JUDGMENT
1. The Writ Appeal is directed against the order of D. Raju, dated April 27, 1994 in W.P. No.7812 of 1994 rejecting the writ petition filed by the appellant/Cheran Transport Corporation on the ground that this Court cannot undertake an enquiry as to the personal statement said to have been made by one of the counsel appearing before the Presiding Officer, Labour Court/1st respondent herein while exercising jurisdiction under Article 226 of the Constitution of India. In view of that finding, the learned single Judge refused to interfere with the matter as the award and the record of proceedings as contained therein stand.
2. The writ petition has been filed by the appellant challenging the award of the 1st respondent dated September 7, 1993 whereunder the 1st respondent has chosen to grant the relief of reinstatement with continuity of service but without backwages, and other monetary benefits, on the basis of the concession said to have been made by the counsel for the Corporation., before the 1st respondent.
3. The appellant is a State Transport Undertaking of the Government of Tamil Nadu. It runs exclusively its bus services in Nilgiris District. The 2nd respondent was employed as a Conductor and during the relevant period, he was working in the Ooty Branch of the Corporation. He was in the habit of taking leave frequently and absented himself without leave even more frequently. During the period from August, 1985, to August 1986, he was on earned leave for 95 days, medical leave for 32 days, casual leave for 12 days and was absent without leave for 94 days. Thus, according to the appellant, the 2nd respondent was not working for more than seven months during a period of one year. The 2nd respondent was warned and was advised to be regular in his attendance. Eventhough leave was granted to him on many occasions, he was still in the habit of absenting himself without any leave.
4. In December, 1986, a show cause notice was issued to the 2nd respondent calling upon him to show cause as to why action should not be taken against him for habitual absence without leave during the above period. He submitted an explanation. Taking a lenient view of the matter, a nominal fine of Rs. 50/- was imposed and he was advised to be more regular in future. The 2nd respondent was due for duty on September 1, 1986 after having been on leave for the whole of August, 1986. He did not report for duty but sent a telegram merely asking for extension of leave without assigning any reason. After September 1, 1986, he continued to send telegrams asking for extension of leave without specifying the period for which leave was requested. This position continued for the whole of 1987 and he did not report for duty even in January, 1988.
5. By notice dated September 1, 1986, the attention of the 2nd respondent was drawn to the fact of his unauthorised absence from September 1, 1986 and asking him to explain as to why he should not be deemed to have abandoned his service with the appellant. The 2nd respondent received this notice and submitted his explanation. However, he never rejoined duty. Again by notice dated September 29, 1987, the 2nd respondent was informed of his unauthorised absence from September 1, 1986. He was further informed that innumerable leave applications submitted by him (about thirty in number), no reason was mentioned and no medical certificate was also submitted in support of the leave application. He was also informed that the leave had not been granted to him. The 2nd respondent received the show cause notice sent by the appellant on October 23, 1987 and by his reply dated October 24, 1987, he denied the charge of absence and alleged that he was denied employment. He wanted the appellant to permit him to join duty.
6. In view of the above, an enquiry was ordered into the charges of absence. In the domestic enquiry, the 2nd respondent took a stand that he was denied employment and that the appellant should issue an order directing him to join duty. The Inquiry Officer found that the 2nd respondent was continuously absent from September 1, 1986 in an irresponsible manner. On the basis of the report of the Inquiry Officer, a second show cause notice was issued to the 2nd respondent asking him to show cause as to why he should not be deemed to have left the employment with the appellant by reason of his continued absence for about 1 1/2 years. The 2nd respondent submitted his explanation again making the same allegation that he was refused employment. On a consideration of the matter, by order dated May 3, 1988 the 2nd respondent was informed that in view of his continued absence, he was deemed to have left the employment. It is also necessary to state that Standing Order 6-A provides for such a contingency and it reads as under :
“If the workman remains absent without leave or permission for more than eight consecutive days, he shall be deemed to have left employment unless he gives an explanation to the satisfaction of the management for such absence in which case the period of his absence shall be treated as leave without wages.”
7. Aggrieved by the order of the appellant dated May 3, 1988, the 2nd respondent raised a dispute and on failure of conciliation, the 2nd respondent filed a claim petition before the 1st respondent under Section 2-A(2) of the Industrial Disputes Act (hereinafter referred to as the Act), and the matter was taken on file by the 1st respondent as I.D. No. 314 of 1989. The appellant filed a detailed counter statement. The 1st respondent by his award dated September 7, 1993 clearly and categorically held that the domestic enquiry was fair and proper, that the findings of the Inquiry Officer were valid and that the 2nd respondent was not even a fit person to be retained in service, on the basis of the record that was placed before the 1st respondent. The 1st respondent has elaborately discussed the matter and criticised the conduct and character of the 2nd respondent for remaining absent without leave for such a long period. However, in the last paragraph of the order, the 1st respondent has stated that the counsel for the management has submitted before Court that an order of reinstatement without backages but with continuity of service could he passed on humanitarian grounds. In this view of the matter, the 1st respondent has passed an award directing that the 2nd respondent should be reinstated in service without backwages but with continuity of service.
8. On receipt of the award, the appellant sought instructions from its counsel and the appellant was informed that the counsel had not made any submission to the Court that an award could be passed for reinstatement with continuity of service but without backwages. It is, therefore, contended by the management that the 1st respondent had relied upon a statement which was never made by the counsel for the management and the 1st respondent has erroneously passed the award. Therefore, the management has filed the writ petition to quash the award on various grounds.
9. It is submitted by the learned counsel for the appellant that the award of the 1st respondent is erroneous and contrary to the evidence and circumstances of the case. It is submitted that the counsel for the management never made a submission before the 1st respondent that the 2nd respondent could be reinstated in service with continuity of service but without backwages on humanitarian grounds. According to the appellant, the counsel for the management stoutly opposed the plea of the 2nd respondent that any relief should be granted to him. The award is wholly based on the alleged statement made by the counsel for the management and in fact, a perusal of the award would reveal that the entire award barring the last paragraph is against the 2nd respondent. It is, therefore, submitted that the award is erroneous and is liable to be set aside. It is also contended by the learned counsel for the appellant that under the provisions of the Act, there is no procedure for review of an award of the Labour Court.
10. A supporting affidavit of the counsel for the appellant before the 1st respondent was also filed to the effect that he never made such a submission before the 1 st respondent. The affidavit of the counsel for the management before the 1st respondent filed in W.M.P. No. 11943 of 1994 in W.P. No. 7812 of 1994 reads as follows :
“I, B. Thangaswami, son of late G. V. Thangaswami, Indian, Christian, aged about 59 years, residing at 23, Second Street, Sivananda Colony, Coimbatore – 641 012, do hereby solemnly and sincerely affirm and state as follows :
1. I am an Advocate practising in Coimbatore. I represented the petitioner herein before the 1st respondent/Labour Court, Coimbatore, in the proceedings relating to I.D. No. 314 of 1989 and I am well acquainted with the facts stated here below.
2. The writ petition has been filed to challenge the award of the Labour Court in I.D. No. 314 of 1989 dated September 7, 1993. In paragraph 9 of the award, the Labour Court has made an observation that the counsel for the management stated that the 2nd respondent could be reinstated with continuity of service but without backwages. This statement is absolutely incorrect. I had never made any such statement or submission or suggestion at any stage of the proceedings before the Labour Court, the 1st respondent herein. I am placing these facts on record before this Hon’ble Court to specifically deny the statement made in paragraph 9 of the award and I crave leave of this Hon’ble Court to take note of this fact and pass appropriate orders.”
11. The matter came up for admission before D. Raju, J., who passed the following order :
“The above writ petition has been filed challenging the award of the Labour Court, Coimbatore, dated September 7, 1993 whereunder the Court below has chosen to grant relief of reinstatement only with continuity of service but without any monetary benefits or commitments. The award indisputably has been made on the concession said to have been made by the learned counsel appearing for the writ petitioner/management before the Labour Court.
2. Mr. Vijay Narayan, learned counsel appearing for the petitioner, contends that the learned counsel who appeared for the petitioner herein in the Court below, has filed an affidavit in this Court denying having made any such statement or submission at any stage of the proceedings. It is by now well settled that when a Court has recorded a particular statement as having been made by a counsel or party appearing before it, the appellate forum or any other Court cannot go behind that statement unless and until effective action is taken to have the same corrected by appropriate proceedings. This Court exercising jurisdiction under Article 226 of the Constitution of India cannot also undertake an enquiry as to the personal statement said to have been made by one of the counsel appearing before the Presiding Officer. In that view of the matter I do not see any justification to interfere with the matter at this stage as the award and the record of proceedings as contained therein stand. The writ petition, therefore, shall stand dismissed.”
12. Aggrieved by the said order, the above Writ Appeal has been filed. Pending notice of motion, a Division Bench of this Court has also granted stay of the operation of the award of the 1st respondent pending further orders of the said petition.
13. In the Writ Appeal, an affidavit was filed by the 2nd respondent, which reads as follows :
“I, Raman, son of late N. Sevana Gowder, Hindu, aged about 52 years, residing at Yedappally village and post, the Nilgiris, now come down to Chennai do hereby solemnly and sincerely affirm and state as follows :
I am the 2nd respondent in the writ appeal.
I submit that the Labour Court ordered my reinstatement in service with continuity of service but without backwages based upon the statement made by the counsel for the management before the Labour Court. In fact the counsel for the management took time to find out from the management whether I could be reinstated. The counsel made a statement before the Labour Court stating that the management was willing to give me employment without backwages. The affidavit filed by the counsel before this Hon’bie Court stating that no such representation was made on behalf of the management is factually incorrect. The counsel did inform the Labour Court that the management was willing to reinstate me in service without backwages. In fact, the counsel for the management also informed in my presence that he would submit before the Labour Court that the management was willing to give me employment without backwages.
I Submit that I was permitted to join duty on March 18, 1994. I am now in service.
14. On the basis of the above pleadings, learned counsel appearing for the appellant and the 2nd respondent made their submissions. We have been taken through the various proceedings.
15. Mr. Vijay Narayan, learned counsel appearing for the appellant submitted that the issue before the 1st respondent was, whether the non-employment of the 2nd respondent was justified or not and therefore, the 1st respondent was bound to render a finding on this issue and in fact, it has held that the non-employment was justified. Once such a finding is rendered, the 1st respondent has no option except to reject the relief prayed for by the 2nd respondent but the 1st respondent has travelled beyond the scope of the issue in granting the relief of reinstatement with continuity of service but without backwages. Mr. Vijay Narayan further submitted that in proceedings under the Act, the only method of relying upon such statements made by the management or on behalf of the management is to direct the parties to enter into a settlement and pass an award in terms of the statement. The 1st respondent does not have jurisdiction to rely upon oral statements alleged to have been made by the counsel for the management for granting the relief of reinstatement. He also submitted that under the provisions of the Act, there is no procedure for review of an award of the Labour Court and therefore, the management could not go before the 1st respondent. The management has, therefore, filed a supporting affidavit of the counsel for the management before the 1st respondent to the effect that he never made such a statement before the 1st respondent.
16. Mr. Vijay Narayan invited our attention to Section 2(p) of the Act, which deals with settlement. He submitted that if a settlement is arrived at in the course of the conciliation proceedings, a written agreement should have been arrived at, signed by the parties thereto in order to give a true colour to the agreement reached between the parties. Referring to Sections 18 and 19 of the Act, Mr. Vijay Narayan submitted that an elaborate procedure is provided under the Act with reference to the settlements and awards arrived at by agreement between the employer and the workmen how it shall be binding on the parties to the agreement, etc. He then invited our attention to Rule 25 of the Tamil Nadu Industrial Disputes Rules, 1958, which deals with the memorandum of settlement. Under this rule, a settlement arrived at in the course of conciliation proceedings or otherwise, shall be in Form ‘B’ and that the settlement shall be signed by the employer himself in the case of an employer, or by his authorised agent, or when the employer is an incorporated company or other body corporate, by the agent, manager or other principal officer of the corporation; and in the case of workmen, either by the President or Secretary of a registered trade union of workmen or by two office bearers of the union authorised by the President or Secretary or by five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose and attended by a majority of the workmen concerned. The parties to a settlement arrived at otherwise than in the course of conciliation proceedings shall send a copy thereof to the Conciliation Officer concerned, the Commissioner of Labour, Madras and the Secretary to the Government in, charge of Labour. The Conciliation Officer shall maintain a record of all settlements under the Act in respect of disputes in the area within his jurisdiction in a register in Form ‘C’.
