IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 01^st OF APRIL, 2022 MISCELLANEOUS PETITION NO.824 OF 2021 Between:-

MUNICIPAL CORPORATION, DHAR, THROUGH ITS COMMISSIONER, DISTRICT – DHAR (MP)

.....PETITIONER (BY SHRI PRATEEK PATWARDHAN, ADVOCATE )

AND BARKAT S/O SHRI SATTARR, ADDRESS: GANDHI COLONY, DHAR, DISTRICT – DHAR (MP)

.....RESPONDENT (BY SHRI SANJEEV RAWAT, ADVOCATE )

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

O R D E R

The petitioner has filed the present petition under Article

227 of the Constitution of India, being aggrieved by impugned orders dated 30.04.2019 (Annexure-P/3), 26.09.2019 (Annexure- P/6) and 31.01.2020 (Annexure-P/7), whereby ex-parte award has been passed against the petitioner. Two different applications under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short 'CPC') have been preferred by the petitioner before the Court below and the same were also dismissed.

The facts of the case in brief are that the petitioner/Municipal Corporation has filed the petition challenging the award passed by the Labour Court in Ref. No.ID REF.31/19, wherein the Presiding Officer has proceeded an ex-parte award against the petitioner directing reinstatement of petitioner without backwages. Thereafter the petitioner has filed an application under Order 9 Rule 13 of CPC for setting aside the ex-parte award but the learned Court below has dismissed the aforesaid application. The petitioner has again filed an application under Order 9 Rule 13 CPC and the same was also dismissed by the Court below vide impugned order dated 31.01.2020.

Counsel for the petitioner/Municipal Corporation contends that the learned Court below has erred in law in dismissing the application filed by the petitioner for conducting by party hearing in the case on the ground that permission to publish award was already granted granted to him. The petitioner could not remain present before the Court below for the reason that Court Clerk has received the notice, but he did not informed the higher authorities about the receiving of notice and therefore there was no appearance on behalf of the petitioner. Learned Court below has failed to consider that the petitioner has initiated the disciplinary proceedings against the erring Clerk and the respondent has failed to produce any relevant documents to establish that he was worked more than 240 days in a year. He submits that the respondent has never worked with the petitioner/Municipal Corporation and that there is no master and servant relationship between them. Counsel for the petitioner further contended that the impugned orders passed by the Court below is bad in law and contrary to the facts in law and evidence. Hence these impugned orders passed by the Court below be set-aside.

Per contra, counsel for the respondent has opposed the prayer made by the petitioner and has filed a written reply by stating that the petitioner has filed an application under Order 9 Rule 13 of CPC after a lapse of three months which was time barred and all the orders passed by the Court below is just and proper and is in accordance with law. He submits that notice has been duly served to the petitioner and he has not appeared before the Court below despite having sufficient time and without any valid reason. Therefore the trial Court has rightly proceeded ex- parte award against the petitioner. Hence the petitioner is not entitled for any relief.

I have heard counsel for both the parties at length and perused all the relevant documents along with the petition.

Upon perusal of the record and after considering the arguments advanced by Counsel for the petitioner, it appears that the Labour Court has held vide order dated 28.02.2019 that despite service of notice, the petitioner did not appear before the Court below and therefore the matter should be heard ex-parte against him.

On 27.05.2019, an ex-parte award has been passed against the petitio