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$-10 HIGH COURT OF DELHI W.P.(C) 7076/12 & CM No.18329/2012
M/S SUPER LPG APPLIANCE PVT LTD Petitioner
Through : Mr. Pankaj Jaiswal, Advocate
$-10 HIGH COURT OF DELHI W.P.(C) 7076/12 & CM No.18329/2012
M/S SUPER LPG APPLIANCE PVT LTD Petitioner
Through : Mr. Pankaj Jaiswal, Advocate
VERSUS
HARENDRA
Respondent
Through : Mr. Anil Sehgal, Advocate
Respondent
Through : Mr. Anil Sehgal, Advocate
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
21.10.2013 The litigation expenses deposited by the petitioner be released to the respondent.
A perusal of the impugned Award shows that though petitioner appeared before Learned Industrial Adjudicator after service of notice but did not file Written Statement in as much as stopped appearing w.e.f 11'^
May, 2011, consequently was proceeded against ex-parte. After affording opportunity to the respondent to lead evidence by way of affidavit ex-parte
Award was passed on 27'^ August, 2011.
The petitioner filed an application Under Order 9 Rule 13 Civil
Procedure Code, 1908 on 21'^ September, 2011 for setting aside the ex parte award which was dismissed vide order dated ll"" January, 2012. It was
2013:DHC:7266 (© alleged in the application that petitioner appeared in person on 3rd March, 2011 and received the copy of statement of claim and noted the next date of hearing, that is 11"" May, 2011. Thereafter, he engaged Sh. Ramesh Thakur advocate with instructions to file Written Statement and to pursue thematter diligently. Moreover, Mr. Ramesh Thakur did not file the Written Statement nor appeared in the matter on 11'^ May, 2011. The petitioner tried to contact the counsel but he did not respond. Accordingly, another counsel was engaged who inspected the file and came to loiow that Award had been passed on 27'^ August, 2011. The application Under Order 9Rule 13 CPC was dismissed by the Industrial Adjudicator vide order dated 11^*" January, 2012 as he did not find the pleas taken by the petitioner to be convincing.
That is how petitioner is before this court by way ofpresent Writ Petition under Article 226 ofthe Constitution ofIndia.
I am of the view that Industrial Adjudicator has not adopted a pragmatic approach. It is well settled that endeavour shall be made to dispose of matter on merits instead of disposing it on technicalities. The petitioner hadappeared inthecourt after theservice ofnotice and engaged a counsel with instructions to pursue the matter. However, counsel did not appear on the date fixed. I find no reason as to why petitioner would have intentionally neglected to appear atthe cost ofhis own peril, inasmuch as he had been prompt inapproaching the court by engaging a new counsel. It is not the case that the petitioner slept over the matter for months together.
Award was passed in the month of August, 2011 and the application was filed in the month of September, 2011 itself Be that as it may, in the interest of justice demands that petitioner is afforded an opportunity to defend the claim ofthe respondent on merits.
Accordingly, the impugned award is set aside subject to cost of
Rs.10.000/- to be paid by the petitioner to respondent before the Industrial
Adjudicator. Miscellaneous application is also deposed ofas infinctuous.
The parties shall appear before the concerned court on 26^ November, 2013.
The amount deposited by the petitioner pursuant to order dated 4'^
March, 2013 shall remain lying deposited in this court in the shape of FDR till the final adjudication ofthe industrial dispute.
Writ petition is disposed ofin the above terms.
OCTOBER 21, 2013 hid
21.10.2013 The litigation expenses deposited by the petitioner be released to the respondent.
A perusal of the impugned Award shows that though petitioner appeared before Learned Industrial Adjudicator after service of notice but did not file Written Statement in as much as stopped appearing w.e.f 11'^
May, 2011, consequently was proceeded against ex-parte. After affording opportunity to the respondent to lead evidence by way of affidavit ex-parte
Award was passed on 27'^ August, 2011.
The petitioner filed an application Under Order 9 Rule 13 Civil
Procedure Code, 1908 on 21'^ September, 2011 for setting aside the ex parte award which was dismissed vide order dated ll"" January, 2012. It was
2013:DHC:7266 (© alleged in the application that petitioner appeared in person on 3rd March, 2011 and received the copy of statement of claim and noted the next date of hearing, that is 11"" May, 2011. Thereafter, he engaged Sh. Ramesh Thakur advocate with instructions to file Written Statement and to pursue thematter diligently. Moreover, Mr. Ramesh Thakur did not file the Written Statement nor appeared in the matter on 11'^ May, 2011. The petitioner tried to contact the counsel but he did not respond. Accordingly, another counsel was engaged who inspected the file and came to loiow that Award had been passed on 27'^ August, 2011. The application Under Order 9Rule 13 CPC was dismissed by the Industrial Adjudicator vide order dated 11^*" January, 2012 as he did not find the pleas taken by the petitioner to be convincing.
That is how petitioner is before this court by way ofpresent Writ Petition under Article 226 ofthe Constitution ofIndia.
I am of the view that Industrial Adjudicator has not adopted a pragmatic approach. It is well settled that endeavour shall be made to dispose of matter on merits instead of disposing it on technicalities. The petitioner hadappeared inthecourt after theservice ofnotice and engaged a counsel with instructions to pursue the matter. However, counsel did not appear on the date fixed. I find no reason as to why petitioner would have intentionally neglected to appear atthe cost ofhis own peril, inasmuch as he had been prompt inapproaching the court by engaging a new counsel. It is not the case that the petitioner slept over the matter for months together.
Award was passed in the month of August, 2011 and the application was filed in the month of September, 2011 itself Be that as it may, in the interest of justice demands that petitioner is afforded an opportunity to defend the claim ofthe respondent on merits.
Accordingly, the impugned award is set aside subject to cost of
Rs.10.000/- to be paid by the petitioner to respondent before the Industrial
Adjudicator. Miscellaneous application is also deposed ofas infinctuous.
The parties shall appear before the concerned court on 26^ November, 2013.
The amount deposited by the petitioner pursuant to order dated 4'^
March, 2013 shall remain lying deposited in this court in the shape of FDR till the final adjudication ofthe industrial dispute.
Writ petition is disposed ofin the above terms.
OCTOBER 21, 2013 hid
JUDGMENT