17. Form ‘B’ under Rule 25 (1) of the Tamil Nadu Industrial Disputes Rules, 1958, reads thus;
FORM ‘B
(See Rule 25(1))
Form for Memorandum of Settlement
Names of Parties :
Representing employer(s) :
Representing workmen :
(Number and broad description of the categories of workmen
covered by the settlement).
Short recital of the case :
Terms of settlement :
Witnesses :
Signature of the Parties
Signature of the Conciliation Officer/Board of Conciliation.
Copy to :
1. The Secretary to the Government of Madras incharge of Labour, Fort St. George, Madras-9
2. The Conciliation Officer (here enter the office address of the Conciliation Officer, in the local area concerned).
3. The Commissioner of Labour, Madras.
In cases of settlements effected by Conciliation Officer/Board of Conciliation.
In cases where settlements are arrived at between the employer and his workmen otherwise than in the course of conciliation proceedings.
18. Mr. Vijay Narayan submitted that when a concession made by the counsel is in part satisfaction of the claim, the Labour Court, in such a case, should have directed the parties to file a memo. Since the 1st respondent has failed to follow the elaborate procedures provided under the above mentioned sections and the rules, the case put forward by the management should be accepted as correct.
19. The decision reported in M. Arunachalam v. The Tamil Nadu Eelectricty Board 1997 Writ L.R. 242 was cited by the learned counsel for the appellant. Reliance was placed on paragraph 8 of the said judgment. In that case it was argued that the endorsement of the advocate is not sufficient as the writ petitioner has not signed the memorandum of compromise filed before the Labour Court. The counsel relied upon a decision of the Supreme Court in Gurpreet Singh v. Chatur Bhuj Goel. wherein the Supreme Court after considering the provisions of Order 23, Rule 3 of the Code of Civil Procedure held that the Court must insist upon the parties to reduce the terms into writing. The Supreme Court has further held that the whole object of the amendment by adding the words “in writing and signed by the parties” is to prevent false and frivolous pleas that a suit had been adjudicated (sic) wholly or in part by any lawful agreement or compromise with a view to protract or delay the proceedings in the suit.
20. Our attention was drawn to Sections 17 and 17-A of the Act which deals with publication of reports and awards and commencement of the award respectively. Section 17 of the Act 3, provides for publication of the report of the Board or Court, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal within a period of thirty days from the date of its receipt by the appropriate Government. Section 17(2) provides that the award published under sub-section (1) of Section 17 shall be final and shall not be called in question by any Court in any manner whatsoever, subject to the provisions of Section 17-A Likewise, Section 17-A provides that an award including an arbitration award shall be enforceable on the expiry of thirty days from the date of its publication under Section 17. Section 17-A(2) provides that the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by the State Government, or before Parliament, if the order has been made by the Central Government.
21. The above provisions came up for consideration before the Supreme Court in the decision reported in Grindlays Bank Ltd. v. Central Government Industrial Tribunal (1981-I-LLU-327). The above case deals with the powers of the Industrial Tribunal to set aside an exparte award passed on merits. That was a case of Central Industrial Dispute. Two questions arose in the above appeal viz., (1) whether the Tribunal had any jurisdiction to set aside the ex-parte award, particularly when it was based on evidence and (2) whether the Tribunal became functus office on the expiry of thirty days from the date of publication of the exparte award under Section 17, by reason of sub-section (3) of Section 20 and, therefore, had no jurisdiction to set aside the award and the Central Government alone had the power under sub-section (1) of Section 17-A to set it aside. It was contended that neither the Act nor the Rules framed thereunder confer any powers upon the Tribunal to set aside an exparte award. It was urged that the award although exparte, was an adjudication on merits as it was based on the evidence led by the appellant, and therefore, the application made by the 3rd respondent was in reality an application for review and not a mere application for setting aside an exparte award. A distinction was sought to be drawn between an application for review and an application for setting aside an exparte award based on evidence.
