w w w . L a w y e r S e r v i c e s . i n



The Management of M/s. Stallion Garments v/s The Presiding Officer Labour Court, Salem & Others


Company & Directors' Information:- D R GARMENTS (INDIA) PRIVATE LIMITED [Active] CIN = U18101GJ2005PTC046010

Company & Directors' Information:- R. R. GARMENTS LIMITED [Active] CIN = U51900MH1995PLC095544

Company & Directors' Information:- S G GARMENTS LIMITED [Active] CIN = U18101WB2004PLC098193

Company & Directors' Information:- K K P GARMENTS PRIVATE LIMITED [Active] CIN = U65921TZ1994PTC005334

Company & Directors' Information:- B K GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2001PTC109850

Company & Directors' Information:- N K GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2000PTC107093

Company & Directors' Information:- K. D. GARMENTS PRIVATE LIMITED [Active] CIN = U18109WB2005PTC101896

Company & Directors' Information:- G AND A GARMENTS PVT LTD [Strike Off] CIN = U18101PB1995PTC016121

Company & Directors' Information:- V H GARMENTS PRIVATE LIMITED [Active] CIN = U52322MH2008PTC181066

Company & Directors' Information:- S. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL1996PTC083315

Company & Directors' Information:- G. M. GARMENTS PRIVATE LIMITED [Active] CIN = U18109DL2006PTC152683

Company & Directors' Information:- D AND D GARMENTS PRIVATE LIMITED [Active] CIN = U74899DL1975PTC007923

Company & Directors' Information:- J S GARMENTS (INDIA) PRIVATE LIMITED [Active] CIN = U74900WB2009PTC135262

Company & Directors' Information:- K. B . GARMENTS PRIVATE LIMITED [Active] CIN = U18109WB2011PTC166954

Company & Directors' Information:- A K GARMENTS PRIVATE LIMITED [Active] CIN = U17120DL2015PTC282847

Company & Directors' Information:- D P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2004PTC129479

Company & Directors' Information:- V S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC143084

Company & Directors' Information:- P AND P GARMENTS PVT LTD [Under Process of Striking Off] CIN = U18101DL2005PTC143556

Company & Directors' Information:- V S GARMENTS PRIVATE LIMITED [Active] CIN = U18101HR2005PTC068124

Company & Directors' Information:- L. H. GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17121KA2011PTC060761

Company & Directors' Information:- K R GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1998PTC087046

Company & Directors' Information:- T & A GARMENTS PVT LTD [Strike Off] CIN = U52321TN1993PTC025318

Company & Directors' Information:- STALLION GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101MH1990PTC057262

Company & Directors' Information:- P. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18204DL2007PTC164238

Company & Directors' Information:- S. A. GARMENTS PRIVATE LIMITED [Active] CIN = U17121DL2007PTC165007

Company & Directors' Information:- T S GARMENTS PRIVATE LIMITED [Active] CIN = U51494DL1996PTC076668

Company & Directors' Information:- GARMENTS INDIA PVT LTD [Strike Off] CIN = U51909GJ1979PTC003310

Company & Directors' Information:- I G S GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2004PTC128723

Company & Directors' Information:- M. P. GARMENTS PRIVATE LIMITED [Active] CIN = U17291DL2007PTC164129

Company & Directors' Information:- K. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2007PTC164404

Company & Directors' Information:- B G GARMENTS PRIVATE LIMITED [Active] CIN = U74899DL2005PTC142488

Company & Directors' Information:- S P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2003PTC120709

Company & Directors' Information:- P N GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2004PTC127524

Company & Directors' Information:- V P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18109DL2012PTC233293

Company & Directors' Information:- S T GARMENTS PRIVATE LIMITED [Active] CIN = U18109DL2015PTC277043

Company & Directors' Information:- P L GARMENTS PRIVATE LIMITED [Active] CIN = U17120DL2013PTC248417

Company & Directors' Information:- M. K. GARMENTS PRIVATE LIMITED [Active] CIN = U17291DL2007PTC164395

Company & Directors' Information:- R A GARMENTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U18101DL2003PTC123385

Company & Directors' Information:- C S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC134787

Company & Directors' Information:- B L GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC136912

Company & Directors' Information:- B D S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC137898

Company & Directors' Information:- T G GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2005PTC143392

