# Sone Lal Kushwaha v. Presiding Officer Labour Court-III, U.P. Kanpur & Anr

- **Citation:** (2022) 1 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-04
- **Case number:** Writ C No. 7012 of 2016
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sone-lal-kushwaha-v-presiding-officer-labour-court-iii-u-p-kanpur-anr-47676
- **Pages:** 10

## Headnote

A. Labour law - U.P. Industrial Disputes
Act, 1947 - Section 4-K & 6-H (1) -
Adjudication - Ex-parte Award in favour of
workman was passed and published - An
application u/s 6-H (1) was also allowed
and recovery certification was issued -
Satisfaction with regard to adequacy of
service was recorded in the award -
Subsequently, Labour Court allowed the
application of the employer to recall the
recovery certificate - Validity challenged -
No application to set aside the ex-parte
award - Effect - Held, the award is not a
nullity inasmuch as the employer was
afforded an opportunity to represent its
case before the Labour Court by due
service of notice - It was, however, open
to the employer to press for setting aside
the exparte award where it could have
demonstrated
that
sufficient
cause
preventing it from appearing during the
course of the adjudication. (Para 12)
B. Labour law - Adjudication - Ex-parte
Award - Absence of defendant - Sufficient
cause - Principle laid down - Held, the
test that has to be applied is whether the
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 - 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 - Parimal's case
is followed. (Para 14)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

280 INDIAN LAW REPORTS ALLAHABAD SERIES
के दलस्खत कथन व दववाद के मुद्दोां के दववाधकोां को
ध्यान में रखते हुए, पक्षकारोां की बीच थथाई लोक
अदालत, सुलह कार्यवादहर्ाां द्वारा पक्षकारोां को दववाद
के स्वांतत्र और दनष्पक्ष रीदत में सौहार्द्यपूणय समझौते
पर पहुाँचने के दलए उनके प्रर्ास में सहार्ता करेगी।
अतः र्ह आवश्यक है दक थथाई लोक अदालत, उक्त
प्रर्ासोां का सांक्षेप में अपने आदेश में उल्लेख करे
क्योांदक उपधारा (8) के अनुसार र्दद पक्षकार दकसी
करार पर पहुाँचने से असिल रहते हैं, उस दशा में ही,
थथार्ी लोक अदालत दववाद का दवदनश्चर् कर सकती
हैं (र्दद दववाद दकसी अपराध से सांबांदधत नहीां है)।
उपधारा (8) तक की स्थथदत तक पहुाँचने से पहले
उपधारा (3), (4), (5) व (6) में दकर्े गर्े प्रर्ास व
उपधारा (7) में समझौते पर न पहुाँचने की स्थथदत के
उपरान्त ही, थथाई लोक अदालत, उपधारा (8) के
अन्तगयत गुण-दोष पर दनणयर् ले सकती है। अतः उक्त
कार्यवाही का उल्लेख, सांदक्षप्त में ही सही, परन्तु
अवश्य होना चादहर्े।

(ज) उपरोक्त दवश्लेषण से र्ह पूणयतः
दवददत होता है दक, थथाई लोक अदालत, को सवयप्रथम
पक्षकारोां को सौहार्द्यपूणय समझौते पर पहुाँचाने के
दलर्े अपनी बुस्द्धमत्ता, ज्ञान व अनुिव का उपर्ोग
करके प्रर्ास करना चादहए। जो उसका सवयप्रथम
कतयव्य है। इस प्रर्ास में असिल होने के उपरान्त ही
दववाद का दवदनश्चर् करना चादहर्े। परन्तु उपरोक्त
कार्यवादहर्ोां का उल्लेख (सांक्षेप में) पांचाट में अवश्य
होना चादहए, दजसमें उसके द्वारा दववाद का दवदनश्चर्
करने का कारण पता चल सके। ऐसा उल्लेस्खत न
होने से र्ह प्रतीत होगा दक थथाई लोक अदालत, द्वारा
पक्षकारोां के बीच समझौता कराने का कोई प्रर्ास
नहीां दकर्ा गर्ा, जो उक्त अदधदनर्म के प्रावधानोां का
हनन करने के समकक्ष होगा। अतः ऐसी दशा में
'पांचाट' दवदधक रुप से मान्य नहीां माना जार्ेगा।
प्रकरण में उत्पन्न दवदधक प्रश्न का दनधायरण उपरोक्त
वणयन द्वारा दकर्ा जाता है।

