ORDER
A.M. Sapre, J.
1. Having heard the learned Counsel for the parties and having perused the record of the case. I am inclined to allow this writ and while quashing the order dated 1-2-2001 (Annexure P-13), as also dated 21-8-1996 (Annexure P-9), passed by Labour Court, Indore, remand the case to Labour Court for deciding the same on merits.
2. Facts of the case lie in a narrow compass. An Industrial Reference under Section 10 of the Industrial Dispute Act was made at the instance of respondent No. 2 to Labour Court, Indore for deciding the legality and validity of termination order of respondent No. 2. It was seized of by the Labour Court as Case No. 4/ID/Ref./94. Notice of this reference was sent to petitioner as also to respondent No. 2. The respondent No. 2 appeared but petitioner did not and hence Labour Court proceeded to decide the reference on merits by placing petitioner ex parte treating them to have been served. Eventually an award was passed on 21-8-1996 (Annexure P-9) directing reinstatement of respondent No. 2 in service with consequential benefits. The petitioner on coming to know of passing of an ex parte award then made an application for setting aside of an ex parte award by invoking the provisions of Order 9 Rule 13, CPC contending inter alia that there was no service to the petitioner much less proper or/and otherwise and that in any event, the petitioner never refused to accept the summons. It is essentially on this ground that the petitioner prayed for setting aside of an ex parte award. It was denied by respondent No 2. The Labour Court by impugned order dated 1-2-2001 (Annexure P-13) dismissed the application and refused to set aside the award giving rise to filing of this writ.
3. In my opinion, a case for setting aside of an exparte award, dated 21-8-1996 (Annexure P-9) is made out. I have perused the original record of the Labour Court called for this case with a view to find out whether endorsement of refusal alleged to made by petitioner and relied on by the respondent No. 2 and which found favour to Labour Court is proper or not. I, however, find it to be not. In other words, it does not appear when one peruse the alleged refusal that petitioner made any attempt to avoid the service. The respondent No. 2 did not examine any Postman to get the noting of “refusal” proved in accordance with the law of evidence. There was, therefore, no proof or/and evidence to hold that petitioner at any time or on any date refused to accept the summons when tendered to them. This has undoubtedly caused prejudice to them as they were prevented from appearing in reference proceedings and contest the case of respondent by defending the termination order impugned in the reference. Accordingly, a case for setting aside of an award is made out.
4. As a consequence of aforesaid discussion, the petition succeeds and is allowed. Impugned order dated 1-2-2001 (Annexure P-13), passed in case No. 92 of 1998/Misc./96 as also award dated 21-8-1996 (Annexure P-9), passed by Labour Court in case No. 4/ID Ref./94 are quashed by issuance of writ of certiorari.
5. The case, i.e., case No. 4/ID Ref./94 is remanded to Labour Court, Indore for being decided on merits after granting opportunity to the petitioner to file the statement on facts/law in answer to statement filed by the respondent No. 2. The petitioner will also deposit a cost of Rs. 5,000/- as a condition precedent for getting an indulgence to participate in proceeding before Labour Court. The Labour Court will ensure disposal of reference within three months. It is also made clear that petitioner will get an opportunity to cross-examine the respondent No. 2 as also lead their own witnesses who will be cross-examined by the respondent No. 2. In addition, if the respondent No. 2 wish to lead any more evidence, he is free to do so. Parties to appear before Labour Court, Indore on 23-9-2002. Record of the case be sent back to Labour Court forthwith.
C.C. within three days.