M/S HERBUL HENNA EXPORT HOUSE v. SH. VINAY KUMAR SINGH

1. The present Petition seeks to challenge the award dated 30.09.2019 [hereinafter referred to as the “Impugned Award”] and order dated 10.07.2019 [hereinafter referred to as the “Impugned Order”] both passed by the Presiding Officer, Labour Court-V, Rouse Avenue Court Complex, New Delhi.

2. Briefly the facts are that there was a dispute between the Petitioner and the Respondent/workman on the basis of which the services of the Respondent/workman were terminated on 09.12.2016 by way of a disciplinary action.

3. It is the case of the Petitioner that a claim petition was filed by the Respondent/workman before the learned Labour Court on 13.08.2018 and the Notice was issued to the Petitioner returnable for 27.02.2019, and that on account of non-appearance of the Petitioner on that date, the claim petition was proceeded ex parte and the matter was fixed for leading of ex parte evidence on 29.03.2019, and thereafter, on 30.03.2019, the Impugned Award was passed allowing the claim petition filed by the Respondent/workman and directing reinstatement and full backwages.

4. Subsequently and upon coming to know that an ex parte award has been passed against the Petitioner, the Petitioner filed an Application seeking to set aside the ex parte Award on 02.05.2019. This Application was listed for hearing before the learned Labour Court, and by its order dated 10.07.2019, the learned Labour Court dismissed the Application for setting aside the ex parte Award as well. Both these orders are thus challenged by the Petitioner before this Court.

5. Learned counsel for the Petitioner submits that the Petitioner had instructed and authorized his accountant to appear on behalf of the Petitioner before the Labour Court, Dwarka Courts and when the authorized representative of the Petitioner reached the Labour Court at Dwarka Courts, the authorized representative of the Petitioner was informed that the Labour Court, at Dwarka Courts is being shifted to Rouse Avenue Courts Complex, Delhi and that the proceedings would take place there. The authorized representative of the Petitioner was under a bonafide impression that the Courts are being shifted to a new venue and the next date of hearing will be intimated in due course, and thus, the Petitioner could not attend the proceedings before the learned Labour Court on 27.02.2019.

5.1. Learned Counsel for the Petitioner submits that this was set out by him in his Application seeking to set aside the ex parte Award filed under Rule 10B(9) and Rule 22 of the Industrial Disputes (Central) Rules, 1957 [hereinafter referred to as the “Rules”] read with Order IX Rule 13 of the Code of Civil Procedure, 1908.

6. It is contended that, thereafter, in the first week of April, 2019, the Petitioner was informed telephonically by the Respondent/workman that an award has been passed in favour of the Respondent/workman. It was on receiving this information that the Petitioner immediately filed the Application for setting aside the ex parte Award. The Application for setting aside the ex parte Award was however also dismissed by the learned Labour Court by way of the Impugned Order.

7. Learned Counsel for the Petitioner seeks to rely upon the judgment of the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors[1]. to submit that if a party is prevented by sufficient cause from appearing at a hearing and is faced by an ex parte award, such an award would be nothing but a nullity and the Tribunal has powers to set aside such an award.

8. Learned Counsel for the Petitioner submits that the Petitioner has a good case on merits. It is submitted that the Respondent/workman was terminated as a disciplinary action. 8.[1] It is further submitted that a perusal of the Impugned Award and the Impugned Order shows that there are no findings and the Impugned Award has been passed merely on the basis of the evidence led by the Respondent/workman.

9. Learned Counsel for the Respondent makes two submissions. It is submitted that the contention of the Petitioner that the Labour Courts had shifted in February, 2019 was incorrect since the Courts had shifted thereafter (around April, 2019). It is further submitted that the Petitioner was duly served and yet chose not to appear, hence, he was proceeded ex parte. Thus, it is contended by the learned Counsel of the Respondent that the Impugned Order does not suffer from any infirmity.

10. The Supreme Court in Grindlays Bank case had held that if sufficient cause is shown, the power is available with the Tribunal to set aside the ex parte Award, unless the reason that the Respondent/workman has been awarded a claim on the basis of his fact that there was no rebuttal to what documents and evidence were placed on record by the Respondent/workman. It has been further held that in terms of Rule 22 of the Rules that where there is sufficient cause for the absence of a party, the Tribunal does have the power to set aside the Award. Paragraphs 10 and 11 of Grindlays Bank case in this behalf are set out below:

absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but such power is subject to the fulfilment of the condition laid down in Rule 22. The power to proceed ex parte under Rule 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing.” [Emphasis supplied]

12. The Petitioner has placed before the Court the reasons for his nonappearance on 27.02.2019. The Petitioner has also clarified that it is also not disputed by the parties that the Labour Courts did in fact shifted form Dwarka Courts to Rouse Avenue Courts Complex albeit two months later.

13. In view of the aforegoing circumstances, this Court find that the Petitioner has shown sufficient cause for his non-appearance. The Impugned Award and the Impugned Order are set aside. However, in the facts of the case the following directions are passed: