{"id":62359,"date":"2011-03-04T00:00:00","date_gmt":"2011-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gammon-india-limited-vs-nanda-kumar-on-4-march-2011"},"modified":"2018-09-24T12:12:27","modified_gmt":"2018-09-24T06:42:27","slug":"gammon-india-limited-vs-nanda-kumar-on-4-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gammon-india-limited-vs-nanda-kumar-on-4-march-2011","title":{"rendered":"Gammon India Limited vs Nanda Kumar on 4 March, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Gammon India Limited vs Nanda Kumar on 4 March, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 04\/03\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.VENUGOPAL\n\nWrit Petition (NPD) No.9192 of 2008\na n d\nM.P.(MD) No.2 of 2008\nand\nM.P.(MD) No.1 of 2011\n\nGammon India Limited\nthrough its Authorised Signatory\nP.A.Datar\nMumbai 400 025\t\t\t...\t\tPetitioner\n\nVs\n\n1.  Nanda Kumar\n\n2.  The Presiding Judge\n    Labour Court\n    Tirunelveli.\t\t...\t\tRespondents\n\n\tPetition filed under Article 226 of the Constitution of India praying for\nthe issuance of a writ of certiorarified mandamus to call for the records of the\nsecond respondent in I.D.No.2 of 2006 dated 17\/12\/2007 by quashing the same as\nillegal, incompetent and without jurisdiction.\n\n!For petitioner \t...\tM\/s.P.S.Sundaram\n\t\t\t\tG.Anbu Saravanan\n^For respondents\t...\tM\/s.M.Ajmal Khan\n\t\t\t\tM.E.Elango\n\t\t\t\tC.Venkatesh Kumar\n\t\t\t\tfor R.1.\n- - - - - -\n\n:ORDER\n<\/pre>\n
\tThe petitioner has filed the present writ of certiorarified mandamus in
\ncalling for the records of the second respondent\/Labour Court, Tirunelveli in
\nregard to the award passed in I.D.No.2 of 2006 dated 7\/12\/2007 and to quash the
\nsame.\n<\/p>\n
\t2.  According to the Learned counsel for the petitioner\/respondent, the
\npetitioner Company has been awarded a contract to construct a Masonry dam at
\nAdvinainarkoil at Mekkarai, Shencottah Taluk, Tirunelveli District by the
\nGovernment of Tamil Nadu.  The period of contract is for four years (inclusive
\nof the extended period).  The contract is for a limited period from 1\/4\/1998 to
\n31\/3\/2002.\n<\/p>\n
\t3.  The Learned counsel for the petitioner\/respondent urges before this
\nCourt that the First Respondent\/petitioner has been appointed in the
\npetitioner’s Company on probation basis as per appointment order dated 1\/10\/1999
\non a consolidated salary of Rs.2,418\/-.  Further, it is mentioned in the
\nappointment order itself that his services will get discontinued after
\ncompletion of the contract.  The first respondent has submitted his nomination
\ndeclaration as regards the Employees Provident Fund which has been duly counter
\nsigned by the petitioner Company.  He also submitted Form No.5 pertaining to the
\nEmployees Provident Fund. His services have been terminated on 11\/5\/2000.  As a
\nmatter of fact, the project has been in operation only for a contractual period
\nof four years.\n<\/p>\n
\t4.  The Learned counsel for the petitioner, advancing his arguments
\ncontends that the first respondent filed I.D.No.2 of 2006 on the file of the
\nsecond respondent\/Labour Court  and notices have been addressed to the erstwhile
\nsite Office of the petitioner at Kuttralam, so as to obtain ex parte award
\nagainst the petitioner\/Company and the first respondent obtained an ex parte
\naward on 8\/5\/2008 before the second respondent\/Labour Court, Tirunelveli.\n<\/p>\n
\t5.  Also, the Learned counsel proceeds to submit that the award has been
\nposted to the petitioner Company to their Courtallam Office address on 29\/4\/2008
\nby the Labour Officer, Tirunelveli, etc., and the said award has been sent to
\nMumbai Office of the petitioner’s Company, after getting re-routed from
\nCourtallam address and the same has been received by the petitioner Company at
\nMumbai on 28\/5\/2008.\n<\/p>\n
\t6.  The Learned counsel for the petitioner Company submits that the second
\nRespondent Office, Tirunelveli has not posted the postal article from
\nTirunelveli, but the same has been done by the first respondent by posting it
\nfrom Tenkasi and thus, award has been obtained behind the back of the petitioner
\nCompany and therefore, the same is void and an illegal one.\n<\/p>\n
\t7.  The Learned counsel for the petitioner\/Company\/Management submits that
\nthe petitioner Company has been engaged only in contract work and therefore,
\nthere is no  permanency in the work and hence, the first respondent\/petitioner
\ncannot claim for his reinstatement with back wages since the contract period has
\nbeen less than two years.\n<\/p>\n
\t8.  The plea of the Learned counsel for the petitioner\/Management is that
\nthe failure report of the labour Officer, Tirunelveli is dated 12\/2\/2001 and the
\nreference to the Labour Court is of the year 2006, after a lapse of five years
\nand by that time, the contract has come to an end after two years and in fact,
\nKuttralam Office of the petitioner has been wound up.\n<\/p>\n
\t9.  The Learned counsel for the petitioner takes a stand that the first
\nrespondent\/Employee is aware of his temporary employment in a contractual
\nproject and as such, he is aware of the address of the petitioner Company all
\nthrough the period of employment and he is also aware that there is no Project
\nOfficer at Kuttralam after completion of the earth work involved in the project
\nin which the driving machineries have been used by the first respondent.\n<\/p>\n
\t10.  The Learned counsel for the petitioner\/Management, expatiating his
\nsubmissions submits that the First respondent\/Employee has attempted to assault
\nthe Superior Officer with chappals and using filthy language and there has been
\ncomplaints given in writing by the superiors of the first respondent\/Employee.\n<\/p>\n
\t11.  Also, the First Respondent’s Superior  has lodged a Police complaint
\nbefore Achanpudur Police Station against the First Respondent\/Employee.  The
\nFirst Respondent\/Employee has given a letter of apology to correct himself. But,
\nhe has not corrected himself during the second probationary period.\n<\/p>\n
\t12.  Lastly, it is the contention of the Learned counsel for the
\npetitioner\/Management that the petitioner Company has no other alternative
