BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/03/2011
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Writ Petition (NPD) No.9192 of 2008
a n d
M.P.(MD) No.2 of 2008
and
M.P.(MD) No.1 of 2011
Gammon India Limited
through its Authorised Signatory
P.A.Datar
Mumbai 400 025 ... Petitioner
Vs
1. Nanda Kumar
2. The Presiding Judge
Labour Court
Tirunelveli. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of certiorarified mandamus to call for the records of the
second respondent in I.D.No.2 of 2006 dated 17/12/2007 by quashing the same as
illegal, incompetent and without jurisdiction.
!For petitioner ... M/s.P.S.Sundaram
G.Anbu Saravanan
^For respondents ... M/s.M.Ajmal Khan
M.E.Elango
C.Venkatesh Kumar
for R.1.
- - - - - -
:ORDER
The petitioner has filed the present writ of certiorarified mandamus in
calling for the records of the second respondent/Labour Court, Tirunelveli in
regard to the award passed in I.D.No.2 of 2006 dated 7/12/2007 and to quash the
same.
2. According to the Learned counsel for the petitioner/respondent, the
petitioner Company has been awarded a contract to construct a Masonry dam at
Advinainarkoil at Mekkarai, Shencottah Taluk, Tirunelveli District by the
Government of Tamil Nadu. The period of contract is for four years (inclusive
of the extended period). The contract is for a limited period from 1/4/1998 to
31/3/2002.
3. The Learned counsel for the petitioner/respondent urges before this
Court that the First Respondent/petitioner has been appointed in the
petitioner’s Company on probation basis as per appointment order dated 1/10/1999
on a consolidated salary of Rs.2,418/-. Further, it is mentioned in the
appointment order itself that his services will get discontinued after
completion of the contract. The first respondent has submitted his nomination
declaration as regards the Employees Provident Fund which has been duly counter
signed by the petitioner Company. He also submitted Form No.5 pertaining to the
Employees Provident Fund. His services have been terminated on 11/5/2000. As a
matter of fact, the project has been in operation only for a contractual period
of four years.
4. The Learned counsel for the petitioner, advancing his arguments
contends that the first respondent filed I.D.No.2 of 2006 on the file of the
second respondent/Labour Court and notices have been addressed to the erstwhile
site Office of the petitioner at Kuttralam, so as to obtain ex parte award
against the petitioner/Company and the first respondent obtained an ex parte
award on 8/5/2008 before the second respondent/Labour Court, Tirunelveli.
5. Also, the Learned counsel proceeds to submit that the award has been
posted to the petitioner Company to their Courtallam Office address on 29/4/2008
by the Labour Officer, Tirunelveli, etc., and the said award has been sent to
Mumbai Office of the petitioner’s Company, after getting re-routed from
Courtallam address and the same has been received by the petitioner Company at
Mumbai on 28/5/2008.
6. The Learned counsel for the petitioner Company submits that the second
Respondent Office, Tirunelveli has not posted the postal article from
Tirunelveli, but the same has been done by the first respondent by posting it
from Tenkasi and thus, award has been obtained behind the back of the petitioner
Company and therefore, the same is void and an illegal one.
7. The Learned counsel for the petitioner/Company/Management submits that
the petitioner Company has been engaged only in contract work and therefore,
there is no permanency in the work and hence, the first respondent/petitioner
cannot claim for his reinstatement with back wages since the contract period has
been less than two years.
8. The plea of the Learned counsel for the petitioner/Management is that
the failure report of the labour Officer, Tirunelveli is dated 12/2/2001 and the
reference to the Labour Court is of the year 2006, after a lapse of five years
and by that time, the contract has come to an end after two years and in fact,
Kuttralam Office of the petitioner has been wound up.
9. The Learned counsel for the petitioner takes a stand that the first
respondent/Employee is aware of his temporary employment in a contractual
project and as such, he is aware of the address of the petitioner Company all
through the period of employment and he is also aware that there is no Project
Officer at Kuttralam after completion of the earth work involved in the project
in which the driving machineries have been used by the first respondent.
10. The Learned counsel for the petitioner/Management, expatiating his
submissions submits that the First respondent/Employee has attempted to assault
the Superior Officer with chappals and using filthy language and there has been
complaints given in writing by the superiors of the first respondent/Employee.
11. Also, the First Respondent’s Superior has lodged a Police complaint
before Achanpudur Police Station against the First Respondent/Employee. The
First Respondent/Employee has given a letter of apology to correct himself. But,
he has not corrected himself during the second probationary period.
12. Lastly, it is the contention of the Learned counsel for the
petitioner/Management that the petitioner Company has no other alternative
remedy to assail the award dated 17/12/2007 passed in I.D.No.2 of 2006 by the
second Respondent/Labour Court, Tirunelveli and therefore, the writ petition is
maintainable before this Court.
13. Per contra, it is the contention of the learned counsel for the First
Respondent/Employee that the First Respondent has been terminated from service
by means of an order of the petitioner dated 11/5/2000 and that the petitioner
Company has not conducted any enquiry in respect of the petitioner and also no
show cause notice has been given to the petitioner either in regard to his
purported misbehaviour with Ravi, Assistant Plan Engineer on 10/5/2000 at night
or in regard to threatening to beat him with chappals, etc. Further, the Labour
Officer, Tirunelveli has addressed a letter dated 17/8/2000 to the petitioner
Company stating that there will be a meeting in the Office on 24/8/2000 in the
afternoon session at 3.00 p.m., and before that, the first respondent has
submitted an application before the Labour Officer, Tirunelveli as per Section 2
A claiming reinstatement. On 6/11/2000, the Deputy General Manager of the
petitioner Company has addressed a letter to the Labour Officer, Tirunelveli and
authorising one Mr.E.R.Nair to attend and deal with the hearing in Reference
No.1127/2000 on their behalf. Later, the Labour Officer, Tirunelveli, has
submitted the failure report on 12/2/2001 to the Government in Ref.No.1127/2000.