(झ) वतयमान प्रकरण में पांचाट में समझौते
के प्रर्ास के सांबांध में कोई उल्लेख नहीां दकर्ा गर्ा है,
केवल एक थथान पर समझौते के दलए तारीख
दनधायररत की गर्ी, ऐसा उल्लेस्खत है, परन्तु उक्त
तारीख पर क्या प्रर्ास दकर्े गर्े व क्योां पक्षकार
समझौता नहीां कर पार्े, ऐसा कुि िी नहीां दलखा गर्ा
है। अतः र्ह प्रतीत होता है 'थथाई लोक अदालत' ने
सौहार्द्यपूणय समझौते के दलए कोई िी प्रर्ास नहीां
दकर्ा होगा र्ा र्ुस्क्त र्ुक्त प्रर्ास की कमी रही होगी
तथा वो सीधे दववाद में दवदनश्चर् की स्थथदत पर पहुाँच
गर्े जो, उपरोक्त दवश्लेषण के पूणयतः दवपरीत है।
अतः आक्षेदपत पांचाट इसी कारणवश, अदवदधक व
दूदषत हो जाता है। क्योां दक र्ह न्यार्ालर् इस दनष्कषय
पर पहुाँचता है दक थथाई लोक अदालत द्वारा समझौते
की प्रदिर्ा का प्रर्ास दकर्े दबना दववाद पर गुण-दोष
पर दनणयर् देना अवैधादनक है, अतः इस स्तर पर पांचाट
की गुण-दोष पर जााँच करने की आवश्यकता नहीां है।

7. विष्किथ

उपरोक्त दवश्लेषण के िलस्वरुप,
आक्षेदपत 'पांचाट' दनरस्त दकर्ा जाता है तथा वाद 'थथाई
लोक अदालत' को प्रदतप्रेदषत दकर्ा जाता है और
दनदेदशत दकर्ा जाता है दक वो समझौता कराने की
प्रदिर्ा को अपना कर पक्षकारोां के मध्य सुलह कराने
का र्ुस्क्तर्ुक्त प्रर्ास करेगी व उसके असिल होने
के उपराांत ही वाद का गुण-दोष पर दवदनश्चर् करेगी
तथा समझौते के प्रर्ास असिल होने का सांक्षेप में
उल्लेख पांचाट में िी करेगी। उपरोक्त दनदेश के साथ
र्ह र्ादचका आांदशक रुप से स्वीकार की जाती है।
----------

(2022)01ILR A280
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ C No. 7012 of 2016

Sone Lal Kushwaha ...Petitioner
Versus
Presiding Officer Labour Court-III, U.P.
Kanpur & Anr. ...Respondents
1 All. Sone Lal Kushwaha Vs. Presiding Officer Labour Court-III, U.P. Kanpur & Anr.
281
Counsel for the Petitioner:
Sri
Mukesh
Kumar
Kushwaha,
Sri
Bhupendra Nath Singh, Mahima Maurya
Kushwaha, Sri Nar Singh Narayan Verma,
Sri Pramendra Pratap Singh, Sri Devendra
Pratap Singh, Sri A.P. Singh, Sri Abhishek
Pandey

Counsel for the Respondents:
C.S.C., Sri Anoop Trivedi, Sri Shashi
Shekhar Mishra

A. Labour law - U.P. Industrial Disputes
Act, 1947 - Section 4-K & 6-H (1) -
Adjudication - Ex-parte Award in favour of
workman was passed and published - An
application u/s 6-H (1) was also allowed
and recovery certification was issued -
Satisfaction with regard to adequacy of
service was recorded in the award -
Subsequently, Labour Court allowed the
application of the employer to recall the
recovery certificate - Validity challenged -
No application to set aside the ex-parte
award - Effect - Held, the award is not a
nullity inasmuch as the employer was
afforded an opportunity to represent its
case before the Labour Court by due
service of notice - It was, however, open
to the employer to press for setting aside
the exparte award where it could have
demonstrated
that
sufficient
cause
preventing it from appearing during the
course of the adjudication. (Para 12)
B. Labour law - Adjudication - Ex-parte
Award - Absence of defendant - Sufficient
cause - Principle laid down - Held, the
test that has to be applied is whether the
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 - 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 - Parimal's case
is followed. (Para 14)
Writ petition allowed. (E-1)
List of Cases cited :-
1. M/s Haryana Suraj Malting Ltd. Vs Phool
Chand; (2018) 16 SCC 567
2. IA No. 6993 of 2004 in Cs(OS) 87 of 1995;
Jai Gopal Goyal & anr.Vs Bishen Dayal Goyal
decided on 30.4.2007
3. Civil Application No. 19 of 2018 in Second
Appeal ST No. 22803 of 2017; Kanta alias Shanti
Vs Manjulabai @ Kholki decided on 18.6.2019
4. Grindlays Bank Ltd. Vs Central Government
Industrial Tribunal & ors.; 1980 (Supp) SCC 420
5. Parimal Vs Veena @ Bharti; 2011 (3) SCC 545

