MISRA, J. - (1.) THE petitioner-State of Rajasthan has challenged the order dated 1. 8. 94 by which the application of the petitioner-State for setting aside the exparte award passed by the Court, Bharatpur on 1. 2. 94 was rejected as the petitioner- State failed to make out a case in its favour regarding its non appearance on the date when the exparte award was passed.
(2.) LEARNED counsel for the petitioner submitted that after receipt of notice from the Labour Court for deciding the reference in regard to termination of the service of the respondent-workman, it filed appearance before the Labour Court and sought time to file reply, but the same was not filed and the Labour Court passed the exparte award which according to the petitioner-State was unjustified as no exparte award should have been passed. However, the Labour Court noted that the petitioner- State inspite of several adjournments having been granted to it, failed to file reply in the matter and hence the matter could not be deferred further and an exparte award was passed after which it noticed that neither notice nor three months pay in lieu of notice was given to the respondent-workman which was a clear violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act" ). Consequently, the exparte award passed in favour of the respondent-workman directed his reinstatement granting him 50% of back wages for a period of 10 years. The Labour Court, however, did not consider even an iota of evidence before granting 50% back wages to the respondent- workman as to whether he was gainfully employed during this period or not. LEARNED counsel for the petitioner therefore has stated that the application refusing to set aside the exparte award as also the award should be set aside by this Court as the petitioner-State showed sufficient cause for non appearance on different dates and therefore, the exparte award should not have been passed and the matter should have been deferred. The counsel for the respondent-workman, however submitted that it is not only on one occasion that the petitioner-State failed to appear in the matter, but on several occasions which was more than 9 dates on which the petitioner-State had failed to appear and therefore, the Labour Court was left with no option than to decide the matter on merit and hence, the Labour Court was justified in passing the exparte award. On a critical analysis of the argument and counter arguments of the learned counsel for the parties, I find no substance in the plea of the petitioner-State that the Labour Court was unjustified in passing the exparte award for if the petitioner- State inspite of successive adjournments failed to file reply in the matter inspite of service of notice, the Court below obviously could not have been expected to remain a silent spectator to the whole situation and continue to keep on deferring the matter, it was therefore fully justified in deciding the reference of dispute on merit. The question however still remains that if the Labour Court thought it proper to decide the matter on merit, then whether it could grant the relief to the respondent-workman even to the extent for which there was absolutely no evidence on record. In this context it could be noticed that in so far as the reinstatement of respondent-workman is concerned, there appears to be a just cause in his favour in order to plead or to contend that the requirement of Section 25-F of the ID Act having not been resorted to by the petitioner-State which was the employer, the termination of the respondent-workman was clearly bad in the eye of law and therefore, the exparte award to this extent appears to be justified. But in so far as the grant of back wages is concerned, it appears that the Court below even if it were inclined to pass the exparte award, it was duty bound to direct the respondent-workman to lead evidence in support of his plea that he was not gainfully employed during all this period of 10 years and therefore, before granting the back wages to the respondent-workman for a period of 10 years, without even an iota of evidence in support of this plea, do not appear to be justified. Heavy onus lay on the respondent-workman, specially in absence of appearance of the employer-State that he infact was not gainfully employed during this period, but the Labour Court appears to have mechanically passed the award granting 50% back wages to the respondent-workman without any reason whatsoever. Therefore, this part of the award do not appear to be justified and hence cannot be upheld. This Court however, acutely conscious of the fact that the application for setting aside the exparte award having not been allowed by the Labour Court, which order also has not been interfered by this Court, whether the award granting 50% back wages is fit to be interfered with by the Court, but the answer is not far to seek as it is well settled that under Article 226 of the Constitution, the Court has fully authority to avoid any kind of miscarriage of justice, which might be perpetrated on any of the contesting parties. Since it is apparent on the fact of the record, that the back wages have been granted to the respondent-workman without any iota of evidence, muchless sufficient evidence, I feel justified in setting aside the award of the Labour Court in so far as grant of 50% back wages is concerned and therefore, that part of the award shall stand set aside. In so far as the reinstatement is concerned, the same shall stand confirmed in favour of the respondent-workmen. The writ petition thus stands partly allowed without any order as to costs. . ;