Court No. - 7
Case :- WRIT - C No. - 34388 of 2018 Petitioner :- Vinay Urmaliya Respondent :- State Of U P And 02 Others Counsel for Petitioner :- Nishant Mehrotra,Vivek Yadav Counsel for Respondent :- C.S.C.,Rahul Chaudhary
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the parties.
2. The present writ petition has been filed against the order dated 05.07.2018 passed by the Labour Court, Rampur, U.P. in Misc. Case No. 4 of 2015, by which the Labour Court has recalled its ex-parte award dated 17.06.2014 passed in Adjudication Case No. 09 of 2013.
3. In short, learned counsel for the petitioner/workman submits that the Labour Court has erred in glossing over the conduct of the employer in deliberately avoiding the proceedings in the adjudication case and thus allowing those proceedings to conclude ex-parte against him. In view of the fact that the delay was deliberate, it is submitted that no indulgence should have been shown by the Tribunal in recalling the order. Further, it has been submitted that in any case, the recall application has been filed with delay and therefore it should have been rejected on that count also.
4. Learned counsel for the respondent-employer submits that while there is no dispute to the fact that earlier reconciliation proceedings had been instituted wherein the employer had participated but that he had no knowledge of reference being made by the State Government and of the adjudication case having been consequentially registered at the Labour Court, Rampur. Relying on the order sheet entries, it has been submitted that though a summon is stated to have been issued for the date 03.09.2013, the order sheet of the date 03.09.2013 does not record service having been made on the respondent. There is neither service made nor any order of deemed service on the respondent-employer. In such circumstances, it has been submitted that the proceedings in the adjudication case proceeded ex-parte against the respondent without it's knowledge and therefore it could not be blamed.
5. As to the delay in filing the application, it has been submitted that the execution proceedings were first instituted in June, 2015 while the respondent filed recall application in July, 2015 that is within reasonable time.
6. Besides the above, it is also on record that earlier writ petitions were filed both by the petitioner and the respondent. While the petitioner filed Writ - C No. 6490 of 2018 seeking a direction for conclusion of recovery proceedings that were then directed to be concluded within a period of three months by order dated 19.02.2018, the respondent-employer had also filed Writ - C No. 37277 of 2016 for quashing of the recovery certificate wherein a direction was issued to keep the recovery proceedings in abeyance during the pendency of the recall application. Against the order passed in Writ - C No. 6490 of 2018, the respondent-employer filed a Special Appeal No. 344 of 2018, which was disposed of by the following order:
"Heard Mr. Durgesh Bahadur Singh, learned counsel for the appellants, Mr. Nishant Mehrotra, learned counsel for respondent no.5 and learned Standing Counsel for respondents-State.
Without entering into the question whether this special appeal is maintainable, we dispose it of by consent of learned counsel for the parties by the following order:
The appellants shall deposit the entire amount i.e. Rs.7,64,424/-, as mentioned in the impugned recovery certificate dated 13.3.2018, within a period of 15 days from today. It would be open to respondent no.5 to withdraw 50% therefrom unconditionally. Thereafter, the labour court shall consider and decide the appellants' recall application as expeditiously as possible and preferably within a period of six weeks therefrom. It is made clear that if the appellants fail to deposit the amount, as aforementioned, the labour court shall not hear the recall application and in that eventuality, it would be open to respondents-State to execute recovery certificate. The issue whether recall application is maintainable, is kept open. If for any reason, the issue/matter remains pending after six weeks, the labour court shall invest the remaining 50% amount in a fixed deposit in any nationalized Bank initially for a period of three months and shall renew the same from time to time till the issue/matter is finally resolved."
7. Thus, in compliance of the aforesaid order of the Division Bench of this Court, 50% of the back wages has been paid to the petitioner and the balance to be paid in terms of the final orders passed in the recall application.
8. Having considered the arguments so advanced by learned counsel for the parties and having perused the record, it appears that the finding of the Labour Court that there is no order regarding service being effected on the respondent and on service being deemed sufficient, cannot be faulted.
9. Perusal of the order sheet does not indicate that service had been effected on the respondent before the matter was proceeded ex-parte.
10. Consequently, the ex-parte nature of the award dated 17.06.2014 cannot be accepted. However, it cannot be lost sight of that the respondent had participated in the conciliation proceedings and further it also cannot be lost sight of that upon institution of the recovery proceedings in the year 2016, the respondent did become aware of the ex-parte award but he chose only to file recall application and did not challenge the same directly in any writ proceeding.
11. The result of such conduct has been that the petitioner who is a workman has remained without job since 2013 from when the dispute has been pending and further despite the ex-parte award stands in his favour, the fruits of the same as have also not been available to him.
12. Though the recall application has been rightly allowed, however, some order should have been made as to balance the equities. In this regard, cost of Rs. 500/- awarded is wholly inadequate. In the totality of the circumstance, cost of Rs. 50,000/- should have been imposed to meet the ends of justice.
13. Consequently, the order dated 05.07.2018 passed by the Labour Court, Rampur is modified to the extent, the cost of Rs. 500/- is enhanced to Rs. 50,000/-. It is provided that the same may be paid out to the petitioner from the amount lying deposited with the Labour Court under the order passed by the Division Bench of this Court dated 18.04.2018 and the balance amount shall be retained by the Labour Court in an interest bearing account with a Nationalised Bank, which shall abide by the final orders to be passed by the Labour Court.
14. Since, the matter is old. It is expected that the Labour Court shall decide the petitioner's recall application as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order. The parties further undertake not to seek any undue or long adjournment in those proceedings.
15. With the aforesaid observation, the present writ petition is disposed of.
Order Date :- 28.11.2018 Abhilash