(Delivered by Hon'ble Jayant Benerji, 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, 19471.
After
registration
of
the
case
as
Adjudication Case No. 35 of 2013, notices
282 INDIAN LAW REPORTS ALLAHABAD SERIES
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
exparte 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 exparte
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
Chand2, 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 Goyal3 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 the matter of Kanta alias Shanti
Vs. Manjulabai alias Kholki4 to contend
that a litigant who approaches to the Court
must be diligent and it must take all steps to
pursue its litigation.

7. On the other hand, the learned
counsel for the respondent has referred to
his application for recall that has been filed
1 All. Sone Lal Kushwaha Vs. Presiding Officer Labour Court-III, U.P. Kanpur & Anr.
283
as Annexure No. 5 to the writ petition, to
contend that after engagement of the
counsel, the counsel did not inform any
development of the case, that is to say,
whether a written statement was required to
be filed and what was the date fixed and
whether any documents were required to be
filed and whether any date for cross
examination of the workman had been
fixed. It is contended that the respondent
no.2 has been deprived of its right to
produce evidence and make statement
before the Labour Court to demonstrate its
case. It is further contended that since the
matter involves public money, proper
adjudication is required to be done by the
Labour Court in the matter, and, in the
interest of justice, the writ petition may be
dismissed and the parties be relegated to
the jurisdiction of the Labour Court so that
the case may be considered on its merits.

8. As is evident from the record,
the
dispute
was
referred
for
adjudication by the Deputy Labour
Commissioner by means of an order
dated 14.5.2013. The award was passed
on 29.5.2014. Satisfaction regarding
service was recorded in the award and it
was mentioned that nobody appeared on
behalf of the respondent no. 2 and,
therefore,
exparte
proceeding
was
ordered. It was held in the award that
dismissal of workman/petitioner with
effect from 1.1.2002 was wrong and
illegal and reinstatement with 50% back
wages and Rs. 1000/ towards cost was
awarded. It is not in dispute that the
award was published on 16.7.2014. As
stated in the petition itself, in paragraph
no. 12, that the respondent no.2 paid the
entire amount of recovery certificate
issued
by
the
Assistant
Labour
Commissioner
pursuant
to
an
application filed under Section 6H(1) of the U.P. Act, to recover the
amount due under the aforesaid award,
by means of a cheque/draft dated
30.12.2014. In paragraph no.11 of the
counter affidavit filed on behalf of the
respondent no.2, the fact that the
cheque/draft
dated
30.12.2014
was
given to the petitioner pursuant to the
aforesaid recovery, has not been denied.
Thereafter, on 19.10.2015, the aforesaid
recall application was filed by the
respondent no.2, purportedly under
Rule 16(2) of the U.P. Industrial
Disputes Rules. In paragraph 3 of this
recall application dated 19.10.2015, it is
stated that only a few days ago, the
respondent no.2 came to know of the
exparte award dated 29.5.2014. In
paragraph no. 5 of the application, it is
stated that authorised representative Sri
Mahesh Mani Pandey never appeared
before the Labour Court on any date
and neither did he file the authorisation
letter given by respondent no.2 before
the Court/Tribunal. In paragraph no. 6
of the recall application, it is stated that
due to negligence and want of care by
its counsel, respondent no.2 has been
deprived of its right to contest the case
at various stages. It has further been
stated that for the fault of its counsel,
the respondent no.2 should not be held
liable and, therefore, it was prayed that
the exparte award be set aside and be
decided on its merit.

