioner for reinstatement into service.

The petitioner-management has filed the presentwrit petition alleging that respondent No.3-workman is only interestedin extracting money from the petitioner and is not interested inservice. It is further stated that the petitioner had received a noticefrom the office of respondent No.2 to appear before him to makepayment of back wages in terms of the award referred to above.Having learnt about the ex parte award, the petitioner filed thepresent writ petition. The writ petition was admitted on 3.3.2006 andis pending adjudication before this Court.

Respondent No.3-workman has filed an applicationon 7.7.2009 in which notice was issued by this Court on 10.7.2009.When this application came up for hearing before this Court on5.7.2010, counsel for the petitioner-Management made a statementbefore this Court that the Management is prepared to takerespondent No.3-workman back in service. The direction, therefore,was issued to respondent No.3-workman to join duty on 25.8.2010.When the case is taken up today, it is pointed out that respondent No.3 workman has not reported back for duty. Counsel appearing forthe said respondent says that this application may be dismissed asnot pressed as the respondent-workman is not in contact with thecounsel.

It appears that averment made in the petition thatthe respondent No.3-workman is only interested in extracting moneyfrom the petitioner, is well made out. A litigating party has to actfairly before a court of law. When it is noticed that a party hasapproached the court of law with oblique motive, relief can be denied.If respondent No.3-workman is really interested in work, he could nothave filed this application and then backed out to remainincommunicado even with his counsel. Obviously, inference is thathe is working somewhere else and is not interested in joining theduties. The prayer made for grant of back wages under Section 17-B of the Act, thus, is only to extract money. The workman has, thus,not approached the Court with clean hands. The application,therefore, is declined. Rather case is made out to take up the maincase for decision.

It is noticed that the award impugned in the writpetition is an ex parte award. The case set up by the petitioner-Management is that it was proceeded ex parte simply on the basis ofpresumption of service of notice. The order passed by the Labourcourt in this regard has been reproduced in the writ petition and it isas under:-

Conclusion

“Notice was sent to the respondents throughregistered post vide postal receipt no.000026986

dated 27.11.2001 for it appearance for today, butthe same has not been received back asundelivered. Since then the period of more than 30days has been lapsed. So it is presumed that thenotice has been delivered to the respondents andas such the service is considered to be sufficient.Case called many times. None has put inappearance on behalf of the respondent.Accordingly, the respondent is proceeded againstex parte. For ex parte evidence of the workman tocome up on 13.3.2002.”

It is seen that notice, which was issued to the petitioner-Management, had not been received back as undelivered.Accordingly, the service was presumed on the petitioner concern as30 days had expired. Accordingly, the petitioner was proceeded exparte leading to passing of the impugned award. It is, thus, clear thatthe service on the petitioner-Management was not effected properlyand it was proceeded against ex parte on the basis of presumption ofservice. The claims are generally required to be adjudicated onmerits. The parties are entitled to adjudication of lis on merits andpassing of the award on technical ground, is not a fair manner ofdeciding a lis.

The impugned award, therefore, would call forinterference and is set aside. The case is remanded back to theLabour Court to decide the reference on merits, in accordance withlaw. Parties through their counsel are directed to appear before the CIVIL MISC. NO.10915 of 2009 andCIVIL WRIT PETITION NO.15883 of 2004

Labour Court on 21.9.2010.

The writ petition is, accordingly, disposed of.

August 26 , 2010monika

( RANJIT SINGH )JUDGE