Point of law : Supreme Court categorically observed that test that has to be applied is whether defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. The sufficient cause is a cause for which defendant could not be blamed for his absence. Supreme Court further held that the 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 straitjacket formula of universal application.

JUDGMENT :

Jayant Banerji, J.

1. Heard Sri Devendra Pratap Singh and Pramendra Singh, learned counsel for the petitioner and Sri Shashi Shekhar Mishra, learned counsel appearing for respondent no.2, Kanpur Development Authority, Kanpur.

2. By means of this writ petition, quashing of order dated 29.1.2016, passed by respondent no. 1, Presiding Officer, Labour-III, U.P. Kanpur passed on paper No. 16/D and 19/D in Adjudication Case No. 35 of 2013 has been sought.

3. Facts as stated in the petition are that the petitioner raised an industrial dispute against his termination before the State Government and that was referred for adjudication to the Labour Court, Kanpur by means of a reference under Section 4K of the U.P. Industrial Disputes Act, 1947[U.P. Act]. After registration of the case as Adjudication Case No. 35 of 2013, notices were issued to the parties. A written statement was filed by the petitioner on 25.5.2013 but, despite notice, neither was any appearance put by the Kanpur Development Authority before the Labour Court nor was any written statement filed. Accordingly, proceedings took place exparte that culminated in an Award dated 29.5.2014 which was subsequently published on 16.7.2014 on the Notice Board of the Labour Court, Kanpur.

4. When the Kanpur Development Authority did not comply with the award despite passing of a sufficient time from the date of publication of the award, an application under Section 6H(1) of the U.P. Act was filed by the petitioner before the Assistant Labour Commissioner, Kanpur. A show cause notice of the Assistant Labour Commissioner dated 31.10.2014 met with no response from the respondent no.2. Whereafter a recovery certificate dated 20.11.2014 was issued. The amount of recovery certificate is stated to have been paid by means of bank draft dated 30.12.2014. On 19.10.2015, the respondent no.2 filed an application to recall the ex-parte award. A writ petition was also filed by the respondent no.2 which was dismissed as withdrawn. On 8.12.2015, the petitioner filed a reply to the recall application filed by the respondent no.2. By the order passed on 29.1.2016, the Labour Court allowed the recall application of respondent no.2, which order is under challenge in the present writ petition.

5. The contention of the learned counsel for the petitioner is that to sustain the application for recall of the ex-parte award, which was filed by the respondent no.2 citing negligence of the counsel/authorised representative, the respondent no.2 was required to demonstrate the factum of engagement/authorization of the counsel/representative, and, on which all dates the respondent no.2 attempted to contact its counsel after his engagement. It is contended that there is no evidence on record to demonstrate the same.

6. Learned counsel for the petitioner has relied upon a judgement of the Supreme Court, in the matter of M/s Haryana Suraj Malting Ltd. Vs. Phool Chand, (2018) 16 SCC 567 to contend that for setting aside an exparte award, those very principles that are applicable while consideration an application under Order 9 Rule 13 C.P.C, would apply while considering an application under Rule 16(2) of the U.P. Industrial Disputes Rules. It is contended that no attempt was made by the respondent no. 2 to cogently demonstrate whether sufficient cause actually existed to merit the application for recall being allowed. Further, learned counsel has relied upon a judgement of Delhi High Court passed in a case between Jai Gopal Goyal and another Vs. Bishen Dayal Goyal, IA No. 6993 of 2004 in Cs(OS) 87 of 1995 -judgement dated 30.4.2007 to contend that responsibility of respondent no. 2 did not end by merely engaging a counsel. The respondent no.2 was required to show due diligence on its part and that it had acted bona fide, and only then the fault of the counsel may not be labelled as penalty against the litigant. Learned counsel has also referred to the judgement of the Bombay High Court (Nagpur Bench) passed in th