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2013 DIGILAW 4126 (MAD)

K. Manoharan v. Presiding Officer, Labour Court

2013-12-06

S.VAIDYANATHAN

body2013
ORDER : 1. The petitioner/workmen has originally filed the writ petition for the following relief: ......a writ of certiorari to call for the records of the first respondent in I.D. No. 509 of 1990 and quash the award dated 08.10.1996 passed in I.D. 509/1990 and also quash the consequential order dated 14.06.2010 passed in I.A. 166 of 2005 in I.D. 509 of 1990. ..... For the reasons best known to him, he filed the amendment petition detrimental to the original prayer and the prayer was amended in M.P. (MD) No. 1 of 2011 dated 20.06.2011 and is extracted below: ....a writ of certiorari to call for the records of the first respondent in I.A. No. 166 of 2005 in I.D. No. 509 of 1990 and quash the order dated 14.06.2010..... 2. The brief facts of the case are as follows: According to the petitioner, he joined the services of the management and he had put in 12 years of unblemished service and he was working as a Auto Salesman and he was getting salary of Rs. 680/- plus incentive bonus at the rate of 1% on the sale made by him. According to the petitioner, he was terminated by the management by verbal order on 24.01.1990 and thereafter, in spite of his request, he was not provided with the job. He raised a dispute before the Conciliation Officer and the Management contended that the petitioner absconded from the duty. Based on the failure report, he filed a claim statement before the Labour Court, Madurai in I.D. No. 509 of 1990. 3. According to him, he went to Chennai in search of work and the Industrial Dispute was taken up by the Labour Court and for want of appearance, it was dismissed for default on 08.10.1996. The petitioner filed two petitions before the Labour Court, one to set aside the ex-parte award dated 08.10.1996 and to restore the I.D. No. 509 of 1990 on its file and another to condone the delay in filing the petition to recall the ex-parte award and to restore the I.D. on the file of the Labour Court as per Rule 48 of the Tamil Nadu Industrial Disputes Rules, 1958. The petition to condone the delay was taken up by the Labour Court as I.A. No. 116 of 2005 and after hearing both parties the said I.A. was dismissed by the Labour Court. 4. The petition to condone the delay was taken up by the Labour Court as I.A. No. 116 of 2005 and after hearing both parties the said I.A. was dismissed by the Labour Court. 4. The petitioner submitted that the Labour Court ought not to have simply dismissed the case for non-appearance and it should have decided the case on merits. He also contended that as per Rule 48(1) of the Tamil Nadu Industrial Disputes Rules, 1958, the Labour Court ought to have condoned the delay and thereafter, restored the I.D. on file by numbering the application. 5. The issue now for consideration is as to whether the Labour Court has become functus officio or not? 6. For the sake of convenience, Section 17 of the Industrial Disputes Act, and Rule 48 of the Tamil Nadu Industrial Disputes Act, 1958 are extracted below: Section 17. Publication of reports and awards - (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 17-A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever. Rule 48. Ex-parte proceedings - (1) If, without showing sufficient cause any party to proceedings before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or the Arbitrator may proceed as if the party had duly attended or had been represented. (2) The Board, Court, Labour Court, or Tribunal or an Arbitrator may for sufficient cause, set aside, after notice to the opposite party, the ex-parte decision either wholly or in part, on an application made within 15 days of the ex-parte decision: Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Board, Court, Labour Court or Tribunal or Arbitrator, as the case may be, that he had sufficient cause for not preferring the application within that period. (3) An application under sub-rule (2) shall be supported by an affidavit. (3) An application under sub-rule (2) shall be supported by an affidavit. To decide the issue framed, the extract of the decision of the Honourable Supreme Court is given below: (i) Grindlays Bank Ltd. vs. Central Government Industrial Tribunal, AIR 1981 SC 606 Two questions arise in the appeal, namely (1) whether the Tribunal had any jurisdiction to set aside the ex-parte award, particularly when it was based on evidence and (2) whether the Tribunal became functus officio on the expiry of 30 days from the date of publication of the ex-parte award u/s 17, by reason of sub-section (3) of Section 20 and, therefore, had no jurisdiction to set aside the award and the Central Government alone had the power under sub-section (1) of Section 17-A to set it aside......... 14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex-parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable u/s 17-A. u/s 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication u/s 17. The proceedings with regard to a reference u/s 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable u/s 17-A. In the instant case, the Tribunal made the ex-parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex-parte award was filed by Respondent 3, acting on behalf of Respondents 5 to 17 on January 19, 1977 i.e. before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decide it on merits. The application for setting aside the ex-parte award was filed by Respondent 3, acting on behalf of Respondents 5 to 17 on January 19, 1977 i.e. before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decide it on merits. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed, the Tribunal had in any event become functus officio. We cannot accede to this argument. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. There is no finality attached to an ex-parte award because it is always subject to its being set aside on sufficient cause being shown. 