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2002 DIGILAW 1709 (RAJ)

Ram Charan Gautam v. State of Rajasthan

2002-10-17

ARUN MADAN

body2002
JUDGMENT 1. - The case of the petitioner in short is that he was appointed on daily wage basis by the Additional Collector (Development) District Alwar Sawai Madhopur Rajasthan by order dated 2.12.1985. After having rendered service for about an year, his services were terminated by a verbal order dated 4.12.1986 of the Appointing Authority. Consequent to his termination, the petitioner raised a dispute under Section 10 of the Industrial Disputes Act (for short 'the Act of 1947') before the Conciliation "Officer. The Conciliation Officer submitted his failure report on 6.6.1987 since he was unable to resolve the dispute. Thereafter, the matter was referred by the State Govt, under Section 10(1) read with Section 12(5) of the Act to the Labour court and accordingly, the case was registered as LCR No. 102/88 and notices were issued to the respondents. On 30.8.1989, respondent No. 3 instead of appearing before the Labour Court and contesting the case, sent a telegraphic communication to the Labour Court Bharatpur for adjournment and accordingly, the case was adjourned to 19.10.1989. 2. The State Government referred the dispute by having resort to the provisions of Section 10(1) read with Section 12(5) of the Act to the Labour Court and accordingly case was registered and notices were issued to the respondents. Thereafter the proceedings were held from time to time after the service of notices on the respondents. However on 30.8.89 by a telegraphic communication respondent No. 3 conveyed to the Labour Court, Bharatpur its request to grant adjournment and the case was accordingly adjourned to 19.10.89 as stated here in above when the controversy pertaining to the ex-parte proceedings arose between the parties. On the said date, no one appeared on behalf of the petitioner for the reason that there was a lawyers strike. Though it was expected that the department should have deputed its representative to appear for the least purpose of seeking adjournment. Even on the adjourned date of hearing i.e. 21.12.89 no one appeared on behalf of respondent No. 3 and thereafter also on subsequent dates of hearing. Since the Presiding Officer of the Labour Court, Bharatpur was on leave on 21.12.89, the case was adjourned to 1.2.90 and thereafter again to 15.3.90. Even on the adjourned date of hearing i.e. 21.12.89 no one appeared on behalf of respondent No. 3 and thereafter also on subsequent dates of hearing. Since the Presiding Officer of the Labour Court, Bharatpur was on leave on 21.12.89, the case was adjourned to 1.2.90 and thereafter again to 15.3.90. It is to be noted that notwithstanding the fact that the petitioner made his appearance on all the aforesaid dates but conspicuously enough respondent No. 3 had defaulted in appearing before the Court or through his representatives even on the adjourned dates of hearing. If respondent No. 3 was busy on account of administrative duties, there appears no justification in that regard as to why the officer-in-charge of respondent No. 3 had failed to attend the proceedings, which remain unexplained. Merely because a telegraphic message was sent by respondent No. 3 seeking adjournment for a particular date on 30.8.89 (Ann. 2) on the ground that he was not in a position to attend the court and hence the matter may be adjourned to some other date itself is no ground to absolve the responsibility of respondent No. 3 to appear before the court. It is not expected of the Labour Court to convey a party to the proceedings even if it happens to be a Government functionary like the Additional Collector (Development, Rural Agency) as in the instant case, by way of a personal communication regarding adjourned date of hearing. 3. Be that as it may, the aforesaid approach was not expected of respondent No. 3 since rather the responsibility was fully left on its representative to attend the case even on the adjourned dates of hearing, more particularly, on 5.4.90 when the matter was decided ex parte and an Award had been passed against the respondents. 4. It is significant to mention in this context that on 15.3.90, the Labour Court took note of the fact in the impugned Award that no one bothered to appear on behalf of the respondent No. 3 even on earlier dates when the case was adjourned from time to time, particularly on 9.10.89, 21.12.89 and thereafter even on 15.3.90 when ex parte proceedings were initiated against respondent No. 3. Even thereafter on 5.4.90 when no one appeared even in between the period 15.3.90 to 5.4.90; no one bothered to attend the proceedings on behalf of respondent No. 3, consequent upon which the learned Labour Court was left with no alternative but to pass the Award ex parte in favour of the petitioner. This was followed by notification and publication of the Award u/s. 17-A of the Act. It is pertinent to mention herein the provisions of Section 17 and 17A of the Act, which stipulate as under: "17. Publication of report and award (1) Every report of a Board or court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate government, be published in such manner as the appropriate Government thinks fit. (2) Subject to the provisions of Section 17A, the Award published under sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever. 17A. Commencement of the award (1) An Award (including an arbitration Award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17 ; Provided that- (a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or (b) if the Central Government is of opinion, in any case where the Award has been given by a National Tribunal, that it will be in inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days." 5-6. From the plain reading of the aforesaid provisions, it is explicit that the Award when published within the ambit of Section 17(1) of the Act would become effective soon after the expiry of 30 days from the date of its publication and the said Award as and when published shall continue to be binding upon the parties after the initial validity of one year from the date it becomes enforceable u/s. 17 A of the Act until expiry period of two months has elapsed from a notice as was given by any party bound by the award to the other party intimating its intention to terminate it.7. As regards the jurisdiction of the Labour Court to entertain an application for setting aside of an ex parte Award be moved in 30 days, the jurisdiction has to be exercised fairly in accordance with law. Thus as regards the constraints imposed upon by the statute there is no scope for relaxation as regards the exercise of power subject to the application being moved by the affected party within 30 days from the date of pronouncement of the Award, provided property application is moved u/s. 5 of the Limitation Act duly supported by affidavit as to what were the reasons for not filing it within the stipulated time under the permissible law. It is only when sufficient cause has been explained before the forum concerned requesting that the delay may be condoned at the discretion of the forum/Court but not otherwise. In this context, it would also necessary to quote the relevant Rules viz. Rajasthan Industrial Disputes Rules, 1958. Rule 22-A of the said Rules stipulates as under: "22-A. Setting aside ex parte decision. (1) On an application made within fifteen days of the ex parte decision, the Board, Court, Labour Court, Tribunal or Arbitrator may, on sufficient cause being shown after notice to the opposite party set aside either wholly or in part, an ex parte decision, (2) The Board, Court, Labour Court, Tribunal or Arbitrator may, on an application, extend the time of fifteen days as prescribed in sub-rule (1) on sufficient cause being shown, (3) Applications under sub-rules (1) and (2) shall be supported by an affidavit." 8. Thus it is very clear from the perusal of the above Rules, moving of an application setting aside an ex parte Award duly supported by an affidavit within 15 days of its publication can be entertained by the Court on sufficient cause being shown so as to enable the opposite party to take necessary steps before an ex parte decision to set aside or upheld, as the case may be.9. As per Section 17A of the Act, the Award becomes enforceable immediately after the expiry of 30 days from the date of its publication u/s. 17 of the Act and after the expiry of 30 days, the Court becomes functus officio, unless a difference has been specified that the Award becomes enforceable immediately after the expiry of 30 days u/sub sec. (1) and (3) of Section 17A of the Act, as the case may be. Therefore, the time cannot be automatically extended at the option of the party aggrieved by order nor the Legislature intended to extend the time beyond statutory period of 30 days. In the instant case, the Notification regarding the passing of Award was published by the State Government vide Annexure- 3 on record on 18.6.90. The writ petition was filed after more than 30 days before this Court for setting aside the ex-parte Award dated 5.4.90 by respondent No. 3 on 5th July, 1990.10. Learned Counsel for the respondent has very vehemently urged that the crucial date as regards the enforcement of the Award is the date of its publication and not the date of issuance of Notification. Even if the argument of Mr. B.M. Sharma is to be accepted as correct, what were those sparing reasons for not moving this Court for setting aside the Award within the stipulated period, remains unexplained. Moreover what prevented the petitioner to file the writ petition after more than 30 days before this Court for setting aside the ex-parte Award on 27.4.90 also remain unexplained. As regards the Award, which was pronounced on 5.4.90 followed by its notification on 18th June, 1990 also remain unexplained on the record. It was on 30.7.90 that the writ petition was dismissed as withdrawn with liberty to the petitioner i.e. respondent No. 3 herein, to move the Labour Court for filing a petition