REGIONAL SECRETARY-KERALA AIR INDIA EMPLOYEES GUILD MUSEUM ROAD VELLAYAMBALAM THIRUVANANTHAPURAM Vs. DIRECTOR AIR INDIA OLD AIRPORT KALINA SANIA CRUZ MUMBAI

JUDGEMENT

(1.) THE petitioner approached this Court under Article 226 and 227 challenging the dismissal of the industrial dispute raised by the petitioner on behalf of a casual worker by name Sri. A. Ayyappan for the reason of the petitioner/Union having gone unrepresented before the Central Government Industrial Tribunal cum Labour Court, Ernakulam. On the petitioner/Union being not represented, the second respondent presumed that there is no dispute and rejected the demand of the union for regular appointment of Sri. Ayyappan. THE petitioner has challenged Ext.P4 before this Court. Ext.P4 is in the nature of an ex-parte award and the appropriate remedy available to the petitioner was to file an application to set aside the ex-parte award and restore the dispute to the files of the lower Court. However, obviously that was not done. THE petitioner in the writ petition states that though the counsel for the petitioner had appeared before the second respondent on 21-08-2006 and 21-09-2006, the dispute was posted to 19-12-2006 on which date, there was no sitting. It is contended that though the matter was posted on 21-12- 2006 ie, two days hence, the same was wrongly noted as 21-01-2007. It is the contention of the petitioner that the non- appearance of the petitioner as also the failure of the petitioner to file an application to set aside the ex-parte award was due to the wrong noting of the date which was beyond 30 days of the passing of Ext.P4 award.

(2.) THE counsel for the respondent would oppose the prayer of the petitioner on the ground that the second respondent is only clothed with the power to entertain an application for setting aside ex-parte decree for a period of thirty days and this Court cannot under Article 226 extend the said period. THE contention of the respondent is supported by a decision of a Division Bench of this Court reported in Asst. Commr. Of Central Excise Vs. Krishna Poduval [2005(4) KLT 947], wherein it was declared that when a statute prescribes a period of limitation as also the period during which the appellate authority has power to condone the delay, the remedies come to an end as just in the case of time barred suit on the expiry of the time prescribed and the further time permitted for delay condonation. THE Division Bench has categorically held that in such cases, the discretionary remedy under Article 226 of the Constitution cannot resurrect unenforceable cause of action however harsh the effect of the provisions may be on an assessee or litigant.

(3.) WITH the above observation, the writ petition is disposed off however with no costs.