# Annavaram Concrete Pvt. Ltd. Barabanki v. Tehsildar Ramnagar Barabanki

- **Citation:** (2024) 9 ILRA 924
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-02
- **Case number:** Writ C No. 1004625 of 2008
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/annavaram-concrete-pvt-ltd-barabanki-v-tehsildar-ramnagar-barabanki-52544
- **Pages:** 6

## Headnote

A. Code of Civil Procedure,1973 - Order IX
Rule 13, Setting Aside Ex-parte Decree -
no ex-parte decree shall be set aside
merely on the ground of irregularity in the
service of summons if the Court is
satisfied that the defendant knew, or but
for his wilful conduct would have known,
of the date of hearing. In the instant case,
petitioners contended that the notice
issued by the registered post was not
served upon it. Held : Notice was sent to
the petitioner through registered post
only once and a presumption was drawn
regarding due service of notice as the
unserved notice was not received back.
The Industrial Tribunal did not issue a
fresh notice through registered post or by
any other mode and it did not adopt the
procedure for substituted service of notice
on the petitioner. Although, there is a
legal presumption that the official acts
were performed in a regular manner, this
presumption is a rebuttable presumption.
When there is nothing on record to
indicate that the notice issued to the
petitioner was actually served and it was
stated on oath on behalf of the petitioner
that the notice was not served, the
petitioner has rebutted the presumption
that the notice was served upon it.
Keeping in view the past conduct of the
petitioner in diligently participating in the
proceedings, it cannot be presumed that
the petitioner had deliberately avoided
participation
in
the
proceedings.
Impugned order rejecting the petitioner's
application for setting aside the ex-parte
award was set aside (Para 12, 15)

B. Constitution of India, 1950 -Art. 227 -
Appropriate Relief Not prayed for- While
dealing with a petition under Article 227
of the Constitution of India, if the court is
satisfied that an order would cause failure
of justice to the parties the court is under
an obligation to mould the relief and pass
appropriate orders in the interest of
justice without a proper relief having been
prayed for. In the present case, the
opposite
party
contended
that
the
petitioner had merely challenged the
order rejecting its application for setting
aside the ex-parte order but had not
challenged the ex-parte award itself. Held
: To secure the ends of justice and prevent
further prejudice to either party, the Court
set aside both the order rejecting the
petitioner's application for setting aside
the ex-parte award and the ex-parte
award also. (Para 18, 19)

Allowed. (E-5)

List of Cases cited:

## Text

924 INDIAN LAW REPORTS ALLAHABAD SERIES
Cooperative Societies and Panchayats will
be the competent authority for making an
inquiry, if he considers that there has been
a loss, vested or misuse of any money or
other property belonging to a Gram Sabha
as a direct consequence of the negligence
or misconduct of a Pradhan etc., he would
call for an explanation from the Pradhan
through the District Magistrate. In the
present case, the Chief Audit Officer has
not recorded any prima facie satisfaction
that a loss has been occasioned because of
a direct consequence of the negligence or
misconduct of the petitioner while he was a
Pradhan. Therefore, the entire proceedings
have been initiated by an authority, which
had no jurisdiction as per the provisions
contained in the U.P. Panchayat Raj Rules.

26. The District Magistrate has not
referred to the contentions of the petitioner
made in his application that he did not have
any record and, therefore, he was unable to
submit his reply and that the petitioner had
demanded copies of the relevant documents
to enable him to submit his explanation.

27. The District Magistrate has blamed
the petitioner for not mentioning any date
on his application. Although the application
submitted by the petitioner to the District
Magistrate, Lucknow does not bear any
date,
it
bears
endorsements
of
acknowledgment
of
the
application
showing that the application has been
served on 26.11.2005. It is interesting to
observe that the enquiry report, which has
been relied upon by the District Magistrate
for penalizing the petitioner, itself does not
bear any date, but the District Magistrate
has not criticized the officers constituting
the Enquiry Team for non-mention of the
date of report. This difference in approach
towards the enquiry officers and the
petitioner shows that the District Magistrate
has acted with an apparent prejudice
against the petitioner and his approach
while passing the impugned order was not
just and unbiased.

28. The District Magistrate has held the
petitioner guilty merely because the petitioner
failed to give a satisfactory explanation of the
allegations against him, without even referring
to the material to hold the petitioner guilty. It is
settled law that an authority proposing to take
an adverse action against any person has to
record a satisfaction regarding his guilt in
accordance with the procedure prescribed law
and the person cannot be penalized merely for
the reason that he failed to defend himself.

29. Accordingly, the writ petition is
allowed. Order dated 06.12.2005 passed by
the District Magistrate, Lucknow ordering
recovery
of
Rs.2,55,106/-
from
the
petitioner under Section 27 (2) of the U.P.
Panchayat Raj Act is quashed. The parties
shall bear their own costs of litigation.

30. The authorities shall be at liberty
to initiate fresh proceedings against the
petitioner in accordance with law.
----------
(2024) 9 ILRA 924
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1004625 of 2008
And
Writ C No. 1001062 of 2013

Annavaram Concrete Pvt. Ltd. Barabanki
 ...Petitioner
Versus
Tehsildar Ramnagar Barabanki
 ...Respondent
9 All. Annavaram Concrete Pvt. Ltd. Barabanki Vs. Tehsildar Ramnagar Barabanki
925
Counsel for the Petitioner:
R.K. Srivastava

Counsel for the Respondents:
C.S.C., R.S. Tomar, Rana M.P. Singh,
Virendra Mishra

A. Code of Civil Procedure,1973 - Order IX
Rule 13, Setting Aside Ex-parte Decree -
no ex-parte decree shall be set aside
merely on the ground of irregularity in the
service of summons if the Court is
satisfied that the defendant knew, or but
for his wilful conduct would have known,
of the date of hearing. In the instant case,
petitioners contended that the notice
issued by the registered post was not
served upon it. Held : Notice was sent to
the petitioner through registered post
only once and a presumption was drawn
regarding due service of notice as the
unserved notice was not received back.
The Industrial Tribunal did not issue a
fresh notice through registered post or by
any other mode and it did not adopt the
procedure for substituted service of notice
on the petitioner. Although, there is a
legal presumption that the official acts
were performed in a regular manner, this
presumption is a rebuttable presumption.
When there is nothing on record to
indicate that the notice issued to the
petitioner was actually served and it was
stated on oath on behalf of the petitioner
that the notice was not served, the
petitioner has rebutted the presumption
that the notice was served upon it.
Keeping in view the past conduct of the
petitioner in diligently participating in the
proceedings, it cannot be presumed that
the petitioner had deliberately avoided
participation
in
the
proceedings.
Impugned order rejecting the petitioner's
application for setting aside the ex-parte
award was set aside (Para 12, 15)

B. Constitution of India, 1950 -Art. 227 -
Appropriate Relief Not prayed for- While
dealing with a petition under Article 227
of the Constitution of India, if the court is
satisfied that an order would cause failure
of justice to the parties the court is under
an obligation to mould the relief and pass
appropriate orders in the interest of
justice without a proper relief having been
prayed for. In the present case, the
opposite
party
contended
that
the
petitioner had merely challenged the
order rejecting its application for setting
aside the ex-parte order but had not
challenged the ex-parte award itself. Held
: To secure the ends of justice and prevent
further prejudice to either party, the Court
set aside both the order rejecting the
petitioner's application for setting aside
the ex-parte award and the ex-parte
award also. (Para 18, 19)

Allowed. (E-5)

List of Cases cited:

1. Block Development Officer Vs Radhey Shyam
& ors.: 2017 (35) LCD 254

2. Ramesh Chandra Sankla Vs Vikram Cement:
(2008) 14 SCC 58

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Dr. R.K. Srivastava and
Sri Nishchal Jagdhari, the learned counsel
for petitioner in Writ-C No.1004625 of
2008, Sri Satish Chandra Kashish, the
learned counsel for the petitioner in Writ-C
No.1001062 of 2013, Sri Hemant Kumar
Pandey, the learned Standing Counsel
appearing for the State and Sri Virendra
Mishra, the learned counsel for the private
opposite
party
Concrete
Fabricators
Karmchari Union, Burhwal, Barabanki in
both the Writ Petitions and perused the
records.

