1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
Sarpanch, Gram Panchayat, Balana
Tehsil Bali District Pali
Versus
Moola Ram & Others.
D.B. SPECIAL APPEAL (WRIT) NO.07817/2009
Date of Order :: 29th September 2010
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR.JUSTICE C.M.TOTLA
Mr.Girish Sankhla, for the appellant.
....
BY THE COURT: (Per Dinesh Maheshwari,J.)
This intra-court appeal is directed against the order
dated 09.02.2007 passed in S. B. Civil Writ Petition No.
459/2007 whereby the learned Single Judge of this Court has
dismissed the writ petition preferred by the petitioner-appellant
against the order dated 12.09.2006 whereby the Labour Court,
Jodhpur refused to set aside the ex parte award dated
12.11.2002.
This appeal, filed only on 07.09.2009, is reported to be
barred by limitation by 881 days and the appellant has moved
an application seeking condonation of delay.
Briefly put, the relevant facts and background aspects of
the matter are that upon the respondent No.1 Moola Ram
raising an industrial dispute on the allegations that he was
appointed in the month of January 1982 under the Gram
2
Panchayat, Balana as driver of engine and electric motor but
his services were terminated on 01.03.1996, the Government
made a reference to the Labour Court, Jodhpur on the
question of validity of such termination of services. The
present appellant chose not to appear before the Labour Court
despite service; and on 12.11.2002, the Labour Court
proceeded to make the award ex parte in favour of the
respondent No.1. The Labour Court held the questioned
termination illegal and further held the respondent-workman
entitled for reinstatement with continuity of services and with
40% back-wages from the date of reference. The award so
made by the Labour Court, Jodhpur came to be published by
the Government of Rajasthan on 13.02.2003.
Thereafter, on 19.08.2004, the appellant moved an
application under Rule 22-A of the Rajasthan Industrial
Dispute Rules, 1958 for setting aside the ex parte award on
the ground that the notices were not properly served. The
appellant also moved an application for condonation of delay
with the submissions that the fact of making the award came
to the knowledge only when the respondent-workman moved
the application seeking benefits thereunder; and that the delay
was caused in the process of the taking instructions from
higher authorities. By its order dated 12.09.2006, the Labour
Court rejected the application so moved by the appellant for
setting aside the award while observing that the application
had been moved after 30 days from the date of publication of
the award; and the applicant failed to show proper reasons for
condonation of delay. The Labour Court also observed that in
3
view of Section 17-A of the Industrial Disputes Act, 1947, on
the expiry of 30 days from the date of publication, the award
becomes enforceable and thereafter the Labour Court
becomes functus officio; and in this regard, referred to the
decision of the Hon’ble Supreme Court rendered in the case of
Sangham Tape Co. Vs. Hans Raj [2004(3) LLJ 1141 = (2005)9
SCC 331].
The appellant preferred the writ petition [CWP No.
459/2007] wherefrom has arisen this appeal, seeking to
challenge the aforesaid order dated 12.09.2006 and the
related award dated 12.11.2002. The learned Single Judge of
this Court proceeded to dismiss the writ petition by the
impugned order dated 09.02.2007 with the observations that
the employer had the opportunity to contest the matter as the
notices had been served; and that there was no reason to
interfere in view of the decision of the Hon’ble Supreme Court
in the case of Sangham Tape Co. (supra).
Seeking to challenge the order so passed by the learned
Single Judge, the employer has preferred this intra-court
appeal.
It is contended in the appeal that the Labour Court and
the learned Single Judge have erred in dismissing the
application for setting aside the ex parte award on the ground
that the award has become enforceable and the Labour Court
was functus officio after 30 days of publication of award. The
appellant relies on a decision of the Hon’ble Supreme Court
rendered in the case of Radhakrishna Mani Tripathi Vs.
L.H.Patel & Anr.: (2009) 1 SCC (L&S) 358. As noticed, this
4
belatedly filed appeal is barred by 881 days. An application
seeking condonation of delay in filing the appeal has been
moved by the appellant, the contents whereof are reproduced
verbatim hereunder:-
“The humble appellant most respectfully
submits as under:
01- That, the present appeal is being submitted
on the strong facts and grounds in which fully hope
to be succeed.
02- That, the averment made in present appeal
may kindly be treated part and parcel of the present
application for condonation of delay.
03- That, the present appeal is being submitted
delay because of the Gram Panchayat-appellant
had sought permission from Panchayat Raj.
Department and due to administrative process it
has caused for delay.
