Radhey Shyam Tiwari … v. State of U.P. Thru. Prin. Secy on 21 Nov 2025 — Misc. Case No. 17 of 2024

Judgment

1. Heard Sri Kirti Kar Tripathi, the learned counsel for the petitioner, Sri Hari Om Singh, the learned State Counsel and Sri Nischal Jagdhari, the learned counsel appearing on behalf of the opposite party no.3.

2. By means of the instant petition filed under Article 226 of the Constitution of India the petitioner has challenged the validity of an order dated 09.10.2025, passed by the Presiding Officer, Industrial Tribunal-II, U.P. Lucknow in Misc. Case No.17 of 2024, arising out of Adjudication Case No.34 of 2013, whereby the recall/review application filed by the opposite party no.3 has been allowed.

3. The petitioner had raised an industrial dispute regarding his removal from his service on the post of Driver by means of an order dated 14.05.2012, which was referred by means of an order dated 2 WRIC No. - 11222 of 2025

25.10.2013. The opposite party no.3/employer filed objections and both

the parties led evidence in support of their respective claims/defense but the employer did not appear at the time of advancing submissions before the Labour Court and the Labour Court passed an award dated

11.01.2022.

4. On 12.07.2022 the employer filed an application for recall/review of the ex-parte award dated 16.06.2022 stating that although the employer has participated in the proceedings before the Industrial Tribunal for nine long years, it could not appear on the date fixed for hearing submissions due to inadvertent error by its authorized representative in noting date of hearing. This review/recall application was rejected by means of an order dated 06.05.2024, wherein the Industrial Tribunal formulated following three issues: “i. whether the Tribunal had power to review its order; ii. whether the award dated 11.01.2022 was an ex-parte award; and iii. what was the conduct of the employer during pendency of the proceedings for eight years and whether the employer was granted sufficient opportunity to place its version.”

5. The Tribunal held that it had no power to review its order that the award dated 11.01.2022 was not an ex-parte award and that the employer was guilty of causing delay in disposal of the proceedings which continued for eight years and that it had been granted sufficient opportunity to present its case. The employer filed another application for review/recall of the orders dated 06.05.2024 and an ex-parte award dated 11.01.2022 which has been allowed by means of the impugned order dated 09.10.2025.

6. The learned Tribunal has held that the employer's contention is that the impugned order was passed during the period when the country was going through the Covid-19 pandemic. The authorized representative of the employer had not informed the correct date of 3 WRIC No. - 11222 of 2025 hearing to him and now he has provided a photocopy of a diary which shows wrong recording of date of hearing.

7. While the court had dictated the order up to this stage, the learned counsel for the petitioner started arguing again and he provided photocopies of four judgements without providing any index and without mentioning the relevant paragraphs of each judgment. The learned counsel for the opposite party no.3 has also provided copy of a judgement running into 30 pages and he could not point out the relevant paragraphs of the judgement. In these circumstances, the court is left with no option except to complete dictation of the remaining part of the judgement in chamber after going through all the judgements so as to prevent wastage of judicial time of the court which is to be utilised for other litigants. The remaining part of dictation will continue in chamber. (In Chamber)

8. The learned counsel for the petitioner has submitted that an employee of opposite party no.3 was present on 11.10.2021 and therefore, the contention that the authorized representative of the opposite party no.3 had wrongly noted the next date on 11.10.2021 is factually incorrect as an employee of opposite party no.3 was also present to note the date.

9. The learned counsel for the opposite party no.3 submitted that as the proceedings have been decided without hearing submissions of the learned counsel for the opposite party no.3/employer, the version of opposite party no.3 has not been considered, which has occasioned a failure of justice to the employer/opposite party no.3. He has submitted that by means of the impugned order the Industrial Tribunal has recalled the ex-parte award dated 11.01.2022 and has ordered the case to be decided afresh after hearing submissions of the learned counsel for the parties. In these circumstances, when the case is to be decided on its merits, the impugned order does not cause any prejudice to the 4 WRIC No. - 11222 of 2025 petitioner, who would get an opportunity to present his case before the tribunal and there is no apprehension of failure of justice being caused by the impugned order.