9. In the reply filed by the
petitioner to the aforesaid application of
respondent no.2, the application was
opposed and it was pointed out that the
employer/respondent no.2 was required
to
demonstrate
that
there
was
negligence of its counsel and, further, it
284 INDIAN LAW REPORTS ALLAHABAD SERIES
was required to file a copy of the
authorisation letter given to the counsel,
which was not done.

10. A perusal of the impugned order
dated 29.1.2016 reveals that the Labour
Court had noticed the divergent views in
the decision of the Supreme Court
regarding the stage at which the Labour
Court/Industrial
Tribunal
would
be
rendered functus officio and whether an
application for recall of an exparte award
may be entertained by the Labour Court
after
30
days
from
the
date
of
making/publishing the award. It was
noticed by the Labour Court that a bench of
the Supreme Court in M/s Haryana Suraj
Malting Ltd(supra) had referred the
matter to a larger Bench in view of the
divergence of opinion. However, the
Labour Court chose to opt for the opinion
of the Supreme Court which held that an
application for recall of an exparte award
may be entertained after 30 days from the
date of pronouncement/publication of the
award on the ground that it was a later
judgement. The Prescribed Officer also
relied upon a decision of the Jammu and
Kashmir High Court that a party ought not
to suffer due to negligence of its counsel
and, therefore, the exparte award ought to
be set aside. The award dated 29.5.2014
was,
accordingly,
set
aside
by
the
impugned order.

11. Learned counsel for the petitioner
has submitted a judgement of a three Judge
Bench of the Supreme Court dated
18.5.2018 in the matter of M/s Haryana
Suraj Malting Ltd( supra). A perusal of
the judgement reveals that the previous
judgement of the Supreme Court in
Grindlays
Bank
Ltd.
Vs.
Central
Government Industrial Tribunal and
others5 was referred, in which it was held
that setting aside an exparte award is a
matter of procedural review exercised ex
debito justitiae to prevent abuse of its
process and such powers are inherent in
every Court or Tribunal. Where the
Tribunal proceeds to make an award
without notice to a party, the award is
nothing
but
a
nullity.
In
such
circumstances, the Tribunal has not only
the power but also the duty to set aside the
ex parte award and direct the matter to be
heard afresh. That power cannot be
circumscribed by limitation. It was further
observed that power and duty of the
Tribunal exercising its ancillary and
incidental powers to set aside an award
which is a nullity is in its power. In that
process, the Tribunal is governed by the
principles of Order 9, Rule 13 C.P.C. While
noticing various decisions, the Supreme
Court in M/s Haryana Suraj Malting Ltd.
held as follows:-

"34. In case a party is in a
position to show sufficient cause for its
absence before the Labour Court/Tribunal
when it was set ex parte, the Labour
Court/Tribunal, in exercise of its ancillary
or incidental powers, is competent to
entertain such an application. That power
cannot be circumscribed by limitation.
What is the sufficient cause and whether its
jurisdiction is invoked within a reasonable
time should be left to the judicious
discretion of the Labour Court/Tribunal.

35. It is a matter of natural justice
that any party to the judicial proceedings
should get an opportunity of being heard,
and if such an opportunity has been denied
for want of sufficient reason, the Labour
Court/Tribunal which denied such an
opportunity, being satisfied of the sufficient
cause and within a reasonable time, should
be in a position to set right its own
procedure. Otherwise, as held in Grindlays
1 All. Sone Lal Kushwaha Vs. Presiding Officer Labour Court-III, U.P. Kanpur & Anr.
285
[Grindlays Bank Ltd. v. Central Govt.
Industrial Tribunal, 1980 Supp SCC 420 :
1981 SCC (L&S) 309] , an award which
may be a nullity will have to be technically
enforced. It is difficult to comprehend such
a situation under law.

. . . . . . . . . .

37. Merely because an award
has become enforceable, does not
necessarily mean that it has become
binding. For an award to become
binding,
it
should
be
passed
in
compliance with the principles of
natural
justice.
An
award
passed
denying an opportunity of hearing when
there was a sufficient cause for nonappearance can be challenged on the
ground of it being nullity. An award
which is a nullity cannot be and shall
not be a binding award. In case a party
is able to show sufficient cause within a
reasonable time for its non-appearance
in the Labour Court/Tribunal when it
was
set
ex
parte,
the
Labour
Court/Tribunal is bound to consider
such an application and the application
cannot be rejected on the ground that it
was filed after the award had become
enforceable. The Labour Court/Tribunal
is not functus officio after the award
has become enforceable as far as setting
aside an ex parte award is concerned. It
is within its powers to entertain an
application as per the scheme of the Act
and in terms of the rules of natural
justice. It needs to be restated that the
Industrial Disputes Act, 1947 is a
welfare legislation intended to maintain
industrial peace. In that view of the
matter, certain powers to do justice
have to be conceded to the Labour
Court/Tribunal, whether we call it
ancillary, incidental or inherent."

