The starting point of limitation for an application under R. 34 (4) of the Rules framed under the Minimum Wages Act is the date of communication of the ex parte order to the affected party, rather than the date of passing the order.

GOPAL KRISHNAN NAIR, J.

( 1 ) THE petitioner in this writ petition asks for a writ of Mandamus to compel the "authority under the Minimum Wages Act" to entertain his application under R. 34 (4) of the Rules framed under that Act and adjudicate upon it on merits. The circumstances leading up to this writ petition are as follows : The Inspector of Factories, Nellore, who is the second respondent herein filed an application under sub-s. (2) of S. 20 of the Minimum Wages Act before the "authority under the Minimum Wages Act". A notice of that application was issued to the petitioner, who was a respondent therein. However, the petitioner was not present at the time of the hearing of the application or its disposal. The Authority under the Minimum Wages Act set the employer ex parte and allowed the application of the Inspector of Factories on 24-7-63. A copy of this order was despatched to the employer (the petitioner herein) only on 11-10-63. The petitioner received it the next day. Thereupon, he filed on 7-11-63 an application under sub-r. (4) of R. 34 of the Rules framed under the Minimum Wages Act for setting aside the ex parte order passed against him by the Authority under the Minimum Wages Act. The Authority dismissed that application on the ground that it was filed beyond a period of one month from 24-7-63 when the ex parte order sought to be set aside was passed. It is this order which is now challenged in these proceedings under Art. 226.

( 2 ) THE first respondent who is the Authority under the Minimum Wages Act has chosen to remain ex parte. The second respondent who is the Inspector of Factories resist this Writ Petition on the ground that the order passed by the Authority under the Minimum Wages Act was correct, because the application under R. 34 (4) was filed by the employer only after the expiry of the period of one month from the date of the ex parte order.

( 3 ) THE short question that falls for determination is whether the application filed by the petitioner under R. 34 (4) on 7-11-63 was barred by limitation. It is useful here to read R. 34 (40 which runs as follows : - "an order passed under sub-r. (2) or sub-r. (3) may be set aside on sufficient cause being shown by the defaulting party within one month of the date of the said order, and the application shall then be re-heard after service of notice on the opposite party of the date fixed for re-hearing in the manner specified in sub-rule (1)". The undisputed facts are that an order under sub-r. (2) of R. 34 was passed ex parte on 24-7-63. That order was communicated to the petitioner only on 12-10-63. He filed the application to set aside the ex parte order on 7-11-63. If the crucial date is taken to be the date of the communication of the ex parte order to him, the application to set aside the ex parte order made by the petitioner on 7-11-63 will be well within time. On the other hand, if the crucial date is taken to be 24-7-63 when the ex parte order was passed by the Authority under the Minimum Wages Act, his application made on 7-11-63 under R. 34 (4) would be clearly barred by time. What R. 34 (4) says is that the defaulting party may seek to set aside ex parte order passed against him under sub-r. (2) of that Rule within one month of the date of the ex parte order. Now, what construction should be placed upon the words "date of the ex parte order ?" Is it the date on which the order was signed by the Authority under the Minimum Wages Act, or is it the date on which the order passed by the Authority was communicated to the affected party, that should constitute the starting point of limitation for the purpose of R. 34 (4) ? If the words "date of the said order" in R. 34 (4) are given their literal construction, it would lead too the anomalous result that even if a party, against whom an ex parte order was passed, was not aware of it, had no inkling whatsoever of it, time would run against him and the remedy given to him by R. 34 (4) would be lost for no f

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