Point of Law: Rule 12 of Assam Industrial Disputes Rules, 1958 stipulates as to how proceedings before Labour Court/Tribunal are to be conducted.

JUDGMENT :

The instant writ petition has been filed by the petitioner challenging the order dated 28.03.2011 passed in Misc. Case No.1/2010, arising out of the Reference Case No.12/2008.

2. The facts leading to the filing of the instant writ petition are that the Government of Assam by a Notification No.G.L.R.46/08/30 dated 4th of July, 2008 referred the dispute that had arisen between the respondent No.1 and the petitioner to the learned Labour Court, Guwahati, Assam on the basis of which a Reference Case being Reference Case No.12/2008 was registered and numbered. The terms of reference, as per the said Government notification dated 4th of July, 2008, are reproduced herein under:-

(i) Whether the management is justified in terminating or dismissing or discharging Shri Pankaj Sarma, complainant by not treating as a workman under the Industrial Disputes Act, 1947.

(ii) Whether the management is justified in terminating or discharging Shri Pankaj Sarma, complainant without furnishing him the copy of the Enquiry Report and without following the basic principles of natural justice as alleged?

(iii) If not, what relief he is entitled to?

3. From the order sheets of Reference Case No.12/2008 enclosed as Annexure-B and Annexure-B1 to the writ petition, it transpires that on 12.09.2008, the respondent No.1 appeared before the learned Labour Court whereas the petitioner was absent and the learned Labour Court fixed the case on 29.09.2008 for filing written statement by both the parties. On 29.09.2008, the respondent No.1 filed the written statement with a copy to the workman. The workman was absent on that day, and as such, the learned Labour Court fixed the matter on 20.10.2008 for filing of the written statement by the workman. On 20.10.2008, the respondent No.1 remained absent without steps. The learned Labour Court, taking into account that the service upon the workman, i.e. the petitioner was not duly effected, directed re-issuance of notice to the workman through the Process Server and fixed 07.11.2008 for return of notice. On 07.11.2008, the workman appeared and filed the petition No.409/2008 praying for adjournment to file written statement. However, the respondent No.1, i.e. the Management did not appear. On 21.11.2008, the workman, i.e. the petitioner filed his written statement along with some documents. The Management/respondent No.1 remained absent on that date also. It further appears from the certified copy of the order sheets of Reference Case No.12/2008 enclosed as Annexure-B1 that the respondent No.1 chose not to appear in the said Reference Proceedings inspite of knowing and participating in the said Reference Proceedings at the initiation.

4. The learned Labour Court vide the ex-parte award dated 30.07.2009, decided the Reference Case No.12/2008 holding inter-alia that the respondent No.1 was not justified in discharging the petitioner from service and the petitioner was entitled to reinstatement with full back-wages and other benefits entailing. It was further directed that the respondent No.1 shall reinstate the petitioner immediately and clear the back-wages within three months.

5. The said ex-parte award was notified by the Government of Assam, Labour and Employment Department vide the notification dated 06.11.2009. Subsequent thereto, vide another communication dated 30.12.2009, the Assistant Labour Commissioner, Ulubari, Guwahati forwarded the Award passed in Reference Case No.12/2008 to the respondent No.1 as well as the petitioner.

6. It further reveals from the record, more particularly, from the Annexure-5 that a Miscellaneous Application was filed for vacating the ex-parte award dated 30.07.2009 by the respondent No.1. It is interesting to note that the said application was filed by the respondent No.1 through an Advocate. From the perusal of the said application which was registered and numbered as Misc. Case No.1/2010, the ground so taken is that the respondent No.1 did not take any leave of the Court as well