High Court

not enhance the statutory period of limitation granted to the parties for moving the recall application. Thus, restoration application is time barred. In support of his submission, learned counsel for the petitioner has placed reliance on the judgment passed by the co-ordinate Bench of this Court in the matter of Nagar Panchayat Kithore, District Meerut vs. Prescribed Authority/Peethasin Adhikari Labour Court reported in [(2007) (3) ADJ 31 (NOS)] and order passed by Hon’ble Supreme Court in the matter of M/s Daddys Builders Private Ltd. and another vs. Manisha Bhargava and Another reported in 2021, Law Suits (SC) 79. (ii) Once the registered notice sent to the addressee, there will be deemed service of notice, therefore, there is no requirement to return the specific finding with respect to the service of notice upon the addressee (petitioner). In support of his submission, learned counsel for the respondent no. 4 has placed reliance upon the judgment passed by the co- ordinate Bench of this Court in the matter of Top Filling Point Proprietor Rakesh Agarwal vs. State of U.P. and Another reported in 2024 (1) CivCC

210. (iii) He has emphasised the oral termination of respondent no.4 and contended that there is no provision under the law to terminate the service of the workman orally without properly following the procedure enunciated under Section 6-N of U.P. Act, 1947. Affidavit filed on behalf of the respondent No. 4 in this respect was unrefuted at the part of the petitioner, therefore, same will be deemed to be correct/true, as per the provisions enunciated under Rule 12(9) of U.P. Rules, 1957. In support of his contention, leaned counsel for the respondent No. 4 has relied upon the case of Arvind Kumar Mishra Vs. State of U.P. reported in Laws (All) 5 of 16 2004 8 282 and another order passed by Co-ordinate Bench of this Court in the matter of Ganga Saran Saini vs. Smt. Dropdi Devi and Others reported in 2011 (6) ADJ 260. (iv) It is next submitted that the finding of fact returned by the labour court is not liable to be interfered by the High Court. In support of his submission, he has placed reliance upon the judgment dated March 3, 2021 passed by Hon’ble Supreme Court in the matter of Subodh Kumar vs. Shamim Ahmad passed in Civil Appeal Nos. 802-803 of 2021 (arising out of SLP (c) Nos. 18118-18119 of 2019. He has emphasised as well on the ‘doctrine of merger’ with the plea that the award passed by the learned tribunal merged in subsequent order dated 3.2.2024 whereby restoration application has been rejected, therefore, award became final between the parties, which can not be challenged separately by the petitioner. (v) The law will prevail not the equity, therefore, instant writ petition cannot be considered on the ground of equity. In support of his submission, he has placed reliance upon the judgment dated 6.5.2025 passed by the Division Bench of this Court in Writ C No. 13012 of 2025 in the matter of Anil Kumar Jaiswal vs. Union of India and Another. (vi) Relying upon the Full Bench decision of Hon’ble Supreme Court in the matter of Central Council for Research in Ayurvedic Sciences and Others vs. Bikranta Das and Others reported in 2023 (AIR) (Supreme Court) 4011, it has been contended that writ of certiorari cannot be exercised in all matters and present matter is one of them wherein order passed by the learned labour court may not be quashed. (vii) He has also pressed the doctrine of ‘judicial discipline’ and contended that judicial discipline/propriety demands to respect the order passed by the co-ordinate bench. In support of his submission, he has placed reliance upon the case of Uttar Pradesh Jal Vidyut (S) Nigam Ltd. and Others vs. Balbir Singh reported in 2021 (13) SCC 262. 6 of 16 (viii) He has further submitted that the execution of the award cannot be stayed. In support of his submission, he has placed reliance upon the case of Kanishk Singh and Another vs. State of West Bengal and Others reported in 2025 SCC OnLine SC 443.

7. Having considered the rival submissions advanced by the learned counsel for the parties and upon perusal of the writ petition it manifest that the dispute between respondent no.4 and the petitioner was referred to the lower court under section 4-K of the U.P. Act, 1947 to the effect as to whether the termination of the workman (respondent no. 4) by employer on 10.08.1998 is proper and/or legal? If not, what relief would be workman be entitled from his employer. Admittedly, the award dated

12.02.2020 is an ex parte award and the restoration application filed against the said award has been rejected by an order dated 03.02.2024. While dismissing the restoration application, learned labour court has returned a finding that despite knowledge, the employer (petitioner) failed to pursue the litigation before the labour court. However, it has not returned any finding as to when and how service was sufficiently served upon the petitioner. It is apposite to mention that the present petitioner was appeared at the initial stage of proceeding and filed his written statement (paper no.7-A) denying the allegations of the workmen with regard to his termination by an oral order dated 10.08.1998. It appears that at the subsequent stage, the petitioner was absent and the matter was decided ex parte.

