JUDGEMENT
G.S.SANDHAWALIA, J. -
(1.)CHALLENGE in the present writ petition is to the order dated 17.04.2013 (Annexure P -1) whereby, the Labour Court has declined to set aside the ex parte proceedings which were initiated on 04.10.2012 and by an
order of even date, directed reinstatement with consequential benefits but
for back wages.
(2.)THE admitted fact, which is apparent from the perusal of the paper book, would go on to show that a registered notice was sent by the
Labour Court on 24.08.2012 to the petitioner -department for appearance on
04.10.2012. On account of non -appearance on 04.10.2012, the petitioner - department was proceeded against ex parte. Thereafter, the case was
adjourned to 22.11.2012 and 13.12.2012. Strangely, on 16.01.2013, one
witness was produced by the workman and an application was filed to
summon the clerk from the office of the respondents to produce the record.
Lakhmi Chand, UDC appeared on 26.02.2013 and his statement was
recorded. The department took no effort to file any application for setting
aside the ex parte proceedings which were being conducted. Thereafter, on
2013, Narender Panth, Divisional Accountant also got his statement recorded and the case was adjourned to 17.2013. It was only then the
petitioner got up from its slumber and filed an application on 17.2013 for
setting aside an ex parte order dated 22.11.2012 though the ex parte
proceedings were on 10.2012. The explanation given in the application
was that inadvertently, the appearance was not marked in the records of the
Court and that the Clerk of the authorized person had appeared on
22.11.2012. The application reads thus" -
"1. That the respondents/HVPNL appeared on dated 22.11.2012 and submitted the authority letter for and on behalf of the respondents. 2. That inadvertently the appearance was not marked in the records of Hon'ble Court. 3. That ex -parte order dated 22.11.2012 may kindly be set aside and respondents may be allowed to file written statement. The intention of the respondents was bonafide and clerk of the authorized person appeared before the learned court on 22.11.2012."
3. Resultantly, the said application was dismissed by the Labour Court by noting that the department was well aware and its officials were
appearing as witness on its behalf and deposing as per the record but the
petitioner -department was choosing not to contest. Accordingly, the award
was passed on the basis of the evidence on record.
Counsel for the petitioner has very vehemently submitted that
the Labour Court was not justified in directing reinstatement and the service
was just two years and it was a case of an appointment on contractual basis
and Section 2(oo)(bb) of the Industrial Disputes Act, 1947 would come into
play.
(3.)THE said submission is without any basis. The first hurdle itself of giving any sufficient cause for non -appearance has not been crossed.
There is no denying the fact that merely because an application has been
filed, the Court is not to allow the same. The sufficient cause had to be
shown to the Court so that the ex parte order could be set aside. The Apex
Court in Parimal vs. Veena @ Bharti, 2011 (3) SCC 545, while discussing
the scope of Order 9 Rule 13 CPC, has held that the sufficient cause has to
be of such nature and it is not where the litigant can sit back and not defend
the case and the said application is not to be allowed at the asking. It was
held that the party has to satisfy the Court that it was prevented from
sufficient cause from appearing when the suit was called for hearing and the
Court shall not set aside the ex parte proceedings solely on an application
filed in which there was no sufficient cause shown. The relevant paras read
thus: -
"8. It is evident from the above that an ex -parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and Another, (2010) 5 SCC 459.
10. In Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non -appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram and Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953.
11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal and Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. and Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao and Ors. v. Gobardhan Sao and Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand and Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. and Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054.
12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait -jacket formula of universal application."
In the present case, as discussed above, the management has
failed to show any sufficient cause for setting aside the ex parte
proceedings. It is apparent that the department was well aware that the
proceedings were pending and their officials were attending the Court but
the department chose not to pursue the case. For the lapse, if any, it is open
for the department to fix the responsibility upon the concerned officials but
the respondent -workman cannot be prejudiced on account of the lapse of the
petitioner -department. The Labour Court was well justified in dismissing
the application on account of the lack of sufficiency of an explanation.
Even otherwise, the application was never filed for setting aside of the ex
parte order which was dated 04.10.2012 but was for an order dated
22.11.2012 whereby, no ex parte order had been passed. Thus, it would be clear that the department has been sleeping over its rights at all stages. In
the opinion of this Court, it is not a case where the extra ordinary writ
jurisdiction is liable to be exercised under Article 226 of the Constitution of
India.
Accordingly, the writ petition is dismissed in limine.