Bundi Zila Petrol Pump Dealers Assn. vs Mazdoor Sangh

CIVIL APPEAL Nos.2784­2785 OF 2009

Bundi Zila Petrol Pump Dealers Association Bundi ….Appellant(s)

VERSUS

Sanyojak Bundi Zila Petrol Mazdoor Sangh(B.M.S.) ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. These appeals are directed against the final

judgment and order dated 21.11.2005 passed by

the High Court of Judicature for Rajasthan at

Jaipur Bench, Jaipur in D.B. Civil Special Appeal

No.449 of 1999 whereby the Division Bench of the Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.02.12 High Court allowed the appeal filed by the 17:14:11 IST Reason:

respondent herein and the order dated 10.04.2007

1 whereby the review petition filed by the appellant

herein was dismissed.

2. A few facts need mention hereinbelow in brief

to appreciate the controversy involved in these

appeals.

3. On 26.07.1989, the State Government made a

reference under Section 10(1) of the Industrial

Disputes Act, 1947 to the Industrial Tribunal, Kota

for deciding the following disputes which read as

under:

“Whether the demands raised in the demand letters by the Secretary, Zila Petrol Pump Mazdoor Sangh before the Manager, Maheshwari Automobiles Corporation, District Bundi, are just and valid? If yes, to what reliefs the workmen are entitled to?

DEMANDS

1. The difference between the amount which has been declared by the Government and the actual amount which has been paid by the Management, which has not been paid so far, be treated as deferred wages and paid to the workmen in the form of ex­gratia payment and this difference should be more than 20% of the salaries being received by the workmen;

2 2. All workmen should be given 15 days casual leaves in a year.

3. 11 holidays be given every year for National Holidays and other festivals.

Three times payment be paid to the workmen for work taken from them in the year 1986 on such holidays;

4. Workmen should be designated/defined accordingly to their nature of work, i.e., skilled, semi­skilled and un­skilled, so that they receive salary according to their category;

5. All the workmen be given annual salary increments;

6. All the workmen be given dearness allowance in accordance with price index;

7. All workmen be paid 10% of their pay towards rent allowance;

8. Free medicines be provided to all the workmen and prescribed medical allowance be given to them;

9. Provident Fund Scheme be prepared for the workmen and deductions be made accordingly;

10. Education Fee be given to workmen for studies of their children;

11. At least two cotton uniforms every year and one woolen uniform every two years be provided to all the workmen.”

4. By award dated 31.07.1995 (Annexure­P­2),

the Industrial Tribunal, Kota answered the

reference on merits in respondent's favour. It is,

however, not in dispute that the Industrial Tribunal

3 decided the reference ex parte against the appellant.

In Para 4 of the award, the Tribunal noted that the

appellant(respondent therein) did not appear

despite notice served on them and hence they are

proceeded ex parte.

5. The appellant, on coming to know of the

passing of the award, filed the writ petition in the

High Court of Rajasthan at Jaipur (W.P. No.

5294/1996. By order dated 10.09.1997, the Single

Judge allowed the writ petition and set aside the

award.

6. The respondent, therefore, felt aggrieved and

filed writ appeal (No.449/1999) before the Division

Bench of the High Court. By impugned order, the

Division Bench allowed the respondent's appeal and

set aside the order of the Single Judge. The

impugned order was passed in appellant’s absence

because none appeared for the appellant

(respondent in appeal) before the Division Bench

4 when the appeal was heard. Aggrieved by the said

order, the appellant filed the review petition, which

was dismissed by the Division Bench of the High

Court.

7. Against the orders passed by the High Court in

the writ appeal and the review petition, the

appellant has filed the present appeals by way of

special leave appeal in this Court.

8. Having heard the learned counsel for the

parties and on perusal of the record of the case

including the written submission filed on behalf of

respondent, we are inclined to allow the appeals, set

aside the impugned order and also set aside the ex

parte award of the Industrial Tribunal and remand

the case to the Industrial Tribunal for deciding the

reference on merits in accordance with law after

affording an opportunity to both the parties.

9. The reasons for remand are not far to seek.

First, it is not in dispute that the appellant did not

5 get any opportunity to contest the reference before

the Industrial Tribunal and had to suffer adverse

award ex parte; Second, the cause shown for their

absence before the Industrial Tribunal constitutes a

sufficient cause and entitles the appellant to claim

an opportunity to contest the reference on merits;

Third, we find that this is not a case where the

appellant appeared before the Tribunal and

thereafter stopped appearing and proceeded ex

parte. In other words, since inception, the appellant

did not get any opportunity to contest the matter

because they did not have any knowledge of the

proceedings; Fourth, every party to a lis has a right

to contest the case on merits, of course, subject to

certain well known exceptions provided in law.

However, so far as the appellant's case is concerned

no such exception is noticed, which may disentitle

them to contest the reference on merits; and lastly,

6 substantial justice demands that having regard to

the controversy, which is subject matter of

reference, both the parties to the lis are entitled for

an opportunity to contest the case on the merits.

10. It is for all these reasons set out above, we

allow the appeals, set aside the impugned order of

the Division Bench, the order of the Single Judge

and the award of the Industrial Tribunal and

remand the case to the Industrial Tribunal. The

appellant is granted an opportunity to file their

written statement in answer to the statement filed

by the respondent. Parties are also granted liberty

to amend their respective statements, file

documents, and lead oral evidence in support of

their case.

11. The Industrial Tribunal will decide the

reference within six months from the date of the

appearance of the parties in accordance with law

uninfluenced by any observations made by the High

7 Court in their respective orders and in this Court’s

order.

12. Parties to appear before the Industrial

Tribunal, Kota on 05.03.2019 and file a copy of this

order to enable the Tribunal to decide the matter as

directed above.

………...................................J. [ABHAY MANOHAR SAPRE]

………..................................J. [DINESH MAHESHWARI]

New Delhi;

February 12, 2019.

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