\nremedy to assail the award dated 17\/12\/2007 passed in I.D.No.2 of 2006 by the
\nsecond Respondent\/Labour Court, Tirunelveli and therefore, the writ petition is
\nmaintainable before this Court.\n<\/p>\n
\t13.  Per contra, it is the contention of the learned counsel for the First
\nRespondent\/Employee that the First Respondent has been terminated from service
\nby means of an order of the petitioner dated 11\/5\/2000 and that the petitioner
\nCompany has not conducted any enquiry in respect of the petitioner and also no
\nshow cause notice has been given to the petitioner either in regard to his
\npurported misbehaviour with Ravi, Assistant Plan Engineer on 10\/5\/2000 at night
\nor in regard to threatening to beat him with chappals, etc. Further, the Labour
\nOfficer, Tirunelveli has addressed a letter dated 17\/8\/2000 to the petitioner
\nCompany stating that there will be  a meeting in the Office on 24\/8\/2000 in the
\nafternoon session at 3.00 p.m., and before that, the first respondent has
\nsubmitted an application before the Labour Officer, Tirunelveli as per Section 2
\nA claiming reinstatement. On 6\/11\/2000, the Deputy General Manager of the
\npetitioner Company has addressed a letter to the Labour Officer, Tirunelveli and
\nauthorising one Mr.E.R.Nair to attend and deal with the hearing in Reference
\nNo.1127\/2000 on their behalf.  Later, the Labour Officer, Tirunelveli, has
\nsubmitted the failure report on 12\/2\/2001 to the Government in Ref.No.1127\/2000.\n<\/p>\n
\t14.  The Learned counsel for the First Respondent\/Employee submits that it
\nis upto the Government to refer the matter to the Labour Court\/competent forum
\nand when the First Respondent\/petitioner raised a dispute claiming
\nreinstatement\/re-employment at that point of time the Office of the petitioner
\nCompany has been very much in existence and it participated in hearing before
\nthe Labour Officer, Tirunelveli.  There is no averment in the counter filed by
\nthe petitioner Company before the Labour Officer that when the project has been
\nclosed and that the petitioner\/Management  received  the  copy of the Ex parte
\nAward at Mumbai address to which it has been redirected and the second
\nrespondent\/Labour Court has exercised its due diligence.   Moreover, the
\npetitioner Company has not pursued the case and the scope of judicial review is
\nvery limited in a jurisdiction under Article 226 of the Constitution of India.\n<\/p>\n
\t15.  The second respondent\/Labour Court, Tirunelveli on 17\/12\/2007 in
\nI.D.No.2 of 2006 has passed the following award, which runs as follows:-\n<\/p>\n
\t“Petitioner was examined as W.W.1 on 22\/11\/2007 besides proof affidavit
\nhaving been filed and Ex.W.1 and W.2 have been marked on the side of the
\npetitioner.  But respondent was called absent and set ex parte on 22\/11\/2007 and
\ntill this day respondent has not come forward with any application to set aside
\nex parte order dated 22\/11\/2007.  Hence petitioner is entitled to the relief as
\nprayed for and accordingly award is passed directing the respondent to reinstate
\npetitioner in service and also pay the backwages.”\n<\/p>\n
\t16.  As seen from the award, it is mentioned that the
\npetitioner\/Management (Respondent in I.D.No.2 of 2006)  has been called absent
\nand set Ex parte on 22\/11\/2007.  Further, till the passing of the award on
\n17\/11\/2007, the petitioner\/Management has not filed any application to set aside
\nthe Ex parte order.  Therefore, the second Respondent\/Labour Court has examined
\nthe first respondent has W.W.1 on 22\/11\/2007 (besides the proof affidavit being
\nfiled) and also marked W.1 and W.2 on his side.  The second respondent has
\npassed an award holding that the First Respondent\/petitioner is entitled to the
\nrelief as prayed for in I.D.No.2 of 2006 and directed the petitioner\/Management
\nto reinstate the First Respondent\/Employee and to pay him the back wages.\n<\/p>\n
\t17.  The learned counsel for the petitioner\/Management submits that if the
\nGovernment has not made the reference to the competent forum within a reasonable
\ntime and if sufficient cause is not shown in that regard, the same is fatal.  To
\nlend support to his contention, he relies on the decision of Honourable Supreme
\nCourt in KULDEEP SINGH Vs. G.M.INSTRUMENT DESIGN D & F CENTER & ANOTHER reported
\nin 2011 (1) LLN 1 (SC), wherein it has among other things held that<\/p>\n
\t“Government cannot go into merits of dispute and once it is found that
\nthere is dispute, Government ought to make a reference and further and if
\nadequate reasons are found, the Government has to refer the dispute and must not
\ndecline on ground of laches and also that though there is no limitation
\nprescribed, but the reference has to be sought within a reasonable time and
\nsufficient cause is not shown, it would become fatal.”\n<\/p>\n
\t18.  He cites a Division Bench decision of this Court in AMMANI AMMAL Vs.
\nDHANALAKSHMI BANK LTD., TIRUPPUR AND OTHERS reported in (2008) 2 MLJ – 395,
\nwherein, it  among other things held that<\/p>\n
\t“There is a duty cast on the bank to state the correct address of the
\nborrowers and the guarantor and the Court or Tribunal while making an order to
\nhear the suit ex parte, should be convinced that the summons was duly served on
\nthe defendant.  Further, unless and until it is shown that the defendant was
\nserved in the correct address, it cannot be said in spite of the notice, the
\ndefendant failed to appear before the Court, etc.”\n<\/p>\n
\t19.  Continuing further, in the aforesaid decision, at page No.396, it is
\nheld that<\/p>\n
\t“The Court or Tribunal cannot mechanically declare a party ex parte
\nwithout making an attempt to see whether the summons was really served and in
\nthe present case,  no such attempt has been made by the Tribunal and it also
\nfailed to note that the correct address of the petitioner was not given in the
\noriginal application and that there is no exorbitant delay in filing the
\napplication to set aside the exparte order and accordingly, the delay has been
\ncondoned.”\n<\/p>\n
\t20.  He invites the attention of this Court to the decision of the
\nHonourable Supreme Court in MD.U.P.LAND DEVELOPMENT CORPORATION AND ANOTHER Vs.
