Madhya Pradesh High Court
President Bhopal Eye Hospital Trust vs Anil Yadav on 6 March, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:41286
1 MP-4914-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 6 th OF MARCH, 2025
MISC. PETITION No. 4914 of 2018
PRESIDENT BHOPAL EYE HOSPITAL TRUST
Versus
ANIL YADAV
Appearance:
Shri Harish Chand Kohli - Advocate for petitioner.
Shri Swapnil Khare - Advocate for respondent.
ORDER
This petition is filed assailing the orders dated 30.05.2016 (Annexure P/3) and 13.07.2018 (Annexure P/2) passed by the Presiding Officer, Labour Court, Bhopal.
2. It is the case of the petitioner that Bhopal Eye Hospital is a trust registered under the Trust Act and provide services without any profit and is carrying different works of charity. A notice from the Labour Court dated 03.06.2016 was received by the management of the petitioner's establishment in which it was mentioned that in the case of Anil Yadav, some order is passed on 30.05.2016 and for pronouncement of the award the date was shown as 30.06.2016. Therefore, manager Vinod Khatri do appear before the Court but on the said date the Presiding Officer was on leave and the case was adjourned for 15.07.2016. On 15.07.2016, Manager Vinod Khatri from the hospital appeared and an ex-parte award was pronounced on the same day. After knowing about the ex-parte award against the Hospital, the management was shocked to see that the management was proceeded ex-parte despite of the fact that the management Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 29-08-2025 18:00:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:41286 2 MP-4914-2018 engaged a counsel, who never informed regarding any proceedings which took place before the labour Court.
3. It is the case of the petitioner that a duly engaged advocate used to tell them that the case is going on and legal objection with respect to jurisdiction has been raised before the Court. The management will be intimated about the progress of the case after decision on the aforesaid application of jurisdiction and maintainability of the case. Thereafter, after obtaining the certified copy of the award, they have filed an application for setting aside the ex-parte award on the ground that their advocate had never informed them regarding progress in the case as well as the fact that they were declared ex-parte. It is their case that Shri Anil Yadav/respondent was engaged a daily rated employee and he was guilty of serious misconduct and due to various activities done by him, the management lost confidence in him and decided to terminate his services with immediate effect. Accordingly, an order dated 30.03.2011 was passed by the Secretary and Treasurer of the Bhopal Eye Hospital mentioning serious misconduct of the employee. A detailed enquiry was conducted and the Registrar, Public Trust vide order dated 09.03.2011 found that the allegations levied against the Bhopal Eye Hospital were false and frivolous and the complaint made by Anil Yadav/employee was rejected. It is also their case that the employee used to sent the patient to other opticians by misrepresenting the patient and he also used to work on optical shop. It is argued that once they engaged a lawyer to contest the case on their behalf, they cannot be penalized on the fault on the part of the advocate concerned. Placing reliance upon the judgment passed by the Hon'ble Supreme Court in the case of M/S. Haryana Suraj Malting Ltd. vs Phool Chand reported in AIR 2018 SC 2670, it is argued that they have filed an Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 29-08-2025 18:00:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:41286 3 MP-4914-2018 application regarding the maintainability of the case and jurisdiction of the labour court on 12.10.2012, however, thereafter, they were proceeded ex-parte as the counsel has chosen not to appear or file any document in support of their case. Therefore, the labour Court should have considered the application for setting aside ex-parte award and to rehear the case on merits. However, the said application was rejected. Being aggrieved by the same, this petition has been filed.
4. Learned counsel appearing for the respondent has supported the impugned award and has argued that he was not at fault at any point of time and the learned labour court has considered all the aspects of the matter and has passed the award, which is required to be complied with. There is a specific order of the labour Court that the management or their counsel has chosen not to appear before the labour court for a long period of three years, which goes to show their negligence.
5. However, the fact remains that once the management have engaged a counsel, he was supposed to appear before the Court. It was duty of the counsel to appear before the Court and update regarding the progress of the matter, which is not being done in the present case. An application for setting aside the ex-parte award was filed within 30 days after receipt of a copy of the award. Therefore, the same could be treated as within limitation.
6. The Hon'ble Supreme Court in the case of M/S. Haryana Suraj Malting Ltd. vs Phool Chand reported in AIR 2018 SC 2670 has held as under:
"32. 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 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 29-08-2025 18:00:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:41286 4 MP-4914-2018 Court/Tribunal.
33. 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.
35. 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 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."
7. The Hon'ble Supreme Court in the case of Rafiq & another vs Munshilal & Another reported in AIR 1981 SC 1400 has held as under:-
"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 29-08-2025 18:00:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:41286 5 MP-4914-2018 dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
8. Considering the facts and circumstances of the case and applying the law laid down by the Hon'ble Supreme Court in the aforesaid case, the application for setting aside the ex-parte award is allowed. The award dated 30.05.2016 passed by the labour Court is set aside. The matter is remanded back to the labour Court for reconsideration the case on merits after granting opportunity to the management to lead their evidence.
9. With the aforesaid observations, the writ petition stands allowed. No order as to costs.
(VISHAL MISHRA) JUDGE sj Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 29-08-2025 18:00:29