Muni Lal Verma, J. - (1.) DR . Y.P. Aurora (Respondent 3, hereinafter called Dr. Aurora) was employed on January 9, 1965, by the petitioner (hereinafter called the Management) as Medical Officer at Pinjore, at basic salary of Rs. 500/ - per month in the grade of Rs. 400 - -25 - -650. He was promoted as Resident Medical Officer on December 1, 1967. On August 2, 1971, his services were terminated in accordance with clause 3 of the letter of appointment. He was drawing Rs. 1030/ - p.m. as his salary at that time. He, therefore, raised a dispute relating to termination of his services and the same was referred for conciliation to the Deputy Labour Commissioner, Haryana. He submitted the report of failure. The State of Haryana (Respondent 1) then referred the matter relating to termination of the employment of Respondent 3 for adjudication to the Labour Court, Rohtak (Respondent No. 2). The term of reference was : - - Whether the termination of the services of Shri Y.P. Aurora was justified and in order ? If not, to what relief is he entitled ? On the first date of hearing, i.e., on April 17, 1972, Shri Bhagirath Dass appeared on behalf of the Management and Dr. Aurora (Respondent 3) appeared in person before the Labour Court. Written statement, raising the preliminary objection of want of jurisdiction on the ground that Dr. Aurora had been employed in the managerial/supervisory cadre and was not a workman and, therefore, the matter referred for adjudication could not be decided by the Labour Court, was put in. The said Court indicated that incomplete written statement was not permissible and the case was adjourned to May 1, 1972, for putting in the complete written statement. On that day, Dr. Aurora appeared, but nobody appeared on behalf of the Management before the Labour Court, nor any written statement was put in. So, the proceedings were adjourned on June 8, 1972, for production of evidence by Dr. Aurora. Written statement was sent by the Management through, post on May 5, 1972, and it reached Respondent No. 2 on May 15, 1972. On June 8, 1972, none appeared on behalf of the Management. A telegram had, however, been received by Respondent No. 2 from the Management, containing a request for adjournment on the ground that its counsel was not available. Dr. Aurora made appearance on that day, i.e., on June 8, 1972, and put in replication and Respondent No. 2 framed issues and adjourned the proceedings to July 1972, for evidence of the parties. The Management submitted request (copy Annexure D) to Respondent No 2 for posting the case for hearing on a date after July 20, 1972, as its counsel Shri Bhagirath Dass was out of India and was likely to return on July 20, 1972. On or before June 23, 1972, Dr. Aurora approached Respondent No. 2 for change of the date of hearing and at his instance, it (July 4, 1972) was changed and the proceedings were posted for July 6, 1972. Again, a request for adjournment to some date after July 20, 19/2, on the ground that Shri Bhagirath Dass, who had gone abroad, would not be able to return before that date, was nude by the Management to Respondent No. 2 by post, and none appeared on its behalf on that day. Respondent No. 2, therefore, proceeded under rule 22 of the Industrial Disputes (Punjab) Rules, 1958, as applicable to the State of Haryana (hereinafter called the Rules) and recorded the statement of Dr. Aurora. Five days later, i.e., on July 11, 1972, Respondent No. 2 gave the award that termination of services of Dr. Aurora was not justified and directed his reinstatement with continuity of service and full back wages. The said award was published by the Government of Haryana in the official gazette dated July 25, 1972 It is worthy of note that intimations that proceedings had been adjourned from May 1, 1972 to June 8, 1972 and then from June 8, 1972 to July 4, 1972, and from that day to July 6, 1972, had been sent by Respondent No. 2 to the Management by post. Aggrieved by the said award, the Management made this petition under Articles 226 and 227 of the Constitution of India for writ of certiorari for quashing the aforesaid award, impeaching the same on the grounds (1) that it had been made without affording hearing to the Management, which constituted violation of the principles of natural justice ; and (2) that Respondent No 2 was wholly wrong (i) in holding that the termination of services of Dr. Aurora was not simpliciter but was colourable exercise of the powers of the Management, and (ii) in directing the payment of the full back wages. Shri W.S. Jolly, the Personal Officer of the Management, swore affidavit in support of the averments made in the petition.