04- That, the respondent- workman has filed a
writ petition-bearing no. as 6155/07 Moola Ram V/s
B.D.O.Panchayat Samiti’s & Ors. and the Hon’ble
Court vide their order dtd.13.07.2009 disposed the
writ petition with a direction to the appellant-
employer to make full compliance of the award and
it is also directed that appellant-employer can
obtain all necessary order from wherever, they are
required. In the present case, the present appellant
has sent letters, number of times to the higher
authority, but due to not provided the permission,
and the delay has been occurred. Hence, the
present appeal deserves to be condoned its delay.
05- That, the present appeal involves a
substantial question of law that whether the ex-
party award can be set-aside after its publication. If,
the delay is not Condon in filing the present appeal,
than, it will be cause for irreparable loss to the
appellant.
It is therefore, prayed that application for
condonation for delay may kindly be allowed and
the present appeal may kindly be heard on merit.”
While relying on the decision in Radhakrishna Mani
Tripathi’s case (supra), learned counsel for the appellant
strenuously argued that the appellant has a strong case on
merits and the delay deserves to be condoned for having been
caused due to administrative process.
5
After having heard the learned counsel for the appellant
and having perused the material placed on record, we are
unable to find any cause what to say of a sufficient one to
condone the inordinate delay in filing this appeal.
Even when ordinarily a matter is preferred to be decided
on merits and a slight bona fide cause is taken sufficient, it
cannot be assumed yet that the law of limitation has been
rendered totally redundant. Apart that the delay of more than
2 years in filing this appeal remains unexplained, the cause, in
whatever form stated in the application, shows that the
appellant has not been prosecuting its case bona fide.
Reference has been made in the application to an order dated
13.07.2009 as passed in CWP No.6155/2007. Having regard
to the circumstances, we have requisitioned the record of
CWP No.6155/2007 and find that the said writ petition was
filed by the present respondent No.1 Moola Ram with the
submissions that though reinstated with effect from
22.01.2004, he had not been granted the other benefits under
the award. The facts regarding making of the award,
rejection of the application for setting aside the award, and
dismissal of the writ petition of the employer were all stated in
the writ petition so filed by the workman and such facts were
not disputed by the present appellant in the reply filed in the
said writ petition on 13.02.2008. The award having attained
finality was a fact not even disputed before the learned Single
Judge in the said writ petition (CWP No.6155/2007) that was
decided on 13.07.2009.
6
It is thus clear from the record of CWP No.6155/2007
that the appellant was all through aware of the order dated
09.02.2007, sought to be impugned in this appeal. It is
beyond comprehension that the appellant yet chose not to
take requisite steps for filing the appeal against the order
dated 09.02.2007 at the relevant time and even while
contesting the writ petition filed by the workman. The cursory
suggestions about “administrative process” as made in the
application for condonation are not only incomplete but turn
out to be more of pretension rather than of any reasonable
cause. It is also not clear as to who was to grant permission
for filing of the appeal to the appellant and as to how the so-
called “administrative process” could take over 2 years time?
The delay in filing the present appeal being unreasonable and
inordinate without a sufficient cause therefor, no case is made
out for condonation.
In the aforesaid view of the matter, we do not propose
to deal with the contentions sought to be urged in the appeal
but in that regard too, it cannot be lost sight of that the learned
Labour Court has recorded the specific finding about want of
sufficient cause for condonation of delay in filing the
application for setting aside ex parte award.
Put in a nutshell, the scenario is that the appellant did
not appear before the Labour Court despite
service and hence, ex parte award was made on
12.11.2002; the award was published on 13.02.2003 whereas
the application for setting it aside was filed only on
19.08.2004; and in the meantime, the workman was reinstated
7
on 22.01.2004. Then, the application for setting aside ex
parte award was rejected on 12.09.2006 and the writ petition
filed against the same was also dismissed on 09.02.2007. On
the other hand, the workman preferred the writ petition
seeking all the reliefs under the award and referred to the fact
of dismissal of writ petition filed by the appellant. The
appellant did not dispute this fact and suffered the order dated
13.07.2009 in the said writ petition filed by the workman. An
attempt thereafter to assail the order dated 09.02.2007 by
filing this appeal on 07.09.2009 could only be considered
lacking in bona fide; and cannot be countenanced.
In an overall view of the matter, we find no reason to
entertain this grossly belated appeal. The application for
condonation of delay stands rejected and the appeal stands
dismissed.
(C.M.TOTLA),J. (DINESH MAHESHWARI),J.
s.soni
8