8. Before entering into the merits of the case some relevant dates are required to be mentioned/discussed which are evident from the certified copy of the order sheets (Annexure no.8) from dated 04.08.2004 to

02.09.2020. Till 10.08.2006, the petitioner was appeared before the labour court. On 18.12.2006 and 14.05.2007, the Presiding Officer was on leave. Thereafter, for a significant period viz untill 08.06.2009 the proceeding in the Adjudication case was held up for want of jurisdiction by the learned labour court, as to whether it should be decided by the Labour Court, 7 of 16 Ghaziabad or Labour Court, NOIDA. Vide order dated 8.6.2009, it has been determined that the instant case will be considered by the Labour Court, Ghaziabad. Thus, proceedings again commenced and by order dated 2.4.2010, the opportunity of the present petitioner to file the rejoinder affidavit was closed. Thereafter, 06.07.2010, 25.08.2010,

11.11.2010, 03.02.2011 were fixed for filing documentary evidence on behalf of the respondent No.4. The order sheet dated 16.03.2011 evinces that the notice sent to the petitioner was returned unserved and the representative of the workman has been given time to provide the correct address of the petitioner. On the next date fixed i.e. 02.06.2011, the workman has been directed to take steps for publication in a newspaper within 20 days. Thereafter, the post of the Presiding Officer, Labour Court, Ghaziabad was vacant from 13.10.2011 to 05.11.2012. When the Presiding Officer has taken charge, next date fixed 09.01.2013 and

27.02.2013 for the evidence of the workman. On the next date fixed

30.4.2013 fresh notices were ordered to be issued to the petitioner. On

09.01.2014, the workman was again directed to send notice to the petitioner. The order dated 27.03.2014 evinces that the registered letter sent to the petitioner was returned unserved. Thereafter, 06.06.2014,

12.09.2014, 11.11.2014, 29.01.2015, 21.04.2015, were date fixed for the evidence of the workmen. Ultimately, adjudication case was ordered to be dismissed in default on 21.04.2015 in absence of the workman. At a highly belated stage, a restoration application was filed on 18.12.2018 (paper No. 11 D). Said restoration application was allowed by ex parte order dated 02.05.2019, sans any notice or opportunity to the petitioner. Order sheet dated 19.12.2018, evinces that fresh notices were ordered to be issued to the petitioner, however, there is no report with regard to service of notice or even fate of that registered notice. After restoration of the case, normal dates were being fixed for hearing, and ultimately, by order dated 30.08.2019, opportunity of the petitioner to cross examine the respondent No.4 has been closed and on the following date i.e. 8 of 16

30.09.2019 opportunity of the petitioner for adducing evidence has been closed as well. Subsequently, by ex-parte order dated 12.02.2020 award has been declared, which was published on 27.08.2020.

9. Careful scrutiny of the order sheet, as mentioned above, evinces that presiding officer was on leave since 18.12.2006 to 15.10.2007 and thereafter for the significant period viz. from dated 15.10.2007 to dated

08.06.2009 proceeding of case was held up for want of jurisdiction of the labour court. Thereafter, again proceeding of case was held up from

13.10.2011 to 5.11.2012 owing to vacant post of the Presiding Officer. Now the relevant question would be, as to when and how petitioner was served after 08.06.2009, while the jurisdiction of the Presiding Officer, Labour Court, Ghaziabad has been decided to entertain the instant matter. Petitioner, in paragraph No.13 of the restoration application, came with specific case that notice dated 24.12.2009 (paper no. 11-A) for information qua next date fixed i.e. 02.04.2010 was sent through registered post dated 02.01.2010, and the undelivered envelope (paper no.12-A) was returned with postal endorsement "firm is closed return". Thereafter, fresh notices were ordered to be issued by order dated

16.03.2011, 30.04.2013, 09.01.2014 and 19.12.2018. However, there is nothing on the record to demonstrate as to when and how these registered notices were sent and served to the petitioner. Order dated 27.03.2014 evinces that, one registered letter sent to the petitioner was returned unserved. Despite the direction for substituted service through publication, vide order dated 02.06.2011, as per record available on board, no steps have been taken by the workman in compliance thereof. In the meantime, the case was ordered to be dismissed on 21.04.2015, and restored on 02.05.2019. During this period, notice (paper no.12-D) has been shown to be sent to the petitioner, however, there is no remark of the postal department or any observation of the court with respect to service of notice. 9 of 16

10. In rejecting the restoration application, learned labour court has laid emphasis on the presence of the petitioner at initial stage of the proceeding wherein he has filed his written statement (paper no. 7-A). Details provided by the petitioner in his restoration application showing the reasonable cause for his absence at the subsequent stage has illegally been eluded by the labour court without assigning any convincing reason. Admittedly, there was no proceeding from 18.12.2006 to 08.06.2009. There is no evidence on the record to prove that, since the resumption of proceeding i.e. dated 08.06.2009 in the labour court of Ghaziabad, the petitioner was ever served with notice or he had any knowledge about re- commencement of the proceeding in labour court, Ghaziabad. Despite direction to send notices on four occasions and substituted service through publication, no finding had been returned by the learned labour court that notices were duly served upon the petitioner. The plea of the petitioner that he had closed his firm in the year 2004, owing to personal difficulties and rented out the premises of his firm to an another firm, namely, M/s Indus Metal Tech through its proprietor Nikhil Garg, is corroborated by the postal remark on the notice dated 24.12.2009 to the effect that "firm is closed".

