JUDGMENT V.C. Misra, J.
1. Sri Nishant Mehrotra, learned Counsel for the petitioner and Sri R.K. Awasthi, learned Standing Counsel for respondents No. 1 and 3 are present. No one is present on behalf of the legal heirs and representatives of the respondent No. 2- workman, who have been impleaded by way of substitution in his place as he died during the pendency of the writ petition.
2. The writ petition arises out of proceedings in Adjudication case No. 110 of 1985 on the basis of reference made by the State Government, under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) in terms of reference as to whether the respondent No. 2- workman was entitled to be promoted to the post of Revenue Inspector by the employer-petitioner and if so, with what benefits. In the case before the Tribunal written statements were filed by the parties and 20.9.1989 was fixed for hearing and witnesses were to be examined and cross-examined. On that date i.e. 20.9.1989, the labour court passed an order to the effect that the case was called out, the workman was present, no one was present on behalf of the respondent-employer, the workman submitted his arguments and the hearing concluded. Thereafter on 26.9.1989 an application was moved on behalf of the petitioner-employer for recalling the said order directing the case to proceed ex-parte. The said application moved by the authorized representative for the petitioner (Annexure No. 2 to the writ petition) contained that though the pairokar of the petitioner was present in the court but when the case was called out he came out to call the authorized representative who was conducting the ease on its behalf. Authorized representative reached the court at I 1.30 a.m., and found that the case had been heard exparte and exparte orders had been passed. By this application it was tried to convince the labour court that the absence was bonaflde and if the order was not recalled, the petitioner-employer would suffer an irreparable loss. This very application was not disposed of by the respondent No. 1- labour court and the same was kept pending. However, on the next date, i.e. on 27.9.1989, the respondent No. 1-labour court passed the exparte award (Annexure No. 1 to the writ petition) on the grounds mainly that the employer- petitioner has not controverted the evidence produced by the workman and, therefore, the workman was entitled to be promoted to the post of Revenue Inspector and passed the impugned award dated 27.9.1989 (Annexure No. 1 to the writ petition) in favour of the workman- respondent No. 2 which was published on 14.12.1989 while the application dated 26.9.1989, moved by the petitioner-employer to recall the exparte order dated 20.9.1989 was pending before it. The petitioner by means of another application dated 10.7.1992 placed before the labour court- respondent No. 1, bringing out the procedural irregularity committed by its office in sending the award for publication during pendency of the recall application dated 26.9.1989. The labour court-respondent No. 1 vide its order dated 1.2.1993 rejected the application of the petitioner dated 26.9.1989 (Annexure No. 4 to the writ petition) on the ground that, in spite of the fact that the petitioner-employer had knowledge of passing of the ex parte order dated 20.9.1989 on the same day but did not file the application for recall of the said order prior to 26.9.1989, and should have moved the recall application on the same date. It held that, thus, there being sufficient cause and reason and more so since, the award had been published on 14.12.1989, it had become functus officio and rejected the application.
3. Being aggrieved the petitioner- employer has challenged the impugned orders dated 1.2.1993 (Annexure No. 4 to the writ petition, exparte award dated 27.9.1989 (Annexure No. 1 to the writ petition) and publication of the award dated 14.12.1989, by means of this writ petition.
4. I have looked into the record of the case and find that the application for recalling the order dated 20.9.1989 whereby the labour court directed the case to proceed exparle, was moved on 27.9.1989 under Rule 16(2) of the U.P. Industrial Dispute Rules, 1957, within time, much earlier to the statutory period prescribed under the Rules. In this view of the matter the respondent No. 1- labour court has grossly erred in law and procedure in not disposing of the recall application before passing the exparte award, which was passed in favour of the respondent No. 2-workman on the ground that employer had not filed any evidence in rebuttal. In my view, the labour court committed manifest error of law by rejecting the application dated 26.9.1989 and 10.7.1990, which were, moved challenging the procedural irregularity committed by it and sending the impugned award for publication on the ground that it had become functus officio. The labour court should have first disposed of the recall application moved by the petitioner for setting aside the order to proceed exparte on merit before taking any other further course of proceedings. In my view, due to this error committed by the labour court-respondent No. 1, the petitioner-employer has suffered irreparable harm and injury inasmuch as it could not lead any defence before the labour court.
5. Under the above said facts and circumstances of the case and observations made herein above, the impugned orders dated 1.2.1993 (Annexure No. 4 to the writ petition, exparte award dated 27.9.1989 (Annexure No. 1 to the writ petition) and publication of the award dated 14.12.1989 are quashed. The matter is remanded back to the labour court to rehear the case and dispose of the application dated 27.9.1989 on merit, in accordance with law,
6. With these observations, the writ petition is allowed. No order as to costs.