\nAMAR SINGH AND OTHERS reported in (2003) 5 Supreme Court Cases – 388, wherein
\nthe Honourable Supreme Court has held as follows:-\n<\/p>\n
\t“The internal note and order of the Corporation was prepared by the
\nDirector of the Corporation for his own purpose, but strangely enough a copy of
\nthe same was produced by the respondents in the writ petition.  Apart from the
\nfact whether such an internal note itself could give any right to the
\nrespondents, the very reading of the same does not give an impression that it is
\nindicated to create twenty-five posts on a regular basis.  It only states that a
\npanel of twenty-five persons be prepared for training, taking note of the future
\npossible requirements of persons working in the project.  From the documents
\nviz., the internal note and order of the Corporation, letter addressed to the
\nVice Chancellor of Agricultural University seeking names of the candidates for
\nrecruitment to the post of Assistant Project Manager (Group 3), letters
\naddressed to the respondents individually asking them to attend the office for
\ntraining, during which they were to get a monthly training allowance for Rs.1200
\nonly and the letter of the Joint Secretary, U.P. Govt, stating the vacancy
\nposition, it is clear that the respondents were never recruited as against
\nregularly sanctioned posts on a regular basis.  Reading of these documents and
\nthe contentions raised on either side go to show that the appointments of the
\nrespondents were temporary under the “Million Wells Scheme”.  When the work of
\nthe Scheme come to an end, the respondents were not entitled to claim
\nregularisation of their services.  When the project comes to a close, the
\nemployees who are working in the project will not get any vested right.  In
\nother words, once the project comes to an end, services of the employees also
\ncome to an end.  Even though their services were continued by virtue of an
\ninterim order passed in the writ petition, they cannot claim benefits of
\nregularisation of their services as a matter of right.”\n<\/p>\n
\t21.  He cites the decision of the Honourable Supreme Court in MAHINDRA AND
\nMAHINDRA, LTD Vs. N.B.NARAWADE reported in 2005 (1) L.L.N. – 1074, wherein it is
\nobserved that<\/p>\n
\t“…. Discretion under Section 11 A of the Industrial Disputes Act can be
\nexercised only on existence of certain factors like punishment being
\ndisproportionate to the gravity of misconduct so as to disturb the conscience of
\nthe Court or the existence of any mitigating circumstances which require the
\nreduction of the sentence or the past conduct of the workman which may persuade
\nthe Labour Court to reduce the punishment and further, the use of abusive and
\nfilthy language against the supervisor not once but twice that too in the
\npresence of his subordinates cannot be termed to be an indiscipline calling for
\nlesser punishment.  In the absence of any extenuating factor and therefore, the
\nLabour Court as well as the High Court erred in interfering with the punishment
\nimposed by the disciplinary authority.”\n<\/p>\n
\t22.  The learned counsel for the petitioner places reliance on the
\ndecision of this Court in THE CHAIRMAN AND MANAGING DIRECTOR, TAMIL NADU
\nMINERALS LTD., CHENNAI 5 Vs. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, CHENNAI
\n104 AND TWO OTHERS reported in 2000 (IV) CTC – 131, wherein it is held that
\n\t“The award passed without considering the merits and demerits of the claim
\nand the order passed by the Industrial Tribunal is a non-speaking order without
\nconsidering the merits and demerits of the claim and that there is absence of
\njudicial application of mind and the said order of the Industrial Tribunal is
\nnot a judicious one.”\n<\/p>\n
\t23.  Apart from the above, the learned counsel for the
\npetitioner\/Management draws the attention of this Court to the following
\ndecisions.\n<\/p>\n
\t(a).  This Court in the order made in W.P.Nos.831 to 833 of 2008 in THE
\nMANAGEMENT OF M\/s. STALLION GARMENTS Vs. 1.  THE PRESIDING OFFICER, LABOUR
\nCOURT, SALEM AND THREE OTHERS, wherein reference was made to Section 24 which
\ndeals with the power of the Board, Courts, Labour Courts, Tribunals and National
\nTribunals, which runs as follows:-\n<\/p>\n
\t“11. Likewise, the Tamil Nadu Industrial Disputes Rules, 1958,
\nparticularly Rule 34 which speaks about the proceedings before the Labour Court
\nor Tribunal enables the Labour Court to decide a reference in the absence of a
\ndefaulting party as ex parte, however, with the right to revoke the said ex
\nparte proceedings on the application of the party within 15 days from the ex
\nparte proceedings, if satisfied with the reasons preventing the party from
\nappearing. It also confers the power on the Labour Court in the case of the
\napplicant satisfying that he has sufficient cause for not preferring the
\napplication even beyond 15 days. The said provisions are as follows: 34.
\nProceeding before the Labour Court or Tribunal:\n<\/p>\n
\t(1) to (9) xxxxx<\/p>\n
\t(10) In case, any party defaults or fails to appear at any stage, the
\nLabour Court or Tribunal as the case may be, may proceed ex-parte and decide the
\nreference application in the absence of the defaulting party. (11)
\nNotwithstanding anything contained in sub-rule (10), the Labour Court or the
\nTribunal, as the case may be, may, before submitting the award to the State
\nGovernment, revoke the ex-parte proceedings on the application of the party made
\nwithin 15 days of the ex-parte proceedings if it is satisfied that the party has
\nbeen prevented from attending the proceedings for valid reasons: Provided that
\nan application may be admitted after the said period of 15 days, if the
\napplicant satisfies the Labour Court or Tribunal, as the case may be, that he
\nhad sufficient cause for not preferring the application within that period.
\nTherefore, under the Tamil Nadu Industrial Disputes Rules,1958 there is an
\nenabling provision to the Labour Court or Industrial Tribunal to entertain the
\napplication filed to set aside the award even beyond 15 days without any further
\nrestriction to the party when sufficient cause has been shown to the
\nsatisfaction of the Court.\n<\/p>\n
\t12. It is true that while the ex parte award was passed by the Labour
\nCourt and the petitions to set aside the ex parte award with the petitions to
\ncondone the delay were dismissed in 2007, the judgment of the Supreme Court at
\nthat time dealing with the powers of the Labour Court in setting aside the ex
\nparte award after 30 days from the date of publication was as held in Sangham
\nTape Company vs. Hans Raj<\/a> [2004(5) CTC 104 (SC)]. That was also a case where
\nafter the expiry of 30 days from the date of publication of the ex parte award,
\nthe application filed to set aside the ex parte award came to be allowed and
\nwhen a similar contention was raised that after the lapse of 30 days from the
\ndate of publication, the Labour Court has no jurisdiction, the High Court set