(2.) THE petition was resisted by Dr. Aurora and in opposition he put in affidavit by way of written statement. The board facts were not disputed. It was however, maintained by Dr. Aurora that he did not belong to the managerial/supervisory staff and Respondent No. 2 was justification proceeding ex -parte and the award, made by it was justified and valid. The contentions raised by Shri Bhagirath Dass, Learned Counsel for the Management, were identical with the grounds mentioned in the writ petition, on which the award had been impeached. He conceded, and in my opinion rightly, that the question as to whether Dr. Aurora was or was not a workman, could not be gone into these proceedings. His in air contention, and as a matter of fact the only one, which deserves consideration, is that the Management had been afforded no hearing in the proceedings taken by Respondent No. 2 and, therefore, the award had been made by it in violation of the principles of natural justice. It is needless to say that Respondent No. 2 while deciding the reference was performing quasi -judicial functions. It cannot be gainsaid that the elementary principle of natural justice is that the parties should be afforded opportunity, which must be reasonable, to defend their rights before the Tribunal or the Labour Court, which performs quasi judicial functions. The expression "reasonable opportunity to defend" or "hearing" would, besides other matters, include that the parties have been given adequate time, which would imply suitable date or dates, so as to afford them good chance to prepare their case and to make arrangement for representation of their cause, through a person, may be representative or lawyer, of their choice. There can be no dispute that every person has a right, of course subject to limitations prescribed by a particular statute, to employ or engage a person of his choice to represent his cause before the Tribunal or Labour Court. True, this would not mean that the Tribunal or Labour Court should adjourn the case as and when a party makes request in that respect. But it is equally true that refusal to adjourn a case to a date convenient to a party or parties or to his or their representatives would be nothing short of denial of hearing. Therefore, the Tribunal or Labour Court has to strike a balance between the aforesaid two extremes. Whereas it has to seek that no unnecessary adjournment is given and the case in not adjourned to longer dates, it has also to watch that the Interests of a party are not jeopardised by non -grant of adjournment, especially when request for the same has not been made mala fide. According to sub -section (3) of section 36 of the Industrial Disputes Act (hereinafter called the Act) no party to a dispute is entitled to be represented by a legal practitioner in any proceedings before the Labour Court. Sub -section (4) of section 36 of the Act, however, makes a provision that a party to a dispute may be represented be a Legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court. Clause (a) of sub -section (2) of section 36 of the Act provides that an employer, who is a party to a dispute, is entitled to be represented in any proceeding by an officer of an association of employers of which he is a member. Shri Bhagirath Pass made statement at the bar that he was and is Vice -President of the Punjab Industries and Commerce Association, Amritsar and the Management (the petitioner) is a member of that Association, and it was in his aforesaid capacity as Vice -President that he being officer of that Association of which the petitioner was a member, appeared before Respondent No. 2 on April 17, 1972, and intended to appear in that capacity on the adjourned dates. His representation that he is a member of the aforesaid Association and the petitioner (the Management) was its member was not challenged at the bar and there is nothing to doubt his aforesaid representation. It is, thus, clear that Shri Bhagirath Dass made appearance and intended to appear in the capacity of officer of the Association, of which the petitioner (the Management) was a member, under clause (a) of sub -section (2) of section 33 of the Act. Even if it be taken for the (sic) of argument, though not conceding, that Shri Bhagirath (sic) appeared and the Management wanted to produce him as its counsel because the Management had represented Shri Bhagirath Dass as its counsel in its letters (Annexures D and F), it would not make any difference. Respondent No. 2 acknowledged his appearance on behalf of the Management on April 7, 1972, when he allowed him to put in the first written statement and Dr Aurora did not raise any objection to his appearance on that day on behalf of the Management. All this would show, at least by implication, that Respondent No. 2 had granted leave and Dr. Aurora had consented to his (Shri Bhagirath Dass's) appearance on behalf of the Management in the case. It is sufficiently clear from the material before me that from the beginning the Management indicated its desire to Respondent No. 2 that it (the petitioner) would be represented by Shri Bhagirath Dass. Since the petitioner (the Management) had confidence in Shri Bhagirath Dass, it had approached Respondent No. 2 more than once for obtaining a date convenient for being represented by him (Shri Bhagirath Dass), who had gone abroad and was expected to return to India on July 20, 1972. True as observed in M/s. Dabur Private Ltd. Deoghor, Bihar v. The workmen, A.I.R. 1988 S.C. 17, "the question whether an adjournment should or should not be granted was in the discretion of the Labour Court". The said decision was cited in Elite Engineering and General Works, Batala v. Labour Court. Jullundur and others, 1969 Lab. I.C. 58, decided by this Court, and it was observed in that case : - - It is pertinent to point out that the Supreme Court hid not laid down as an abstract proposition of law that whenever the Labour Court refused adjournment in a case, then under no circumstances could its order be interfered with, because in that very authority the Court further observed: 'Even the order by which the Labour Court rejected that application for adjournment is not before us and, consequently, it cannot be held that the Labour Court committed any such error in rejecting the application for adjournment and proceeding ex -parte as would justify interference by this Court'. That clearly shows that there can be a case where there may be justification for interference with such an order under Article 226 of the Constitution. It is correct that rule 22 of the Rules provides that if without good causes shown, any party to proceedings before a...Labour Court...fails to attend or to be represented...the Labour Court...may proceed as if he had dully attended or had been represented. The said rule was subject of consideration by this Court in Jagdish Ram and others v. (sic) Bus service (Private) Ltd., 1964 (1) L.L.J. 660 and it was observed there ; Of course, the labour court has power to take ex parte proceedings in proper cases and indeed such a power should be deemed to be inherent in any tribunal, but if the circumstances are such as to lead to the conclusion that the party against whom ex -parte proceedings had been taken was in effect denied the right of hearing, the order made ex -parte has to be struck down. The expression "it without good cause shown" occurring in rule 22 carries significance. It shows that if any party has absented without any good cause, the Labour Court can proceed with the case and decide it as if the absenting party had duly attended or had been represented, but if there is good cause for his absence the Labour Court would be well advised not to proceed with the case in his absence.
