Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.27842785 OF 2009
Bundi Zila Petrol Pump
Dealers Association Bundi ….Appellant(s)
VERSUS
Sanyojak Bundi Zila Petrol Pump
Mazdoor Sangh(B.M.S.) ….Respondent(s)
J U D G M E N T
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
High Court allowed the appeal filed by the
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.02.16
11:32:12 IST
Reason:
respondent herein and the order dated 10.04.2007
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whereby the review petition filed by the appellant
herein was dismissed.
2. A f ew 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;
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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
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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
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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
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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,
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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
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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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