Company & Directors' Information:- G P S GARMENTS PRIVATE LIMITED. [Active] CIN = U18101DL2006PTC149330

Company & Directors' Information:- G P GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2007PTC161067

Company & Directors' Information:- I B GARMENTS PRIVATE LIMITED [Active] CIN = U51909DL2013PTC257044

Company & Directors' Information:- G P S GARMENTS PRIVATE LIMITED. [Active] CIN = U74110DL2006PTC149330

Company & Directors' Information:- A G GARMENTS PRIVATE LIMITED [Active] CIN = U51300DL2013PTC257609

Company & Directors' Information:- V R V GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2008PTC182256

Company & Directors' Information:- M V GARMENTS PRIVATE LIMITED [Strike Off] CIN = U74899HR2005PTC141797

Company & Directors' Information:- A AND R GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17120HR2013PTC049037

Company & Directors' Information:- STALLION PRIVATE LIMITED [Active] CIN = U31103GJ2008PTC053137

Company & Directors' Information:- V K GARMENTS PRIVATE LTD [Strike Off] CIN = U18101DL1981PTC012410

Company & Directors' Information:- A S GARMENTS PRIVATE LIMITED [Active] CIN = U17212CH1992PTC012350

Company & Directors' Information:- V R GARMENTS PVT LTD [Strike Off] CIN = U18101CH1991PTC011345

Company & Directors' Information:- S B GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2005PTC141954

    WRIT PETITION NOS.831 to 833 OF 2008

    Decided On, 18 February 2010

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. JYOTHIMANI

    For the Petitioner : C. Manohar Gupta for M/s. Gupta & Ravi, Advocates. For the Respondents: R2, T. Murugamanickam, Advocate.



Judgment Text

(Prayer : Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari as stated therein.


COMMON ORDER:


In these writ petitions, the petitioner which is the Management has challenged the ex parte award passed by the Labour Court, Salem in I.D.Nos.25/05, 24/05 and 26/05 respectively, dated 28.9.2005.


2. The petitioner company engaged in the business of manufacturing of knitted garments, started in 2003, had employed casual labourers and trainees and in 2004, nearly 20 temporary workers failed to report duty without applying for leave or informing the management and they were relieved from service on 30.6.2004, after waiting for a long time in order to enable them to report duty.


2(a). After they were relieved, they obstructed the premises of the company in a riotous manner, about which a police complaint was lodged in Uthukuli Police Station and later, the petitioner filed O.S.No.364 of 2004 before the District Munsif?s Court, Perundurai for permanent injunction against the temporary workers from disturbing the peaceful running of the factory and there was an order of interim injunction granted in I.A.No.460 of 2004.


2(b). After the said order, 17 out of 20 workers resigned from service, however, the second respondents in these writ petitions raised dispute in conciliation alleging that the petitioner terminated their services from 1.7.2004 without show-cause notice and without payment of retrenchment compensation, etc. Since the conciliation failed, the second respondents filed I.D.petition before the Labour Court, Salem. It is stated that the summons sent in the said Industrial Disputes were received by one of the staff of the petitioner, who did not bring the same to the knowledge of the petitioner and there was no appearance on behalf of the petitioner and the petitioner was set ex parte and accordingly, an ex parte award was passed on 28.5.2005.


2(c). The ex parte award came to be known to the petitioner when the second respondents sent letters on 26.6.2006 seeking employment based on the award and thereafter, the petitioner management filed I.As. to set aside the ex parte award along with counter statement on merits in the said Industrial Disputes. Since there was a delay of 262 days in filing the petitions to set aside the ex parte award, the petitioner management filed I.As. in I.A.Nos.182/06, 181/06 and 183/06 respectively to condone the delay. In the said I.As. notice was ordered and the second respondents appeared through counsel and filed counter affidavit.


2(d). It was during the pendency of the said petitions, the petitioner sent letters to the second respondents on 27.8.2006, offering reemployment without prejudice to the right of the petitioner in the petitions filed to condone the delay. It is stated that after receiving the said letters, the second respondents reported for duty on 31.8.2006 and after working for a day, they failed to report duty and sent a letter on 31.8.2006 stating that the management has not given the same work as they had done before and therefore they stopped reporting for duty.