12. In the present case, it is
admitted by the respondent no.2 that it
had notice of the proceedings before the
Labour Court. Therefore, in view of the
aforesaid judgement of the Supreme
Court, the award is not a nullity
inasmuch as the respondent no.2 was
afforded an opportunity to represent its
case before the Labour Court by due
service of notice. It was, however, open
to the respondent no.2 to press for
setting aside the exparte award where it
could have demonstrated that sufficient
cause preventing it from appearing
during the course of the adjudication.

13. The Supreme Court in the case
of Parimal Vs. Veena alias Bharti;
2011 (3) SCC 545 while interpreting
order 9 Rule 13 C.P.C has observed as
follows:-

"12. It is evident from the
above that an ex parte decree against a
defendant has to be set aside if the party
satisfies the court that summons had not
been duly served or he was prevented
by sufficient cause from appearing
when the suit was called on for hearing.
However, the court shall not set aside
the said decree on mere irregularity in
the service of summons or in a case
where the defendant had notice of the
date and sufficient time to appear in the
court. The legislature in its wisdom,
made the second proviso mandatory in
nature. Thus, it is not permissible for
the court to allow the application in
utter
disregard
of
the
terms
and
conditions incorporated in the second
proviso herein.

13. "Sufficient cause" is an
expression which has been used in a large
286 INDIAN LAW REPORTS ALLAHABAD SERIES
number of statutes. The meaning of the
word "sufficient" is " adequate" or
"enough", inasmuch as may be necessary to
answer the purpose intended. Therefore,
word "sufficient" embraces no more than
that which provides a platitude which when
the act done suffices to accomplish the
purpose
intended
in
the
facts
and
circumstances existing in a case and duly
examined
from
the
viewpoint of
a
reasonable standard of a cautious man. In
this context, "sufficient cause" means that
the party had not acted in a negligent
manner or there was a want of bona fide on
its part in view of the facts and
circumstances of a case or the party cannot
be alleged to have been "not acting
diligently"
or"
remaining
inactive".
However, the facts and circumstances of
each case must afford sufficient ground to
enable the court concerned to exercise
discretion for the reason that whenever the
court exercises discretion, it has to be
exercised judiciously............................

14. In Arjun Singh v. Mohindra
Kumar this court observed that every good
cause is sufficient cause and must offer an
explanation for non-appearance. The only
difference between a "good cause" and
"sufficient cause" is that the requirement of
a good cause is complied with on a lesser
degree of proof than that of a "sufficient
cause".........................

15. While deciding whether there
is sufficient cause or not, the court must
bear in mind the object of doing substantial
justice to all the parties concerned and that
the technicalities of the law should not
prevent the court from doing substantial
justice and doing away the illegality
perpetuated on the basis of the judgment
impugned before it. ............................

16. In order to determine the
application under Order 9 Rule 13 CPC, the
test that has to be applied is whether the
defendant honestly and sincerely intended
to remain present when the suit was called
on for hearing and did his best to do so.
Sufficient cause is thus the cause for which
the defendant could not be blamed for his
absence. Therefore, the applicant must
approach the court with a reasonable
defence. 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."

14. Thus, the Supreme Court
categorically observed that the test that has
to be applied is whether the 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. The 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.

