M/s Balajit Packaging, 17/3 Mathura Road, Faridabad v. The Presiding Officer, Labour Court-I, Faridabad & Anr.

Mr. Surender Dhull, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the challenge has been posed to an ex-parte Award dated 08.01.2009 (Annexure P-1) and the order dated

09.10.2009 (Annexure P-1/A) passed by respondent No. 1 dismissing the application moved by the petitioner for setting aside the ex-parte Award. Counsel for the petitioner contends that initially an ex-parte Award was passed against the petitioner by the Industrial Tribunal-cum- Labour Court, Faridabad on 12.10.2006. An application was moved for setting aside the ex-parte Award and that application was dismissed on

30.04.2007. Challenging these two orders, Civil Writ Petition No. 8375 of 2007 was preferred by the petitioner and the same was allowed by this Court vide order dated 28.05.2007 subject to the payment of cost Rs. 10,000/- by the respondent within two months' of the order and the CWP No.1607 of 2010 2 matter was remanded back to the Labour Court for fresh disposal by setting aside the ex-parte award. On remand of the case to the Labour Court for taking a fresh decision, issues were framed on 16.09.2008 and the case was, therefore, fixed for arguments on 06.01.2009. As none had appeared on behalf of the petitioner on 06.01.2009, the petitioner was proceeded against ex-parte. The case was thereafter adjourned to

08.01.2009 when again none appeared leading to the passing of the ex- parte Award dated 08.01.2009 (Annexure P-1). An application dated

24.03.2009 was moved by the petitioner for setting aside the ex-parte order dated 06.01.2009, condonation of delay and stay of Award and the ex- parte Award dated 08.01.2009. The said application was considered by the Court and through an order dated 09.10.2009 (Annexure P-1/A), the same was dismissed leading to the filing of the present writ petition challenging the Award dated 08.01.2009 (Annexure P-1) and the order dated 09.10.2009 (Annexure P-1/A). Counsel for the petitioner contends that on 06.01.2009 when the case was fixed for arguments, the Authorized Representative of the petitioner had gone out of station and had requested his colleague Sh. Anil Kumar, Advocate, to appear on his behalf in the case. Sh. Anil Kumar was busy in District Court, Faridabad and reached late in the Court. When he enquired from the Reader of the Court about the fate of the case, he was informed that the matter has been adjourned to 05.03.2009. Sh. Anil Kumar, accordingly, informed the Authorized Representative of the petitioner that the case has been adjourned to 05.03.2009 for framing of issues. On 05.03.2009 when the Authorized Representative of the petitioner appeared in the Court, he came to know that the case was decided on 08.01.2009. He inspected the case file and thus, he came to CWP No.1607 of 2010 3 know that the petitioner has been proceeded against ex-parte on

06.01.2009 and the ex-parte Award stood passed on 08.01.2009. Accordingly, the application dated 24.03.2009 for setting aside the order dated 06.01.2009, condonation of delay and stay of ex-parte Award dated

08.01.2009 was filed. The counsel contends that the absence of the Authorized Representative of the petitioner before the Labour Court on

06.01.2009 was neither intentional nor deliberate and he had taken due care and caution to request his colleague to appear on his behalf before the Labour Court. Unfortunately, Sh. Anil Kumar, Advocate, got late and was wrongly informed by the Reader of the Court that the case has been adjourned to 05.03.2009 for framing of issues. He contends that the absence being not intentional or deliberate and thereafter the application moved by the petitioner for setting aside the ex-parte Award and the ex- parte proceedings show the bona-fides of the petitioner and, therefore, the application for setting aside the ex-parte proceedings deserves to be allowed and the ex-parte Award deserves to be set aside. I have heard the counsel for the petitioner and have gone through the records of the case. The mistake on the part of the Authorized Representative or a party can be over-looked and excused on an occasion when the same is a bona-fide one. Once indulgence has been shown by this Court by setting aside the ex-parte Award dated 12.10.2006 passed by the Industrial Tribunal in a writ petition preferred by the petitioner i.e. CWP No. 8375 of 2007, the petitioner should have been much more careful, vigilant and cautious. When committing mistakes becomes a habit, the same cannot be condoned. The case was fixed for 06.01.2009 for evidence, on which date evidence of the workman was recorded and the petitioner was CWP No.1607 of 2010 4 proceeded against ex-parte. The case was adjourned to 08.01.2009, on which date again, neither the Authorized Representative nor the petitioner appeared before the Court and, therefore, the Court had no option but to proceed and decide the matter leading to the passing of the ex-parte Award for the second time against the petitioner. The contention of the petitioner that the Authorized Representative of the petitioner had requested a colleague of his Sh. Anil Kumar, Advocate, to appear on his behalf before the Court and he was informed of a wrong date, does not appear to be correct. If this factual aspect was to be pressed before the Labour Court, the affidavit of Sh. Anil Kumar, Advocate, could have been filed before the Labour Court or at least the case diary of the Authorized Representative could have been produced in support of the contentions. Both these things were not produced before the Labour Court, even in the present writ petition, affidavit of Sh. Anil Kumar, Advocate, has not been attached in support of the assertion, as has been made by the petitioner in its application before the Labour Court for setting aside the ex-parte proceedings and the ex-parte Award. An extract of the case diary, as maintained by the Authorized Representative of the petitioner, has been appended as Annexure P-5 to the writ petition.

05.03.2009, which is the date which the petitioner alleges is the date which was recorded by the Authorized Representative as was informed by Sh. Anil Kumar, Advocate, who had appeared on his behalf although late before the Labour Court on 06.01.2009 shows the case to be fixed for framing of issues and strangely enough, the previous date of the case has been mentioned as 08.01.2009 whereas the contention of the petitioner is that the Authorized Representative of the petitioner was informed on

06.01.2009 that the case stands adjourned to 05.03.2009. The extract of CWP No.1607 of 2010 5 the case diary dated 08.01.2009 also shows the entry of the case made in the diary and the previous date is mentioned as 06.01.2009. Strangely enough, the petitioner has not produced on record the extract of the diary of the Authorized Representative dated 06.01.2009 which would have been the most relevant page with regard to the assertion that the Authorized Representative was informed that the next date of hearing is 05.03.2009. The parties may try to mislead the Court but the documents prove them wrong. As in the present case, an effort has been made by the petitioner to mislead this court and has suppressed the material documents from the Court. The page of the case diary of the Authorized Representative showing the cases fixed for 06.01.2009 have not been produced. Extract of page of case diary dated 08.01.2009 shows the last date of hearing before the Labour Court as 06.01.2009 and also shows the case having been dismissed in default in the next date column. Extract of the page of the case diary dated 05.03.2009 entry shows the last date of hearing as 08.01.2009 which clearly shows the manipulation done by the petitioner. The contention, therefore, made by the counsel for the petitioner cannot be sustained. It appears that the effort has been deliberately made on the part of the Management to delay the proceedings before the Labour Court with an intention to deprive the workman of his justified and legal rights as conferred on him by the Statute. The orders passed by the Labour Court which have been impugned herein are in accordance with law and do not call for any interference by this Court in exercise of its writ jurisdiction. Finding no merit in the present petition, the same stands dismissed. February 01, 2010 ( AUGUSTINE GEORGE MASIH ) JUDGE