2. Writ-A No.1004625 of 2008 had
been dismissed for want of prosecution by
means of an order dated 08.04.2019. An
application for recall (IA-No.7 of 2024)
along with an application for condonation
of delay (IA-No.6 of 2024) in filing recall
application
have
been
filed
by
the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. The applications are supported
with duly sworn affidavits. Accordingly,
the applications are allowed. Delay in filing
recall application is hereby condoned and
the order dated 08.04.2019 is hereby
recalled. Writ-A No.1004625 of 2008 is
restored to its original number.

3. Writ-C No.1004625 of 2008 has
been filed challenging validity of an order
dated 11.09.2008, passed by the Presiding
Officer, Industrial Tribunal - 2, U.P.
Lucknow rejecting an application dated
20.12.2007 filed by the petitioner for
setting aside the ex-parte award dated
17.10.2007 on the ground that the same
was passed without service of notice of
proceedings on the petitioner after transfer
of the same from Gorakhpur to Lucknow.
Writ-C No.1001062 of 2013 has been filed
challenging a recovery certificate dated
09.10.2012 sent by the Deputy Labour
Commissioner, Faizabad to the Collector,
Barabanki for recovery of an amount of
Rs.2,70,000/- in furtherance of an ex-parte
award dated 17.10.2007.

4. As the order under challenge in
Writ-C
No.1001062
of
2013
is
consequential
to
the
order
dated
11.09.2008, both the petitions are being
decided together.

5. A perusal of the order-sheet of
the proceedings before the Industrial
Tribunal indicates that the petitionersemployer was appearing in the proceedings
when the same were pending initially
before the Industrial Tribunal - 2 at
Lucknow and it is recorded in the order
sheet that on 18.01.2000 and the learned
Tribunal had heard submissions on behalf
the parties and had reserved the award.
However,
the
Presiding
Officer
was
changed before the award could be
delivered and the new incumbent of the
office passed an order dated 25.07.2000 for
rehearing the matter. On 14.02.2001 the
matter
was
transferred
to
Industrial
Tribunal-VI, Gorakhpur and it was retransferred
to
Industrial
Tribunal-2,
Lucknow on 18.07.2006 where it was
registered afresh as Award Case No.302 of
2006. The Industrial Tribunal had sent
notice to the petitioner through registered
post, which was not received back unserved
and therefore the service of notice was held
to be sufficient. The matter was heard exparte and an ex-parte award was passed on
17.07.2007.
It
was
published
on
14.11.2007.

6. On 20.12.2007 the petitioner
filed an application for setting aside the exparte order dated 17.10.2007 stating that
the notice sent to it after transfer of the case
to Lucknow was not served upon it and,
therefore, it could not appear in the
proceedings. The award was ex-parte and it
should be set aside.

7. The aforesaid application has
been rejected by the Presiding Officer,
Industrial Tribunal-2, Lucknow by the
impugned order dated 11.09.2008 on the
ground that the Industrial Tribunal has no
authority to set aside an order which has
been passed after taking into consideration
the merits of the case.

8. The learned counsel for the
petitioner has submitted that the petitioner
was continuously participating in the
proceedings and submissions had been
advanced on its behalf and the award had
been reserved. After the Presiding Officer
was changed after hearing submissions
again submissions were advanced on behalf
of the petitioners. Thereafter, the case was
transferred to Gorakhpur in the year 2001
9 All. Annavaram Concrete Pvt. Ltd. Barabanki Vs. Tehsildar Ramnagar Barabanki
927
and it was retransferred to Lucknow in the
year 2006 and it was allotted a new
number. Keeping in view the past conduct
of the petitioner in diligently participating
in the proceedings, it cannot be presumed
that the petitioner had deliberately avoided
participation in the proceedings and the
only reason for its non-appearance was
non-service of notice sent after transfer of
the proceedings to Lucknow.