22. In dealing with the above contentions, the Supreme Court has observed as follows :
“It must be borne in mind that the Industrial Tribunals Act, 1947 is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties. In other words, the purpose of the Act is to settle disputes between the workmen and employers which if not settled, would result in strikes or lockouts and entail dislocation of work, essential to the life of the community. The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the Tribunal committed under the Act. It, therefore, endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties.”
24. The Supreme Court was of the opinion that the Tribunal had the power to pass tile impugned order if it thought it fit in the interest of justice. It is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, the Supreme Court was of the view, that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary, and that they do not find any such statutory prohibition and on the other hand, there are indications to the contrary. The Supreme Court rejected the contention that the tribunal has become functus officio and therefore had no jurisdiction to set aside the exparte award and the Central Government alone could set it aside. Section 20(3) of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of thirty days from the date of its publication under Section 17. Till then, the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute.
25. In the instant case, the award was passed on September 7, 1993. The 1st respondent had jurisdiction to entertain it and decide the matter on merits before the expiry of thirty days of the publication. However, the appellant, without approaching the 1st respondent has filed the writ petition in this Court on April 19, 1994. The 1st respondent had not, in any event, become functus officio and that the jurisdiction of the 1st respondent had to be seen on the date of the application made and not on the date in which it passed the impugned order. As pointed out by the Supreme Court, there is no finality attached to an exparte award because it is always subject to its being set aside on sufficient cause being shown and that the Tribunal had the power to deal with an application for setting aside the exparte award and pass suitable orders.
26. The decision reported in State Bank of India v. K. B. Raju (1994-III-LLJ-(Suppl)-490) (Kant) was next cited by Mr. Vijay Narayan for the proposition that the power of review is not an inherent power and unless there is a statutory provision, which specifically or by implication confers on the Tribunal the power to review its own order, it cannot he said that the Tribunal enjoys such a power.
27. In the decision reported in The Management of Kammavar Achukudam Ltd. v. The Industrial Tribunal (1959-I-LLJ-395), this Court has held that the Industrial Tribunal is a creature of Statute, and it has no powers except those conferred by the Statute either expressly or by necessary implication. Whatever power it seeks to exercise must be traceable in the final instance to the Statutes which brought it into existence and clothed it with power and authority. In this respect a statutory Tribunal differed from the ordinary Civil Courts. So far as these Courts are concerned, their inherent powers are expressly saved by Section 151 of the Civil Procedure Code. No such provision exists in the enactments setting up the Industrial Tribunal and conferring power to it. The learned Judge has also rejected the argument of the counsel for the respondent therein that the Industrial Tribunal has the power to clarify its order and to explain what it meant to say. The learned Judge has held that the Industrial Tribunal is a creature of Statute and has no powers except those which can be traced to the Statute and the Statute does not confer on it power to clarify its own order.
28. In the decision reported in Kaloo Singh v. Madanlal 1985 Lab. I.C. 130, a learned single Judge of the Rajasthan High Court held that the power of review is not inherent in any Court or Tribunal and it must be conferred by Statute. An Industrial Tribunal cannot amend or modify its award which has become final under its inherent powers. It cannot review the award except to correct clerical errors. In tact, the Rajasthan High Court has followed (1954-II-LLJ-410) (Mad) and (1959-I-LLJ-395) (Mad) (Supra).
29. Citing the above decisions Mr. Vijay Narayan submitted that the appellant could not is go before the 1st respondent by filing a petition for review. Mr. Vijay Narayan then tried to distinguish the judgment relied on by Mr. V. Selvaraj, learned counsel for the 2nd respondent in Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990-I-LLJ-320) (SC). The above decision was cited by Mr. V. Selvaraj in support of his contention that the statement of facts recorded by a Court or quasi-judicial Tribunal in its proceedings as regard the matters which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the Court/Tribunal and to have it deleted or amended. It is not, therefore, open to the parties or the Counsel to say that the proceedings recorded by the Tribunal are incorrect.
