D.S. Sinha, J. - (1.) Heard Sri Shankar Kumar, holding the brief of Sri Mool Blhari Saxena, learned counsel for the petitioner and Sri K.P. Agarwal, learned Senior Advocate representing the workman-respondent No. 2.
(2.) Upon a reference made by the State Government under Section 4-K of the U.P. Industrial Disputes Act, 1947. Adjudication case No. 3 of 1979 was registered before tho Labour Court, U.P. Ghaziabad, the respondent No. 2. 31st May, 1980 was the date fixed for hearing of the case but before that date, on 26th May, 1980, the respondent No. 2 suo motu adjourned the heads to 2nd August, 1980, on 2nd August, 1980 the petitioner-employer failed o appear. The respondent No. 2, therefore, passed an order directing the case to proceed ex parte. On 16th August) 1980, an application on behalf of the petitioner-employer under Rule 16 (2) of the U.P. Industrial Disputes Rules, 1957 praying for setting aside the order dated 2nd August, 1980, directing the case to proceed ex-parte, was moved. This application was rejected by the respondent No. 2 by means of its order dated 1st December, 1980 on the ground that the application was made beyond ten days of the order dated 2nd August, 1980 sought to be set aside. The argument on behalf of the petitioner-employer that no notice of the adjourned date, namely, 2nd August, 1980 sent to it, was also rejected by the respondent No. 2 on the ground that it was under no legal obligation to send the notice. In the opinion of the respondent No. 2, it was the duty of the employer to have found out the adjourned date as held by this court in the case of M/s. Hindustan Aluminium Corporation Ltd. Renukoot, Mirzapur v. Sri Murari Singh, 1978 (36) Factory Law Reports 241. After rejecting the application of the petitioner-employer for setting aside the order dated 2nd August, 1980, directing the case to proceed ex parte, the respondent No, 2 proceeded to adjudicate the controversy before it and rendered the impugned ex parte award on 9th March, 1981 holding the termination of the services of the workman respondent No. 3 to be bad and declaring him to be in continuous service entitled to full wages and allowances. The order dated 2nd August, 1980 and the award dated 9th March, 1981 are under challenge in this petition under Article 226 of the Constitution of India.
(3.) The view of the respondent No. 2 that si was the duty of the petitioner-employer to find out the date fixed for hearing upon the adjournment of the hearing on a date fixed therefor is sound and no imbrage can be taken to that. But, in the instant case the position is slightly different. It is to be noticed that the date fixed for hearing was 31st May, 1980. The parties may have notice of this date but before 31st May, 1980 the respondent No. 2 passed an order dated 26th May, 1980 ex mero motu adjourning the hearing of the case to 2nd August, 1980, The order date 26th May, 1980, according to the averments in the petition which have not been controverted, was passed by the respondent No. 2 in the presence of the workman-respondent No. 3 and in the absence of the petitioner-employer. The petitioner-employer was never apprised of the order dated 26th May, 1980 adjourning the date of hearing and fixing 2nd August, 1980. The duty to find out the date of hearing could arise only in the adjournment had taken place on 31st May, 1980 which was the date fixed for hearing. If the respondent No. 2 chose to pass an order of adjournment of its own impulse on a date prior to the date already fixed and of which the petitioner-employer had no notice, it was obliged to give notice to the petitioner-employer. Rule of fairness demanded so. The respondent No. 2 while rejecting the prayer of the petitioner-employer for setting aside the order dated 2nd August, 1980 directing the case to proceed ex parte ignored this vital aspect. The order dated 1st December, 1980 declining to set aside the order date 2nd August, 1980 is, therefore, manifestly erroneous and liable to be quashed.;