JUDGMENT
1. By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging legality of order dated 2nd September, 1989 passed by the Presiding Officer, 5th Labour Court, Bombay, rejecting the application filed by the workman under Rule 26 of the Industrial Disputes Rules. The facts giving rise to passing of the order are not in dispute and are required to be briefly stated to appreciate the grievance of the petitioner.
2. The petitioner sought reference from Government of Maharashtra seeking reinstatement in service and back wages from Respondent No. 1. The Government made reference No. 488 of 1987 to the Labour Court. The Labour Court had fixed 3rd December 1987 as the date for filing statement of claim. The next relevant date is 26th April 1988. The matter came before the Labour Court on 27th April, 1988 and on that day neither the petitioner nor his advocate were present. Consequently the Labour Court dismissed the reference. The petitioner claims that he had instructed his advocate to file statement of claim and had also informed that he would not remain present on 27th April 1988 due to his aliment. The petitioner claims that he became aware of the order passed by the Labour Court on 28th April 1988, but his advocate advised him that application for setting aside the order need not be filed till the award is published in the Government Gazette. The award was published sometime in August, 1988 and thereafter application under Rule 26 of the Industrial Dispute Rules was filed on 2nd September 1988 before the Labour Court.
3. The Labour Court rejected the application holding that it was barred by law of limitation having been filed beyond the period of 30 days from the date of dismissal of the reference. The Labour Court also held on merits that there was no sufficient ground for condoning the delay and the Labour Court was not impressed with the reason given by the workman for his absence. The order of the Labour Court is under challenge.
4. Sri Puri, learned counsel appearing on behalf of the petitioner, submitted that the Labour Court has taken very strict view of the matter and has deprived the workman from an opportunity to plead his case on merits. Shri Puri submitted that the petitioner was improperly advised to wait to file the application till the award is published and that has caused grave hardship. The learned counsel also urged that though there are some laches on the part of the petitioner, the penalty imposed is entirely disproportionate. On the other hand the learned counsel for respondent No. 1 submitted that the order of the Labour Court is perfectly justified and is not required to be disturbed. The learned counsel also urged that once the award is published in the Government Gazette the Labour Court is ceased of its jurisdiction over the matter and, therefore the application filed under Rule 26 was not competent.
5. In my judgment it is not necessary to determine in the present proceedings whether application under Rule 26 for setting aside the award was competent or otherwise. It is open for this Court in exercise of powers under Articles 226 and 227 of the Constitution to set aside the award published in the Government Gazette and restore the proceedings to file. It is undoubtedly true that the application was filed beyond the prescribed period of limitation, but taking into consideration the fact that the petitioner is a small employee drawing negligible wages, it would not be in the fitness of things to deny him an opportunity to be heard on merits before the Labour Court. It is undoubtedly true that advice given to the petitioner to wait till the award was published was wholly incorrect, but the petitioner need not be punished for what his advocate erroneously advised him. Taking into consideration all the facts and circumstances of the case, in my judgment it is necessary to set aside the order passed by the Presiding Officer and restore the proceedings to the file of the 5th Labour Court and directing the Labour Court to dispose of the reference on merits.
6. Accordingly, petition succeeds and rule is made absolute and the impugned order dated 2nd September 1989 is set aside and so also the award declared and published by the Government of Maharashtra on 22nd August or 23, 1988. The reference No. 488 of 1987 is restored to file of 5th Labour Court, Bombay and the Presiding Officer in directed to dispose of the reference on merits. The Labour Court will proceed with the reference from the stage which it had reached before dismissal. It is made clear that the claim of respondent No. 1 that the Petitioner was not a workman is not determined in the present petition. There will be no order as to costs.