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2002 DIGILAW 414 (JK)

S. Hakumat Singh v. State Of J. &K.

2002-12-31

T.S.DOABIA

body2002
The Labour Court at Jammu on 27.02.1992 passed an ex-parte award. This is apparent from the Notification published in the J&K Govt. Gazette on 22.10.1992. Before proceeding further it would be apt to mention that in the judgment passed by the learned Single Judge in SWP No. 680/1994 on 02.08.1994 the date on which the award is said to have been passed is indicated as 26.4.1991. Same date is repeated even in the order passed on 05.05.1999. It appears that this date has been incorrectly mentioned. It appears that the petition before the Labour Court was preferred on 26.04.1991, but the award was pronounced on 27.02.1992. This was published in the Govt.Gazette on 22.10.1992. This award was in favour of the appellant Hakumat Singh. 2. The further fact is that an application for setting aside the ex-parte award came to be filed before the Labour Court. On this application, the appellant was called upon to show cause 27.04.1997 was the date fixed in this regard. In the meanwhile the execution of the award was stayed. 3. The further fact is that the present appellant filed a writ petition challenging the award of the labour court. Writ of certiorari as also a writ of prohibition was sought. Prayer was made that Labour Court be restrained from proceeding further. Writ petition came to be dismissed. It was observed that the Labour Court had the jurisdiction to set aside the exparte award passed by it. Against the view expressed by the Learned Single Judge, the present Letters Patent Appeal was preferred. The appeal was heard by two learned Judges of this Court. There wasa difference of opinion . A.M.Mir, J. was of the opinion that once an award stands published and a period of 30 days has expired from the date of the publication then the Labour Court would become functus officio and thereafter, it would have no jurisdiction to deal with the application. O.P.Sharma, J. was, however, of the opinion that the Labour Court would have jurisdiction. As there was difference of opinion between the learned two Judges the matter has been placed before me. The Division Bench, which heard the matter, formulated four points for consideration. For facility of reference the points on which opinions has to be expressed have been formulated by the Division Bench. As there was difference of opinion between the learned two Judges the matter has been placed before me. The Division Bench, which heard the matter, formulated four points for consideration. For facility of reference the points on which opinions has to be expressed have been formulated by the Division Bench. These are being re-produced below:- (i) Do the provisions of Industrial Disputes Act lay down no limitation for filing an application for setting aside an exparte award and can such an award be challenged at any time after the proceedings before the Labour Court are concluded in terms of Section 20(3)(c) of the Act and even after the award became enforceable? (ii) Whether the Tribunal constituted under section 7-A of the Industrial Disputes Act became functus officio on the expiry of thirty days from the date the ex-parte award is published under section 17(2) by reasons of sub-section(3) of section 20 of the Industrial Disputes Act? (iii) Does the finality provision contained in section 17-A and 17(2) of the Act not stand in the way of a person who applies for setting aside of the exparte award, after expiry of considerable time from the date when the award became enforceable? (iv) Whether the Tribunal has jurisdiction to set aside the exparte award on the grounds set aside the exparte award on the grounds set out in Rule 13 of Order 9 of the Code of Civil Procedure, which according to law laid down in Grindlays Bank in applicable to such proceedings? 4. The short question thus arises is as to whether the Labour Court can set aside an exparte award at any time or there is some limitation fixed in this regard. The other question which is required to be gone into and is formulated at S. No. 2 is as to whether the Tribunal or Court becomes functus officio after the award is published under section 17(2) read with section 20(3) of the industrial Disputes Act. So far as what is said at S.No. (iii) is concerned this would depend upon the answer given at S.No. (i) & (ii). The last point vis--vis the applicability of the provisions of Order 13 CPC is also required to be gone into. 5. So far as what is said at S.No. (iii) is concerned this would depend upon the answer given at S.No. (i) & (ii). The last point vis--vis the applicability of the provisions of Order 13 CPC is also required to be gone into. 5. As the statutory provisions which are subject matter of consideration and on which the decision is required to be given are sections 17-A and 20 of the Industrial Disputes Act, it would be apt to refer to these statutory provisions. These are re-produced below:- " 17A Commencement of the award. (1) An award (including an arbitration award) shall become enforceable on the exprity 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 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. (2) Where any declaration has been made in relation to an award under the proviso to sub-section(1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17 make an order rejecting or modifying the award and shall, on the first available opportunity lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government. (3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub section (2) is made in pursuance of declaration under the proviso to sub section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2). (4) Subject to the provisions of sub-section(1) and sub section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub section (1) or sub section (3) as the case may be." Section 20 of the Industrial Disputes Act, 1947 reads as under:- "20. Commencement and conclusion of proceedings:- (i) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out under section 22 is received by the conciliation officer on the date of the order referring the dispute to a Board, as the case may be. (2) A conciliation proceedings shall be deemed to have concluded:- (a) Where a settlement is arrived at, when a memorandum of the settlement is a signed by the parties to the disputes; (b) Where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or (c) When a reference is made to a court (Labour Court, Tribunal or National Tribunal) under section 10 during the pendency of conciliation proceedings. (3) Proceedings before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjuciation, as the case may be and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section 17A." 6. Learned Counsel appearing for the appellant/writ petitioner submits that a reading of section 17-makes it apparent that an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17. It is also submitted that commencement and conclusion of proceeding, as indicated in section 20(c) has a significance. The proceedings, according to him commence when the parties appear before the Labour Court and these are concluded as and when the award is pronounced. It is further submitted that once the award is published and the period of 30 days expires then there is no room for interference so far as the Labour Court is concerned. 7. With a view to sustain this part of the argument, reliance is being placed on a decision given by the Supreme Court of India in the case reported as AIR 1981 SC 606, Grindlays Bank v. Central Government Industrial Tribunal and also another decision of the Supreme Court as Satnam Verma v. Union of India, AIR 1985 SC 294. It is urged that these two decision and some other decisions were taken note of by a Division Bench of the Punjab and Haryana High Court in case reported as Warring Co-op. Agriculture Services Society Ltd. v. State of Punjab and Ors., 1987 Lab.I.C. 359. It is accordingly urged that the view expressed by the Division Bench of the Punjab and Haryana High Court which itself is based on the decision given by the Supreme Court of India should be taken note of. 8. Another Division Bench judgment reported as Anil Sood and Ors., v. S.K.Saruaria and Ors., 1997(1) SCT 652 is also being relied upon. In this case Delhi High Court took note of two decisions of the Supreme Court, which were noticed by the Punjab and Haryana High Court. The view expressed by the Punjab and Haryana High Court was taken note of. What is said by the Delhi High court in para 6 and 7 of the judgment is being reproduced below:- " 6. The view expressed by the Punjab and Haryana High Court was taken note of. What is said by the Delhi High court in para 6 and 7 of the judgment is being reproduced below:- " 6. In Grindlays Bank Ltd. (Supra) the Supreme Court while dealing with the contention that the Tribunal becomes functus officio on, the expiry of 30 days from the date of publication of the award and, therefore, has no jurisdiction to set aside the exparte award and that the Central Government alone could set it aside, while referring to Section 20(3) and 17A of the Act, has held that the proceedings with regard to a reference under section 10 of the Act are not deemed to be concluded until the expiry of 30 days from the publication of the award and till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such a dispute and that stage is not reached till the award becomes enforceable under section 17A. Relying on this decision, this Court in various decisions has held that after expiry of 30 days from the date of publication of the award the Industrial Tribunal/Labour Court becomes functus officio and has thus no jurisdiction to entertain an application filed beyond expiry of 30 days (See Jagdamba Auto Industries v. Kamal Tadav, 1991 (3) SCT 13 (Delhi); 45 (1991) DLT 125 Management of Delhi Development Authority v. Shri Radhey Shyam Tyagi and another, 1996 (II) LLJ 139 and DDA V. Pradeed Kumar, 1996 (74) I.F.L.R 2556. We are in respectful agreement with the views expressed in these decisions. Similar views have also been expressed by Punjab and Haryana High Court and Allahabad High Court (See Warring Co-op.Agriculture Services Society Ltd. v. State of Punjab and others, 1987 Lab and I.C 359(P&H) and U.P.S.R.T.C. Kanpur v. State of U.P. and Others, 1996(1) LLJ 31). We are in respectful agreement with the views expressed in these decisions. Similar views have also been expressed by Punjab and Haryana High Court and Allahabad High Court (See Warring Co-op.Agriculture Services Society Ltd. v. State of Punjab and others, 1987 Lab and I.C 359(P&H) and