30. In the above case, two writ petitions were filed raising common questions of fact and law. A relief was sought under Article 32 of the Constitution for a writ of mandamus to regularize their services in the respective units and to pay them equal wages with initial basic pay, D.A., and other admissible allowances at par with regularly appointed employees of the respondent performing the same or similar duties. The respondent had raised several disputed questions of fact. The Tribunal held after taking into consideration all the facts and circumstances that all the petitioners/workmen are performing same or similar duties as are performed by the incumbents of group ‘D’ posts of the DSMDC and consequently, the principle of equal pay for equal work enshrined in Article 39(d) read with Articles 14 and 16 of the Constitution, all these workmen are entitled to equal pay for equal work in relation to the regular employees. Learned counsel for the respondent/ Corporation has vehemently assailed the tenability of all the recommendations. It was his contention that the Corporation did not agree to dispense with adducing oral evidence and despite the direction of the Supreme Court to submit a preliminary report, the Tribunal is wrong in stating that the respondent agreed that the Tribunal would send the final report. He disputed the findings on merits pointing out various contentions raised by the respondent in its pleadings, objections and the documents filed before the Tribunal. Rejecting the said contention, the Supreme Court held that it is no longer open to the respondent/Corporation to say that it has not consented to dispense with adducing oral evidence and to the Tribunal submitting its final report instead of a preliminary one as directed by the Supreme Court.
31. Mr. Vijay Narayan tried to distinguish the above judgment on two grounds viz., (1) the statement made in this case did not relate to giving up part of the claim and (2) the Court never considered whether a review can be filed or not. To that extent the observation is per incurium. We are unable to agree with the said contention. The Supreme Court declined to interfere with the recording of the statement by the Tribunal in its proceedings. As regards the matter which transpired during the hearing before the Tribunal, the Supreme Court held that it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. As per the above judgment, it is open to a party to bring such statement to the notice of the Tribunal and to have it deleted or amended. Having failed to bring such a statement to the notice of the 1 st respondent herein and to have it deleted or amended, it is not open to the appellant now to say that the proceedings recorded by the 1st respondent are incorrect.
32. Though Mr. Vijay Narayan conceded that order 23 Rule 3 of the Code of Civil Procedure will not apply, the principles laid down can be applied. By concluding his argument, Mr. Vijay Narayan submitted that in the instant case apart from the statement made by the counsel, no other reasoning is given by the 1st respondent to grant the relief, that the 1st respondent should not have relied on the oral statement said to have been made by the counsel for the management and therefore, the award is liable to be set aside.
33. Arguing contra, Mr. V. Selvarai drew our attention to Section 2(k) and 2-A of the Act. Section 2(k) deals with an industrial dispute, which means, any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Section 2-A deals with the dismissal ect. of an individual workman to be deemed to be an industrial dispute. This Section states that where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. An amendment was introduced to the above Section under Tamil Nadu Act 5 of 1988. The amended provision gives authority to the aggrieved individual workman to go to the Labour Court when no settlement is arrived at in the course of any conciliation proceedings taken under the Act in regard to an industrial dispute referred to in sub-section (1), for adjudication of such dispute and the Labour Court shall proceed to adjudicate the said dispute as if the said dispute has been referred to it for adjudication and accordingly all the provisions of the Act relating to adjudication of industrial disputes by the Labour Court shall apply to such adjudication.
34. Mr. V. Selvaraj has also brought to our notice Section 11-A of the Act which deals with powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman, as the case may be. Section 11-A of the Act also authorises the Labour Court to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. A proviso was added to the above Section to the effect that the Labour Court or Tribunal shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
35. Placing reliance on the above Section, Mr. V. Selvaraj submitted that the 1st respondent has got power and jurisdiction to act on the concession made by the counsel for the management that the 2nd respondent could be reinstated into service with continuity of service and without backwages. The above Section authorises the Tribunal or the Labour Court either to set aside the order of discharge or dismissal and direct the reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances the case may require. In this case, the 1st respondent, on the concession made by the counsel for the management, has only ordered reinstatement without any backwages but with continuity of service alone. Therefore, as rightly submitted by the learned counsel for the 2nd respondent, the 1st respondent has exercised its jurisdiction pursuant to the powers given to it under Section 11-A of the Act.