14. The Learned counsel for the First Respondent/Employee submits that it
is upto the Government to refer the matter to the Labour Court/competent forum
and when the First Respondent/petitioner raised a dispute claiming
reinstatement/re-employment at that point of time the Office of the petitioner
Company has been very much in existence and it participated in hearing before
the Labour Officer, Tirunelveli. There is no averment in the counter filed by
the petitioner Company before the Labour Officer that when the project has been
closed and that the petitioner/Management received the copy of the Ex parte
Award at Mumbai address to which it has been redirected and the second
respondent/Labour Court has exercised its due diligence. Moreover, the
petitioner Company has not pursued the case and the scope of judicial review is
very limited in a jurisdiction under Article 226 of the Constitution of India.
15. The second respondent/Labour Court, Tirunelveli on 17/12/2007 in
I.D.No.2 of 2006 has passed the following award, which runs as follows:-
“Petitioner was examined as W.W.1 on 22/11/2007 besides proof affidavit
having been filed and Ex.W.1 and W.2 have been marked on the side of the
petitioner. But respondent was called absent and set ex parte on 22/11/2007 and
till this day respondent has not come forward with any application to set aside
ex parte order dated 22/11/2007. Hence petitioner is entitled to the relief as
prayed for and accordingly award is passed directing the respondent to reinstate
petitioner in service and also pay the backwages.”
16. As seen from the award, it is mentioned that the
petitioner/Management (Respondent in I.D.No.2 of 2006) has been called absent
and set Ex parte on 22/11/2007. Further, till the passing of the award on
17/11/2007, the petitioner/Management has not filed any application to set aside
the Ex parte order. Therefore, the second Respondent/Labour Court has examined
the first respondent has W.W.1 on 22/11/2007 (besides the proof affidavit being
filed) and also marked W.1 and W.2 on his side. The second respondent has
passed an award holding that the First Respondent/petitioner is entitled to the
relief as prayed for in I.D.No.2 of 2006 and directed the petitioner/Management
to reinstate the First Respondent/Employee and to pay him the back wages.
17. The learned counsel for the petitioner/Management submits that if the
Government has not made the reference to the competent forum within a reasonable
time and if sufficient cause is not shown in that regard, the same is fatal. To
lend support to his contention, he relies on the decision of Honourable Supreme
Court in KULDEEP SINGH Vs. G.M.INSTRUMENT DESIGN D & F CENTER & ANOTHER reported
in 2011 (1) LLN 1 (SC), wherein it has among other things held that
“Government cannot go into merits of dispute and once it is found that
there is dispute, Government ought to make a reference and further and if
adequate reasons are found, the Government has to refer the dispute and must not
decline on ground of laches and also that though there is no limitation
prescribed, but the reference has to be sought within a reasonable time and
sufficient cause is not shown, it would become fatal.”
18. He cites a Division Bench decision of this Court in AMMANI AMMAL Vs.
DHANALAKSHMI BANK LTD., TIRUPPUR AND OTHERS reported in (2008) 2 MLJ – 395,
wherein, it among other things held that
“There is a duty cast on the bank to state the correct address of the
borrowers and the guarantor and the Court or Tribunal while making an order to
hear the suit ex parte, should be convinced that the summons was duly served on
the defendant. Further, unless and until it is shown that the defendant was
served in the correct address, it cannot be said in spite of the notice, the
defendant failed to appear before the Court, etc.”
19. Continuing further, in the aforesaid decision, at page No.396, it is
held that
“The Court or Tribunal cannot mechanically declare a party ex parte
without making an attempt to see whether the summons was really served and in
the present case, no such attempt has been made by the Tribunal and it also
failed to note that the correct address of the petitioner was not given in the
original application and that there is no exorbitant delay in filing the
application to set aside the exparte order and accordingly, the delay has been
condoned.”
20. He invites the attention of this Court to the decision of the
Honourable Supreme Court in MD.U.P.LAND DEVELOPMENT CORPORATION AND ANOTHER Vs.
AMAR SINGH AND OTHERS reported in (2003) 5 Supreme Court Cases – 388, wherein
the Honourable Supreme Court has held as follows:-
“The internal note and order of the Corporation was prepared by the
Director of the Corporation for his own purpose, but strangely enough a copy of
the same was produced by the respondents in the writ petition. Apart from the
fact whether such an internal note itself could give any right to the
respondents, the very reading of the same does not give an impression that it is
indicated to create twenty-five posts on a regular basis. It only states that a
panel of twenty-five persons be prepared for training, taking note of the future
possible requirements of persons working in the project. From the documents
viz., the internal note and order of the Corporation, letter addressed to the
Vice Chancellor of Agricultural University seeking names of the candidates for
recruitment to the post of Assistant Project Manager (Group 3), letters
addressed to the respondents individually asking them to attend the office for
training, during which they were to get a monthly training allowance for Rs.1200
only and the letter of the Joint Secretary, U.P. Govt, stating the vacancy
position, it is clear that the respondents were never recruited as against
regularly sanctioned posts on a regular basis. Reading of these documents and
the contentions raised on either side go to show that the appointments of the
respondents were temporary under the “Million Wells Scheme”. When the work of
the Scheme come to an end, the respondents were not entitled to claim
regularisation of their services. When the project comes to a close, the
employees who are working in the project will not get any vested right. In
other words, once the project comes to an end, services of the employees also
come to an end. Even though their services were continued by virtue of an
interim order passed in the writ petition, they cannot claim benefits of
regularisation of their services as a matter of right.”
