IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 12^th OF JULY, 2023 MISC. PETITION No. 536 of 2021 BETWEEN:-

1. M.P. STATE TOURISM DEVELOPMENT CORPORATION LTD. THRO. TIS SENIOR MANAGER HOTEL KALCHURI RESIDENCY JABALPUR (MADHYA PRADESH)

2. THE SENIOR MANAGER HOTEL KALCHURI NEAR RAILWAY STATION SOUTH CIVIL LINE JABALPUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI ANSHUMAN SINGH – ADVOCATE WITH SHRI RAHUL DIWAKAR –

ADVOCATE FOR THE PETITONERS)

AND RAJ KAMAL DHURVE S/O SHRI DHOLI SINGH DHURVE OCCUPATION: EX-N COOK/ TADOORMAN HOTEL KALCHURI RESIDENCY JABALPUR HOUSE NO. 287 SETHI NAGAR GUPTESHWAR ROAD JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI AMIT KHATRI – ADVOCATE FOR RESPONDENT NO.1)

This petition coming on for admission this day, the court passed the following:

ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 25.01.2021 passed by Labour Court, Jabalpur in Case No.4/209/IDR by which the application filed by the petitioner under Order 9 Rule 13 of CPC seeking setting aside of the ex-parte award passed by the Labour Court has been rejected.

2. The case of the petitioner is that the respondent preferred a statement of claim before the Labour Court, Jabalpur, in which the respondent had prayed for reinstatement along with all consequential benefits on the ground that his retrenchment/termination is bad, illegal and unjustified. The petitioners submitted their reply to statement of claim and denied the claim of the respondent. The petitioners continued to participate in the trial before the Labour Court through its counsel and even cross examined the respondent but the day on which the case was fixed for submitting the affidavit of the present petitioners, none appeared for the petitioners and accordingly the Labour Court closed the right of the petitioners to adduce evidence and proceeded ex-parte and eventually vide award dated 08.07.2019 and ex-parte award was passed and the claim of the respondent was allowed.

3. Since the counsel for the petitioners was suffering from illness, therefore he could not appear on the date, when the case was fixed for filing of affidavit. After recovering from illness, when the counsel for the petitioners went to the Labour Cour to check the status of the case, then it was informed that an ex-parte award has been passed. Immediately, thereafter on 01.08.2019, the petitioners moved an application under Order 9 Rule 13 of CPC seeking setting aside of ex-parte award. The respondent appeared in the proceedings and filed his reply to the application and submitted that the main counsel who was shown to be ill had never attended the proceedings on any date. During the pendency of application for setting aside the award, the respondents preferred an application under Section 29 of the Industrial Dispute Act, 1947 before the Labour Commissioner, Indore. By order dated 25.01.2021, the Labour Court has rejected the application filed under Order 9 Rule 13 of CPC on a hyper technical ground that the main counsel who had fallen sick had not appeared in the case on any date. Thus, it is submitted that the Labour Court has committed a material illegality by rejecting the application filed under Order 9 rule

13 of CPC.

4. It is further submitted by the counsel for the petitioners that the respondent was never appointed by the petitioners and he was employer of the agency and the petitioners were not given any proper opportunity to contest the case. It is further contended that the Labour Court ought to have seen that the counsel whose name has been mentioned in the application under Order 9 Rule 13 of CPC had filed his Vakalatnama and only under his instructions his associates had appeared on earlier occasions and the Labour Court should have considered the grounds in a sympathetic manner.

5. Per contra, this petition is vehemently opposed by the counsel for the respondent. It is submitted that in the applicati