11. Thus, it is explicitly evinced from the writ petition that the petitioner was never served after 08.06.2009 while the proceedings of case was re- commenced before the labour court of Ghaziabad. This fact has unequivocally been stated in the restoration/recall application dated

13.09.2023 filed on behalf of the petitioner. However, respondent no.4 has not refuted the averment as made in the restoration application with regard to non service of notice in his reply dated 05.01.2024 (paper no.21- D) to the aforesaid restoration application. Learned labour court, despite the entire record before it, has miserably failed to consider all these aspects of the matter, as discussed above, and rejected the restoration application arbitrarily in a cavalier manner. Needless to say that when the labour court is exercising its judicial power to examine the legal 10 of 16 entitlement of workman, he has excepted to act in a manner which is in consonance with the principles of natural justice and non-arbitrariness. Learned tribunal, in violation of the principles of natural justice and fair play, has arbitrarily passed an award against the petitioner, even rejected the restoration application, and entrusted duty upon the petitioner to discharge heavy financial burden which might be evaded after full contest of the lis.

12. I am sceptical of the contention raised by learned counsel for the respondent that restoration/recall application filed on behalf of the petitioner is not maintainable in view of the provisions enunciated under Rule 16(2) of U.P. Rules, 1957. Section 6-A of the U.P. Act, 1947 denotes about commencing of the award passed by learned tribunal/arbitrator/labour court. Section 6-B denotes that proceeding before the labour court or tribunal shall deem to have commenced on the date of reference of a dispute to adjudication, and such proceeding shall be deemed to have concluded on the date of which award becomes enforceable under Section 6-A of the U.P. Act, 1947. Thus it is an award passed by the learned tribunal/labour court/ arbitrator which is enforceable. However, Rule 16(2) of U.P. Rules, 1957 denotes the limitation for recalling an order as mentioned under Rule 16(1), therefore, limitation of 10 days to file a recall application against the order is not applicable against the award passed under Section 6-A of the Act 1947. Moreover, in the matter of Haryana Suraj Malting (supra), the Hon'ble Supreme Court has observed that Industrial Disputes Act being a welfare legislation intended to maintain industrial peace, certain power to do justice have to be conceded to labour court/tribunal, where it will ancillary, intentional or inherent. Award passed denying the opportunity of hearing, when party is able to show sufficient cause within a reasonable time, is in violation of principal of natural justice and is open to challenge on the ground of it being nullity. Therefore, when application for setting aside ex parte award is made at the instance of management, labour court/ 11 of 16 tribunal has to be balanced equity. Relevant paragraph no. 34 to 37 of the aforesaid judgment is quoted herein below: "34. In case a party is in a position to show sufficient cause for its absence before the Labour Court/ Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal.

35. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise, as held in Grindlays, an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law.

36. In this context, it is also necessary to refer to Section 29, the penal sanction which includes imprisonment for breach of award. “29. Penalty for breach of settlement or award.- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.”

37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non- appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to 12 of 16 entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act 1947, is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent. "

13. I am not convinced as well with the next contention advanced by learned counsel for the respondent that this Court has no jurisdiction to entertain the instant writ petition and interfere in the finding of fact returned by the learned labour court with respect to the absence of petitioner in the original proceeding and claim of the workman for wages and reinstatement under the labour law. Order under challenge evince that it has been passed arbitrarily, without application of mind and without following the cannons of natural justice and fair play. No convincing reason, as per law, has been assigned by the learned labour court while culminating the adjudication case and rejecting the restoration application. Allowing the orders under challenge stand would be miscarriage of justice and beget prejudice to the legal rights of the petitioner to contest the lis before the labour court. Therefore, case of Subodh Kumar (supra), Anil Kumar Jaiswal (supra), Central Council for Research in Ayurvedic Sciences (supra) and Uttar Pradesh Jal Vidyut (s) Nigam Ltd. (supra) are distinguishable in the given circumstances of the present case.

14. Further contention raised by learned counsel for the respondent qua the merits of the case is not convincing as well. No discussion has been made and no finding has been returned by learned labour court that the workman had worked for more than 240 days in a year and he was throughout being paid salary or wages. No corroborative evidence has been relied upon by learned labour court except referring the written statement and affidavit filed on behalf of the workman.