21. He cites the decision of the Honourable Supreme Court in MAHINDRA AND
MAHINDRA, LTD Vs. N.B.NARAWADE reported in 2005 (1) L.L.N. – 1074, wherein it is
observed that
“…. Discretion under Section 11 A of the Industrial Disputes Act can be
exercised only on existence of certain factors like punishment being
disproportionate to the gravity of misconduct so as to disturb the conscience of
the Court or the existence of any mitigating circumstances which require the
reduction of the sentence or the past conduct of the workman which may persuade
the Labour Court to reduce the punishment and further, the use of abusive and
filthy language against the supervisor not once but twice that too in the
presence of his subordinates cannot be termed to be an indiscipline calling for
lesser punishment. In the absence of any extenuating factor and therefore, the
Labour Court as well as the High Court erred in interfering with the punishment
imposed by the disciplinary authority.”
22. The learned counsel for the petitioner places reliance on the
decision of this Court in THE CHAIRMAN AND MANAGING DIRECTOR, TAMIL NADU
MINERALS LTD., CHENNAI 5 Vs. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, CHENNAI
104 AND TWO OTHERS reported in 2000 (IV) CTC – 131, wherein it is held that
“The award passed without considering the merits and demerits of the claim
and the order passed by the Industrial Tribunal is a non-speaking order without
considering the merits and demerits of the claim and that there is absence of
judicial application of mind and the said order of the Industrial Tribunal is
not a judicious one.”
23. Apart from the above, the learned counsel for the
petitioner/Management draws the attention of this Court to the following
decisions.
(a). This Court in the order made in W.P.Nos.831 to 833 of 2008 in THE
MANAGEMENT OF M/s. STALLION GARMENTS Vs. 1. THE PRESIDING OFFICER, LABOUR
COURT, SALEM AND THREE OTHERS, wherein reference was made to Section 24 which
deals with the power of the Board, Courts, Labour Courts, Tribunals and National
Tribunals, which runs as follows:-
“11. Likewise, the Tamil Nadu Industrial Disputes Rules, 1958,
particularly Rule 34 which speaks about the proceedings before the Labour Court
or Tribunal enables the Labour Court to decide a reference in the absence of a
defaulting party as ex parte, however, with the right to revoke the said ex
parte proceedings on the application of the party within 15 days from the ex
parte proceedings, if satisfied with the reasons preventing the party from
appearing. It also confers the power on the Labour Court in the case of the
applicant satisfying that he has sufficient cause for not preferring the
application even beyond 15 days. The said provisions are as follows: 34.
Proceeding before the Labour Court or Tribunal:
(1) to (9) xxxxx
(10) In case, any party defaults or fails to appear at any stage, the
Labour Court or Tribunal as the case may be, may proceed ex-parte and decide the
reference application in the absence of the defaulting party. (11)
Notwithstanding anything contained in sub-rule (10), the Labour Court or the
Tribunal, as the case may be, may, before submitting the award to the State
Government, revoke the ex-parte proceedings on the application of the party made
within 15 days of the ex-parte proceedings if it is satisfied that the party has
been prevented from attending the proceedings for valid reasons: Provided that
an application may be admitted after the said period of 15 days, if the
applicant satisfies the Labour Court or Tribunal, as the case may be, that he
had sufficient cause for not preferring the application within that period.
Therefore, under the Tamil Nadu Industrial Disputes Rules,1958 there is an
enabling provision to the Labour Court or Industrial Tribunal to entertain the
application filed to set aside the award even beyond 15 days without any further
restriction to the party when sufficient cause has been shown to the
satisfaction of the Court.
12. It is true that while the ex parte award was passed by the Labour
Court and the petitions to set aside the ex parte award with the petitions to
condone the delay were dismissed in 2007, the judgment of the Supreme Court at
that time dealing with the powers of the Labour Court in setting aside the ex
parte award after 30 days from the date of publication was as held in Sangham
Tape Company vs. Hans Raj [2004(5) CTC 104 (SC)]. That was also a case where
after the expiry of 30 days from the date of publication of the ex parte award,
the application filed to set aside the ex parte award came to be allowed and
when a similar contention was raised that after the lapse of 30 days from the
date of publication, the Labour Court has no jurisdiction, the High Court set
aside the award of the Labour Court which was challenged by the employer.
13. In that case, the Supreme Court considered the judgment in Grindlays
Bank v. Central Government Industrial Tribunal and others [1980 Supp.SCC 420]
wherein it was held that by virtue of the provisions of section 11 of the
Industrial Disputes Act,1947 and Rules 22 to 24 of the Industrial Disputes
(Central) Rules,1957 if within 30 days from the date of publication of award any
application is filed to set aside the award, the same can be entertained and
therefore, it was only till 30 days from the date of publication of the award,
the Tribunal retains its jurisdiction, and having held that the judgment of the
Supreme Court in Anil Sood vs. Presiding Officer, Labour Court [2001 (2) Scale
193] did not lay down any law contrary to the judgment in Grindlays Bank case
(cited supra), the Supreme Court held as follows: 12. This Court in Anil Sood
(supra) did not lay down any law to the contrary. The contention raised on the
part of Mr.Jain to the effect that in fact in that case an application for
setting aside an award was made long after 30 days cannot be accepted for more
than one reason. Firstly, a fact situation obtaining in one case cannot be said
to be a precedent for another. [See Mehboob Dawood Shaikh v. State of
Maharashtra (2004 (2) SCC 362]. Secondly, from a perusal of the said decision,
it does not appear that any date of publication of the award was mentioned
therein so as to establish that even on fact, the application was made 30 days
after the expiry of publication of the award. Furthermore, the said decision
appears to have been rendered on concession.
