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1997 DIGILAW 520 (ALL)

State of U. P. v. Bachai Lal

1997-05-06

S.R.SINGH

body1997
JUDGMENT : S.R. Singh, J. The petition on hand is directed against the award dated 19.4.1991 given by the Labour Court, Allahabad in adjudication case No. 130 of 1989 in the matter of the Respondent workman Bachai Lal. The dispute referred to the Labour Court was as to whether the termination of the services of the workman Bachai Lal by the employer with effect from 1.2.1987 was proper and valid and if not, what relief was the workman entitled to get? The case of the workman was that he was appointed on the post of chaukidar in the establishment of Executive Engineer, Irrigation Nirman Khand, 17 Stanley Road, Allahabad on 1.11.1985 and his services were terminated on 1.2.1987 without any rhyme or reason even though he had been in continuous service from 1.11.1985 to 31.1.1987 and his work was throughout satisfactory. No notice or pay in lieu of notice and retrenchment compensation were paid to him. The case was contested by the employer with the allegation that the workman was never appointed against any permanent post and was rather daily rated employee engaged from time to time depending upon the availability of work. The workman, it was further alleged by the employer, voluntarily left the work and did not turn up to his duties. 2. It transpires from the record that after the initial contest and exchange of written statements, the employer absented itself from the ongoing proceeding and, therefore, the Labour Court, on 1.2.1991 ordered to proceed ex parte. The workman examined himself as W.W. 1, stated his case and proved the documents filed by him. A copy of the statement has been annexed as Annexure 4 to the writ petition. Considering the ex-parte evidence. Labour Court gave its award dated 19.4.1991 holding that the workman had been in continuous service from 1.11.1985 until his services were terminated with effect from 1.2.1987. It was further held by the Labour Court that the provisions of Sections 6N and 6P of the U.P. Industrial Disputes Act were not complied with even though the workman had been in continuous service for more than 240 days in a year preceding the date of termination of service. The termination was accordingly held to be improper and illegal and the workman was directed to be reinstated with full back wages. The termination was accordingly held to be improper and illegal and the workman was directed to be reinstated with full back wages. The award was published on 5.8.1991 and on 11.11.1991 an application was moved under Rule 16(2) of the U.P. Industrial Disputes Rules, 1957 along with an affidavit for setting aside the ex parte award dated 19.4.1991. It was stated in the affidavit that though written statement was filed in the case on behalf of the Executive Engineer, Irrigation Construction Division, 17 Stanley Road, Allahabad but subsequently in a reshuffle of the Department, file of the case was transferred to the Executive Engineer, Barh Prakhand, Allahabad and none appeared on the date fixed in the case on behalf of the Executive Engineer, Construction Division, as it was presumed that the case would be taken care of by the Executive Engineer, Barh Prakhand, Allahabad who had been required by means of letter dated 5.2.1991 of the Executive Engineer, Irrigation Construction Division, Allahabad to do pairvi of the case in the Labour Court on behalf of the Department. It is also alleged that the workman informed the office of the Executive Engineer, Irrigation Construction Division. Allahabad on 21.8.1991 that the case had been decided in his favour by the Labour Court and thereafter, on enquiry from the Barh Prakhand of the Inrigation Department, it transpired that it did not do any pairvi, as it was not impleaded as a party to the case. Thereafter D.G.C. (Civil) on being contacted opined on 19.11.1991 to apply for setting aside the ex parte order and thereafter the Department contacted the Law Department of the Government of Uttar Pradesh and at the behest of the Government, the Chief Standing Counsel, High Court , Allahabad also gave his opinion for filing restoration application and therefore, the D. G. C. (Civil was again contacted and ultimately on 10.11.1991, it was decided to move an application for setting aside the ex parte award and the application was accordingly filed. 3. 3. The Labour Court issued notice to the workman who contested the application for setting aside the ex parte award on grounds, inter alia, that the application was not moved within the period prescribed under Rule 16 (2) of the U.P. Industrial Disputes Rules for setting aside the ex parte order and no sufficient cause was shown for absence on relevant dates in that the department absented itself from the ongoing proceeding without there being any sufficient cause for absence. The application for restoration having been rejected by the impugned order dated 29.2.1992, the Petitioners have filed the instant writ petition for quashing the ex parte award dated 19.4.1991 as also the order dated 29.2.1992. 4. I have heard standing counsel for the Petitioners and Sri S. S. Tripathi for the Respondent workman. 5. The first question that emerges for consideration is whether the Labour Court has Jurisdiction to entertain an application for setting aside the ex parte award. Rule 16 (1) of the U.P. Industrial Disputes Rules, 1957 enables the Labour Court to proceed with the case in the absence of a party and pass such order as it may deem fit and proper and Sub-rule (2) empowers the Labour Court to set aside the order passed against the party in its absence if within 10 days of such order, the party applies in writing for setting aside such order showing sufficient cause for its absence. The rule being relevant is quoted below: 16. Labour Court or Tribunal or Arbitrator may proceed ex parte.--(1) If, on the date fixed or on any other date to which the hearing may be adjourned, any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent though duly served with summons or having the notice of the date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper. (2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit stating the cause of absence. Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order. 