\naside the award of the Labour Court which was challenged by the employer.\n<\/p>\n
\t13. In that case, the Supreme Court considered the judgment in Grindlays
\nBank v. Central Government Industrial Tribunal and others<\/a> [1980 Supp.SCC 420]
\nwherein it was held that by virtue of the provisions of section 11 of the
\nIndustrial Disputes Act,1947 and Rules 22 to 24 of the Industrial Disputes
\n(Central) Rules,1957 if within 30 days from the date of publication of award any
\napplication is filed to set aside the award, the same can be entertained and
\ntherefore, it was only till 30 days from the date of publication of the award,
\nthe Tribunal retains its jurisdiction, and having held that the judgment of the
\nSupreme Court in Anil Sood vs. Presiding Officer, Labour Court<\/a> [2001 (2) Scale
\n193] did not lay down any law contrary to the judgment in Grindlays Bank case
\n(cited supra), the Supreme Court held as follows: 12. This Court in Anil Sood
\n(supra) did not lay down any law to the contrary. The contention raised on the
\npart of Mr.Jain to the effect that in fact in that case an application for
\nsetting aside an award was made long after 30 days cannot be accepted for more
\nthan one reason. Firstly, a fact situation obtaining in one case cannot be said
\nto be a precedent for another. [See Mehboob Dawood Shaikh v. State of
\nMaharashtra<\/a> (2004 (2) SCC 362]. Secondly, from a perusal of the said decision,
\nit does not appear that any date of publication of the award was mentioned
\ntherein so as to establish that even on fact, the application was made 30 days
\nafter the expiry of publication of the award. Furthermore, the said decision
\nappears to have been rendered on concession.\n<\/p>\n
\t14. It was based on the said dictum laid down by the Supreme Court which
\nwas holding the field at that time, the Labour Court rejected the application
\nfiled by the petitioner beyond 30 days from the date of publication of the award
\non the ground that the Labour Court became functus officio. But, as brought to
\nthe notice of this Court by the learned counsel for the petitioner, the Supreme
\nCourt had an occasion to consider the said issue recently in Radhakrishna Mani
\nTripathi vs. L.H.Patel and<\/a> another [2009(1) LLN 786] wherein the judgment in
\nSangham Tape Company vs. Hans Raj<\/a> [2004(5) CTC 104] was not considered, but, at
\nthe same time considered in detail the judgments in Grindlays Bank and Anil Sood
\n(cited supra) in the light of the Industrial Disputes (Bombay) Rules, 1956. Rule
\n26 of the Industrial Disputes (Bombay) Rules is slightly different from the
\nrelevant provision in the Tamil Nadu Rules in the sense that it enables a party
\naffected by an ex parte award to file application within 30 days of the receipt
\nof copy of the said award. The said rule is as follows: 26. Board, Court, Labour
\nCourt, Tribunal or Arbitrator may proceed ex parte.-\n<\/p>\n
If without sufficient cause being shown, any party to a proceeding before a
\nBoard, Court, Labour Court, Tribunal or an arbitrator fails to attend or to be
\nrepresented, the Board, Court, Labour court, Tribunal or arbitrator may proceed
\nex parte. (2) Where any award, order or decision is made ex parte under sub-rule
\n(1), the aggrieved party, may within thirty days of the receipt of a copy
\nthereof, make an application to the Board, Court, Labour Court, Tribunal or
\nArbitrator as the case may be, to set aside such award, order or decision. If
\nthe Board, Court, Labour Court, Tribunal or Arbitrator is satisfied that there
\nwas sufficient cause for non-appearance of the aggrieved party, it or he may set
\naside the award, order or decision so made and shall appoint a date for
\nproceeding with the matter: Provided that, no award, order or decision shall be
\nset aside on any application as aforesaid unless notice thereof has been served
\non the opposite party.”\n<\/p>\n
\tAlso, in the said decision, the learned counsel for the petitioner, refers
\nto the observations made in paragraph 17, 18 and 20, which runs as follows:-\n<\/p>\n
\t17. Applying the latest dictum of the Supreme Court wherein the Honble
\nSupreme Court has taken note of Rule 22 of the Central Rules which is similar to
\nRule 26(1) of the Bombay Rules, to the facts of the present case, as elicited
\nabove, Rule 34(10) and (11) of the Tamil Nadu Industrial Disputes Rules, 1958,
\nespecially the proviso to Rule 34(11) which enables an applicant to set aside
\nthe ex parte award even after 30 days of publication, since no maximum period of
\nlimitation is mentioned even after the period of 15 days, and the same is
\nrelatable to Rule 22 of the Central Rules and Rule 26(1) of the Bombay Rules as
\nstated above.\n<\/p>\n
18. In fact, by referring to the said Rule 22 of the Central Rules, this Court
\nin Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai vs.
\nPresiding Officer, Industrial Tribunal, Chennai and others<\/a> [2000(3) LLN 1025]
\nwas dealing with an application to set aside ex parte award which was filed
\nafter a delay of 1245 days. In that case, P.Sathasivam,J.(as he then was) by
\nrelying upon the judgment of this Court in T.N.H.B. v. Presiding Officer, Second
\nAdditional Labour Court, Madras<\/a> [1997(1) LLJ 923] held that when the ex parte
\naward was passed, the Labour Court did not choose to give any reason and even
\nthe facts of the case were not mentioned and the award was passed in a casual
\nmanner without application of mind. It was also held as under: 7. It is also
\nrelevant to refer a Division Bench decision of this Court in T.N.H.B. v.
\nPresiding Officer, Second Additional Labour Court, Madras<\/a> (1997 I L.L.J. 923).
\nTheir Lordships of the Division Bench after considering similar rule 48 of the
\nTamil Nadu Industrial Disputes Rules, 1958, as well as an ex parte award passed
\nby the Labour Court, have observed thus: 6. Thus, from the aforesaid award, it
\nis clear that the Labour Court has not considered the evidence on record. Even
\nthough the appellant remained absent, nevertheless, there was evidence on
\nrecord. There were the statements of the case pleaded by the petitioner and the
\nrespondent. The Labour Court was required to consider and give reasons for
\npassing the award in favour of the second respondent-workmen. As no such reason
\nis given, not even the facts of the case are stated, the award cannot at all be
\nconsidered to be a speaking order, as such it cannot be sustained. The Presiding
\nOfficer is an officer of the district Judge grade. He should not have decided
\nthe dispute in such a manner. There is no judicial application of mind of the
\nPresiding Officer of the Labour Court. Such exercise of jurisdiction causes
\ngreat and incalculable damage to the parties and also to the administration of
\njustice. The Presiding Officer would do better, if he discontinues such a habit
\nof disposal of cases. In the case before the Division Bench, when the dispute
\nwas taken up for enquiry, the respondent-management was absent and set exparte.
