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2000 DIGILAW 622 (AP)

Tanuku Municipality v. S. Venkateswara Rao

2000-08-17

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B. S. A. SWAMY, J. ( 1 ) THE petitioner-Municipality filed this writ petition questioning the correctness of the Award of the Labour Court, Guntur in i. D. No. 358 of 1990, dated 29-09-1995, wherein the Labour Court directed the municipality to reinstate the petitioner with continuity of service and without back wages. ( 2 ) THE 1st respondent was appointed as a Driver of Road Roller belonging to the municipality on 26-09-1980 and his services were terminated on 22-12-1986. Thereafter the Union raised a dispute with regard to the termination of the services of the 1st respondent and after failure of the conciliation proceedings the dispute was referred to Labour Court, Guntur in I. D. No. 400 of 1987. While that I. D. was pending, the workman, after amendment to the I. D. Act by introducing Section 2-A (2) the respondent-workman filed I. D. No. 118 of 1988 in his individual capacity. Subsequently, having realized that two I. Ds cannot be maintained, he did not press for the disposal of the I. Ds. on merits. Thereafter, on 25-07-1989 the I. D filed at the instance of the Union seemed to have been dismissed for non-prosecution and a nil award was passed and the Government published the award in the gazette. At a later stage, having come to know of the dismissal of the I. D. for non-prosecution, the first respondent raised I. D. No. 358 of 1990 and an award was passed on 29-09-1995 as indicated above. ( 3 ) THE Counsel for the petitioner raised three contentions. The first respondent being a casual labour, is not entitled for reinstatement. This contention has no legs to stand in the light of the definition of workman in Section 2 (s) of the I. D. Act, wherein every person employed in an industry in whatever capacity except in supervisory Cadre has to be considered as workman and the provisions of the I. D. Act are applicable to them. Accordingly, the first contention is rejected. ( 4 ) SECONDLY, the petitioner-Municipality contended that the respondent misconducted himself by using the road roller for unauthorized purposes for gain and at the same time they agreed that no enquiry was conducted while terminating, the services of the respondent. Accordingly, the first contention is rejected. ( 4 ) SECONDLY, the petitioner-Municipality contended that the respondent misconducted himself by using the road roller for unauthorized purposes for gain and at the same time they agreed that no enquiry was conducted while terminating, the services of the respondent. Though, the labour Court has given opportunity to the petitioner Municipality to prove the misconduct, M. W. 1 who was examined on behalf of the petitioner-Municipality did not support the version of the Municipality with regard to the alleged misconduct. On the other hand, he categorically admitted that no enquiry was conducted. As the municipality failed to prove the misconduct alleged against the respondent, this contention also cannot be countenanced. Accordingly, the second contention is rejected. ( 5 ) THIRDLY, the petitioner-Municipality contended that the dismissal of I. D. No. 400 of 1987 wherein nil award was passed operates as res judicata and the Labour court went wrong in passing the award under Rule 26-B of A. P. Industrial Dispute rules, 1958. The powers of Civil Court under Code of Civil Procedure were conferred on the Labour Courts and tribunals while dealing with the Industrial disputes in regard to the aspects mentioned in the Rule. Rule 26-B relates to granting adjournment. The Honourable Supreme court in Grindlays Bank Limited vs. Central government Industrial Tribunal interpreted rule 24-B and held that Order 9, Rule 13 of c. P. C. is attracted for the awards passed ex parte in the following terms. "12. Under (Rule) 24 (b) a Tribunal or other body has the powers of a civil court under O. XVII of the Code of civil Procedure, relating to the grant of adjournments. Under O. XVII, rule 1, a civil Court has the discretion to grant or refuse an adjournment. Where it refuses to adjourn the hearing of a suit, it may proceed either under O. XVII, Rule 2 or Rule 2 or rule 3. When it decides to proceed under O. XVII, Rule 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order as it thinks fit. As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte. When it decides to proceed under O. XVII, Rule 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order as it thinks fit. As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte. In a case in which the tribunal or other body makes an ex parte award, the provisions of O. IX, rule 13 of the Code are clearly attracted. It logically follows that the tribunal was competent to entertain an application to set aside an ex parte award. " ( 6 ) HENCE, when once Order 9, Rule 13 is applicable, it is open to the party concerned either to file an application to set aside the ex parte award or prefer a fresh dispute as any award passed without adjudicating the dispute cannot operate as a res judicata. Instead of filing an application to set aside the ex parte award the workman has chosen to file a fresh application as the earlier award was not passed on merits and the provisions of Limitation Act are not applicable to the Industrial Disputes. Hence, I do not find any illegality or irregularity in the award passed by the court below. Accordingly, I do not find any merits in any of the contentions raised by the petitioner-Municipality. Accordingly, the writ petition is dismissed, but in the circumstances no order as to costs.