15. Assuming arguendo that employer, for any reason, could not participate in the proceeding, subsequently, learned labour court ought to have consider the case of employer as set up in his written statement (paragraph no.7-A) before passing the award on merits. In last paragraph 13 of 16 of the award dated 12.02.2020, learned labour court has simply observed that while the employer has not proved his contention, therefore, in this condition, there is no option but to accept the case of the workman. Accordingly, learned labour court has held that the termination order is not proper and illegal, and the employer is liable to pay back wages and reinstate the service of the workman. Claim of the workman, as contended by learned counsel for the respondent, cannot be treated to be correct and allowed as per provisions enunciated under Rule 12(9) of U.P. Rules,

1957. Mere averment in the affidavit does not amount prove of the case. Thus, onus of the workmen to prove his case cannot be discharged for want of proper pleading at the part of the employer unless there is any corroborative evidence on record to bolster the claim of the workman. A coordinate Bench of this Court in the matter of Devyani Beverages Ltd. (supra), in the similar circumstances, has held that rejection of the restoration application and passing of an award are illegal. Relevant paragraph nos. 9 to 13 of the aforesaid judgment are quoted herein below: "9. The Apex Court in the case of Range Forest Officer Vs. S.T.Hadimani (2002) 3 SCC 25 has observed that "Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."

10. In Manager, Reserve Bank of India Vs. S.Mani 2005 S.C.C. (L&S) 609, the Supreme Court held that "A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case."

11. The Supreme Court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 S.C.C. 195 observed that ". . . . . From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any 14 of 16 documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case." Holding the same to be insufficient evidence for proving his claim, the judgment of the High Court passed in favour of the workman was set aside.

12. Accordingly, even though Rule 12 (9) of the U.P. Industrial Disputes Rules, 1957 provides that if the affidavit accompanying the written statement of the workman is not rebutted by the employer, the Labour Court shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement, but, it cannot thus be construed to mean that the entire averments made in the affidavit, without any documentary or oral evidence, have to be accepted in toto without the Labour Court examining the same judiciously. The labour laws of this country may be welfare legislation which may not require a strict procedure to be followed as held by the Supreme Court in the case of the Bharat Bank Ltd., Delhi Vs. The Employee of the Bharat Bank Ltd. Delhi and the Bharat Bank Employees' Union, Delhi AIR 1950 S.C. 188 (which has been relied upon by the learned counsel for the respondents) but the same would not mean that the procedure of accepting and relying of evidence before the Court is not to be followed.

13. In the present case, the award has been passed merely on the basis of the written statement of the employee. The entire award is bereft of any discussion on the merits of the case. A perusal of the award shows that only the case of the workman has been set out and without analytically examining the material on record and recording reasons for its conclusion, the claim of the employer has been allowed simply on account of the provisions of Rule 12 (9) of the U.P. Industrial Disputes Rules, 1957. The said award being totally unsupported by reasons or discussions, cannot be said to be an award on merits of the case. Failure to give reasons would amount to denial of justice. The award speaks of the filing of the written statement by the employer but has not dealt on the comparative merit of the claims and counter claims. Jumping to the conclusion that the termination of the workman was illegal after merely setting out the factual aspect of the case, and without discussing the merits, would render the award illegal and unsustainable in law. There is no analytical examination of the merits of the claim which shows total non-application of mind. "

16. In this conspectus, as above, I am of the considered view that passing an ex parte award against the employer (petitioner) and rejection of the restoration application filed on his behalf, is a blatant violation of natural justice and fair play. Learned labour court has exercised its jurisdiction 15 of 16 illegally and miserably failed to return explicit finding qua service of notice upon the petitioner at the time of passing the Award. Mere issuance of notice or passing an order for substituted service through publication does not deem to be service of notice upon the workmen, unless it is proved under the law that notices were personally served upon the petitioner and notice was published in news paper having wide circulation. Even, Award has not be passed in accordance with the provisions of the U.P. Act, 1947. Order passed by the learned labour court is arbitrary, illegal and cryptic. Allowing such order to stand amounts miscarriage of justice and severely prejudice the rights and interest of the petitioner.

17. Resultantly, instant writ petition succeeds and is allowed on the cost of Rs. 50,000/-. Ex parte award dated 12.02.2020 and order dated

03.02.2024, rejecting the restoration application filed on behalf of the petitioner, are quashed. Original proceeding of Adjudication Case No. 147 of 2000 before the Presiding Officer, Labour Court (II) U.P. Ghaziabad is hereby restored to its original number and both the parties are relegated to the learned labour court and learned labour court is directed to decide the adjudication case afresh after affording proper and effective opportunity of hearing to both the parties. It is clarified that both parties are expected to appear before the learned labour court on 02.07.2025 and learned labour court, in turn, shall make endevour to decide the proceeding within six months from the date of appearance of the parties, as mentioned above. On the aforesaid date fixed, petitioner shall produce the cost amounting Rs. 50,000/- through bank draft in favour of the workman along with certified copy of the order of the date appended with the misc. application. Order Date :- 19.05.2025 VR/Vinay/vkg/Sumit K 16 of 16

