WP/16726/1999 of M/s. U Foam Private Ltd., B - 15 AND 16, Industrial Estate, Vs The Commissioner of Labour, on 31 December 2008

ORDER:

This writ petition is filed for a writ of certiorari to quash order, dated08.07.1999 in PG.No.3 of 1998 on the file of respondent No.2. Thepetitioner also sought for a direction that PG.No.3 of 1998 be heard byany other Assistant Commissioner of Labour.

I have heard Sri M.Srikanth, learned counsel for the petitioner. Noone appeared for the respondents.

On the application filed by respondent No.4, respondent No.2initiated proceedings for payment of gratuity against the petitioner underthe Payment of Gratuity Act, 1972 (for short ‘the Act’). While theproceedings were pending, the petitioner filed Writ Petition No.14039 of1999 alleging that respondent No.2 developed ill will against thepetitioner. The said writ petition was disposed of on 22.07.1999 by thisCourt by observing that the petitioner’s application filed before theCommissioner of Labour seeking transfer of the case was pending and,therefore, the writ petition cannot be entertained. This Court, however,directed the Commissioner of Labour to dispose of the transferapplication within a period of two weeks. But, even before the said writpetition was disposed of, respondent No.2 passed order on 08.07.1999,allowing application of respondent No.4 and directing payment ofRs.57,323/- towards gratuity to him.

In the affidavit filed in support of the writ petition, the petitionercompany averred that respondent No.3 is highly prejudiced against thepetitioner company. The basis for this averment is that when thepetitioner company’s Advisor Sri Yadagiri Reddy attended the conciliation proceedings beforerespondent No.3, the latter asked him to get out of her chambers and notto represent the management and that when PG.No.3 of 1998 filed byrespondent No.4 was posted on 16.06.1999, the petitioner’s counsel SriM.V.Rama Rao represented the case before respondent No.3 and sheasked the counsel to bring the Director of the petitioner company whosigned the vakalat to give evidence on behalf of the management. It isthe case of the petitioner that respondent No.3 informed the petitioner’scounsel that she would not accept the evidence of any other personnelunless the Director himself comes and gives evidence in theproceedings and that when the counsel resisted, respondent No.3 toldhim that she would not hear him and asked him to leave the room andget the senior counsel.

Respondent No.3, who was impleaded in her personal capacityfiled counter-affidavit wherein she referred to the dates on which thecase was posted. It is relevant to reproduce paragraph 7 in thisconnection.

“It is submitted that in view of the above it is clear from the abovechronological events that the respondent had suffered ex parteorders on various occasions and the same was set aside in theinterest of justice even then the respondent did not avail thatopportunity at the final stage as such the PRESIDING OFFICERset ex parte against the respondent management and heard thearguments of the counsel for the petitioner and pronounced theorder in accordance with law.”

In paragraph 9, respondent No.3 denied the allegation that she is highlyprejudiced against the petitioner. She also denied the allegation that sheasked the counsel for the petitioner to bring the senior counsel.

While prejudice or bias is certainly a relevant ground to vitiate theproceedings, mere apprehension of bias by itself is not enough, but

there must be strong basis for such an apprehension. Respondent No.3categorically denied the allegations. In fact, the events narrated by herclearly show that at least once she set aside the ex parte order andrestored the case. Had there been any such prejudice or bias againstthe petitioner, respondent No.3 would not have restored the case. It isnot the case of the petitioner that there were any personal disputesbetween the petitioner and respondent No.3. Even assuming thatrespondent No.3 has displayed harsh attitude towards the petitioner inconducting the proceedings that by itself would not justify the petitioner’sapprehension that respondent No.3 has decided the case against thepetitioner’s interest on account of prejudice. Therefore, I find no merit inthe plea of the petitioner that the order passed by respondent No.2 isvitiated on account of prejudice or bias against the petitioner.

Admittedly, the order impugned in this writ petition is appealableunder the provisions of the Act. Therefore, in my view, interests of justicewould be met, if the petitioner is permitted to file an appeal against theimpugned order. Accordingly, the petitioner is granted six (6) weeks’time to file appeal before the appellate authority. If such an appeal isfiled within the time stipulated above, the appellate authority shallentertain and dispose of the same on merits after hearing both theparties.

Subject to the above observations, the writ petition is disposed of.

C.V.NAGARJUNA REDDY, J

31[st] DECEMBER, 2008.

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