14. It was based on the said dictum laid down by the Supreme Court which
was holding the field at that time, the Labour Court rejected the application
filed by the petitioner beyond 30 days from the date of publication of the award
on the ground that the Labour Court became functus officio. But, as brought to
the notice of this Court by the learned counsel for the petitioner, the Supreme
Court had an occasion to consider the said issue recently in Radhakrishna Mani
Tripathi vs. L.H.Patel and another [2009(1) LLN 786] wherein the judgment in
Sangham Tape Company vs. Hans Raj [2004(5) CTC 104] was not considered, but, at
the same time considered in detail the judgments in Grindlays Bank and Anil Sood
(cited supra) in the light of the Industrial Disputes (Bombay) Rules, 1956. Rule
26 of the Industrial Disputes (Bombay) Rules is slightly different from the
relevant provision in the Tamil Nadu Rules in the sense that it enables a party
affected by an ex parte award to file application within 30 days of the receipt
of copy of the said award. The said rule is as follows: 26. Board, Court, Labour
Court, Tribunal or Arbitrator may proceed ex parte.-
If without sufficient cause being shown, any party to a proceeding before a
Board, Court, Labour Court, Tribunal or an arbitrator fails to attend or to be
represented, the Board, Court, Labour court, Tribunal or arbitrator may proceed
ex parte. (2) Where any award, order or decision is made ex parte under sub-rule
(1), the aggrieved party, may within thirty days of the receipt of a copy
thereof, make an application to the Board, Court, Labour Court, Tribunal or
Arbitrator as the case may be, to set aside such award, order or decision. If
the Board, Court, Labour Court, Tribunal or Arbitrator is satisfied that there
was sufficient cause for non-appearance of the aggrieved party, it or he may set
aside the award, order or decision so made and shall appoint a date for
proceeding with the matter: Provided that, no award, order or decision shall be
set aside on any application as aforesaid unless notice thereof has been served
on the opposite party.”
Also, in the said decision, the learned counsel for the petitioner, refers
to the observations made in paragraph 17, 18 and 20, which runs as follows:-
17. Applying the latest dictum of the Supreme Court wherein the Honble
Supreme Court has taken note of Rule 22 of the Central Rules which is similar to
Rule 26(1) of the Bombay Rules, to the facts of the present case, as elicited
above, Rule 34(10) and (11) of the Tamil Nadu Industrial Disputes Rules, 1958,
especially the proviso to Rule 34(11) which enables an applicant to set aside
the ex parte award even after 30 days of publication, since no maximum period of
limitation is mentioned even after the period of 15 days, and the same is
relatable to Rule 22 of the Central Rules and Rule 26(1) of the Bombay Rules as
stated above.
18. In fact, by referring to the said Rule 22 of the Central Rules, this Court
in Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai vs.
Presiding Officer, Industrial Tribunal, Chennai and others [2000(3) LLN 1025]
was dealing with an application to set aside ex parte award which was filed
after a delay of 1245 days. In that case, P.Sathasivam,J.(as he then was) by
relying upon the judgment of this Court in T.N.H.B. v. Presiding Officer, Second
Additional Labour Court, Madras [1997(1) LLJ 923] held that when the ex parte
award was passed, the Labour Court did not choose to give any reason and even
the facts of the case were not mentioned and the award was passed in a casual
manner without application of mind. It was also held as under: 7. It is also
relevant to refer a Division Bench decision of this Court in T.N.H.B. v.
Presiding Officer, Second Additional Labour Court, Madras (1997 I L.L.J. 923).
Their Lordships of the Division Bench after considering similar rule 48 of the
Tamil Nadu Industrial Disputes Rules, 1958, as well as an ex parte award passed
by the Labour Court, have observed thus: 6. Thus, from the aforesaid award, it
is clear that the Labour Court has not considered the evidence on record. Even
though the appellant remained absent, nevertheless, there was evidence on
record. There were the statements of the case pleaded by the petitioner and the
respondent. The Labour Court was required to consider and give reasons for
passing the award in favour of the second respondent-workmen. As no such reason
is given, not even the facts of the case are stated, the award cannot at all be
considered to be a speaking order, as such it cannot be sustained. The Presiding
Officer is an officer of the district Judge grade. He should not have decided
the dispute in such a manner. There is no judicial application of mind of the
Presiding Officer of the Labour Court. Such exercise of jurisdiction causes
great and incalculable damage to the parties and also to the administration of
justice. The Presiding Officer would do better, if he discontinues such a habit
of disposal of cases. In the case before the Division Bench, when the dispute
was taken up for enquiry, the respondent-management was absent and set exparte.
On the side of the workmen, W.W.1 was examined and Exhibits W.1 to W.4 were
marked. The Labour Court after stating that W.W.1 was examined, that Exhibits
W.1 to W.4 were marked, and that claim is proved, passed an award directing the
respondents-management to reinstate the workman in service with back-wages,
continuity of service and other attendant benefits with cost of Rs.100. The aid
award was set aside by the Division Bench stating that the Labour Court has not
assigned any reason and has not stated even the facts of the case. It is clear
that in a matter like this, even if the respondent was absent, it is the duty of
the Labour Court/Industrial Tribunal to consider and give reason for passing the
award. Inasmuch as the Presiding Officer is an officer of the District Judge
grade, as observed by their Lordships in the Division Bench, he should not have
decided the dispute in such a manner. There must be a judicial application of
mind and his order must be based on acceptable materials. By applying the ratio
laid down in the Division Bench decision, the impugned order cannot be
sustained. In W.P.No.6346 of 1998, dated 14 August, 2000, I had an occasion to
consider similar ex parte award passed by First Additional Labour Court,
Chennai, in I.D.No.120 of 1995. In the light of the Division Bench decision
referred to above, I set aside the ex parte award with a direction to pay cost
to the workman concerned by the management and directed the Labour Court to
decide the dispute on merits. The decision of mine also supports the contention
of the learned counsel for the petitioner.