not enhance the statutory period of limitation granted to the parties for moving the recall application. Thus, restoration application is time barred. In support of his submission, learned counsel for the petitioner has placed reliance on the judgment passed by the co-ordinate Bench of this Court in the matter of Nagar Panchayat Kithore, District Meerut vs. Prescribed Authority/Peethasin Adhikari Labour Court reported in [(2007) (3) ADJ 31 (NOS)] and order passed by Hon’ble Supreme Court in the matter of M/s Daddys Builders Private Ltd. and another vs. Manisha Bhargava and Another reported in 2021, Law Suits (SC) 79. (ii) Once the registered notice sent to the addressee, there will be deemed service of notice, therefore, there is no requirement to return the specific finding with respect to the service of notice upon the addressee (petitioner). In support of his submission, learned counsel for the respondent no. 4 has placed reliance upon the judgment passed by the co- ordinate Bench of this Court in the matter of Top Filling Point Proprietor Rakesh Agarwal vs. State of U.P. and Another reported in 2024 (1) CivCC

210. (iii) He has emphasised the oral termination of respondent no.4 and contended that there is no provision under the law to terminate the service of the workman orally without properly following the procedure enunciated under Section 6-N of U.P. Act, 1947. Affidavit filed on behalf of the respondent No. 4 in this respect was unrefuted at the part of the petitioner, therefore, same will be deemed to be correct/true, as per the provisions enunciated under Rule 12(9) of U.P. Rules, 1957. In support of his contention, leaned counsel for the respondent No. 4 has relied upon the case of Arvind Kumar Mishra Vs. State of U.P. reported in Laws (All) 5 of 16 2004 8 282 and another order passed by Co-ordinate Bench of this Court in the matter of Ganga Saran Saini vs. Smt. Dropdi Devi and Others reported in 2011 (6) ADJ 260. (iv) It is next submitted that the finding of fact returned by the labour court is not liable to be interfered by the High Court. In support of his submission, he has placed reliance upon the judgment dated March 3, 2021 passed by Hon’ble Supreme Court in the matter of Subodh Kumar vs. Shamim Ahmad passed in Civil Appeal Nos. 802-803 of 2021 (arising out of SLP (c) Nos. 18118-18119 of 2019. He has emphasised as well on the ‘doctrine of merger’ with the plea that the award passed by the learned tribunal merged in subsequent order dated 3.2.2024 whereby restoration application has been rejected, therefore, award became final between the parties, which can not be challenged separately by the petitioner. (v) The law will prevail not the equity, therefore, instant writ petition cannot be considered on the ground of equity. In support of his submission, he has placed reliance upon the judgment dated 6.5.2025 passed by the Division Bench of this Court in Writ C No. 13012 of 2025 in the matter of Anil Kumar Jaiswal vs. Union of India and Another. (vi) Relying upon the Full Bench decision of Hon’ble Supreme Court in the matter of Central Council for Research in Ayurvedic Sciences and Others vs. Bikranta Das and Others reported in 2023 (AIR) (Supreme Court) 4011, it has been contended that writ of certiorari cannot be exercised in all matters and present matter is one of them wherein order passed by the learned labour court may not be quashed. (vii) He has also pressed the doctrine of ‘judicial discipline’ and contended that judicial discipline/propriety demands to respect the order passed by the co-ordinate bench. In support of his submission, he has placed reliance upon the case of Uttar Pradesh Jal Vidyut (S) Nigam Ltd. and Others vs. Balbir Singh reported in 2021 (13) SCC 262. 6 of 16 (viii) He has further submitted that the execution of the award cannot be stayed. In support of his submission, he has placed reliance upon the case of Kanishk Singh and Another vs. State of West Bengal and Others reported in 2025 SCC OnLine SC 443.

7. Having considered the rival submissions advanced by the learned counsel for the parties and upon perusal of the writ petition it manifest that the dispute between respondent no.4 and the petitioner was referred to the lower court under section 4-K of the U.P. Act, 1947 to the effect as to whether the termination of the workman (respondent no. 4) by employer on 10.08.1998 is proper and/or legal? If not, what relief would be workman be entitled from his employer. Admittedly, the award dated

12.02.2020 is an ex parte award and the restoration application filed against the said award has been rejected by an order dated 03.02.2024. While dismissing the restoration application, learned labour court has returned a finding that despite knowledge, the employer (petitioner) failed to pursue the litigation before the labour court. However, it has not returned any finding as to when and how service was sufficiently served upon the petitioner. It is apposite to mention that the present petitioner was appeared at the initial stage of proceeding and filed his written statement (paper no.7-A) denying the allegations of the workmen with regard to his termination by an oral order dated 10.08.1998. It appears that at the subsequent stage, the petitioner was absent and the matter was decided ex parte.