36. Our attention was also drawn to Section 11 of the Act which deals with the procedure and powers of Conciliation Officers, Boards, Courts and Tribunals. Our attention was also drawn to Rules 48, 48-A, 51 and 55 of the Tamil Nadu Industrial Disputes Rules, 1958. Rule 48 deals with exparte proceedings. Under Rule 48(2), the Labour Court or the Tribunal has the authority to set aside, after notice to the opposite party, the exparte decision either wholly or in part on an application made within 15 days of the exparte decision for sufficient cause. The Proviso to Rule 48(2) gives power to the labour Court/Tribunal to entertain the application filed beyond the period of 15 days.
37. Rule 48-A deals with an application for restitution. Rule 51 authorises the Labour Court to pronounce in open Court the award or the essential features thereof in case of urgency provided that such oral pronouncement in open Court shall not be made until the Labour Court or the Tribunal, as the case may be, has the text of its award ready along with copies intended for submission to the State Government. Rule 55 authorises the Labour Court/Tribunal or an Arbitrator to correct any clerical mistake or error arising out of an accidental slip or omission in any proceedings, report, award or decision either of its or his own motion or on the application of any of the parties. The said rule further provides that any such correction in relation to any award if made after the award is published shall also be published in the same manner as the original award.
38. Winding up his argument Mr. V. Selvaraj submitted that as far as this case is concerned, the 1st respondent has reduced the punishment on the basis of the statement made by the counsel for the management by invoking his power under Section 11-A of the Act and this comes under the purview of the power of the 1st respondent on consideration of the punishment and hence the same is not liable to be interfered with by this Court. Since the appellant did not approach the 1st respondent to delete or amend the mistake, it is not now open to the appellant or the counsel to say that the proceedings recorded by the 1st respondent are incorrect. The learned Judge has also dismissed the writ petition on the ground that the appellant has not taken any effective action to have the mistake corrected by appropriate proceedings before the 1st respondent. Therefore, the learned Judge has declined to entertain the writ petition on the ground that this Court cannot undertake an enquiry as to the personal statement made by one of the counsel appearing before the 1st respondent.
39. We may also in this context notice that two affidavits have been filed in this Court, one by the counsel appearing for the management, and the other by the 2nd respondent. The counsel for the management has averred in his affidavit that the statement made by the 1st respondent in the award about the concession made by him is absolutely incorrect and that he has never made any such submission or suggestion at any stage of the proceedings before the 1st respondent. On the other hand, the 2nd respondent filed an affidavit stating that the counsel for the management took time to find out from the management whether the 2nd respondent could be reinstated and later the counsel made a statement before the 1st respondent that the management is willing to give employment to the 2nd respondent without backwages and that the affidavit now filed by the counsel for the management before the 1st respondent stating that no such representation was made on behalf of the management is factually incorrect and that the counsel for the management did inform the 1st to respondent that the management was willing to reinstate the 2nd respondent in service without backwages. It is oath against oath.
40. As rightly pointed out by the learned single Judge, this Court exercising jurisdiction under Article 226 of the Constitution cannot undertake an enquiry as to the personal statement said to have been made by one of the counsel appearing before the 1st respondent, or the statement of the 2nd respondent now made before the Bench that the counsel for the management did inform the 1st respondent that the management was willing to reinstate him in, service without backwages. The fact remains that the appellant has not approached the 1st respondent for any amendment or deletion. During the pendency of the Writ Appeal, the 2nd respondent was permitted to join duty on March 18, 1994 and he is now in service. Therefore, taking into consideration the totality of the circumstances of the case, we are of the view that the appellant has not made out any case for interference with the order of the learned single Judge or the 1st respondent.
41. For all the fore-going reasons, the writ Appeal fai
ls and is dismissed. However, there will be no order as to costs. Consequently, C.M.P. No. 826 of 1995 is dismissed as no longer necessary.