9. Opposing the writ petitions, Sri
Virendra Mishra, the learned counsel for
the
private
opposite
party
Concrete
Fabricators Karmchari Union, Burhwal,
Barabanki has submitted that the notice
was sent to the petitioner at its correct
address which was mentioned in its written
statement and therefore the Industrial
Tribunal has rightly raised a presumption
regarding due service of notice sent at the
petitioners'
correct
address.
He
has
submitted that non-appearance of the
petitioner in these circumstances was not
for any sufficient reason. Sri Mishra has
drawn attention of this court to the
amendment made in Order IX, Rule 13
C.P.C. by this High Court so as to add a
proviso, which reads as under:

"Provided also that no
such decree shall be set aside
merely
on
the
ground
of
irregularity in the service of
summons if the Court is satisfied
that the defendant knew, or but for
his wilful conduct would have
known, of the date of hearing in
sufficient time to enable him to
appear and answer the plaintiff's
claim."

10. Sri. Virendra Mishra has placed
reliance on a judgment rendered by a
coordinate bench of this Court in the case of
Block Development Officer Vs. Radhey
Shyam and others: 2017 (35) LCD 254,
wherein this court took into consideration the
aforesaid proviso inserted in Order IX, Rule
13 C.P.C. by amendment made by this court.
However, after taking into consideration
peculiar facts of that case wherein the court
was dealing with the third recall application
whereas two earlier applications filed by the
other respondents had already been rejected,
this court did not find any infirmity or
illegality in the findings recorded by the
learned trial court.

11. In the present case, the petitioners
are not alleging any irregularity in the issuance
of summons. The petitioners simply contend
that the notice issued by the registered post
was not served upon it. Although, there is a
legal presumption that the official acts were
performed
in
a
regular
manner,
this
presumption is a rebuttable presumption.
When there is nothing on record to indicate
that the notice issued to the petitioner was
actually served and it was stated on oath on
behalf of the petitioner that the notice was not
served, the petitioner has rebutted the
presumption that the notice was served upon
it.

12. The proceedings were going on
since the year 1997 and the petitioners had
participated in the proceedings till the final
submissions were heard and the award was
reserved. Thereafter it was transferred to
Gorakhpur and again to Lucknow and after retransfer of the matter to Lucknow, the notice
was sent to the petitioner through registered
post only once and a presumption was drawn
regarding due service of notice as the unserved
notice was not received back. The Industrial
Tribunal did not issue a fresh notice through
registered post or by any other mode and it did
not adopt the procedure for substituted service
of notice on the petitioner.
928 INDIAN LAW REPORTS ALLAHABAD SERIES
13. In these circumstances, this
court finds no good ground to raise a
presumption against the petitioner that it
knew about the proceedings after transfer
thereof to Lucknow and it deliberately
avoided participation in the proceedings.

14.
Therefore,
the
judgment
rendered by the coordinate Bench in the
case Block Development Officer (supra),
which was given in the light of peculiar
facts and circumstances of that case, does
not apply to the facts and circumstances of
the present case.

15. Keeping in view the aforesaid
peculiar facts and circumstances of the
case, it would be just and proper that the
impugned order dated 11.09.2008 rejecting
the petitioner's application for setting aside
the ex-parte award dated 17.10.2007 be set
aside and the application be allowed and
the ex-parte award dated 17.10.2017 be set
aside and the matter be directed to be
decided afresh after giving an opportunity
of hearing to the parties.

16. At this stage, the learned
counsel for the opposite party-Union stated
that the petitioner has merely challenged
the order rejecting its application for setting
aside the ex-parte order and it has not
challenged the ex-parte award.

17. In Ramesh Chandra Sankla v.
Vikram Cement: (2008) 14 SCC 58, the
Hon'ble Supreme Court reiterated the well
settled principle regarding the scope of
power conferred by Article 227 of the
Constitution of India in the following
words: -

"91.
The
power
of
superintendence under Article 227 of the
Constitution conferred on every High Court
over all courts and tribunals throughout the
territories in relation to which it exercises
jurisdiction is very wide and discretionary in
nature. It can be exercised ex debito justitiae
i.e. to meet the ends of justice. It is equitable
in nature. While exercising supervisory
jurisdiction, a High Court not only acts as a
court of law but also as a court of equity. It
is, therefore, power and also the duty of the
Court
to
ensure
that
power
of
superintendence must "advance the ends of
justice and uproot injustice".