15. As noticed above, the Prescribed
Officer had recorded its satisfaction with
regard to adequacy of notice on the
respondent no.2 in the award dated
29.5.2014. The award was published on
16.7.2014. It is also admitted that pursuant
to issuance of recovery certificate in
proceedings under Section 6H(1) of the
U.P.
Act,
the
cheque/draft
dated
30.12.2014 was issued by the respondent
no.2 to the petitioner. The recall application
was filed on 19.10.2015 stating that only
few days back, they had came to know of
the exparte award being passed. A perusal
of the recall application filed by the
1 All. Sone Lal Kushwaha Vs. Presiding Officer Labour Court-III, U.P. Kanpur & Anr.
287
petitioner that has been enclosed as
Annexure no. 5 to the writ petition reveals
that it does not specify the date on which
the authorisation letter was given to its
counsel. The contention on behalf of the
petitioner in its reply to the aforesaid recall
application, that the respondent no.2 had
failed to file the authority letter by which
the counsel was appointed, was not even
considered by the Presiding Officer of the
Labour Court while setting aside the
exparte award. It has been stated by the
learned counsel for the respondent no.2 that
the counsel who was previously engaged
has been removed from panel of the
advocates of the Kanpur Development
Authority. However, neither is there
averment to that effect in the recall
application filed nor the date of removal of
the advocate has been mentioned in the
counter affidavit of the respondent no.2.

16. In the case of Jai Gopal Goyal
(supra), the Delhi High Court has held as
under:

"12. Learned Counsel for the
plaintiffs referred to the judgment of a
learned single judge (as he then was) of this
Court in Indian Sewing Machines Co. Pvt
Ltd. v. Sansar Machine Ltd. and Anr.,
1994(31) DRJ 382 , where the plea the
negligent absence by the counsel was taken
by the applicant seeking to set aside the ex
parte decree. The applicant failed to prove
his diligence in pursuing the case or his
counsel and gave no explanation about
steps taken to prepare or file the written
statement. It was held that no sufficient
cause was made out for setting aside the ex
parte decree. The court observed that there
is no dispute on the principle of law that a
litigant should not be made to suffer for the
fault of his counsel. However, the
question to be examined is whether the
responsibility of the defendants ends
merely by engaging a counsel and should
not a litigant show diligence on his part. It
can be understood if a litigant has been
diligent enough and acting bona fide then
the fault of the counsel may not be labelled
as a penalty against the litigant.? In
National Small Industries Corporation
Ltd. v. Thermosetting Industrial Projects
2001 II AD (Delhi) 857 it was observed
that engaging a lawyer does not mean that
the party is absolved of his/her duty to
diligently pursue the case. Recently a
tendency has developed amongst litigants
to blame his/her lawyers for adverse orders
passed without realising that a lawyer
cannot conduct the case without proper
instructions from the party. The lawyer is
not expected to write to his client after
every
date
of
hearing
about
the
developments in the case unless there is a
specific contract about the same.

13. On consideration of the
submissions advanced by learned Counsel
for the parties and the case law cited at the
Bar, I am of the considered view that there
is no dispute about the legal principle that
an innocent litigant must not be allowed to
suffer due to the fault of his counsel.
Simultaneously, it is also a settled legal
principle that a litigant must show due
diligence in pursuing or defending the case
and mere entrustment of a case to the
counsel does not absolve the litigant of all
responsibilities. The observations made in
Indian Sewing Machines Co.Pvt. Ltd's Case
(supra) thus lucidly set forth this aspect.

14. In National Small Industries
Corporation Ltd.'s case (supra), it has been
observed that a recent trend has developed
that litigants who fail to take steps or
288 INDIAN LAW REPORTS ALLAHABAD SERIES
defend a matter attempt to blame their
counsels for the adverse orders.

15. I am of the considered view
that this is one more case of that category.
The facts and order sheets referred to above
in the present case show the negligent
manner in which the defendant has been
proceedings not only in the present suit but
also in other legal proceedings between the
parties. No doubt as a legal principle, a
party has to explain the absence on a
particular date in a particular matter, but
the court can certainly take cognizance of a
continued trend to evade legal proceedings.
In the criminal proceedings filed by the
defendant, he failed to appear resulting in
dismissal of the same. In the criminal
proceedings filed against the defendant, the
defendant has been declared a proclaimed
offender. These criminal proceedings arise
out of the same dispute. Not only that the
suit filed by the defendant for possession in
respect of the present dispute was also
simultaneously dismissed when the ex parte
proceedings were initiated in the present
suit and no steps have been taken for the
last about six years for restoration of the
suit. It is only when the defendant faced the
consequences of the decree passed in the
present suit that the present application has
been filed."