(3.) THE reasons given by the Labour Court (Respondent No. 2) for declining to adjourn the Case on July 6, 1972, are : - - (1) That Shri Bhagirath Dass, when he appeared on April 17, 1972, did not inform it that he would remain out of India till July 20, 1972 ; (2) that the Management did not inform it in the telegram that its counsel, viz., Shri Bhagirath Dass, would not be available till July 20, 1972; (3) that the management did not inform it about the date that could suit it (the Management): (4) that requests for adjournment were made by the Management through post and none appeared in person to seek the adjournments, and (5) that it was not explained as to why the Management could not make alternative arrangement to make appearance in absence of Shri Bhagirath Dass. On examination, none of the said reasons can be recognised so compelling as to warrant refusal by Respondent No. 2 to adjourn the case after July 20, 1972. On April 17, 1972, the case was adjourned to May 15, 1972, and Shri Bhagirath Dass could not then anticipate that the case would be adjourned from May I, 1972 to a date when he would be out of India. The telegram sent to Respondent No. 2 contained that the counsel of the Management was not available. Since telegram had to be short, therefore, the omission to state therein that Shri Bhagirath Dass would not be available till July 20, 1972, could be of no consequence. The Management had made requests in two letters (Annexures Dand F), stating specifically that the case be fixed after July 20, 1972, because Shri Bhagirath Dass would be returning to India from abroad on that day. No specific date falling after July 20, 1972, was mentioned in the said letters. So, Respondent No. 2 could fix the case on any date after the said date, i.e., July 20, 1972 Respondent No 2 bad sent information to the Management about the adjourned dates i.e., June 8, 1972, July 4, 1972 and July 6, 1972, by post, although none appeared on behalf of the Management on May 1, 1972 and June 8, 1972 or July 4, 1972. Respondent No. 2 had accepted the written statement sent to it by the Management through post. It had also received the telegram and the aforesaid two letters sent to it by the Management through post. Respondent No. 2 never informed the Management that its letters or requests sent by post would not be acknowledged. Therefore in these circumstances the management could be reasonably led to believe that its requests by post would be considered by Respondent No. 2. Therefore, the fact that the requests had been made by the management through telegram and letters sent through post and not by making arrangement for personal appearance would not, in the circumstances of the case, be a ground, much less just, for declining adjournment to the Management. As already said above, a party has a right to select a person of his choice to represent him and the Management had confidence in Shri Bhagirath Dass and it was its intention that he (Shri Bhagirath Dass) would represent its cause before the Labour Court any it had approached Respondent 2 in that respect Therefore, the circumstance that the Management did not make an alternative arrangement to represent as case when Shri Bhagirath Dass had gone abroad, especially when Respondent No. 2 had never intimated the Management that it could not accommodate it in the matter of granting adjournment so as to facilitate it to be represented by Shri Bhagirath Dass, could not be a ground for declining the adjournment sought for. It is pertinent to note that on the request of Dr Aurora, which appears to have been made by him before June 23, 19/2, he date fixed in the case was changed from July 4, 1972 to July 6, 1972. The Management had applied to Respondent No. 2 to post the case for hearing on any date after July 20, 1972, when Shri Bhagirath Dass was expected to return from abroad. In these circumstances, the case, could have been easily adjourned to any date after July 20, 1972, and the said adjournment would have caused a delay of about a fortnight or so. So, there could not be anything unreasonable in granting the said adjournment. In Pridle v. Fisher & Sons, (1968) 3 All. E.R. 605, it has been observed that when the Tribunal was aware that the petitioner intended to be present at the hearing, it would have been proper exercise of jurisdiction if the case had been adjourned even though a request for adjournment had been received by it on telephone. As already shown above, the Management had been requesting Respondent No. 2 to adjourn the case to any date after July 20, 1972, for the reason that Shri Bhagirath Dass, through whom it wanted to represent its case, had gone abroad and would be returning on that day and it had made clear to Respondent No. 2 that it had every intention to contest the dispute raised by Dr. Aurora and the requested adjournment could result in postponing the consideration of the case to a fortnight or so, I feel that there was no mala fide on the part of the Management in seeking the adjournment and there was good cause for its non -appearance on July 6, 1972. So, J am of the view that non -grant of the adjournment of the case after July 20, 1972, amounted to denial of hearing to the Management and it is a ground on which the award has to be struck down because the same had been given by Respondent No. 2 in violation of the principles of natural justice.;