for such reliefs as may be available in accordance with law. It was on 30.7.90 that the writ petition was dismissed as withdrawn with liberty to the petitioner i.e. respondent No. 3 herein, to move the Labour Court for filing a petition for such reliefs as may be available in accordance with law. Even after the dismissal of the writ petition on 30th July, 1990 on the basis of liberty given to respondent No. 3, an application was filed by respondent No. 3 before the Labour Court, Bharatpur belatedly on 21.8.90 after a lapse of 21 days. An argument which has been advanced by the learned counsel for the respondent, during the course of hearing is that sufficient cause has been explained in the application seeking condonation of delay for not moving the application. This argument is not sustainable for the reason that the 1958 Rules explicitly stipulates 30 days. As per Rule 22A of the Rules, subject to sufficient cause being explained on the record by the aggrieved party; as what were those sparing reasons which impelled respondent No. 3 to overlook the said provisions also remain unexplained on the record. From the perusal of the order sheet drawn-up by the Labour Court, it is very clear that respondent No. 3 had adopted a scant attitude and rather not taken any responsibility in the matter of directing an authorised officer to carefully watch the proceedings before the Court and apprise him of the adjourned dates of hearing but no responsibility was undertaken by its representative in this regard and merely sent a telegraphic message to the Court, that does not by itself is a sufficient reason to absolve the responsibility, more particularly being a State functionary.11. From the perusal of the impugned Award, I am of the considered view that soon after the said Award has become final consequent upon its publication, the Labour Court had rather no jurisdiction to entertain the application for setting aside an ex parte Award without resorting to the provisions of the Act and the Rules since, the application dated 21.8.90 had been moved by respondent No. 3 after a lapse of one month and one day, if reckoned with effect from 5th July, 90 after excluding 15 days as per the provisions of Section 22A of the Rules. It will be noteworthy to mention in this t connection as is apparent from the perusal of the order dated 13.1.93 of the Labour Court that no reason had been antedated as to what impelled the learned Labour Court for setting aside an ex-parte Award without taking into consideration the binding effect of the Statutory provisions of the Act and the Rules referred to here in above.12. Shri S.R Sharma, learned counsel for the petitioner has placed reliance upon the following decisions of the Apex Court as well as the decisions of this Court viz : 1980 (Supp) SCC 420 (Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others) and 1997(9) SCC 355 (D.P. Patil v. Union of India and Others). 13. In the case Grindlays Bank v. Central Industrial Tribunal (supra), the question which arose for consideration of the Apex Court in a dispute between the Bank and the respondents was as to : (i) whether the Tribunal was competent in the matter of setting aside an ex parte Award if it is ; satisfied that the aggrieved party was prevented from appearing before it by sufficient case (ii) When the Industrial Tribunal becomes functus officio in respect of an application, which has been entertained by it for setting aside its ex parte Award made within 30 days from the date of its publication can be validly entertained by the Tribunal and (iii) that other ancillary or incidental powers therewith. It was held by the Apex Court that, "It is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary." 14. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary." 14. The ratio of the aforesaid decision is to mitigate the rigour of the technicalities of the law, for achieving the object of effective investigation and settlement of industrial disputes, and thus assuring industrial peace and harmony and also not to expand the scope of statutory provisions more particularly, Section 17A of the Act, as per which an Award becomes enforceable immediately on the expiry of 30 days from the date of its publication u/s. 17. It is further pertinent to mention that the Tribunal does have the power to deal with the application for setting aside the ex parte Award, if it has been moved in accordance with law and not contrary to the law and not before the expiry of 30 days on the record unless the reasons seeking condonation of delay have been sufficiently and satisfactorily explained in the matter.15. My observations are fortified by the Judgment of this Court in the matter of Surajgarh Kraya Vikraya Sahakari. Samiti v. Labour Court No. 2 & Another (2002(1) WLC (Raj.) 793).16. As a result of the above discussion, the writ petition is allowed. The impugned order dated 13.1.1993 of the Labour Court, Bharatpur is quashed and set aside. The Award dated 5.4.1990 be enforced. No order as to costs.Writ Petition allowed. *******