6. A perusal of Rule 16 of the Rules indicates that it speaks of 'order' and not 'award'. The word 'award' as defined in Section 2 (c) of the U.P. Industrial Disputes Act, 1947 means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court or Tribunal and includes an arbitration award made u/s 5B". The word 'order' has not been defined in the Act. One of the dictionary meanings of the word is 'a decision by a court or Judge, usually not a final judgment," The CPC defines 'order' as the formal expression of any decision of a civil court which is not a decree. In the practice of the courts, the term "order", according to the Law Lexicon, "means a decision made during the progress of the case either prior or subsequent to the final judgment, settling some point of practice of some question collateral to the main issue presented by the pleading and necessary to be disposed of before such issue can be tried in the court, or necessary to be determined in carrying into execution of the final judgment." To my mind, the word "order" has been used in Rule 16 in a comprehensive sense so as to include an ex parte" award" as well. The Labour Court has the power to set aside not only an order that the case be heard ex parte but also an ex parte award passed against a party in its absence if within ten days of such award, the party applies in writing for setting aside such award and shows sufficient cause for his absence. In fact, Rule 16 is an admixture of Rules 6, 7 and 13 of Order IX of the CPC subject to the modification that the power under Rule 16 of the Rules can be invoked only so long as the Labour Court has the seisin of the dispute referred to it. In fact, Rule 16 is an admixture of Rules 6, 7 and 13 of Order IX of the CPC subject to the modification that the power under Rule 16 of the Rules can be invoked only so long as the Labour Court has the seisin of the dispute referred to it. In other words, Labour Court has the Jurisdiction to entertain an application under Rule 16 for setting aside an ex parte award till it attains finality u/s 6 (5) of the Act. The view I am taking finds support from the cases referred to below: 7. In Badri Prasad Hari Das v. Bartan Nirmata Majdoor Sabha 1984 UPLBEC 56, a Full Bench of this Court has dealt with the question in the following words: Under Sub-rule (2) of Rule 16, it may be correct that the word used is "order", but once an order is set aside, the necessary consequence is that the award given in pursuance of the decision of the Labour Court or Tribunal to proceed ex parte would automatically fall down. Sub-rule (2) of Rule 16 is an enabling provision and, therefore, if sufficient cause has been shown by the party against whom case has proceeded ex parte, the party would become entitled to be heard. If it becomes entitled to be heard, it necessarily follows that if any award has been given against him, that is liable to be set aside. The Full Bench went on to hold further: It may be correct that the Act does not confer any power on the Labour Court or Tribunal to set aside the award once it has been finally made, but the rules have to be read along with the Act. If read together, no power to recall an award given ex parte would be found lacking. 8. In Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, AIR 1981 SC 606 , it has been observed as under: Power to proceed ex parte under Rule 22 carries with it power to inquire whether or not there is sufficient cause for the: absence of a party at the hearing"; and further; "The proceedings with regard to reference u/s 10 of the Act are, therefore, not deemed to be concluded until expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction and upto that date it has the power to entertain an application in connection with the reference in dispute. That stage is not reached till the award becomes enforceable u/s 17A. 9. The next question that arises for consideration is as to whether the application filed after ten days of the ex parte award is maintainable. In my opinion, the Labour Court retains jurisdiction to entertain an application for setting aside an ex parte award at least till the award attains finality u/s 6 of the Act albeit according to Grindleys Bank Ltd. (supra), it retains jurisdiction "until expiry of 30 days from the publication of the award". It is another thing that the jurisdiction can be invoked only upon sufficient cause being shown for absence. 10. In the instant case, the Labour Court passed the order to proceed ex parte on 1.2.1991 and made that ex parte award on 19.4.1991 which was published by affixation on the notice board on 5.8.1991 with the prior permission of the State Government accorded vide G. O. dated 26.9.1991. The application for setting aside the ex parte award was moved on or after 10.11.1991. The award became enforceable after its publication on 5.8.1991 and in view of the Supreme Court's decision in Grindleys Bank Ltd. (supra), the Labour Court had the jurisdiction until expiry of thirty days of the date of publication of the award to entertain the application for setting aside the ex parte award. The expression '"within 10 days of such order" occurring in Rule 16 (2) of the Rules, even if construed to mean "within ten clays of the knowledge of such order", would not help the Petitioners for they would be presumed to have the knowledge of the award on the date on which the permission was given for its publication. The Labour Court ceased to have the seisin of the dispute referred to it after expiry of thirty days from the publication of the award. The application for setting aside the ex parte award was made in November, 1991. The Labour Court has committed no illegality or irregularity in exercise of its discretion. 11. The Labour Court ceased to have the seisin of the dispute referred to it after expiry of thirty days from the publication of the award. The application for setting aside the ex parte award was made in November, 1991. The Labour Court has committed no illegality or irregularity in exercise of its discretion. 11. The term "sufficient" used in Rule 16 no doubt should receive liberal construction so as to advance substantial justice but if the party is found guilty of laches, indifference and inaction or where want of bona fides is imputable to the party, it cannot be said to have shown sufficient cause for absence. In the instant case, the facts stated hereinabove clearly demonstrate that the Petitioners were guilty of negligence, indifference and inaction in prosecuting the case before the Labour Court. In these circumstances, it cannot be said that the Labour Court while rejecting the application for setting aside the ex parte award has, in any manner, misdirected itself to any factor relevant to exercise of its discretion in the matter and as such, the impugned order rejecting the application for setting aside the ex parte award warrants no interference under Article 226 of the Constitution. It is true that an element of public interest may be involved in a litigation to which the State is a party and the court may, in appropriate cases, interfere notwithstanding the proved laches on the part of the official of the Government but the facts and circumstances of the present case do not warrant any interference under Article 226/227 of the Constitution. The State would not suffer any irreparable injury if the impugned award is not set aside. In the result, I am not inclined to interfere with the impugned award and the order rejecting the application for setting the ex parte award. 12. Accordingly the petition fails and is dismissed with cost on parties.