\nOn the side of the workmen, W.W.1 was examined and Exhibits W.1 to W.4 were
\nmarked. The Labour Court after stating that W.W.1 was examined, that Exhibits
\nW.1 to W.4 were marked, and that claim is proved, passed an award directing the
\nrespondents-management to reinstate the workman in service with back-wages,
\ncontinuity of service and other attendant benefits with cost of Rs.100. The aid
\naward was set aside by the Division Bench stating that the Labour Court has not
\nassigned any reason and has not stated even the facts of the case. It is clear
\nthat in a matter like this, even if the respondent was absent, it is the duty of
\nthe Labour Court\/Industrial Tribunal to consider and give reason for passing the
\naward. Inasmuch as the Presiding Officer is an officer of the District Judge
\ngrade, as observed by their Lordships in the Division Bench, he should not have
\ndecided the dispute in such a manner. There must be a judicial application of
\nmind and his order must be based on acceptable materials. By applying the ratio
\nlaid down in the Division Bench decision, the impugned order cannot be
\nsustained. In W.P.No.6346 of 1998, dated 14 August, 2000, I had an occasion to
\nconsider similar ex parte award passed by First Additional Labour Court,
\nChennai, in I.D.No.120 of 1995. In the light of the Division Bench decision
\nreferred to above, I set aside the ex parte award with a direction to pay cost
\nto the workman concerned by the management and directed the Labour Court to
\ndecide the dispute on merits. The decision of mine also supports the contention
\nof the learned counsel for the petitioner.\n<\/p>\n
20. In such view of the matter, considering the view of the Supreme Court in its
\nlatest judgment in Radhakrishna Mani Tripathi vs. L.H.Patel and<\/a> another [2009(1)
\nLLJ 786] and for the reasons stated above, I am of the considered view that it
\ncannot be said that the Labour Court has become functus officio after the
\npublication of the award under section 17A of the Act. It is also relevant to
\nnote that the ex parte award passed by the Labour Court itself is, on the face
\nof it, without application of mind and even the facts of the case have not been
\nnarrated by the Labour Court while passing the ex parte award which can
\ncertainly be said to be an award passed in a casual manner, as observed by this
\nCourt as elicited above. While the powers of C.P.C. are conferred on the Labour
\nCourt in respect of procedure to be followed in passing the award, certainly in
\ncase where ex parte award is sought to be passed, there should be proper
\napplication of mind and the presiding officer should be fair at least in
\nnarrating the facts of the case, especially in the circumstance where he allowed
\nthe claim against the termination, as pleaded by the second respondent-workmen.”\n<\/p>\n
\t(b).  In RADHAKRISHNA MANI TRIPATHI Vs. L.H.PATEL AND ANR reported in 2009
\n(2) SCC – 81, wherein the Honourable Supreme Court has held that<\/p>\n
\t“The Tribunal held that the appellant obtained an order for ex parte
\nhearing of the reference by knowingly suppressing the correct address of
\nRespondent No.1 and the labour Court recalled its earlier award and in the
\nappeal, it is held that the order of the labour Court recalling the ex parte
\naward was completely in accordance with Rule 26 (2) of the Bombay Rules and
\nalso, the respondent No.1 was also able to fully satisfy the Labour Court that
\nthere was sufficient cause for his non-appearance since no notice was ever
\nserved on him and there is no conflict between Rule 26 (2) of the  Maharashtara
\nRules and Section 17 A of the Act and resultantly, dismissed the appeal.”\n<\/p>\n
\t(c).  In L.K.VERMA Vs. H.M.T LTD AND ANR reported in 2006 (2) SCC – 269,
\nwherein the Honourable Supreme Court has observed that<\/p>\n
\t“Despite the existence of an alternative remedy, a writ Court may exercise
\nits discretionary jurisdiction of judicial review in the following cases: where
\nthe Court or the tribunal lacks inherent jurisdiction; or for enforcement of a
\nfundamental right; or if there had been a violation of a principle of natural
\njustice; or where vires of the act were in question and in the present case, the
\nalternative remedy had been held not to operate as a bar.”\n<\/p>\n
\t(d).  In KEDARISETTI ATMARAM Vs. N.SEETHARAMARAJU  reported in AIR 2011
\n(NOC) 65 (A.P.), wherein it is held as follows:-\n<\/p>\n
\t“Irrespective of the fact whether the petitioner had availed the
\nalternative remedy or not or whether the petitioner had exhausted the other
\nremedies or not, but where it appears that manifest injustice has been done,
\nHigh Court shall have superintendence over all the subordinate Courts and
\nTribunals through the territory in relation to which it exercises its
\njurisdiction and when prejudice is caused to the general provisions, the High
\nCourt may call for written explanation from such Courts and make and issue
\ngeneral rules and prescribe norms for regulating the practice and proceedings of
\nsuch Courts.  Thus the power of superintendence over subordinate Courts and
\ntribunals are exhaustive and cannot be curtailed even by any legislation.\n<\/p>\n
\tWhere it appears that manifest injustice has been done, the High Court can
\ninterfere under Article 227 of the Constitution. Therefore, where it appears to
\nthe Court that a decree has been obtained by misrepresentation or by playing
\nfraud, the Court can exercise its powers under Article 227 and entertain a
\nrevision and set aside such judgement and decree and see that illegal, unjust
\nand irregular orders do not prevail. It is the duty of the Court to see that
\nfraud played by the parties should not perpetuate and as and when it comes to
\nthe notice of any Court at any stage, the Court has to set aside the same in the
\ninterest of justice.”\n<\/p>\n
\t24.  However, the learned counsel for the respondent\/Employee cites the
\ndecision of the Honourable Supreme Court in SANGHAM TAPE CO Vs. HANS RAJ
\nreported in (2005) 9 Supreme Court Cases 331, wherein it is held as follows:-\n<\/p>\n
\t“An industrial adjudication is governed by the provisions of the
\nIndustrial Disputes Act, 1947 and the Rules framed thereunder.  The Rules framed
\nunder the Act may provide for applicability of the provisions of the Code of
\nCivil Procedure.  Once the provisions of Order 9 Rule 13 thereof would be
\nattracted.   But unlike an ordinary civil court, the Industrial Tribunals and
\nthe Labour Courts have limited jurisdiction in that behalf.  While an Industrial
\nCourt will have jurisdiction to set aside an ex parte award, but having regard
\nto the provision contained in Section 17 A of the Act, an application therefor
\nmust be filed before the expiry of 30 days from the publication thereof.  Till
\nthen the Tribunal retains jurisdiction over the dispute referred to it for
\nadjudication, and only up to that date it has the power to entertain an
\napplication in connection with such dispute.  This is because an award made by
\nan Industrial Court becomes enforceable under Section 17A of the Act on the
\nexpiry of 30 days from the date of its publication.  Once the award becomes
\nenforceable, the Industrial Tribunal and\/or Labour Court becomes functus
\nofficio.”\n<\/p>\n
\t25.  At this stage, this Court points out the decision of the Honourable
\nSupreme Court in (2001) 10 SUPREME COURT CASES – 534, wherein it is held as
\nfollows:-\n<\/p>\n
\t“The aspect that the party against whom award is to be made has to be
\ngiven due opportunity to defend is a matter of procedure and not that of power
\nin the sense in which the language is adopted in Section 11.  When matters are
\nreferred to the tribunal or court they have to be decided objectively and the
\ntribunals\/courts have to exercise their discretion in a judicial manner without
\narbitrariness by following the general principles of law and rules of natural
\njustice.\n<\/p>\n
\tThe power to proceed ex parte is available under Rule 22 of the Central
\nRules which also includes the power to inquire whether or not there was
\nsufficient cause for the absence of a party  at the hearing and if there is
\nsufficient cause shown which prevented a party from appearing, then if the party
\nis visited with an award without a notice, that is a nullity and therefore,  the
\nTribunal will have no jurisdiction to proceed and consequently, it must
\nnecessarily have power to set aside the ex parte award.”\n<\/p>\n
\t26.  Also in NICE RUBBER Vs. PRESIDING OFFICER AND OTHERS reported in 2003\n<\/p>\n
– III – LLJ – 322, where at paragraph Nos.4 and 5, it is observed as follows:-\n<\/p>\n
\t“4. The question raised in this petition is no longer res-Integra in as
\nmuch as the Supreme Court in a case reported as Anil Sood v. Presiding Officer,
\nLabour Court, JT<\/a> 2001 – I – LLJ – 113  has held that Section 11 of the
\nIndustrial Disputes Act conferred ample powers upon the Tribunal to devise its
\nown procedure in the interest of justice which includes power which bring out
\nthe adjudication of an existing industrial dispute. Sub-section (1) and (3) of
\nSection 11 of the Act thereby indicate the difference between procedure and
\npowers of the Tribunal under the Act. While the procedure is left to be devised
\nby the Tribunal to suit carrying out its functions under the Act, the extent of
\npowers of Civil Court and clearly set out. It was held that the aspect that the
\nparty against whom award is to be made, due opportunity to defend has to be
\ngiven is a matter of procedure and not that of power in the sense in which the
\nlanguage is adopted in Section 11. When matters are referred to the Tribunal or
\nCourt, they have to be decided objectively and the Tribunals\/Courts have to
\nexercise their discretion in a judicial manner without arbitrariness by
\nfollowing the principles of law and rules of natural justice. The power to
\nproceed ex-parte is available under Rule 22 of the Central Rules which also
\nincludes the power to inquire whether or not there was sufficient cause for the
\nabsence of a party at the hearing, and if there is sufficient cause shown which
\nprevented a party from appearing, then if the party is visited with an award
\nwithout a notice which is a nullity, therefore, the Tribunal will have no
\njurisdiction to proceed and consequently, it must necessarily have power to set
\naside the ex-parte award. It was held that if that is the position in taw, the
\nobservations of the High Court and the Tribunal that the Labour Court had become
\nfunctus officio after making the award, though ex-pane, were erroneous.\n<\/p>\n
\t5.  In view of the aforesaid judgment of the Supreme Court, it is clear
\nthat even after passing an ex-parte award the Labour Court had the jurisdiction
\nto set aside the same in case sufficient cause was shown by the party against
\nwhom the award was passed for his absence before the Court. The order of the
\nLabour Court, therefore, holding that the Court had become functus officio after
\nthe award had become enforceable is clearly erroneous and cannot be sustained.
