RAFIQ, J. - (1.) WHITE in the first writ petition being No. 3065/2001 challenge has been made to the exparte award dated 25. 1. 1996 and the order of the Labour Court dated 16. 3. 2001 rejecting application of the management for setting ex-parte award, in the second writ petition being No. 799/02 the challenge has been made to the order dated 1. 8. 2001 passed by the Labour Court under Section 33 (2) of the Industrial Disputes Act, 1947 which is consequential to the award impugned in the writ petition No. 3065/2001. The State of Rajasthan feeling aggrieved by both the orders has filed these two writ petitions. For convenience of decision however facts of only one case namely, S. B. C. Writ Petition No. 3065/01 are being referred.
(2.) A reference was made to the Labour Court by the appropriate government on 3. 04. 1991 on the question whether removal of the respondent-workman from service of the management on 16. 09. 1986 was legally justified and if not what relief the workman is entitled to. The case of the workman-respondent before the Labour Court was that he was initially appointed as Chowkidar on 3. 05. 1985 and worked upto 15. 09. 1986. The management however by verbal order dated 16. 09. 1986 refused to take him on duty. His removal was therefore made in violation of Section 25-F of the Industrial Disputes Act, 1947 (in short "the Act of 1947" ). The management did not appear to contest the matter in spite of service of notice. In these circumstances, the Labour Court held that removal of the workman was made in violation of Section 25-F of the Act of 1947 and directed the management to reinstate him with continuity in service and give him back wages. The management moved an application before the Labour Court on 19. 2. 1996 which was duly supported by affidavit of one Shri O. P. Vyas, A. En. of I. G. N. P. Sub Division (First ). The previous Assistant Engineer Shri Suman Sharma who worked there from December, 1990 to 14. 8. 1995 also filed affidavit. Affidavits of Sita Ram, L. D. C. and one Ran Singh, Peon in the said office were also filed. Apart from the said application, one more application for condonation of delay was filed. It was pleaded in the application that Shri O. P. Vyas has taken charge of the office of Assistant Engineer on 15. 08. 1995 and earlier then him, his predecessor has held this charge from December, 1990 to 14. 08. 1995. The facts with regard to pendency of the aforesaid reference case did not come to the notice of either the present A. En. or his predecessor and therefore they could not appear to defend the case. Reason for this was that service of the notice was not duly effected. Absence of the representative of management before the Court was not deliberate but occasioned on account of bona fide reasons beyond their control. On coming to know about the award passed by the Labour Court, the higher officers were approached and certified copy of the award was obtained from the Court at Jodhpur. Delay in filing of the application was not caused deliberately or intentionally. It was therefore prayed that the ex-parte award dated 25. 1. 1996 and the order proceeding ex-parte against the management dated 6. 7. 1995 be both set aside and the matter be restored so as to give an opportunity to the management to contest it on merits. Learned Labour Court after hearing arguments of the parties dismissed the said application by its order dated 16. 03. 2001 on the ground that according to Rule 22-A of the Rajasthan Industrial Disputes Rules, application for setting aside ex-parte award can be made within 15 days and if it was not filed within the period of 15 days, a separate application for extension of time for 15 more days was required to be made. It was held that ex-parte award in the present matter was passed on 25. 1. 1996 whereas the application for setting aside the said award was filed 24 days thereafter on 19. 2. 1996. The application was therefore not filed within the period of 15 days as required by Rule 22-A (i ). No details have been given in the application as to how and from what source information about passing of the award was received and why application for obtaining certified copy of the Award was submitted on 14. 2. 1996. There was thus no satisfactory explanation for filing the application delayed and the learned Labour Court has therefore wrongly rejected the application. I have heard Mr. Rameshwar Dave, learned Dy. Government Advocate for the appellant and Mr. J. Gehlot, learned counsel for the respondents and perused the record. Mr. Rameshwar Dave, learned Dy. Government Advocate argued that application for setting aside ex-parte award was supported by four affidavits. One of the present Assistant Engineer and another by his predecessor and one affidavit of the L. D. C. and yet another affidavit of peon in the office were filed. All these four employees stated on oath that they did not receive the notice either personally or through post. A separate application seeking condonation of delay was also filed reiterating the fact that immediately on coming to know about the award, certified copy was applied for on 14. 2. 1996. The certified copy of the order was received on 19. 2. 1996 and application against the said award was filed on 19. 2. 1996 itself. Mr. Rameshwar Dave, learned Dy. Government Advocate argued that according to rule 22-A supra when a separate application seeking condonation of delay was filed, a technical view of the matter could not have been taken by the learned Labour Court by holding that since no separate application for extension of time was filed, the application would not be taken to have been filed within the period of limitation. He argued that the matter should have been decided on merits after opportunity to the management rather than being decided ex parte against them without giving them opportunity to adduce evidence. He has argued that the Labour Court erred in law in arriving at the conclusion that no sufficient cause shown for absence of the management of the representative. In doing so, the Labour Court failed to appreciate the affidavits given by four of their officials on oath. They have categorically stated that such notice was received either by the present A. En. on by his predecessor. A. En. The A/d receipt on the basis of which the service was taken to have been completed did not bear seal of the office and it was not known as to whose initials were made on such A/d. The workman completely concealed the fact that one month's notice and compensation amount as required by Section 25- F was given to him and he was dis-continued from 16. 09. 1986. His conduct thus clearly dis-entitled him to any relief on merits.