17. Further in the case of Kanta alias
Shanti (supra), the Bombay High Court
has observed as under:-

"4. This submission, at the first
blush, appears very attractive and tends the
Court
to
interfere
with
the
matter.
However, after hearing the learned counsel
for the applicant, especially when a query
was put to the learned counsel in respect of
the conduct on the part of the applicant as
to whether at any point of time, she on her
own, contacted her advocate, the reply was
in negative. A litigant who approaches to
the Court must be diligent. He or she must
take all steps to pursue his or her litigation.
It is expected from the litigant that he or
she is in contact with the lawyer who is
representing his or her cause in the Court of
law. A litigant cannot take a spacious plea
that once the case is entrusted with an
advocate his or her work is over and the
advocate will take care of the matter. An
Advocate always discharges his duties on
the instructions given to him by his client.

...................

7. It is very easy for a litigant to
make allegations against an advocate
behind his back. If the applicant wishes to
make allegations against the advocate, the
applicant should have a courage to join the
advocate as a party and in his presence
should make allegation against him. Here,
the applicant wants to condemn the
advocate behind his back. In my view, it is
impermissible and unacceptable. Further,
no steps are also being taken by the
applicant against any advocate under the
provision of the Advocates Act."

18. In view of the aforesaid two
judgements, I am of the opinion that the
respondent no.2 has failed to exercise due
diligence and has failed to pursue the case
in a manner warranted by ordinary
prudence. Not only the counsel who was
allegedly issued the letter of authorisation,
but the respondent no.2 itself was grossly
negligent in pursuing the case, inasmuch as
despite admittedly making payment under
the recovery certificate issued against it, the
respondent no.2 had failed to promptly file
a application for recall. As a matter of fact,
it waited around 11 months after making
payment under the recovery certificate
before filing the application for recall. Such
a conduct may not be condoned. It is
pertinent to mention here that in the recall
1 All. Smt. Prabha Shukla Vs. State of U.P. & Ors.
289
application, in paragraph no.10 thereof the
submission is that, in case the exparte
award is not recalled and the respondent is
not given adequate opportunity to present
its case, then the loss being suffered by the
respondent cannot be saved and in future
also loss would be caused, and it will be
deprived of bringing the full and correct
facts before the court because there was no
relationship of master and servant between
the
respondent
and
the
petitioner.
Therefore,
apart
from
this
vague
submission, which merely gives a hint of
the case on merit, and which is wholly
unsubstantiated, there is no other averment
in that application nor was there any
evidence before the Presiding Officer of the
Labour Court to have proceeded to recall
the exparte award. Therefore, under the
circumstances,
allowing
the
recall
application cannot be said to be a judicious
exercise of discretion by the Labour Court.

19. In view of the aforesaid, the
impugned order dated 29.1.2016, passed by
the Prescribed Authority setting aside the
exparte award is hereby quashed and the
writ petition is, accordingly, allowed.
----------
(2022)01ILR A289
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 18526 of 2021

Smt. Prabha Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sri Shashi Nandan
(Senior Adv.)

Counsel for the Respondents:
C.S.C., Mr. Pranjal Mehrotra

A.
Acquisition
law
-
Right
to
Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 - Section 11 -
Acquisition for the purpose of construction
of a Railway over-bridge, a public purpose
- Principle, required to be kept in mind,
while exercising the discretionary power
by the Court, laid down - Held, once a
project of public importance, which is
good in larger public interest, is being
executed and has been completed about
45%, setting aside of acquisition in a
petition filed by one of the land owners
owning a small portion of the land, will
not be in larger public interest - Projects
of public importance should not be halted
as the same would be against the larger
public interest and the constitutional
courts should weigh public interest vis-àvis private interest, while exercising its
discretion. (Para 8 and 10)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. Kamal Trading Pvt.Ltd.Vs St. of W.B. & ors.;
(2012) 2 SCC 25
2. Usha Stud & Agricultural Farms Pvt. Ltd. &
ors. Vs St. of Har.& ors.; (2013) 4 SCC 210
3. Nareshbhai Bhagubhai & ors. Vs U.O.I. &
ors.; (2019) 15 SCC 1
4. Ramniklal N. Bhutta & anr.Vs St. of Mah. &
ors.; AIR 1997 SC 1236
5. Pratibha Nema & ors. Vs St. of M.P. & ors.;
AIR 2003 SC 3140
6. Jaipur Metro Rail Corporation Ltd.Vs Alok
Kotahwala & ors.; AIR 2013 CC 754.

(Delivered by Hon'ble Rajesh Bindal, C.J.)