20. In such view of the matter, considering the view of the Supreme Court in its
latest judgment in Radhakrishna Mani Tripathi vs. L.H.Patel and another [2009(1)
LLJ 786] and for the reasons stated above, I am of the considered view that it
cannot be said that the Labour Court has become functus officio after the
publication of the award under section 17A of the Act. It is also relevant to
note that the ex parte award passed by the Labour Court itself is, on the face
of it, without application of mind and even the facts of the case have not been
narrated by the Labour Court while passing the ex parte award which can
certainly be said to be an award passed in a casual manner, as observed by this
Court as elicited above. While the powers of C.P.C. are conferred on the Labour
Court in respect of procedure to be followed in passing the award, certainly in
case where ex parte award is sought to be passed, there should be proper
application of mind and the presiding officer should be fair at least in
narrating the facts of the case, especially in the circumstance where he allowed
the claim against the termination, as pleaded by the second respondent-workmen.”
(b). In RADHAKRISHNA MANI TRIPATHI Vs. L.H.PATEL AND ANR reported in 2009
(2) SCC – 81, wherein the Honourable Supreme Court has held that
“The Tribunal held that the appellant obtained an order for ex parte
hearing of the reference by knowingly suppressing the correct address of
Respondent No.1 and the labour Court recalled its earlier award and in the
appeal, it is held that the order of the labour Court recalling the ex parte
award was completely in accordance with Rule 26 (2) of the Bombay Rules and
also, the respondent No.1 was also able to fully satisfy the Labour Court that
there was sufficient cause for his non-appearance since no notice was ever
served on him and there is no conflict between Rule 26 (2) of the Maharashtara
Rules and Section 17 A of the Act and resultantly, dismissed the appeal.”
(c). In L.K.VERMA Vs. H.M.T LTD AND ANR reported in 2006 (2) SCC – 269,
wherein the Honourable Supreme Court has observed that
“Despite the existence of an alternative remedy, a writ Court may exercise
its discretionary jurisdiction of judicial review in the following cases: where
the Court or the tribunal lacks inherent jurisdiction; or for enforcement of a
fundamental right; or if there had been a violation of a principle of natural
justice; or where vires of the act were in question and in the present case, the
alternative remedy had been held not to operate as a bar.”
(d). In KEDARISETTI ATMARAM Vs. N.SEETHARAMARAJU reported in AIR 2011
(NOC) 65 (A.P.), wherein it is held as follows:-
“Irrespective of the fact whether the petitioner had availed the
alternative remedy or not or whether the petitioner had exhausted the other
remedies or not, but where it appears that manifest injustice has been done,
High Court shall have superintendence over all the subordinate Courts and
Tribunals through the territory in relation to which it exercises its
jurisdiction and when prejudice is caused to the general provisions, the High
Court may call for written explanation from such Courts and make and issue
general rules and prescribe norms for regulating the practice and proceedings of
such Courts. Thus the power of superintendence over subordinate Courts and
tribunals are exhaustive and cannot be curtailed even by any legislation.
Where it appears that manifest injustice has been done, the High Court can
interfere under Article 227 of the Constitution. Therefore, where it appears to
the Court that a decree has been obtained by misrepresentation or by playing
fraud, the Court can exercise its powers under Article 227 and entertain a
revision and set aside such judgement and decree and see that illegal, unjust
and irregular orders do not prevail. It is the duty of the Court to see that
fraud played by the parties should not perpetuate and as and when it comes to
the notice of any Court at any stage, the Court has to set aside the same in the
interest of justice.”
24. However, the learned counsel for the respondent/Employee cites the
decision of the Honourable Supreme Court in SANGHAM TAPE CO Vs. HANS RAJ
reported in (2005) 9 Supreme Court Cases 331, wherein it is held as follows:-
“An industrial adjudication is governed by the provisions of the
Industrial Disputes Act, 1947 and the Rules framed thereunder. The Rules framed
under the Act may provide for applicability of the provisions of the Code of
Civil Procedure. Once the provisions of Order 9 Rule 13 thereof would be
attracted. But unlike an ordinary civil court, the Industrial Tribunals and
the Labour Courts have limited jurisdiction in that behalf. While an Industrial
Court will have jurisdiction to set aside an ex parte award, but having regard
to the provision contained in Section 17 A of the Act, an application therefor
must be filed before the expiry of 30 days from the publication thereof. Till
then the Tribunal retains jurisdiction over the dispute referred to it for
adjudication, and only up to that date it has the power to entertain an
application in connection with such dispute. This is because an award made by
an Industrial Court becomes enforceable under Section 17A of the Act on the
expiry of 30 days from the date of its publication. Once the award becomes
enforceable, the Industrial Tribunal and/or Labour Court becomes functus
officio.”
25. At this stage, this Court points out the decision of the Honourable
Supreme Court in (2001) 10 SUPREME COURT CASES – 534, wherein it is held as
follows:-
“The aspect that the party against whom award is to be made has to be
given due opportunity to defend is a matter of procedure and not that of power
in the sense in which the language is adopted in Section 11. When matters are
referred to the tribunal or court they have to be decided objectively and the
tribunals/courts have to exercise their discretion in a judicial manner without
arbitrariness by following the general principles of law and rules of natural
justice.
The power to proceed ex parte is available under Rule 22 of the Central
Rules which also includes the power to inquire whether or not there was
sufficient cause for the absence of a party at the hearing and if there is
sufficient cause shown which prevented a party from appearing, then if the party
is visited with an award without a notice, that is a nullity and therefore, the
Tribunal will have no jurisdiction to proceed and consequently, it must
necessarily have power to set aside the ex parte award.”