10. The learned counsel for the petitioner has placed reliance on a judgment in the case of Subrata Guha Sarkar and others Vs. Second Labour Court and Others: (1995) SCC OnLine Calcutta 424 wherein the question for determination was whether a Labour Court in a computation case has the inherent power to review its own reviewed judgment after a lapse of 277 days. In the said case, the tribunal had passed its award on 19.06.1987, which was published on 02.08.1987. On

15.10.1987, the workman filed a computation case for recovery of the dues. The employer appeared but did not file any objection. He filed a petition under Article 227 of the Constitution of India challenging the award, suppressing the material fact that a computation case had already been filed, in which it had put in an appearance. Thereafter the employer did not appear in the computation case and the petition under Article 227 was also dismissed with costs on 20.12.1988. On 18.04.1990, the employer moved an application before the Labour Court seeking time to bring a stay order from the Supreme Court whereupon the next date was fixed as 15.05.1990. On the said date, the matter was adjourned to 26.06.1990, which was shifted to 08.08.1990, as the employer was absent on call. The Labour Court heard the case ex- parte on 08.08.1990 and reported the matter in the daily cause list for delivery of judgment on 24.08.1990, which was shifted to 06.09.1990. The judgment was pronounced on 06.09.1990. On 04.12.1990, the employer filed an application for review/recall of the order dated

06.09.1990, which was rejected by means of an order dated 07.05.1991. On 10.06.1991, the employer filed the second review application for recalling the order dated 06.09.1990, annexing therewith certain documents relating to the service record of the employee. A single judge bench of the Calcutta High Court held that after the computation case was filed and the Labour Court had issued a notice thereon and the 5 WRIC No. - 11222 of 2025 employer had appeared in response to the notice and had not filed any objection, instead he moved a petition under Article 227 challenging the award passed long back, suppressing the material fact that the computation case had already been filed and appearance had already been made on its behalf; the petition under Article 227 was dismissed and the award had attained finality. The computation case was fixed for hearing several times but the employee remained absent and ultimately the hearing was concluded and the matter was posted for judgment on two successive dates but the employer did not come forward to contend that they had been prevented by sufficient cause from appearing on the date fixed for hearing and an order was passed in the computation case; thereafter the first review application was rejected and then the second review application was filed and the employee contested the case for his lifetime and thereafter, his heirs were contesting the same for the last 19 years, having considered the facts and circumstances of the case the court was of the view that the second application was not maintainable, particularly when the first review application had been disposed of on contest after hearing both the parties. In the peculiar circumstances of the case, entertainment of the second review application after a lapse of 277 days was clearly designed to impede, thwart, and frustrate the course of justice and was not sustainable.

11. It is a judgment rendered keeping in view the peculiar facts and circumstances of the case which were different from the present case and it does not lay down any law of universal application.

12. The next judgment relied upon by the learned counsel for the petitioner is Commissioner of Income Tax Vs. Singhal Industrial Corporation: 2005 SCC OnLine Allahabad 1891 in which the following two questions had been referred by the Income Tax Appellate Tribunal under Section 256(2) of the Income Tax Act for the opinion of the High Court: 6 WRIC No. - 11222 of 2025 “(1) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in disapproving the Assessing Officer's action in making an addition of Rs. 89,000/- (should be Rs.89,500/-) on account of income from undisclosed sources within the meaning of Section 68 of the Income Tax Act, 1961? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that no separate addition under the head "Income from undisclosed sources" within the meaning of Section 68 of the Income Tax Act, 1961, is called for?”

13. The aforesaid questions are not relevant for deciding the present case and, therefore, the judgment cited by the learned counsel for the petitioner is also absolutely irrelevant.

14. The third judgment relied upon by the learned counsel for the petitioner was rendered in the case of Ajai Narain Agarwal Vs. Additional District Magistrate (City) Allahabad and Others: (2017) SCC OnLine Allahabad 3983, which writ petition was filed challenging the validity of an order passed by ADM City, recalling its earlier order cancelling the registration granted to the opposite party no.3 under the Sarais Act, 1867 wherein a Division Bench of this Court held that unless the statute permits a review application, the same is not maintainable.