\nI, accordingly, make the rule absolute, quash the impugned order dated 23rd
\nFebruary, 2000 and allow the writ petition. The matter is remanded to the Labour
\nCourt with a direction to decide the application of the petitioner for setting
\naside the ex-parte award on its merits. In the facts of the case I leave the
\nparties to bear their own cost. The parties are directed to appear before the
\nLabour Court on 7.4.2003.”\n<\/p>\n
\t27.  It is to be borne in mind that Rule 22 of the Industrial Disputes
\n(Central) Rules, 1958 enjoins that<\/p>\n
\t“If without sufficient cause being shown, any party to proceedings before
\na Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to
\nattend or to be represented, the Board, Court, Labour Court, Tribunal, National
\nTribunal or Arbitrator may proceed as if the party had duly attended or had been
\nrepresented.”\n<\/p>\n
\t28.  Significantly, Rule 48 of Tamil Nadu Industrial  Dispute Rules, 1958
\nspeaks of ex parte proceedings and the same is as follows:-\n<\/p>\n
\t“(1)  If, without showing sufficient cause any party to proceedings before
\na Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be
\nrepresented, the Board, Court, Labour Court, Tribunal or the Arbitrator may
\nproceed as if the party had duly attended or had been represented.\n<\/p>\n
\t(2).  The Board, Court, Labour Court, or Tribunal or an Arbitrator may,
\nfor sufficient cause, set aside, after notice to the opposite party, the ex
\nparte decision either wholly or in part, on an application made within 15 days
\nof the ex parte decision:\n<\/p>\n
\tProvided that an application may be admitted after the said period of 15
\ndays, if the applicant satisfies the Board, Court, Labour Court or Tribunal or
\nArbitrator, as the case may be, that he had sufficient cause for not preferring
\nthe application within that period.”\n<\/p>\n
\t29.  The Ex parte award will be set aside even after thirty days of its
\npublication since, there is no bar for High Court in not entertaining an
\napplication for setting aside even after thirty days of its publication which is
\napplicable to the Labour Court\/Tribunal.\n<\/p>\n
\t30.  At this stage, a perusal of the notes paper in I.D.No.2\/2006 on the
\nfile of the second respondent\/Labour Court, Tirunelveli indicates that on
\n24\/1\/2007, fresh notice to the respondent (Writ petitioner\/Management) through
\n“Registered Post with Acknowledgment Due” has been ordered, returnable by
\n28\/2\/2007.  Again on 28\/2\/2007, fresh notice through Registered Post to the
\nrespondent has been ordered and the matter has been posted on 2\/4\/2007.  Again
\non 2\/4\/2007, notice to the respondent has been ordered and the matter has been
\nposted on 10\/5\/2007.  On 10\/5\/2007, the matter has been re-posted on 27\/6\/2007
\nbased on the reason that ‘P.O is in training’.  On 27\/6\/2007, fresh notice to
\nrespondent through “Registered Post with Acknowledgment Due” has been ordered
\nand the matter has been re-posted on 20\/7\/2007.  Again, on 20\/7\/2007, fresh
\nnotice to the respondent through “Registered Post with Acknowledgment Due” has
\nbeen ordered, returnable by 23\/8\/2007.  Subsequently, from 23\/8\/2007, the matter
\nhas been adjourned to 21\/9\/2007 and 18\/10\/2007 respectively.  On 18\/10\/2007, in
\nthe notice paper, it is endorsed that “the petitioner’s notice served” (first
\nrespondent) and the respondent’s notice (writ petitioner) returned as “left”.
\nAgain, on 18\/10\/2007, fresh notice to respondent through “Registered Post with
\nAcknowledgment Due” to the correct address has been ordered returnable by
\n22\/11\/2007.  On 22\/11\/2007, it is endorsed as “respondent served and
\nacknowledgment card received”.  The respondent called absent and the matter has
\nbeen posted for Ex parte evidence on 29\/11\/2007.  On 29\/11\/2007, when the matter
\nhas been posted for taking of ex parte evidence, W.W.1 has been examined in
\nchief ex parte.  Exs.W.1 and W.2 are  marked and the matter has been posted for
\norders on 30\/11\/2007.  On 30\/11\/2007, it is stated that the order is not ready
\nand the matter has been adjourned to 13\/12\/2007 for orders.  Again, from
\n13\/12\/2007, the matter has been adjourned to orders on 14\/12\/2007. On
\n14\/12\/2007, the matter has been posted on 17\/12\/2007 for orders and finally, on
\n17\/12\/2007, the award has been passed.\n<\/p>\n
\t31.  A perusal of the summons as per Section 36 of the Act, sent to the
\nwrit petitioner (respondent in I.D.No.2 of 2006) shows that the date of hearing
\nof I.D.No.2 of 2006 is slated on 6\/2\/2006 at 10.00 a.m., and the writ
\npetitioner\/Management address is mentioned as<\/p>\n
\t“8\/209 Balaji Illam,
\n\t Ramalayam, V.K.N. Near,
\n\t Courtallam & Post
\n\t Tenkasi Taluk.”\n<\/p>\n
\tThe said notice has been despatched in D.No.9,10\/06 dated 9\/1\/2006.  Even,
\nthe Registered Post with Acknowledgment Due sent in D.No.732\/07 dated 27\/9\/2007
\nby the second respondent\/Labour Court, addressed to the writ petitioner
\n(respondent
\nin I.D.No.2 of 2006) shows that the address of the writ petitioner is mentioned
\nas<\/p>\n
\t“No.8\/209 Balaji Illam
\n\t Ramalayam, V.K.N Nagar
\n\t Kuttralam & Post
\n  \t Tenkasi Taluk”\n<\/p>\n
has been returned to the Sender viz., the second respondent as “addressee left”.
