Allahabad High Court
Ganesh Flour Mills Co. Ltd. vs M. Ahsan, P.O., Labour Court Iv And Ors. on 3 July, 1996
Equivalent citations: [1996(74)FLR2691], (1997)IILLJ558ALL, (1996)3UPLBEC2153
JUDGMENT A.B. Srivastava, J.
1. Two main grounds upon which this writ petition was founded are that the Respondent No. I the Presiding Officer of the Labour Court IV, U.P. Kanpur was under law not eligible to be appointed to the said post and secondly that the award in favour of the Respondent No. 2, the workman, was rendered ex-pane and recall application having been filed by the petitioner employer within the time prescribed and there being sufficient cause, the ex-parte award deserved to be set aside. As far as the ground relating to the appointment of the Presiding Officer being null and void and consequently the proceedings also liable to be quashed is concerned, this question was decided as preliminary issue on April 6, 1933 and Hon'ble Mr. Justice S.D. Agarwala for reasons given in Civil Misc. Writ Petition No. 14416 of 1981 decided on the same date held the appointment to be valid in law.
2. Now there remains the question with regard to the validity or otherwise of the order passed by the Labour Court, rejecting the application of the petitioner for setting aside the award under Rule 16 of the U.P. Industrial Disputes Rules, 1957. Under the said Rule, an ex-pane award can be set aside on an application moved within ten days of the under on showing sufficient cause for absence.
3. In the instant case, August 11, 1981 was the date fixed for hearing on which date admittedly no one appeared on behalf of the employer and the evidence of the workman having al-
ready concluded, the proceeding was closed by the Presiding Officer for rendering the award. The award was accordingly rendered on August 17, 1981 on the basis of the material on record, directing reinstatement with full benefits of the respondent workman. On August 18,1981 an application was moved under Rule 16 by the petitioner for setting aside the said award on the plea that one B.G. Hala, one of the authorised representatives of the petitioner under the direction of the Senior Advocate appearing on behalf of the petitioner, made an enquiry as to whether the Labour Court concerned will sit at Kanpur on August 11, 1981 or not. Shri Hala on enquiry from the Office of the Court learnt that the Court from August 10 to 12, 1981 will sit at Agra, as such on August 11, 1981 there will be no hearing, and he accordingly informed Senior Advocate Shri Anand Prakashi at Delhi. This was the reason for non-appearance of anyone to participate in the hearing on behalf of the petitioner on August 11,1981. On learning about the award having been rendered on August 17, 1981, the application for setting aside the same was moved the next day. The application was opposed by the other side. The Labour Court came to the conclusion that there was no proof of the fact that any information was sought by Shri B.G.Hala and was given on behalf of the Court that the Court would sit at Agra from August 10 to 12, 1981. It was futher observed that the petitioner had been given sufficient opportunity in the past also to lead evidence which he did not avail. It was specifically observed by the Presiding Officer that it was not acceptable that the Court was to remain away from Kanpur on August 10 and 11, 1981, rather a number of cases were fixed in the Kanpur Court on the said date, and the parties in those cases participated in the proceeding. With these conclusions, the application for the recall of the award was rejected.
4. It has been submitted by Shri. N.B. Singh appearing on behalf of the petitioner that the finding of the Labour Court regarding conten-tion of sitting of the Court at Agra on the con-cerned date being unacceptable, is not based on my reliable material and the rejection of the pe-titioner's contention is based merely on surmises. This contention however, does not have force.
5. Where a party seeks the setting aside of an award or order passed by Labour Court, availing provision of Rule 16 (2) of the U.P. Industrial Disputes Rules, 1957 burden is on such party to prove the cause for absence set up by it. Mere allegations cannot be a substitute to proof. In the instant case the petitioner did not indicate as from when and on what date and time, he had sought information regarding the Court remaining absent on August 11, 1981 from Agra. In the matter of court proceedings or sitting schedule, no party can be permitted to state on mere information or impression that the Court did not sit on a particular date or was scheduled to sit elsewhere. In the event of there being such a situation as contended by the petitioner, there would have been a written and publicized tour programme of the Presiding Judge. If there was such a programme and it was scheduled to sit at Agra, the petitioner would not have confined his evidence merely to oral information, rather would have summoned, or at least made a reference by affidavit, to such programme of sitting of the Court. In its absence there is no scope for the conclusion that the petitioner's contention were based on any reliable material. The observation of the Presiding Officer, thus could not be branded as mere surmise, and the rejection of the recall application does not suffer from error of jurisdiction or any other vice in law.
6. The writ petition being devoid of merit is accordingly dismissed. There shall be no order as to costs. Interim order is vacated.