2(e). It is stated that thereafter the management sent a reply dated 09.09.2006, denying the allegations and requested the second respondents to report duty but they failed and in such circumstances, the management sent a telegram on 21.9.2006 followed by a letter dated 22.1.2007, directing the second respondents to report for duty and the second respondents failed to report.


2(f). The Labour Court heard all the I.As. and by a common order dated 27.9.2007, dismissed the petitions on the ground that the award passed in I.Ds. was published in the Gazette on 20.2.2006 and 30 days after publication the Labour Court has become functus officio based on the judgment of the Supreme Court in Sangham Tape Company vs. Hans Raj [2004(4) LLN 726].


3. It is against the said ex parte award of the Labour Court dated 28.9.2005, the writ petitions are filed challenging the same on various grounds that the second respondents have failed to prove that they were illegally terminated from service, that even if the management failed to appear before the Labour Court, the Labour Court should have decided the matter on merit by judicious application of mind, that the second respondents have not filed any document to prove that they were wantonly terminated from service on 1.7.2004 and therefore, the Labour Court in erroneous manner dismissed the I.As. and passed the ex parte award and that the Labour Court has failed to appreciate the judgment of the Supreme Court that when an ex parte award is made and published in official gazette, only the said Court has jurisdiction to set aside the ex parte award, if sufficient cause is shown for the absence of appearance.


4. Learned counsel for the petitioner management by relying upon the judgment of the Supreme Court reported in Radhakrishna Mani Tripathi vs. L.H.Patel and another [2009 (1) LLN 786] would submit that in respect of ex parte award the Labour Court would not become functus officio after the expiry of 30 days from the date of publication of the award. He would rely upon the judgment of this Court in Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai vs. Presiding Officer, Industrial Tribunal, Chennai and others [2000(3) LLN 1025] apart from the judgment in Management of Tiruttani Co.operative Sugar Mills ltd., Thiruvalangadu vs. Presiding Officer, Industrial Tribunal Madras and another [2001 (4) LLN 949].


5. On the other hand, Mr.T.Murugamanickam, learned counsel appearing for the second respondents in these cases would rely upon the judgment of the Supreme Court reported in Sangham Tape Company vs. Hans Raj [2004(5) CTC 104(SC)] to substantiate his contention that the Labour Court does not retain any jurisdiction to set aside an ex parte award when the award is enforceable under section 17A of the Industrial Disputes Act, 1947.


6. On the facts and in the circumstances of the case about which there is no dispute, it is seen that the Labour Court passed the following ex parte award:


?Petition dated 18.01.2005 filed U/s 2A(2) of I.D.Act to reinstate the petitioner into service with back wages with continuity of service and other benefits.


(2) PW.1 is examined by proof affidavit. Ex.P1 is marked. Averments made in the petition and evidence of the petitioner are perused. The evidence proves the fact that petitioner was orally terminated without Notice and without following the provisions of I.D.Act. The respondent also doesn?t come forward to dispute the claims and relief of the petitioner prayed for in this petition.


Hence, claim of the petitioner is proved. Petition is allowed. Award is passed directing the respondent to reinstate the petitioner into service with continuity of service, other benefits and with backwages as prayed for in this petition within 3 months from the date of passing the award. No costs.?


7. It is also not in dispute that the I.As. filed by the petitioner were dismissed by the common order dated 27.9.2007, rejecting the applications for condonation of delay in filling the applications to set aside the ex parte award. The Labour Court, without considering the judgment of the Supreme Court in Anil Sood vs. Presiding Officer, Labour Court [2001(2) CLR 18], wherein it was held that the Labour Court does not become functus officio 30 days after the publication of the award in the Gazette and it has jurisdiction under section 11 of the Industrial Disputes Act, 1947 to set aside the award if sufficient cause is shown for non-appearance, has relied upon the judgment of the Supreme Court cited on behalf of the workmen in Sangham Tape Company vs. Hans Raj [AIR 2004 SC 4776] wherein it was held that after the ex parte award is passed, the jurisdiction of the Labour Court to set aside the award would be only for 30 days and thereafter, the Labour Court become functus officio and thus, rejected the applications.


8. Under the Industrial Disputes Act, 1947, the commencement of an award is explained in section 17A of the I.D. Act to the effect that after publication of the award under section 17 on the expiry of 30 days, the award becomes enforceable, of course, subject to the declaration by the Central Government in the Official Gazette that it is not enforceable on the ground that it will be inexpedient on public grounds, affecting national economy or social justice, etc. Section 17A(1) is as follows:


?17.A. 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 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.?