8. Before entering into the merits of the case some relevant dates are required to be mentioned/discussed which are evident from the certified copy of the order sheets (Annexure no.8) from dated 04.08.2004 to

02.09.2020. Till 10.08.2006, the petitioner was appeared before the labour court. On 18.12.2006 and 14.05.2007, the Presiding Officer was on leave. Thereafter, for a significant period viz untill 08.06.2009 the proceeding in the Adjudication case was held up for want of jurisdiction by the learned labour court, as to whether it should be decided by the Labour Court, 7 of 16 Ghaziabad or Labour Court, NOIDA. Vide order dated 8.6.2009, it has been determined that the instant case will be considered by the Labour Court, Ghaziabad. Thus, proceedings again commenced and by order dated 2.4.2010, the opportunity of the present petitioner to file the rejoinder affidavit was closed. Thereafter, 06.07.2010, 25.08.2010,

11.11.2010, 03.02.2011 were fixed for filing documentary evidence on behalf of the respondent No.4. The order sheet dated 16.03.2011 evinces that the notice sent to the petitioner was returned unserved and the representative of the workman has been given time to provide the correct address of the petitioner. On the next date fixed i.e. 02.06.2011, the workman has been directed to take steps for publication in a newspaper within 20 days. Thereafter, the post of the Presiding Officer, Labour Court, Ghaziabad was vacant from 13.10.2011 to 05.11.2012. When the Presiding Officer has taken charge, next date fixed 09.01.2013 and

27.02.2013 for the evidence of the workman. On the next date fixed

30.4.2013 fresh notices were ordered to be issued to the petitioner. On

09.01.2014, the workman was again directed to send notice to the petitioner. The order dated 27.03.2014 evinces that the registered letter sent to the petitioner was returned unserved. Thereafter, 06.06.2014,

12.09.2014, 11.11.2014, 29.01.2015, 21.04.2015, were date fixed for the evidence of the workmen. Ultimately, adjudication case was ordered to be dismissed in default on 21.04.2015 in absence of the workman. At a highly belated stage, a restoration application was filed on 18.12.2018 (paper No. 11 D). Said restoration application was allowed by ex parte order dated 02.05.2019, sans any notice or opportunity to the petitioner. Order sheet dated 19.12.2018, evinces that fresh notices were ordered to be issued to the petitioner, however, there is no report with regard to service of notice or even fate of that registered notice. After restoration of the case, normal dates were being fixed for hearing, and ultimately, by order dated 30.08.2019, opportunity of the petitioner to cross examine the respondent No.4 has been closed and on the following date i.e. 8 of 16

30.09.2019 opportunity of the petitioner for adducing evidence has been closed as well. Subsequently, by ex-parte order dated 12.02.2020 award has been declared, which was published on 27.08.2020.

9. Careful scrutiny of the order sheet, as mentioned above, evinces that presiding officer was on leave since 18.12.2006 to 15.10.2007 and thereafter for the significant period viz. from dated 15.10.2007 to dated

08.06.2009 proceeding of case was held up for want of jurisdiction of the labour court. Thereafter, again proceeding of case was held up from

13.10.2011 to 5.11.2012 owing to vacant post of the Presiding Officer. Now the relevant question would be, as to when and how petitioner was served after 08.06.2009, while the jurisdiction of the Presiding Officer, Labour Court, Ghaziabad has been decided to entertain the instant matter. Petitioner, in paragraph No.13 of the restoration application, came with specific case that notice dated 24.12.2009 (paper no. 11-A) for information qua next date fixed i.e. 02.04.2010 was sent through registered post dated 02.01.2010, and the undelivered envelope (paper no.12-A) was returned with postal endorsement "firm is closed return". Thereafter, fresh notices were ordered to be issued by order dated

16.03.2011, 30.04.2013, 09.01.2014 and 19.12.2018. However, there is nothing on the record to demonstrate as to when and how these registered notices were sent and served to the petitioner. Order dated 27.03.2014 evinces that, one registered letter sent to the petitioner was returned unserved. Despite the direction for substituted service through publication, vide order dated 02.06.2011, as per record available on board, no steps have been taken by the workman in compliance thereof. In the meantime, the case was ordered to be dismissed on 21.04.2015, and restored on 02.05.2019. During this period, notice (paper no.12-D) has been shown to be sent to the petitioner, however, there is no remark of the postal department or any observation of the court with respect to service of notice. 9 of 16

10. In rejecting the restoration application, learned labour court has laid emphasis on the presence of the petitioner at initial stage of the proceeding wherein he has filed his written statement (paper no. 7-A). Details provided by the petitioner in his restoration application showing the reasonable cause for his absence at the subsequent stage has illegally been eluded by the labour court without assigning any convincing reason. Admittedly, there was no proceeding from 18.12.2006 to 08.06.2009. There is no evidence on the record to prove that, since the resumption of proceeding i.e. dated 08.06.2009 in the labour court of Ghaziabad, the petitioner was ever served with notice or he had any knowledge about re- commencement of the proceeding in labour court, Ghaziabad. Despite direction to send notices on four occasions and substituted service through publication, no finding had been returned by the learned labour court that notices were duly served upon the petitioner. The plea of the petitioner that he had closed his firm in the year 2004, owing to personal difficulties and rented out the premises of his firm to an another firm, namely, M/s Indus Metal Tech through its proprietor Nikhil Garg, is corroborated by the postal remark on the notice dated 24.12.2009 to the effect that "firm is closed".