\nTherefore, it is quite evident that the second respondent\/Labour Court has sent
\nthe “Registered Post with Acknowledgment Due”  to the writ petitioner
\n(Respondent in I.D. No.2 of 2006) only to the address at Courtrallam & Post,
\nTenkasi Taluk.\n<\/p>\n
\t32.  A perusal of an acknowledgment card sent by the second
\nrespondent\/Presiding Officer, Labour Court, Tirunelveli addressed to the writ
\npetitioner (respondent) shows that the writ petitioner’s address is mentioned as
\nBombay and the same has been received by someone on behalf of the writ
\npetitioner on 6\/11\/2007.\n<\/p>\n
\t33.  Indeed, the Registered Post with Acknowledgment Due to the writ
\npetitioner\/Management has been despatched by the second respondent Office in
\nD.No.868\/07 dated 1\/11\/2007 specifying the hearing date on 22\/11\/2007.  Exactly,
\n15 days before hearing of I.D.No.2 of  2006 on 22\/11\/2007, the writ petitioner
\nhas received the Registered Post with Acknowledgment Due i.e., on 6\/11\/2007.  At
\nleast, after the receipt of the notice of hearing, the writ
\npetitioner\/Management should have taken diligent steps to appear before the
\nsecond respondent\/Labour Court for the hearing on 22\/11\/2007.  But the perusal
\nof the notice paper in I.D.No.2 of 2006 of the second respondent\/Labour Court,
\nTirunelveli shows that the Acknowledgment Card has been received from the
\nrespondent (writ petitioner) and it has been called absent and set ex parte.
\nTherefore, it is quite clear that notice of hearing of I.D. No.2 of 2006 dated
\n22\/11\/2007 has been duly served on the writ petitioner (respondent\/Management)
\non 6\/11\/2007.  As such, it is not open to the writ petitioner\/Management to
\ncontend that no notice has been served upon it at  Mumbai address.  After having
\nreceived the notice and also the second respondent\/Labour Court has received the
\nacknowledgment from the writ petitioner\/Management to that effect, then, non-
\nappearance of the writ petitioner (respondent) before the second
\nrespondent\/Labour Court on 22\/11\/2007 is to be construed only as “without
\nsufficient cause”, in the considered opinion of this Court.  Therefore, the
\ncontra contention put forward on the side of the petitioner\/Management is not
\naccepted by this Court and the same is rejected.\n<\/p>\n
\t34.  In the present case, even though the petitioner\/Management
\n(respondent in I.D.No.2 of 2006) has been called absent and set ex parte, the ex
\nparte evidence of the First respondent\/petitioner has not been recorded\/taken on
\n22\/11\/2007 by the second respondent\/Labour Court.  However, the matter has been
\nposted to 29\/11\/2007 for taking ex parte evidence.  Only on 29\/11\/2007, the
\nfirst respondent (petitioner in I.D.No.2 of 2006) has been examined as W.W.1 in
\nchief and the matter has been posted for orders to 30\/11\/2007.  Surprisingly,
\nthe ex parte award has not been passed from 30\/11\/2007 till 14\/12\/2007.  Only,
\non 17\/12\/2007, the ex parte award has been passed.\n<\/p>\n
\t35.  On going through the Ex parte award dated 17\/12\/2007 passed by the
\nsecond respondent\/Labour Court, Tirunelveli, this Court is of the considered
\nview that the same is bereft of quantitative and qualitative details. In fact,
\nthere is no discussion about the merits and demerits of the claim and rival
\nclaim made by the parties.  Even in Ex parte award\/decree, the Tribunal\/Court of
\nlaw has to apply judicial mind.  But, in the instant case, the award passed by
\nthe second respondent\/Labour Court dated 17\/12\/2007 suffers from outline of
\nprocess of reasoning.  Merely, mentioning in the award for what relief, I.D.No.2
\nof 2006 has been filed before the second respondent and further stating that<\/p>\n
\t“It is contended by the petitioner that he was appointed as Tipper Driver
\nin the month of May 1998 and he was paid salary of Rs.3,000\/- per month and
\nother monetary benefits and respondent without any valid reason dismissing him
\nfrom service on 9\/5\/2000.”\n<\/p>\n
will not suffice, so as to enable the second respondent to pass an ex parte
\naward.\n<\/p>\n
\t36.  Proceeding further, it is relevant to make a significant mention in
\nthe award that the petitioner was examined as W.W.1 on 22\/11\/2007 besides proof
\naffidavit have been filed and Exs.W.1 and W.2 have been marked and that the
\nrespondent (writ petitioner) was called absent and set ex parte on 22\/11\/2007
\netc., and therefore, the petitioner is entitled to the relief as prayed for and
\naccordingly, passing an award directing the Reinstatement of the First
\nRespondent is not a palatable and prudent one in the eye of law.  An unreasoned
\naward may be a just one from the point of view of the person, who has passed the
\nsame.  But, it may not be so to an aggrieved  person, who may have a genuine
\ncause for concern that by passing of an unreasoned and non-speaking order,
\nsomething legal wrong has been done to him\/it.\n<\/p>\n
\t37.  To put it succinctly, the ex parte Award dated 17\/12\/2007 passed by
\nthe second respondent\/Labour Court is an unreasoned and non-speaking one, which
\ncannot stand a scrutiny in the eye of law.  Also, the second respondent\/Labour
\nCourt has not framed a point for determination and also that it has not assigned
\nqualitative and quantitative reasons for the decision arrived at by it by
\ndiscussing the relative merits and demerits of the parties  based on the
\npleadings projected in the main Industrial Dispute.  Therefore, this Court,
\ninterferes with the said award passed by the second respondent\/Labour Court in
\nI.D.No.2 of 2006 dated 17\/12\/2007 and set aside the same, by exercising its writ
\njurisdiction to prevent aberration of justice.  Consequently, the writ petition
\nsucceeds.\n<\/p>\n
\t38.  In the result, the writ petition is allowed, leaving the parties to
\nbear their own costs.  The Ex parte Award passed by the second respondent\/Labour
\nCourt is set aside by this Court for the reasons assigned in this writ petition.\n<\/p>\n
\t39. M.P.(MD) No.1 of 2011:- The writ petitioner\/Management filed M.P.No.2
\nof 2008 praying for the relief of granting stay in regard to the operation of
\nthe ex parte award passed by the second respondent in I.D.No.2 of 2006 dated
\n17\/12\/2007.  However, in the said M.P., only notice and private notice
\nreturnable by two weeks has been ordered on 21\/10\/2008.\n<\/p>\n
\t40.  However, the first respondent\/petitioner (workmen) filed M.P.No.1 of
\n2011, praying for issuance of a direction of this Court to the writ
\npetitioner\/Management to pay back wages to him and to continue to pay the wages
\nas per Section 17 B of the Industrial Disputes Act, 1947.  Admittedly, Section
\n17 B of the Industrial Disputes Act, will not come into operative play when this
\nCourt has not granted stay in M.P.No.2 of 2008 (stay petition) because, in that