(3.) ON the other hand, Mr. J. Gehlot, learned counsel for the respondents argued that the application of the management for setting aside the ex-parte order was rightly rejected by the learned Labour Court inasmuch as no satisfactory explanation worth the name was given by the management as to why they did not contest the matter despite service and why did they not make the application for setting aside ex-parte order within the period of 15 days. No separate application for extension of time for another 15 days was filed. In the circumstances, the Labour Court was perfectly justified in rejecting the application. It has been argued that award passed by the Labour Court as also the subsequent order rejecting the application for setting aside ex- parte did not suffer from any error apparent on the face of the record. Learned counsel for the respondent workman argued that the order passed under Section 33-C (2) of the Act of 1947 which is not impugned in this writ petition was only consequential to the award passed by the Labour Court in the main case and therefore when the award itself is perfectly legally and justified, no challenge can be made to the correctness of the order dated 16. 3. 2001 passed u/s. 33-C (2) It has therefore been prayed that the writ petition be dismissed. I have considered the rival arguments of both the learned counsels and perused the record. I may at the outset observed that the Labour Court by rejecting application for setting aside ex-parte award has taken a very hyper-technical view of the matter and did not appreciate the prayer for setting aside ex-parte award in true perspective. When respondents applied for setting aside ex-parte award duly supported by the affidavits of present as well as the previous Assistant Engineers and the sole L. D. C. and peon of that office who have stated on oath that they did not receive either personally or through registered post the notice of the case, the Labour Court ought to have made appropriate enquiry in the matter. The registered A/d on the basis of which service was taken to have been effected by the Labour Court does not contain any seal of the office. Even if was taken as a sufficient service by the Labour Court but when a dispute was raised as to the initials on the A/d receipt, it should have required the workman to prove such signatures/initials. Instead of doing that, the Labour Court however was swayed away by technical aspect of the view when it held that apart from filing application for setting the ex-parte award under Rule 22-A (i), a separate application for extension of time for 15 days ought to have been also made. Merely because the management did not give the particulars as to from whom and when they received the information about the ex- parte award, this would not make their application lacking in basic details where they stated on oath that they could not appear in the reference proceedings for want of proper service. The period of 15 days and further 15 days time for extension both taken together would make it 30 days. Ex-parte award in the present case was passed on 25. 1. 1996 whereas the application for setting aside ex-parte award was filed on 19. 2. 1996 thus within 24 days of passing of the award. In these circumstances, the Labour Court ought to have considered that the management was required to only give and prove only a prima facie reason of their absence from the reference proceedings which is the requirement of the phrase "sufficient cause" and a greater degree of proof by strict standards could not have been insisted upon by the Labour Court. If the ex-parte award would have been set aside on 16. 03. 2001 when the application was rejected, maximum that would have happened was that an award on merits of the case by giving an opportunity to the management would have been passed. Now when the present writ petition is being decided in the month of October 2006, more than 5 years have gone by and to nobody's advantage. Besides the management has a prima facie case to prove on merits as well when they say that not only notice of one month u/s. 25-F of the Act of 1947 was given to the respondent workman, he was also paid compensation required by the said provision and the workman did not disclose anything about these facts. This at least makes out a bona fide case in favour of the management for setting aside the ex-parte award as also the consequential order dated 16. 3. 2001 passed u/s. 33-C (2) of the Act. ;