11. Thus, it is explicitly evinced from the writ petition that the petitioner was never served after 08.06.2009 while the proceedings of case was re- commenced before the labour court of Ghaziabad. This fact has unequivocally been stated in the restoration/recall application dated

13.09.2023 filed on behalf of the petitioner. However, respondent no.4 has not refuted the averment as made in the restoration application with regard to non service of notice in his reply dated 05.01.2024 (paper no.21- D) to the aforesaid restoration application. Learned labour court, despite the entire record before it, has miserably failed to consider all these aspects of the matter, as discussed above, and rejected the restoration application arbitrarily in a cavalier manner. Needless to say that when the labour court is exercising its judicial power to examine the legal 10 of 16 entitlement of workman, he has excepted to act in a manner which is in consonance with the principles of natural justice and non-arbitrariness. Learned tribunal, in violation of the principles of natural justice and fair play, has arbitrarily passed an award against the petitioner, even rejected the restoration application, and entrusted duty upon the petitioner to discharge heavy financial burden which might be evaded after full contest of the lis.

12. I am sceptical of the contention raised by learned counsel for the respondent that restoration/recall application filed on behalf of the petitioner is not maintainable in view of the provisions enunciated under Rule 16(2) of U.P. Rules, 1957. Section 6-A of the U.P. Act, 1947 denotes about commencing of the award passed by learned tribunal/arbitrator/labour court. Section 6-B denotes that proceeding before the labour court or tribunal shall deem to have commenced on the date of reference of a dispute to adjudication, and such proceeding shall be deemed to have concluded on the date of which award becomes enforceable under Section 6-A of the U.P. Act, 1947. Thus it is an award passed by the learned tribunal/labour court/ arbitrator which is enforceable. However, Rule 16(2) of U.P. Rules, 1957 denotes the limitation for recalling an order as mentioned under Rule 16(1), therefore, limitation of 10 days to file a recall application against the order is not applicable against the award passed under Section 6-A of the Act 1947. Moreover, in the matter of Haryana Suraj Malting (supra), the Hon'ble Supreme Court has observed that Industrial Disputes Act being a welfare legislation intended to maintain industrial peace, certain power to do justice have to be conceded to labour court/tribunal, where it will ancillary, intentional or inherent. Award passed denying the opportunity of hearing, when party is able to show sufficient cause within a reasonable time, is in violation of principal of natural justice and is open to challenge on the ground of it being nullity. Therefore, when application for setting aside ex parte award is made at the instance of management, labour court/ 11 of 16 tribunal has to be balanced equity. Relevant paragraph no. 34 to 37 of the aforesaid judgment is quoted herein below: "34. In case a party is in a position to show sufficient cause for its absence before the Labour Court/ Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal.

35. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise, as held in Grindlays, an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law.

36. In this context, it is also necessary to refer to Section 29, the penal sanction which includes imprisonment for breach of award. “29. Penalty for breach of settlement or award.- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.”

37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non- appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to 12 of 16 entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act 1947, is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent. "

13. I am not convinced as well with the next contention advanced by learned counsel for the respondent that this Court has no jurisdiction to entertain the instant writ petition and interfere in the finding of fact returned by the learned labour court with respect to the absence of petitioner in the original proceeding and claim of the workman for wages and reinstatement under the labour law. Order under challenge evince that it has been passed arbitrarily, without application of mind and without following the cannons of natural justice and fair play. No convincing reason, as per law, has been assigned by the learned labour court while culminating the adjudication case and rejecting the restoration application. Allowing the orders under challenge stand would be miscarriage of justice and beget prejudice to the legal rights of the petitioner to contest the lis before the labour court. Therefore, case of Subodh Kumar (supra), Anil Kumar Jaiswal (supra), Central Council for Research in Ayurvedic Sciences (supra) and Uttar Pradesh Jal Vidyut (s) Nigam Ltd. (supra) are distinguishable in the given circumstances of the present case.

14. Further contention raised by learned counsel for the respondent qua the merits of the case is not convincing as well. No discussion has been made and no finding has been returned by learned labour court that the workman had worked for more than 240 days in a year and he was throughout being paid salary or wages. No corroborative evidence has been relied upon by learned labour court except referring the written statement and affidavit filed on behalf of the workman.