\ncontingency, the Employer will be bound to reinstate the workmen forthwith.  In
\nthe absence of an order of stay of operation of the award in I.D.No.2 of 2006,
\nthis Court will expose the writ petitioner to the penel consequences of Section
\n29 of the Industrial Disputes Act, which deals with penalty for breach of
\nsettlement or award apart from the recovery proceedings as per Section 33 of the
\nIndustrial Disputes Act, 1947 which refers to “the conditions of service, etc.,
\nto remain unchanged under circumstances during pendency of proceedings.”\n<\/p>\n
\t41.  The object of 17 B of the Act is that during the pendency of
\nproceedings in higher forum, a workmen should not have been gainfully employed
\nin any other Establishment from which he receives adequate remuneration, if an
\naffidavit has been filed by the workmen to the effect that he has not been
\nemployed in any establishment during the pendency of such proceedings, then, he
\nhas despatched his burden.\n<\/p>\n
\t42.  Ordinarily, the payment of 17 B wages under the Industrial Disputes
\nAct is akin to the subsistence allowance.  It is not a recoverable or refundable
\none.  The object of 17 B is to provide relief to a workman  aiming at relieving
\nthe hardship to him that will be caused on account of delay in implementation of
\nthe award, as a result of the pendency of the proceedings before the second
\nrespondent.  The ingredients of Section 17 B of the Industrial Disputes Act will
\ncome into operation only when proceedings are initiated before the High Court or
\nthe Honourable Supreme Court against the award directing reinstatement and it
\nwill not apply if the award of reinstatement is not challenged.  As per Section
\n17 B of the Act, there is no obligation on the part of the Employer to pay
\nwithout the orders of this Court, the workmen has to claim and satisfy the Court
\nbefore being entitled to an order for payment as per Section 17 B of the
\nIndustrial Disputes Act.  Section 17 B is mandatory in character and it gives a
\nmandate to the Court to award full wages, if the conditions enumerated in
\nSection 17 B are fully satisfied, in the considered opinion of this Court.
\nHowever, the delay in making application will not affect the powers of the Court
\nas per decision in RAJASTHAN STATE ROAD TRANSPORT CORPORATION Vs. LABOUR COURT
\nreported in (1998) 1 LLJ – 831 (Raj) (DB).\n<\/p>\n
\t43.  The three ingredients mentioned in Section 17 B  of the Act are as
\nfollows:-\n<\/p>\n
\ta.  The Labour Court, directed reinstatement of workman.\n<\/p>\n
\tb.  The Employer  filed proceedings against the award before the
\nHonourable High Court or the Honourable Supreme Court.\n<\/p>\n
\tc.  The workman has not been employed in any Establishment during such
\nperiod.\n<\/p>\n
Then, the Employer  is liable to pay the last drawn wages to the workmen, in the
\nconsidered opinion of this Court.  The liability as per Section 17 B of the
\nIndustrial Disputes Act continues during the entire period of the pendency of
\nproceedings in higher course even if the workmen  as in the meanwhile crossed
\nhis age of super annuation  and would have retired, had he not been dismissed or
\ndischarged from service as opined by this Court.\n<\/p>\n
\t44.  Section 17 B of the Industrial Disputes Act is a statutory exception
\nand creates a liability in favour of the workmen and against the Employer.  The
\nright as per Section 17 B of the Industrial Disputes Act is an independent right
\nto a workman during the pendency of proceedings before the Honourable High Court
\nor the Honourable Supreme Court.\n<\/p>\n
\t45.  This Court worth recalls a Division Bench  decision in ELPRO
\nINTERNATIONAL LTD. Vs. K.B.JOSHI AND OTHERS reported in 1987 (II) LLJ – 210
\n(Bombay High Court), wherein it is laid down that<\/p>\n
\t“Section 17 B of the Act does not in any way impinge upon the
\nextraordinary powers conferred on the High Court under Arts.136 and 226 of the
\nConstitution, much less restricting the said powers.”\n<\/p>\n
\t46.  In the aforesaid decision, at page 215, it has among other things
\nobserved that<\/p>\n
\t“Section nowhere lays down that in extreme cases where it is demonstrated
\nthat the award passed is either without jurisdiction or is otherwise a nullity,
\nor grossly erroneous or perverse, the High Court or the Supreme Court is
\ndebarred from exercising its power under Art.226 and 136 of the Constitution.”\n<\/p>\n
\t47.   This Court also aptly points out that in GODREJ AND BOYCE
\nMANUFACTURING COMPANY LTD., Vs. PRINCIPAL LABOUR COURT, MADRAS AND ANOTHER
\nreported in 1992 – II – LLJ – 201, wherein at page 209, it is held that<\/p>\n
\t“… Courts cannot afford to be manipulated and allow the
\nmanagement\/employer to use the interim order as a weapon to avoid such a
\nstatutory liability.  Some error of fact or even some error of law alone will
\nnot thus be enough to issue any interim order.  If, however, the error is such
\nthat it goes to the root of the jurisdiction of the Tribunal and the Court has
\ngot sufficient materials to ignore the effect of S.17 B of the Act the Court may
\ndecline to order payment of the wages pendente lite …”\n<\/p>\n
\t48.   Be that as it may,  in view of the fact that the first
\nrespondent\/petitioner has taken a stand that he has been removed from service
\nillegally from 9\/5\/2000, but the same has been repudiated by the
\npetitioner\/Management saying that the services have been terminated on 11\/5\/2000
\nthough the first respondent has joined on 1\/10\/1999 and earlier, he was on
\nprobation and that the project was in operation only for a contractual period of
\nfour years etc., and also because of the fact, this Court has set aside the ex
\nparte award dated 17\/12\/2007 passed in I.D.No.2 of 2006 by the second respondent
\nas referred to earlier paragraphs of this Court, this Court is of the considered
\nview that prima facie, there are sufficient materials to decline the relief of
\npayment of wages as per Section 17 B pendentelite by exercising its judicial
\ndiscretion and ignore the effect of Section 17 B of the Act based on the over
\nall facts and circumstances of the case which float on the surface.
\nConsequently, Miscellaneous Petition (MD) No.1 of 2011 is closed.\n<\/p>\n
\tM.P.(MD) No.2 of 2008:-  This Miscellaneous Petition is closed.\n<\/p>\n
mvs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Gammon India Limited vs Nanda Kumar on 4 March, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-62359","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nGammon India Limited vs Nanda Kumar on 4 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gammon-india-limited-vs-nanda-kumar-on-4-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gammon India Limited vs Nanda Kumar on 4 March, 2011 - 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