26. Also in NICE RUBBER Vs. PRESIDING OFFICER AND OTHERS reported in 2003
– III – LLJ – 322, where at paragraph Nos.4 and 5, it is observed as follows:-
“4. The question raised in this petition is no longer res-Integra in as
much as the Supreme Court in a case reported as Anil Sood v. Presiding Officer,
Labour Court, JT 2001 – I – LLJ – 113 has held that Section 11 of the
Industrial Disputes Act conferred ample powers upon the Tribunal to devise its
own procedure in the interest of justice which includes power which bring out
the adjudication of an existing industrial dispute. Sub-section (1) and (3) of
Section 11 of the Act thereby indicate the difference between procedure and
powers of the Tribunal under the Act. While the procedure is left to be devised
by the Tribunal to suit carrying out its functions under the Act, the extent of
powers of Civil Court and clearly set out. It was held that the aspect that the
party against whom award is to be made, due opportunity to defend has to be
given is a matter of procedure and not that of power in the sense in which the
language is adopted in Section 11. When matters are referred to the Tribunal or
Court, they have to be decided objectively and the Tribunals/Courts have to
exercise their discretion in a judicial manner without arbitrariness by
following the principles of law and rules of natural justice. The power to
proceed ex-parte is available under Rule 22 of the Central Rules which also
includes the power to inquire whether or not there was sufficient cause for the
absence of a party at the hearing, and if there is sufficient cause shown which
prevented a party from appearing, then if the party is visited with an award
without a notice which is a nullity, therefore, the Tribunal will have no
jurisdiction to proceed and consequently, it must necessarily have power to set
aside the ex-parte award. It was held that if that is the position in taw, the
observations of the High Court and the Tribunal that the Labour Court had become
functus officio after making the award, though ex-pane, were erroneous.
5. In view of the aforesaid judgment of the Supreme Court, it is clear
that even after passing an ex-parte award the Labour Court had the jurisdiction
to set aside the same in case sufficient cause was shown by the party against
whom the award was passed for his absence before the Court. The order of the
Labour Court, therefore, holding that the Court had become functus officio after
the award had become enforceable is clearly erroneous and cannot be sustained.
I, accordingly, make the rule absolute, quash the impugned order dated 23rd
February, 2000 and allow the writ petition. The matter is remanded to the Labour
Court with a direction to decide the application of the petitioner for setting
aside the ex-parte award on its merits. In the facts of the case I leave the
parties to bear their own cost. The parties are directed to appear before the
Labour Court on 7.4.2003.”
27. It is to be borne in mind that Rule 22 of the Industrial Disputes
(Central) Rules, 1958 enjoins that
“If without sufficient cause being shown, any party to proceedings before
a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to
attend or to be represented, the Board, Court, Labour Court, Tribunal, National
Tribunal or Arbitrator may proceed as if the party had duly attended or had been
represented.”
28. Significantly, Rule 48 of Tamil Nadu Industrial Dispute Rules, 1958
speaks of ex parte proceedings and the same is as follows:-
“(1) If, without showing sufficient cause any party to proceedings before
a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be
represented, the Board, Court, Labour Court, Tribunal or the Arbitrator may
proceed as if the party had duly attended or had been represented.
(2). The Board, Court, Labour Court, or Tribunal or an Arbitrator may,
for sufficient cause, set aside, after notice to the opposite party, the ex
parte decision either wholly or in part, on an application made within 15 days
of the ex parte decision:
Provided that an application may be admitted after the said period of 15
days, if the applicant satisfies the Board, Court, Labour Court or Tribunal or
Arbitrator, as the case may be, that he had sufficient cause for not preferring
the application within that period.”
29. The Ex parte award will be set aside even after thirty days of its
publication since, there is no bar for High Court in not entertaining an
application for setting aside even after thirty days of its publication which is
applicable to the Labour Court/Tribunal.
30. At this stage, a perusal of the notes paper in I.D.No.2/2006 on the
file of the second respondent/Labour Court, Tirunelveli indicates that on
24/1/2007, fresh notice to the respondent (Writ petitioner/Management) through
“Registered Post with Acknowledgment Due” has been ordered, returnable by
28/2/2007. Again on 28/2/2007, fresh notice through Registered Post to the
respondent has been ordered and the matter has been posted on 2/4/2007. Again
on 2/4/2007, notice to the respondent has been ordered and the matter has been
posted on 10/5/2007. On 10/5/2007, the matter has been re-posted on 27/6/2007
based on the reason that ‘P.O is in training’. On 27/6/2007, fresh notice to
respondent through “Registered Post with Acknowledgment Due” has been ordered
and the matter has been re-posted on 20/7/2007. Again, on 20/7/2007, fresh
notice to the respondent through “Registered Post with Acknowledgment Due” has
been ordered, returnable by 23/8/2007. Subsequently, from 23/8/2007, the matter
has been adjourned to 21/9/2007 and 18/10/2007 respectively. On 18/10/2007, in
the notice paper, it is endorsed that “the petitioner’s notice served” (first
respondent) and the respondent’s notice (writ petitioner) returned as “left”.
Again, on 18/10/2007, fresh notice to respondent through “Registered Post with
Acknowledgment Due” to the correct address has been ordered returnable by
22/11/2007. On 22/11/2007, it is endorsed as “respondent served and
acknowledgment card received”. The respondent called absent and the matter has
been posted for Ex parte evidence on 29/11/2007. On 29/11/2007, when the matter
has been posted for taking of ex parte evidence, W.W.1 has been examined in
chief ex parte. Exs.W.1 and W.2 are marked and the matter has been posted for
orders on 30/11/2007. On 30/11/2007, it is stated that the order is not ready
and the matter has been adjourned to 13/12/2007 for orders. Again, from
13/12/2007, the matter has been adjourned to orders on 14/12/2007. On
14/12/2007, the matter has been posted on 17/12/2007 for orders and finally, on
17/12/2007, the award has been passed.
31. A perusal of the summons as per Section 36 of the Act, sent to the
writ petitioner (respondent in I.D.No.2 of 2006) shows that the date of hearing
of I.D.No.2 of 2006 is slated on 6/2/2006 at 10.00 a.m., and the writ
petitioner/Management address is mentioned as
“8/209 Balaji Illam,
Ramalayam, V.K.N. Near,
Courtallam & Post
Tenkasi Taluk.”