15. Assuming arguendo that employer, for any reason, could not participate in the proceeding, subsequently, learned labour court ought to have consider the case of employer as set up in his written statement (paragraph no.7-A) before passing the award on merits. In last paragraph 13 of 16 of the award dated 12.02.2020, learned labour court has simply observed that while the employer has not proved his contention, therefore, in this condition, there is no option but to accept the case of the workman. Accordingly, learned labour court has held that the termination order is not proper and illegal, and the employer is liable to pay back wages and reinstate the service of the workman. Claim of the workman, as contended by learned counsel for the respondent, cannot be treated to be correct and allowed as per provisions enunciated under Rule 12(9) of U.P. Rules,

1957. Mere averment in the affidavit does not amount prove of the case. Thus, onus of the workmen to prove his case cannot be discharged for want of proper pleading at the part of the employer unless there is any corroborative evidence on record to bolster the claim of the workman. A coordinate Bench of this Court in the matter of Devyani Beverages Ltd. (supra), in the similar circumstances, has held that rejection of the restoration application and passing of an award are illegal. Relevant paragraph nos. 9 to 13 of the aforesaid judgment are quoted herein below: "9. The Apex Court in the case of Range Forest Officer Vs. S.T.Hadimani (2002) 3 SCC 25 has observed that "Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."

10. In Manager, Reserve Bank of India Vs. S.Mani 2005 S.C.C. (L&S) 609, the Supreme Court held that "A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case."

11. The Supreme Court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 S.C.C. 195 observed that ". . . . . From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any 14 of 16 documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case." Holding the same to be insufficient evidence for proving his claim, the judgment of the High Court passed in favour of the workman was set aside.

12. Accordingly, even though Rule 12 (9) of the U.P. Industrial Disputes Rules, 1957 provides that if the affidavit accompanying the written statement of the workman is not rebutted by the employer, the Labour Court shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement, but, it cannot thus be construed to mean that the entire averments made in the affidavit, without any documentary or oral evidence, have to be accepted in toto without the Labour Court examining the same judiciously. The labour laws of this country may be welfare legislation which may not require a strict procedure to be followed as held by the Supreme Court in the case of the Bharat Bank Ltd., Delhi Vs. The Employee of the Bharat Bank Ltd. Delhi and the Bharat Bank Employees' Union, Delhi AIR 1950 S.C. 188 (which has been relied upon by the learned counsel for the respondents) but the same would not mean that the procedure of accepting and relying of evidence before the Court is not to be followed.

13. In the present case, the award has been passed merely on the basis of the written statement of the employee. The entire award is bereft of any discussion on the merits of the case. A perusal of the award shows that only the case of the workman has been set out and without analytically examining the material on record and recording reasons for its conclusion, the claim of the employer has been allowed simply on account of the provisions of Rule 12 (9) of the U.P. Industrial Disputes Rules, 1957. The said award being totally unsupported by reasons or discussions, cannot be said to be an award on merits of the case. Failure to give reasons would amount to denial of justice. The award speaks of the filing of the written statement by the employer but has not dealt on the comparative merit of the claims and counter claims. Jumping to the conclusion that the termination of the workman was illegal after merely setting out the factual aspect of the case, and without discussing the merits, would render the award illegal and unsustainable in law. There is no analytical examination of the merits of the claim which shows total non-application of mind. "

16. In this conspectus, as above, I am of the considered view that passing an ex parte award against the employer (petitioner) and rejection of the restoration application filed on his behalf, is a blatant violation of natural justice and fair play. Learned labour court has exercised its jurisdiction 15 of 16 illegally and miserably failed to return explicit finding qua service of notice upon the petitioner at the time of passing the Award. Mere issuance of notice or passing an order for substituted service through publication does not deem to be service of notice upon the workmen, unless it is proved under the law that notices were personally served upon the petitioner and notice was published in news paper having wide circulation. Even, Award has not be passed in accordance with the provisions of the U.P. Act, 1947. Order passed by the learned labour court is arbitrary, illegal and cryptic. Allowing such order to stand amounts miscarriage of justice and severely prejudice the rights and interest of the petitioner.

17. Resultantly, instant writ petition succeeds and is allowed on the cost of Rs. 50,000/-. Ex parte award dated 12.02.2020 and order dated

03.02.2024, rejecting the restoration application filed on behalf of the petitioner, are quashed. Original proceeding of Adjudication Case No. 147 of 2000 before the Presiding Officer, Labour Court (II) U.P. Ghaziabad is hereby restored to its original number and both the parties are relegated to the learned labour court and learned labour court is directed to decide the adjudication case afresh after affording proper and effective opportunity of hearing to both the parties. It is clarified that both parties are expected to appear before the learned labour court on 02.07.2025 and learned labour court, in turn, shall make endevour to decide the proceeding within six months from the date of appearance of the parties, as mentioned above. On the aforesaid date fixed, petitioner shall produce the cost amounting Rs. 50,000/- through bank draft in favour of the workman along with certified copy of the order of the date appended with the misc. application. Order Date :- 19.05.2025 VR/Vinay/vkg/Sumit K 16 of 16