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. Thus from the above reading of the ratio laid down in this case, it is clear that the Labour Court would become functus officio, beyond thirty days from the date of publication. This decision is rendered by the bench of three judges. (ii) Anil Sood vs. Presiding Officer, Labour Court, (2001) 10 SCC 534 2. A reference was made under the Industrial Disputes Act to the Labour Court in respect of a dispute between the parties to this proceeding. An award was made on 11-9-1995. An application was filed by the appellant on 6-11-1995 averring that he had no notice of the proceedings in the reference. That application came to be dismissed on the ground that the Labour Court has become functus officio having passed an award. Thereupon a writ petition was filed before the High Court which also did not end in their favour. Hence this appeal. 7. That application came to be dismissed on the ground that the Labour Court has become functus officio having passed an award. Thereupon a writ petition was filed before the High Court which also did not end in their favour. Hence this appeal. 7. The power to proceed ex-parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex-parte award. 8. If this be the position in law, both the High Court and the Tribunal (sic Labour Court) fell into an error in stating that the Labour Court had become functus officio after making the award though ex-parte. We set aside the order made and the award passed by the Labour Court and affirmed by the High Court in this regard, in view of the fact that the learned counsel for the respondent conceded that application filed by the appellant be allowed, set aside the ex-parte award and restore the reference. To decide the matter afresh, the parties shall appear before the Labour Court on 11-12-2000 to take further directions as regards the proceedings. As the matter is very old, it would be appropriate for the Labour Court to dispose of this reference as expeditiously as possible but not later than six months from today. In this case, the facts are different, as it is not a one dealing with the issue of beyond thirty days after publication; it only deals with delayed filing of the set aside petition. Further it is a case where the party pleads no notice and moreover, the case was remanded as the party conceded to allow the application to set aside the ex-parte award filed by the other and restore the reference. Hence, this cannot be applicable either on facts or on law. Thus, the Anil Sood vs. Presiding Officer, Labour Court (supra) was clarified in the Sangham Tape Company vs. Hans Raj, (2005) 9 SCC 331 . (iii) Sangham Tape Co. vs. Hans Raj (supra): 6. Hence, this cannot be applicable either on facts or on law. Thus, the Anil Sood vs. Presiding Officer, Labour Court (supra) was clarified in the Sangham Tape Company vs. Hans Raj, (2005) 9 SCC 331 . (iii) Sangham Tape Co. vs. Hans Raj (supra): 6. An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and the Rules framed thereunder. The Rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure. Once the provisions of the CPC are made applicable to the industrial adjudication, indisputably the provisions of Order 9 Rule 13 thereof would be attracted. But unlike an ordinary civil court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf. An award made by an Industrial Court becomes enforceable u/s 17-A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or Labour Court becomes functus officio. The Apex Court following the decision in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others (supra) further held as follows: 5. The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex-parte award, but having regard to the provision contained in Section 17-A of the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and only up to that date, it has the power to entertain an application in connection with such dispute. 9. It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labour Court after one month of the publication of the award. 10. In view of this Court's decision in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others (supra) such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. 10. In view of this Court's decision in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others (supra) such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio. 12. This Court in Anil Sood vs. Presiding officer, Labour Court (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. Mehboob Dawood Shaikh vs. State of Maharashtra, Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession. Thus the ratio has been laid down after considering all the judgments including Anil Sood vs. Presiding Officer, Labour Court II (supra), and it was distinguished on facts and clarified. The proposition laid down in Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal (supra) was reiterated. Hence, when it is found as of fact, that the application for setting aside the award was filed before the Labour Court after one month of the publication of the award, the court shall not exercise its jurisdiction as it becomes functus officio. The ratio was also followed in Jammu Tehsil vs. Hakumar, (2006) 12 SCC 193 . In Radhakrishna Mani Tripathi vs. L.H. Patel and Another, (2009) 2 SCC 81 , the Apex Court has held as below: 9. The ratio was also followed in Jammu Tehsil vs. Hakumar, (2006) 12 SCC 193 . In Radhakrishna Mani Tripathi vs. L.H. Patel and Another, (2009) 2 SCC 81 , the Apex Court has held as below: 9. It is undeniable that the order of the Labour Court recalling the ex-parte award was completely in accord with Rule 26(2) of the Bombay Rules. The petition for recall was filed by Respondent 1 within two days of the receipt of a copy of the award and he was also able to fully satisfy the Labour Court that there was sufficient cause for his non-appearance since no notice was ever served on him. .......... 18. In light of the decision in Anil Sood vs. Presiding Officer, Labour Court (supra) we find no substance in the appellant's submission based on Section 17-A of the Act. There being no substance in the first limb of the submission there is no question of any conflict between Rule 26(2) of the Bombay Rules and Section 17-A of the Act. 7. It is not the case of the petitioner that he was unaware of the proceedings or that he was not served with the notice. He cannot contend so, as he is the petitioner. The frivolous reason given by the petitioner shows the inaction on his part and did not even bother to follow up the case for nearly three years. It clearly shows the lethargic attitude of the petitioner towards the Court. 