The said notice has been despatched in D.No.9,10/06 dated 9/1/2006. Even,
the Registered Post with Acknowledgment Due sent in D.No.732/07 dated 27/9/2007
by the second respondent/Labour Court, addressed to the writ petitioner
(respondent
in I.D.No.2 of 2006) shows that the address of the writ petitioner is mentioned
as
“No.8/209 Balaji Illam
Ramalayam, V.K.N Nagar
Kuttralam & Post
Tenkasi Taluk”
has been returned to the Sender viz., the second respondent as “addressee left”.
Therefore, it is quite evident that the second respondent/Labour Court has sent
the “Registered Post with Acknowledgment Due” to the writ petitioner
(Respondent in I.D. No.2 of 2006) only to the address at Courtrallam & Post,
Tenkasi Taluk.
32. A perusal of an acknowledgment card sent by the second
respondent/Presiding Officer, Labour Court, Tirunelveli addressed to the writ
petitioner (respondent) shows that the writ petitioner’s address is mentioned as
Bombay and the same has been received by someone on behalf of the writ
petitioner on 6/11/2007.
33. Indeed, the Registered Post with Acknowledgment Due to the writ
petitioner/Management has been despatched by the second respondent Office in
D.No.868/07 dated 1/11/2007 specifying the hearing date on 22/11/2007. Exactly,
15 days before hearing of I.D.No.2 of 2006 on 22/11/2007, the writ petitioner
has received the Registered Post with Acknowledgment Due i.e., on 6/11/2007. At
least, after the receipt of the notice of hearing, the writ
petitioner/Management should have taken diligent steps to appear before the
second respondent/Labour Court for the hearing on 22/11/2007. But the perusal
of the notice paper in I.D.No.2 of 2006 of the second respondent/Labour Court,
Tirunelveli shows that the Acknowledgment Card has been received from the
respondent (writ petitioner) and it has been called absent and set ex parte.
Therefore, it is quite clear that notice of hearing of I.D. No.2 of 2006 dated
22/11/2007 has been duly served on the writ petitioner (respondent/Management)
on 6/11/2007. As such, it is not open to the writ petitioner/Management to
contend that no notice has been served upon it at Mumbai address. After having
received the notice and also the second respondent/Labour Court has received the
acknowledgment from the writ petitioner/Management to that effect, then, non-
appearance of the writ petitioner (respondent) before the second
respondent/Labour Court on 22/11/2007 is to be construed only as “without
sufficient cause”, in the considered opinion of this Court. Therefore, the
contra contention put forward on the side of the petitioner/Management is not
accepted by this Court and the same is rejected.
34. In the present case, even though the petitioner/Management
(respondent in I.D.No.2 of 2006) has been called absent and set ex parte, the ex
parte evidence of the First respondent/petitioner has not been recorded/taken on
22/11/2007 by the second respondent/Labour Court. However, the matter has been
posted to 29/11/2007 for taking ex parte evidence. Only on 29/11/2007, the
first respondent (petitioner in I.D.No.2 of 2006) has been examined as W.W.1 in
chief and the matter has been posted for orders to 30/11/2007. Surprisingly,
the ex parte award has not been passed from 30/11/2007 till 14/12/2007. Only,
on 17/12/2007, the ex parte award has been passed.
35. On going through the Ex parte award dated 17/12/2007 passed by the
second respondent/Labour Court, Tirunelveli, this Court is of the considered
view that the same is bereft of quantitative and qualitative details. In fact,
there is no discussion about the merits and demerits of the claim and rival
claim made by the parties. Even in Ex parte award/decree, the Tribunal/Court of
law has to apply judicial mind. But, in the instant case, the award passed by
the second respondent/Labour Court dated 17/12/2007 suffers from outline of
process of reasoning. Merely, mentioning in the award for what relief, I.D.No.2
of 2006 has been filed before the second respondent and further stating that
“It is contended by the petitioner that he was appointed as Tipper Driver
in the month of May 1998 and he was paid salary of Rs.3,000/- per month and
other monetary benefits and respondent without any valid reason dismissing him
from service on 9/5/2000.”
will not suffice, so as to enable the second respondent to pass an ex parte
award.
36. Proceeding further, it is relevant to make a significant mention in
the award that the petitioner was examined as W.W.1 on 22/11/2007 besides proof
affidavit have been filed and Exs.W.1 and W.2 have been marked and that the
respondent (writ petitioner) was called absent and set ex parte on 22/11/2007
etc., and therefore, the petitioner is entitled to the relief as prayed for and
accordingly, passing an award directing the Reinstatement of the First
Respondent is not a palatable and prudent one in the eye of law. An unreasoned
award may be a just one from the point of view of the person, who has passed the
same. But, it may not be so to an aggrieved person, who may have a genuine
cause for concern that by passing of an unreasoned and non-speaking order,
something legal wrong has been done to him/it.
37. To put it succinctly, the ex parte Award dated 17/12/2007 passed by
the second respondent/Labour Court is an unreasoned and non-speaking one, which
cannot stand a scrutiny in the eye of law. Also, the second respondent/Labour
Court has not framed a point for determination and also that it has not assigned
qualitative and quantitative reasons for the decision arrived at by it by
discussing the relative merits and demerits of the parties based on the
pleadings projected in the main Industrial Dispute. Therefore, this Court,
interferes with the said award passed by the second respondent/Labour Court in
I.D.No.2 of 2006 dated 17/12/2007 and set aside the same, by exercising its writ
jurisdiction to prevent aberration of justice. Consequently, the writ petition
succeeds.
38. In the result, the writ petition is allowed, leaving the parties to
bear their own costs. The Ex parte Award passed by the second respondent/Labour
Court is set aside by this Court for the reasons assigned in this writ petition.
39. M.P.(MD) No.1 of 2011:- The writ petitioner/Management filed M.P.No.2
of 2008 praying for the relief of granting stay in regard to the operation of
the ex parte award passed by the second respondent in I.D.No.2 of 2006 dated
17/12/2007. However, in the said M.P., only notice and private notice
returnable by two weeks has been ordered on 21/10/2008.
