The Management of M/S Hotel Janpath v. Its Workmen Through All India Prayatan Jan Mazdoor Sabha and Ors

1. At the instance of respondent No.1—Union, representing the employees of the appellant/writ petitioner, a reference was made to the Industrial Tribunal with respect to payment of officiating allowance to certain workers, who claimed to be performing the duties of higher posts, without their having been promoted to the said post. Notice of the claim being issued to the appellant/petitioner-Management, a representative of the Management Shri Shiv Tiwari, Senior Assistant, (HR Department) appeared before the Tribunal, but, thereafter no one having appeared for 2013:DHC:1528-DB the Management, it was proceeded ex parte since 30.05.2003. An ex parte award was passed by the Tribunal on 16.03.2004.

2. An application under Order 9 Rule 13 of CPC, seeking recall of the said award was filed by the appellant/petitioner through one Shri S.N. Khanna. The respondent No. 1-Union filed a reply opposing the application and inter alia submitted that the application was liable to be outrightly rejected and the award passed by the Court should be implemented as the same had been referred to the Government for its publication and implementation.

3. It would thus be seen from the reply that by the time the said reply was filed on 20.09.2004, the award had not been notified. The Industrial Tribunal vide order dated 04.05.2005, rejected the application filed by the Management solely on the ground that there was nothing on record, including the file of the case, which would show that Shri S.N. Khanna was an authorized representative of the Management at any point of time. The Tribunal, therefore, did not examine the application of the Management on merits and did not go into the question as to whether there was any sufficient cause for absence of the Management with effect from 30.05.2003 onwards or not.

4. The learned counsel for the appellant has drawn our attention to the application dated 17.12.2004 filed by respondent No. 1-Association before the Tribunal. Para 3 of the said application reads as under: “That the Management of Janpath Hotel have only authorize Mr S.N. Khanna in the month of February 2004 therefore question of his appearance earlier in the same case does not arise.” The award came to be passed on 16.03.2004 and the application under Order 9 Rule 13 of CPC having been filed only thereafter, the Tribunal was not correct in saying that there was no material on the case file to show that Shri S.N. Khanna was authorized to represent the Management in the matter pending before him. Since Shri S.N. Khanna was duly authorized to act on behalf of the Management, the application filed by him on behalf of the Management under Order 9 Rule 13 of CPC was certainly competent. The Tribunal as well as the learned Single Judge, therefore, fell into an error in holding that there was no material on record to show the authority of Shri S.N. Khanna to act on behalf of the Management.

5. Since neither Tribunal nor the learned Single Judge has gone into the merits of the application under Order 9 Rule 13 of CPC, we are of the view that the matter needs to be remitted back to the Tribunal for considering the said application afresh and passing an order on its merit. We, therefore, set aside the impugned order of the learned Single Judge dated 08.05.2012 as well as the order of the Tribunal dated 04.05.2005, dismissing the application of the Management under Order 9 Rule 13 of CPC. The Tribunal shall consider the said application on its merit and pass an appropriate order thereon, within eight weeks of receipt a copy of this order. The appeal stands disposed of. There shall be no order as to costs. V.K.JAIN, J CHIEF JUSTICE MARCH 21, 2013 bg