18. When this court has come to a
conclusion that the Case was wrongly
proceeded ex-parte and the order rejecting the
application for setting aside the ex-parte order
is not proper, relegating the parties to the
stage where application for setting aside exparte award is to be decided afresh, will
merely protract the proceedings and cause
further delay in final disposal thereof. While
dealing with a petition under Article 227 of
the Constitution of India, if this court is
satisfied that an order would cause failure of
justice to the parties this court is under an
obligation to mould the relief and pass
appropriate orders in the interest of justice
without a proper relief having been prayed
for.

19. Therefore, the court deems it
appropriate to secure the interest of justice
and to avoid further prejudice being caused
to either of the parties, to set aside the order
dated 11.09.2008, passed by the Presiding
Officer, Industrial Tribunal - 2, U.P.
Lucknow rejecting an application dated
20.12.2007 filed by the petitioner for
setting aside the ex-parte award dated
17.10.2007 and also to set aside the exparte award dated 11.09.2008 passed by the
Presiding Officer, Industrial Tribunal-II,
U.P. Lucknow in Award Case No.302 of
2006.
9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
929
20. The learned counsel for the
private opposite party next submitted that the
private opposite party-Concrete Fabricators
Karmchari Union is a Union of workmen, who
have not been paid any wages since long and a
huge sum of money is payable to them
towards the arrears of wages. In the order
dated 26.09.2008 passed in Writ-C No.
1004625 of 2008, this court had recorded the
submission made on behalf of the petitioner
that the petitioner was ready to pay 50%
amount and furnish bank guarantee for the
remaining amount before the Deputy Labour
Commissioner. The learned counsel for the
opposite party-Union states that the petitioner
has complied with the aforesaid order in
respect of merely 14 employees whereas 53
employees are members of the Union and all
of them are entitled to get the amount.

21. The learned counsel for the
petitioner state that the petitioner has made
payment of the amount in respect of 27 more
employees.

22. In these circumstances, it would
be just and proper to make the order setting
aside the ex-parte award subject to the
condition that the petitioner shall pay a sum of
Rs.10,000/- per member of the Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki after adjusting the amount already
paid in respect of some of the members of the
Union. The amount lying in deposit, if any, in
this court or before the Industrial Tribunal,
should be released forthwith in favour of the
opposite
party-Concrete
Fabricators
Karmchari Union, Burhwal, Barabanki. The
recovery certificate dated 09.10.2012 issued
consequently for enforcing the ex-parte award
dated 17.10.2007 is also liable to be set aside.

23. In view of the foregoing
discussion, both the petitions are allowed. The
order dated 11.09.2008, passed by the
Presiding Officer, Industrial Tribunal - 2, U.P.
Lucknow
rejecting
an
application
dated
20.12.2007 filed by the petitioner for setting
aside the ex-parte award dated 17.10.2007 as
well as the ex-parte award dated 17.10.2007
passed by the Presiding Officer, Industrial
Tribunal-II, U.P. Lucknow in Award Case
No.302 of 2006 are set aside, subject to the
condition that the petitioner shall pay a sum of
Rs.10,000/- per member of the Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki after adjusting the amount already
paid in respect of some of the members of the
Union. The recovery certificate dated 09.10.2012
sent by the Deputy Labour Commissioner,
Faizabad to the Collector, Barabanki in
furtherance of the ex-parte award dated
17.10.2007 is also set aside. The amount lying in
deposit, if any, in this court or before the
Industrial Tribunal, shall be released forthwith
in favour of the opposite party-Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki. The parties are directed the parties
to appear before the Presiding Officer,
Industrial Tribunal-II, U.P. Lucknow for
hearing in the matter on 23.09.2024, on which
date, the Presiding Officer, Industrial TribunalII, U.P. Lucknow shall hear the parties'
submissions in respect of their respective claims
and defence and pass a fresh award
expeditiously, without granting any unnecessary
adjournments to any of the parties.
----------
(2024) 9 ILRA 929
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 2509 of 2024

Imperia Structures Ltd. ...Petitioner
Versus
Ankur Sharma & Ors. ...Respondents