8. Even though the employee has filed a writ petition challenging the ex-parte award, he has amended the prayer in the writ petition to his disadvantage. The employee ought to have preferred the petition within 15 days or atleast within 30 days before the award came into force in terms of Section 17 of the Industrial Disputes Act, 1947. 9. The employee has not preferred the petition within the thirty days from the date of publication of the award. Thus, the Court cannot entertain the petition as it has become functus officio and has lost jurisdiction to entertain the dispute. If at all, the petitioner is aggrieved by the award, he ought to have filed the Writ Petition challenging the same. The petitioner has no sufficient reason for the delay in filing the petition before the Labour Court. Even as on date the petitioner has not filed any WP challenging the ex-parte award. If at all, the petitioner is aggrieved by the award, he ought to have filed the Writ Petition challenging the same. The petitioner has no sufficient reason for the delay in filing the petition before the Labour Court. Even as on date the petitioner has not filed any WP challenging the ex-parte award. If any filed after this order, it is only a after-thought. The affected party must file writ petition challenging the order in I.A. as well as the ex-parte award to enable this Court to find out the reasons to restore the I.D. on file. If the ex-parte award is against the Management, the Management can be directed to pay an amount to the employee till the disposal of the I.D. While restoring the I.D. on remand, this Court can direct the Labour Court to decide the I.D. within a time frame. In this case this Court could have restored the I.D. on file on payment of costs, if the original prayer in writ petition was not amended. In any event there are no genuine reasons to condone the delay in filing the I.A. 10. As per Rule 48 of the TN Rules, a petition to set aside the ex-parte decision has to be filed within 15 days. However the party has time to file the petition to restore with condone delay after 15 days but before the award has come into force. The party has neither filed a petition within 15 days as per the aforesaid Rule, nor filed a petition before the award came into force. 11. In the decision reported in Haryana Suraj Malting Ltd. vs. Phool Chand, (2012) 8 SCC 579, the Bench consisting of two Judges of the Supreme Court has held as follows: 1. Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex-parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases. 2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. 2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. vs. Hans Raj (supra) a two-Judge Bench held and observed that an application for recall of an ex-parte award may be entertained by the Industrial Tribunal/Labour Court only in case it is filed before the expiry of 30 days from the date of pronouncement/publication of the award. A contrary view was taken in Radhakrishna Mani Tripathi vs. L.H. Patel (supra) to which one of us (Aftab Alam, J.) was a party. 3. In both cases, that is to say, Sangham Tape Co. vs. Hans Raj (supra) and Radhakrishna Mani Tripathi vs. L.H. Patel (supra), the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal (supra) and Anil Sood vs. Labour Court (supra) but read and interpreted those two decisions completely differently. 4. The conflict which has arisen as a result of the two decisions can only be resolved by a larger Bench. Let these cases be, therefore, listed before a three-Judge Bench. 12. Even though reference to the larger Bench has been made, when there is already judgment of the larger Bench rendered in Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal (supra) – Coram 3 Judges extracted supra, the law laid down by the larger bench would prevail in view of the decision of General Manager, Telecom vs. A. Srinivasa Rao and Others, (1997) 8 SCC 767 . This Court in a decision reported in Management, President Village Panchayat vs. Chellammal and Others, (2010) 1 LLJ 876 , has rejected the claim of the Management who was filed an application after 470 days after the award came into force. Taking note of the judgment rendered in Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal (supra) I am of the view that the Labour Court was right in dismissing the petition to condone the delay nearly 1000 days is in accordance with the legal principles and in conformity with the Industrial Disputes Act and Rules, and there is no illegality in the impugned order. 13. I would have certainly allowed the original prayer in the writ petition as the Labour Court has to render to award on merits if one of the parties is absent and the dismissal for default is not an award. 13. I would have certainly allowed the original prayer in the writ petition as the Labour Court has to render to award on merits if one of the parties is absent and the dismissal for default is not an award. Unfortunately, the petitioner has amended the prayer as stated supra and even if I allow this writ petition with the amended prayer, the Labour Court will have no powers to take up the Industrial Dispute on file as it had become functus officio as the award has been published and has come into force and the application to condone the delay of 989 days to set aside the ex-parte award dated 08.10.1996 was rightly rejected by the Labour Court. 14. Since the award has come into force and that there is a delay of nearly 1000 days, the Tribunal has become functus officio and in view of the Supreme Court decision in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others (supra) no relief can be granted based on the amended prayer. Accordingly, the writ petition is dismissed with costs of Rs. 1,000/- (Rupees One Thousand only) payable to the Legal Aid Centre attached to this Bench.