15. The learned counsel for the petitioner has also placed reliance on a judgment rendered by a Division Bench of this Court in the case of Union Bank of India Vs. Additional District Magistrate, Meerut and 2 others: (2023) SCC OnLine Alld.1118, wherein the scope of review and the question of maintainability of a second review application was dealt with by the Division Bench of this Court. In the aforesaid case, a second review application was filed by the petitioner against the order of the High Court dated 19.04.2021 passed in a writ petition, rejecting an application filed by the petitioner under Section 14 SARFAESI seeking physical possession of the property on the ground of availability of statutory alternative remedy to the petitioner under Section 17 of SARFAESI Act, 2002. The Court after elaborating on the scope of review under Order 47 Rule 1 of the Code of Civil Procedure held that 7 WRIC No. - 11222 of 2025 all the grounds taken in the review application were available to the petitioner at the time of arguing the writ petition, therefore, the review application fell outside the ambit of Order 47 Rule 1 of the Code of Civil Procedure. The Court observed that there is no error apparent on the face of record to review in the guise of exercising powers of review, the Court can correct the mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in the matter. Regarding the maintainability of a second review application against the original judgement, the Division Bench held that a second review on the same grounds was not maintainable.

16. The facts of the aforesaid case are distinct from the facts of the present case since in the present case recall of an order on the ground that a party or his authorized representative could not appear before the tribunal which does not amount a review of the order.

17. In the case of M/s Haryana Suraj Malting Ltd. Vs. Phool Chand: (2018) 16 SCC 567, the Hon’ble Supreme Court held as follows: - “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 [Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 : 1981 SCC (L&S) 309] , an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law. 8 * * * WRIC No. - 11222 of 2025

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..."

18. When the Hon’ble Supreme Court has held in M/s Haryana Suraj Malting (Supra) that a review application would be maintainable before a Labour Court, the judgments of Calcutta High Court and Allahabad High Court cited by the learned counsel for the petitioner are of no avail to him.

19. The learned counsel for the petitioner has assailed the impugned order dated 09.10.2025 even on merits and he has submitted that the ground taken for recall of order that the authorized representative of the employer had wrongly noted the date is incorrect as an employee of the officer was also present. The employer is a juristic person who acts through natural persons in case some natural person acting for the employer has committed an error and the employer is able to make out a case, the court should be liberal in examining the case set up by the employer when it would advance the cause of justice by providing an opportunity to both the parties to present their respective case before a final decision is given in the matter.

20. The first recall application was dismissed by holding that the Industrial Tribunal has no power to review its order, whereas the recall of an order on the ground that a party or his authorized representative could not appear before the tribunal, would not amount a review of the 9 WRIC No. - 11222 of 2025 order. The Tribunal had wrongly held that the order was not an ex-parte order as an order passed in absence of a party and without hearing submissions advanced on its behalf is an ex-parte order. At the first instance the Tribunal had rejected the application as not maintainable as it had no jurisdiction. When the tribunal had formed a view that it had no jurisdiction to entertain the application, even though erroneously, it ought not to have proceeded to decided any point. The observation made by the tribunal regarding the employer’s conduct during the past eight years was also irrelevant as for deciding an application for recall the court should examine as to whether the party has been able to make out a sufficient cause for his absence when the case was proceeded/decided ex-parte and in case the party makes out a sufficient cause for his absence on that date the application would not be rejected merely on considerations of its past conduct.

21. While deciding the second review application the tribunal has held that it had erroneously rejected the first review application without proper appreciation of all the points and has accordingly recalled the order dated 06.05.2024 rejecting the review application as also the ex- parte award dated 11.01.2022 and has given opportunity to the parties to advance submissions in support of their respective case. The order passed by the Industrial Tribunal would advance the interests of justice and it would not cause any injustice to any of the parties warranting interference by this court.

22. The learned counsel for the petitioner has orally submitted that the employer is exercising influence upon the Presiding Officer of the Tribunal, but no such plea has been taken in the petition and no complaint in this regard had been made by the petitioner at any stage before any person/authority. The allegation that a court or a tribunal is acting under influence of a litigant is a serious allegation and such an allegation should not be lightly made. Oral submissions must be confined to the material that is available on record. In absence of this allegation having been made in the pleadings the court cannot entertain 10 WRIC No. - 11222 of 2025 the bald allegation regarding the industrial tribunal acting under the influence of the opposite party no.3/employer.

23. In view of the foregoing discussions this court is of the considered view that the Industrial Tribunal has not committed any such error or illegality in setting aside the ex-parte award dated 11.01.2012 and fixing a date for hearing submissions of the parties as may warrant any interference by this court in exercise of its extraordinary, discretionary writ jurisdiction. The writ petition lacks merit, and the same is accordingly dismissed. November 21, 2025 Ram. (Subhash Vidyarthi J.) RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench