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2009 DIGILAW 227 (GUJ)

CHANDRAKANT DEVGIRI GIRI v. PORBANDAR NAGARPALIKA

2009-03-31

K.M.THAKER

body2009
JUDGMENT 1. Heard Mr. Chandrakant Devgiri Giri party-in-person and Mr. Devnani learned advocate for the respondent. It is noticed that by earlier order, Rule was made returnable, however subsequently in 2005 the proceedings were dismissed for non-prosecution. Subsequently the petition came to be restored. However, so as to avoid complications on the issue as to whether status of Rule was restored or not fresh Rule is issued. Mr. Devnani learned advocate waives service of Rule on behalf of the respondent. With the consent of the parties the petition is taken up for final hearing and disposal today. 2. This petition has been filed against an order dated 29.9.1995 whereby the labour Court, Junagadh has rejected the reference being reference (LCR) No. 68 of 1990 (Old No. 538 of 1982). The reference has been rejected on the ground of non-prosecution. The labour Court has recorded that despite the fact that the proceedings and the hearing of reference have been adjourned time and again the petitioner i.e. concerned workman has not attended the proceedings and therefore the reference had to be rejected for non-prosecution. 3. This Hon ble Court has held that the reference cannot be dismissed for non-prosecution as order dismissing reference for non-prosecution would not amount to award and the Court is supposed to pass an award. In this regard reference can be made to the judgment of this Court in case between Jayantkumar Ishwarbhai Ahir vs. Zaveri Polymers Ltd., reported in 2008(3) GLH 745 wherein it is held that: 10. The legal position is settled by judgment of this Court in the case between Prathansinh K. Patel vs. Chairman, Vochhaved Dudh Utpadak Sahkari Mandali Ltd. In the said judgment, this Court (Coram: N.N. Mathur, J., as His Lordship then was) relying on the judgment reported in 1968 Lab.I.C. 139 and 1969 Lab.I.C. 729, held that:- 5. The definition clearly stipulates determination of the industrial dispute or any question relating thereto referred to the Labour Court or the Industrial Tribunal. There can be no determination of a dispute much less the industrial dispute unless there is an adjudication on merit. The determination may be interim or final but mere dismissal of a reference for non-prosecution by no stretch of imagination can be said to be determination of a dispute. There can be no determination of a dispute much less the industrial dispute unless there is an adjudication on merit. The determination may be interim or final but mere dismissal of a reference for non-prosecution by no stretch of imagination can be said to be determination of a dispute. It is of course true that when a matter is withdrawn, there remains no dispute which requires any adjudication and the Labour Court and the Tribunal may permit withdrawal. That would be entirely a different situation. Thus, in any view, a reference made under Section 10 of the Industrial Disputes Act cannot be rejected for want of prosecution. I am fortified in my view by the two decisions referred by the learned advocate for the petitioner..... Accordingly, the said Special Civil Application was allowed and the order of the Labour Court rejecting the Reference therein was quashed and set aside and the Reference therein was restored to the file of the Labour Court. Thus, the Labour Court could not have, in light of the legal position, passed an order dismissing Reference proceedings on ground of non-prosecution. This Court has held that once an Order of Reference is made, the Labour Court is bound to decide the same on merits. Hence, the order dtd. 28.11.2003 in Ref. (LCB) 248/1999 does not deserve to be maintained. As the discussion hereinafter would show, the other submissions on behalf of the respondent are without merits. 16.5. Thus, making of an award, as per the definition in S. 2(b), requires an authoritative decision by reasoning and/or resolving a question and/or a judicial decision or giving a decision about the question . When considered in light of the definition and meaning of the term determination/determine, in the term award , the order dtd. 28.11.2003 in Ref. No. 248/99 does not qualify as an award as from even a cursory glance it comes out that the Reference has been dismissed by the Labour Court only because of the absence of the petitioner-workman and the Court has not given any decision on merits of the case and has not adjudicated and determined the lis/dispute between the parties and/or has not decided the rights and obligations of the parties nor has pronounced any authoritative decision but has avoided to do so and has merely dismissed the Reference for default i.e. on ground of non-prosecution. 16.6. 16.6. It cannot be said that in in making of said order dtd. 28.11.2003 there was any adjudication at all on merits and/or any determination of industrial dispute or question relating thereto . When the Court dismisses the case for default/non-prosecution, the Court is not deciding the matter at issue or facts-in-issue on merits. Under the circumstances, even if such order is published purportedly provision under Section 17, then also such an order would not qualify as an award and merely on publication it will not get the status or characteristics of award. 16.7. When an industrial dispute is referred by appropriate Government, the Labour Court or the Tribunal has to, as per Section 15 of the Act, submit its award to the appropriate Government, hence, it has to pass/make an award as defined & contemplated u/s. 2(b). Thus, the Labour Court has to adjudicate the lis/dispute. If one of the parties is ignoring the proceedings, then the Labour Court may proceed in the matter by taking into account, in accordance with law and upon intimation to the absentee, the evidence of the other side and on that basis decide the lis/dispute. In such circumstances the matter would be decided, though in absence of one side, on merits after considering the available material and submissions and though it would be ex parte, it would be a determination of lis and decision on merits and therefore an award and such decision would stand on different platform than the order rejecting reference for default/non-prosecution. 16.8. In view of the object and scheme of the Act the Labour Court does not have power to pass such orders, i.e., ex-parte order dismissing Reference on ground of non-prosecution. The Labour Court cannot abdicate its duty of determination by simply passing an order dismissing reference for non-prosecution, else it would amount to serious lapse and jurisdictional error or failure in properly exercising jurisdiction. At this stage, it is appropriate to make reference of the judgment of Hon'ble Karnataka High Court in the case between N.M. Naik Vs. P.O. Labour Court, Hubli, [1997 (77) FLR 914] wherein the Hon'ble Court has held:- In my opinion, the rejection of reference for default of the workman cannot be called an 'award' within the meaning of Section 2(b) of the Act. This is the view taken in other decisions also, to be presently referred to. P.O. Labour Court, Hubli, [1997 (77) FLR 914] wherein the Hon'ble Court has held:- In my opinion, the rejection of reference for default of the workman cannot be called an 'award' within the meaning of Section 2(b) of the Act. This is the view taken in other decisions also, to be presently referred to. Section 2(b) inter alia defines award as meaning an interim or a final determination of any industrial dispute or any question relating thereto by any Labour Court. Such determination of an industrial dispute or question relating thereto is undertaken by the Labour Court on reference being made under Section 10 of the Act, or by an application under Section 10(4A) of the Act, where the said section is applicable. In both the events, what is prerequisite is that there was a dispute that needed to be adjudicated upon. Where a dispute is felt so important as to necessarily need an adjudication by the concerned forum, and not a frivolous one in respect of which reference could be refused by the appropriate Government, it is expected that such a dispute has to be determined on merits. The Labour Court/Industrial Tribunal, therefore, cannot treat such reference as just a dispute between two individuals in a civil proceeding so that it could be dismissed for default of the workman who would be in the position of plaintiff in a suit. The essence of the entire scheme of reference of the dispute for adjudication to a Labour Court/Industrial Tribunal under the Act being one of determination of the dispute on merits, just because the Labour Court/Industrial Tribunal disposes of the reference for the absence of the workman, such an order cannot be called an 'award' within the meaning of Section 2(b) of the Act, since, as required under the said Section 2(b), there would be no determination of any industrial dispute at all but would merely be a disposal of reference. 16.9. The aforesaid discussion brings out that the said order dtd. 28.11.2003 is unsustainable in law and in light of the settled legal position the Labour Court could not have passed order ex parte dismissing the Reference on ground of non-prosecution and such order does not qualify as an award within the scope and meaning of Section 2 (b) of the Act. 4. Thus the order dated 29.9.1995 is contrary to the law declared by this Court. 4. Thus the order dated 29.9.1995 is contrary to the law declared by this Court. Hence the same deserves to be quashed and set aside. 5. However, to certain extent Mr. Devnani learned advocate for the respondent is right in contending that the petitioner herein ought to have preferred an appropriate application before the labour Court under Rule 26 A for restoration of the proceedings, instead the petitioner has rushed to this Court directly by way of present petition without preferring application under Rule 26-A. 6. Considering the facts that the reference proceedings are very old i.e. of 1982 and the petitioner has been prosecuting the remedy before this Court since 1996, though the contention of Mr. Devnani learned advocate for the respondent is justified, because of the exceptional circumstances this Court is inclined to pass following order; 7. After hearing the party-in-person Mr. Chandrakant Devgiri Giri and Mr. Devnani learned advocate for the respondent it appears appropriate that the proceedings relating to reference (LCR) No. 68 of 1990 (Old No. 538 of 1982) be restored to original file. However, so as to complete the formalities, an application under Rule 26-A shall be filed by the petitioner herein before the labour Court where the reference proceedings were pending. Such an application to be filed within period of 2 months from today. After an application is filed, the labour Court will pass an order on the said application considering the present order and also judgment of this Court in case between Jayantkumar Ishwarbhai Ahir vs. Zaveri Polymers Ltd. (supra) whereby it has been held that the reference proceedings ought not to be dismissed for non-prosecution by the workman and such an order would be contrary to law. Upon passing an appropriate order the proceedings, the labour Court will issue fresh notices to both the parties i.e. workman and the respondent-Porbandar Nagarpalika intimating next date of hearing and then after affording reasonable and sufficient opportunity of hearing to both the sides pass an appropriate award in accordance with law and without being influenced by present order. 8. The submission of Mr. 8. The submission of Mr. Devnani learned advocate for the respondent regarding intervening period which has been lost sine the date of order of reference only due to negligence of the petitioner also appears justified and therefore it is clarified that while passing the final order the labour Court will take into consideration the fact that right from the date when the reference proceeding came to be instituted right from the date of order of reference, it is the petitioner herein who has remained negligent towards proceedings and has not prosecuted the same as a result of which the reference had to be dismissed in 1995 without any progress in the reference and then in 2005 even the petition had to be dismissed for non-prosecution. The negligence and indifference shown by the workman towards proceedings right from 1982 until now will be taken into account by the labour Court while passing final order and final directions. 9. with the aforesaid clarifications and directions the petition is allowed to the aforesaid extent. Rule made absolute to that extent. No order as to cost.