U.P.S.R.T.C. Kanpur v. State of U.P. and Others, 1996(1) LLJ 31). Mr.Raj Birbal and Mr.Vinay Sabharwal, learned counsel for the petitioners, however, vehemently contend that the ratio of the decision of the case of Grindlays Banks case (supra) and a later decision of the Supreme Court in the case of Satnam Verma v. Union of India, 1985(1) LLJ 79 in fact is that an application seeking setting aside of an ex-parte award filed even beyond the period of 30 days of the date of publication of the enforceability of the award can also be entertained by the Industrial Tribunal/Labour Court Strong reliance has been placed by learned counsel on observations made in para 14 of the decision in Grindlays Banks case to the effect that "There is no finality attached to an exparte barter award because it is always subject to its being set aside on sufficient cause being shown." The Supreme Court, however, immediately after the aforesaid observations has also observed: "The Tribunal had the power to deal with an application properly made before it for setting aside the ex-parte award and pass suitable orders." To our mind the ratio of the aforesaid decisions is clear that the Industrial Tribunal retains jurisdiction to deal with an application for setting aside an ex parte award only until the expiry of 30 days from the publication of the award. The stage of deemed conclusion of proceedings with regard to a reference under Section 10 of the Act reaches when the award becomes enforceable under section 17A of the Act. Further the parties are presumed to have the knowledge of the award on the publication. Reference may also be made to sub-rule (9) of Rule 10B of Industrial Disputes (Central) Rules 1957, which, inter alia, provides that the Industrial Tribunal may, before the submission of the Award, revoke the order that the absence of the party was on justifiable ground. Further the parties are presumed to have the knowledge of the award on the publication. Reference may also be made to sub-rule (9) of Rule 10B of Industrial Disputes (Central) Rules 1957, which, inter alia, provides that the Industrial Tribunal may, before the submission of the Award, revoke the order that the absence of the party was on justifiable ground. In view of the aforesaid pronouncements of the Supreme Court the reliance by the petitioners on decision of this Court in the case of Metal Fabricators (India) Ltd. v. B.D.Gupta and others, 1975(2) Lab.I.C.1707 is of no consequence. This decision was rendered before the Supreme Court decided Grindlays Banks case (Supra)." 9. The afore-mentioned observations of the Delhi High Court sums up the law on the subject. It has been observed that after the expiry of 30 days from the publication of the award the Labour Court/Tribunal would become functus officio. To the view so expressed no exception can be taken. This is the view so expressed no exception can be taken. This is the view expressed by A.M.Mir,J. I am in agreement with this view. I am of the opinion that the judgment under appeal does not proceed on correct legal position and is liable to be reversed and is accordingly reversed. 10. There is another aspect of the matter. The Labour Court had recorded a finding that the services of the appellant were brought to an end in contravention of the provisions of Section 25-F of the Industrial Dispute Act. It was noticed that the appellant was employed by the respondent employer in April 1979 as a Clerk. He had rendered service of more than 10 years. His services were brought to an end on 11.07.1989 by informing him that his services are no longer required. As to what was the reason which led to this termination is not apparent. It was accordingly concluded that this termination would be hit by Section 2(0) of the Industrial Dispute Act. In reply to the writ petition preferred by the appellant nothing was said by the respondent -employer with a view to challenge the findings as recorded by the Tribunal. This aspect cannot be lost right of. 11. In view of what has been stated above, points 1,2 & 3 are answered in favour of the appellant. In reply to the writ petition preferred by the appellant nothing was said by the respondent -employer with a view to challenge the findings as recorded by the Tribunal. This aspect cannot be lost right of. 11. In view of what has been stated above, points 1,2 & 3 are answered in favour of the appellant. It is concluded that after the award is published no challenge can be made to it. 12 So far as the proceedings before the Tribunal is concerned, these are governed by Section 11 of the Central Act of 1947. The Tribunal is supposed to exercise same powers as are vested in Civil Court under the Code of Civil Procedure with regard to matters specified in Section 11(3). The matters are so specified are : "11(3) Every Board, Court (Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1988, when trying a suit, in respect of the following matters, namely; (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; 13. Therefore, the strict procedure as applicable to Civil Courts is not applicable to the Tribunals or Labour Courts constituted under the Central Act. Framing of issues and placing of burden of proof are procedural matters and where the Tribunal has ascertained the real dispute omission to frame formal issue would not vitiate the final order. In Shankar Chakravarti v. Britannia Biscuits Co. Ltd., (1979) II LLJ 194, the Supreme Court of India has observed that though the adjudicatory authorities under the Act have all the trappings of a court, they are not-hide bound by the statutory provisions of the Evidence Act. It was observed that Section 11(3) of the Act confers on them powers of a Civil Court under the Code of Civil Procedure, only in respect of matters specified therein. Such authorities are created for adjudication of the Industrial dispute between the parties arrayed before them. There functions being of quasi-judicial nature, they have to adjudicate upon such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with the rules of natural justice. 14. Such authorities are created for adjudication of the Industrial dispute between the parties arrayed before them. There functions being of quasi-judicial nature, they have to adjudicate upon such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with the rules of natural justice. 14. This section as indicated above, was also interpreted by the Punjab and Haryana High Court in case Warring Co-Operative Agriculture Services (supra). Sukhdev Singh Kang, J. (the Then Chief Justice of this Court)speaking for the Divison Bench indicated the Scope of Section 17A. What is said is being quoted below:- "It is manifest from a reading of the above quoted provisions of law that the appropriate government is enjoined by law to publish the award of the Labour Court within 30 days of its receipt. When the award is published by the Government, it becomes final and cannot be called in question by any court in any manner whatsoever. The proceedings before the Labour Court which commenced on the reference of the dispute for adjudication under S.10A of the Act are deemed to have concluded on the date on which the award becomes enforceable under S.17A i.e. on the expiry of 30 days of the date of its publication under S.17. It is patent that the Labour Court remains seized of the matter only uptil the time the award becomes enforceable. Till then it has jurisdiction to entertain any application regarding the dispute pending before it. After 30 days of the publication of its award it became functus officio. It cannot entertain and adjudicate upon any application in relation to the industrial dispute and adjudicated upon by it. The provisions of the Act have been designed to provide for the investigation and settlement of industrial disputes and to promote industrial harmony by providing for speedier resolution of industrial disputes by removing the delays occasioned by procedural technicalities governing the Courts. The ultimate object of industrial adjudication is to help growth and progress of the national economy. It is for this reason that industrial dispute are settled by industrial adjudication based on principles of fair play and justice. It is in the interest of the society at large that industrial disputes are resolved in the shortest possible time and they should not remain pending for years leading to disaffection and tension resulting in decreased production. It is for this reason that industrial dispute are settled by industrial adjudication based on principles of fair play and justice. It is in the interest of the society at large that industrial disputes are resolved in the shortest possible time and they should not remain pending for years leading to disaffection and tension resulting in decreased production. With that end in view the award of the Labour Court is declared to be final and the jurisdiction of the civil courts to adjudicate thereupon has been barred. The purpose underlying, S.20(3) is to declare that the proceedings before the Labour Court come to an end after 30 days of the publication of the award. The manner should rest there. The disputes should not go on endlessly. No appeal is provided against the award of the Labour Court for this reason." 15. What was said in para 11 of the judgment is also being reproduced below:- "We are of the considered view that the analogy of an ex parte order or decree of a civil court does not apply to an ex parte order of award of a Labour Court. There are no provisions analogous to sub-sec.(2) of S.17-A and 20(3) of the Act in the Civil P.C. which governs the proceedings in the trial of a suit by the Civil Court. The Civil P.C. does not declare that any order or decree of a civil court shall be final or that the proceedings before a civil court shall be concluded within the prescribed time of the publication of such order or decree. An elaborate procedure has been enacted in R.13 of O.IX of the Civil P.C. for setting aside an ex-parte order or decree and limitation has been provided therefore. We answer the question posed at the threshold in the negative." 16. In view of the above, it is held that the provisions of Order 9 R 13 CPC would not be applicable as such. Principles applicable to the setting aside of the exparte proceedings can be applied, but these would apply only when application is preferred within 30 days from the date of the publication of the award. After the Court/Tribunal becomes functus officio, the question of applying principles of Order 9 R 13 CPC would not be there. Thus point No. 4 is decided against the respondent. I agree with view expressed by A.M.Mir,J. This appeal is allowed.