40. However, the first respondent/petitioner (workmen) filed M.P.No.1 of
2011, praying for issuance of a direction of this Court to the writ
petitioner/Management to pay back wages to him and to continue to pay the wages
as per Section 17 B of the Industrial Disputes Act, 1947. Admittedly, Section
17 B of the Industrial Disputes Act, will not come into operative play when this
Court has not granted stay in M.P.No.2 of 2008 (stay petition) because, in that
contingency, the Employer will be bound to reinstate the workmen forthwith. In
the absence of an order of stay of operation of the award in I.D.No.2 of 2006,
this Court will expose the writ petitioner to the penel consequences of Section
29 of the Industrial Disputes Act, which deals with penalty for breach of
settlement or award apart from the recovery proceedings as per Section 33 of the
Industrial Disputes Act, 1947 which refers to “the conditions of service, etc.,
to remain unchanged under circumstances during pendency of proceedings.”
41. The object of 17 B of the Act is that during the pendency of
proceedings in higher forum, a workmen should not have been gainfully employed
in any other Establishment from which he receives adequate remuneration, if an
affidavit has been filed by the workmen to the effect that he has not been
employed in any establishment during the pendency of such proceedings, then, he
has despatched his burden.
42. Ordinarily, the payment of 17 B wages under the Industrial Disputes
Act is akin to the subsistence allowance. It is not a recoverable or refundable
one. The object of 17 B is to provide relief to a workman aiming at relieving
the hardship to him that will be caused on account of delay in implementation of
the award, as a result of the pendency of the proceedings before the second
respondent. The ingredients of Section 17 B of the Industrial Disputes Act will
come into operation only when proceedings are initiated before the High Court or
the Honourable Supreme Court against the award directing reinstatement and it
will not apply if the award of reinstatement is not challenged. As per Section
17 B of the Act, there is no obligation on the part of the Employer to pay
without the orders of this Court, the workmen has to claim and satisfy the Court
before being entitled to an order for payment as per Section 17 B of the
Industrial Disputes Act. Section 17 B is mandatory in character and it gives a
mandate to the Court to award full wages, if the conditions enumerated in
Section 17 B are fully satisfied, in the considered opinion of this Court.
However, the delay in making application will not affect the powers of the Court
as per decision in RAJASTHAN STATE ROAD TRANSPORT CORPORATION Vs. LABOUR COURT
reported in (1998) 1 LLJ – 831 (Raj) (DB).
43. The three ingredients mentioned in Section 17 B of the Act are as
follows:-
a. The Labour Court, directed reinstatement of workman.
b. The Employer filed proceedings against the award before the
Honourable High Court or the Honourable Supreme Court.
c. The workman has not been employed in any Establishment during such
period.
Then, the Employer is liable to pay the last drawn wages to the workmen, in the
considered opinion of this Court. The liability as per Section 17 B of the
Industrial Disputes Act continues during the entire period of the pendency of
proceedings in higher course even if the workmen as in the meanwhile crossed
his age of super annuation and would have retired, had he not been dismissed or
discharged from service as opined by this Court.
44. Section 17 B of the Industrial Disputes Act is a statutory exception
and creates a liability in favour of the workmen and against the Employer. The
right as per Section 17 B of the Industrial Disputes Act is an independent right
to a workman during the pendency of proceedings before the Honourable High Court
or the Honourable Supreme Court.
45. This Court worth recalls a Division Bench decision in ELPRO
INTERNATIONAL LTD. Vs. K.B.JOSHI AND OTHERS reported in 1987 (II) LLJ – 210
(Bombay High Court), wherein it is laid down that
“Section 17 B of the Act does not in any way impinge upon the
extraordinary powers conferred on the High Court under Arts.136 and 226 of the
Constitution, much less restricting the said powers.”
46. In the aforesaid decision, at page 215, it has among other things
observed that
“Section nowhere lays down that in extreme cases where it is demonstrated
that the award passed is either without jurisdiction or is otherwise a nullity,
or grossly erroneous or perverse, the High Court or the Supreme Court is
debarred from exercising its power under Art.226 and 136 of the Constitution.”
47. This Court also aptly points out that in GODREJ AND BOYCE
MANUFACTURING COMPANY LTD., Vs. PRINCIPAL LABOUR COURT, MADRAS AND ANOTHER
reported in 1992 – II – LLJ – 201, wherein at page 209, it is held that
“… Courts cannot afford to be manipulated and allow the
management/employer to use the interim order as a weapon to avoid such a
statutory liability. Some error of fact or even some error of law alone will
not thus be enough to issue any interim order. If, however, the error is such
that it goes to the root of the jurisdiction of the Tribunal and the Court has
got sufficient materials to ignore the effect of S.17 B of the Act the Court may
decline to order payment of the wages pendente lite …”
48. Be that as it may, in view of the fact that the first
respondent/petitioner has taken a stand that he has been removed from service
illegally from 9/5/2000, but the same has been repudiated by the
petitioner/Management saying that the services have been terminated on 11/5/2000
though the first respondent has joined on 1/10/1999 and earlier, he was on
probation and that the project was in operation only for a contractual period of
four years etc., and also because of the fact, this Court has set aside the ex
parte award dated 17/12/2007 passed in I.D.No.2 of 2006 by the second respondent
as referred to earlier paragraphs of this Court, this Court is of the considered
view that prima facie, there are sufficient materials to decline the relief of
payment of wages as per Section 17 B pendentelite by exercising its judicial
discretion and ignore the effect of Section 17 B of the Act based on the over
all facts and circumstances of the case which float on the surface.
Consequently, Miscellaneous Petition (MD) No.1 of 2011 is closed.
M.P.(MD) No.2 of 2008:- This Miscellaneous Petition is closed.
mvs.