Section 17(2) is as follows:


?17. Publication of reports and awards.


(1) xxx


(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.?


makes it clear that after the award is published it becomes final, which cannot be questioned in any Court.


9. Section 11(3) of the Industrial Disputes Act, 1947, confers powers of the civil Court on Conciliation Officers, Courts or Tribunals, which is as follows:


?11. Procedure and powers of Conciliation Officers, Boards, Courts and Tribunals.-


(1) and (2) xxxx


(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, 1908 (5 of 1908), 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;]


And every inquiry or investigation by a Board, Court, [Labour Court, Tribunal or National Tribunal], shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).?


10. Rule 10-B(9) of the Industrial Disputes (Central) Rules, 1957 enables the Labour Court or Tribunal to proceed with ex parte in the absence of defaulting party and it also enables such Court to revoke the order when the absence of the party was justified. In addition to that, Rules 22 to 24 of the Central Rules enable the Labour Court or Tribunal to proceed with the ex parte with the powers of a Civil Court. The said Rules 22 to 24 are as follows:


?22. Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-parte.-


If without sufficient cause being shown, any party to proceedings before a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed as if the party had duly attended or had been represented.


23. Power of entry and inspection.-


A Board or Court or any member thereof, or a Conciliation Officer, a Labour Court, Tribunal or National Tribunal, or any person authorized in writing by the Board, Court, Labour Court, Tribunal or National Tribunal in this behalf may, for the purposes of any conciliation, investigation, enquiry or adjudication entrusted to the Conciliation Officer, Board, Court, Labour Court, Tribunal or National Tribunal under the Act, at any time between the hours of sunrise and sunset and in the case of a person authorized in writing by a Board, Court, Labour Court, Tribunal or National Tribunal after he has given reasonable notice enter any building, factory, workshop, or other place or premises whatsoever, and inspect the same or any work, machinery, appliance or article therein or interrogate any person therein in respect of anything situated therein or any matter relevant to the subject matter of the conciliation, investigation, enquiry or adjudication.


24. Power of Board, Courts, Labour Courts, Tribunals and National Tribunals.-


In addition to the powers conferred by the Act, Board, Courts, Labour Courts, Tribunals and National Tribunals shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters namely:-


(a) discovery and inspection;


(b) granting adjournment;


(c) reception of evidence taken on affidavit;


and the Board, Court, Labour Court, Tribunal or National Tribunal may summon and examine any person whose evidence appears to it to be material and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.?


11. Likewise, the Tamil Nadu Industrial Disputes Rules, 1958, particularly Rule 34 which speaks about the proceedings before the Labour Court or Tribunal enables the Labour Court to decide a reference in the absence of a defaulting party as ex parte, however, with the right to revoke the said ex parte proceedings on the application of the party within 15 days from the ex parte proceedings, if satisfied with the reasons preventing the party from appearing. It also confers the power on the Labour Court in the case of the applicant satisfying that he has sufficient cause for not preferring the application even beyond 15 days. The said provisions are as follows:


34. Proceeding before the Labour Court or Tribunal:


(1) to (9) xxxxx


(10) In case, any party defaults or fails to appear at any stage, the Labour Court or Tribunal as the case may be, may proceed ex-parte and decide the reference application in the absence of the defaulting party.


(11) Notwithstanding anything contained in sub-rule (10), the Labour Court or the Tribunal, as the case may be, may, before submitting the award to the State Government, revoke the ex-parte proceedings on the application of the party made within 15 days of the ex-parte proceedings if it is satisfied that the party has been prevented from attending the proceedings for valid reasons:


Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Labour Court or Tribunal, as the case may be, that he had sufficient cause for not preferring the application within that period.?


Therefore, under the Tamil Nadu Industrial Disputes Rules, 1958 there is an enabling provision to the Labour Court or Industrial Tribunal to entertain the application filed to set aside the award even beyond 15 days without any further restriction to the party when sufficient cause has been shown to the satisfaction of the Court.


12. It is true that while the ex parte award was passed by the Labour Court and the petitions to set aside the ex parte award with the petitions to condone the delay were dismissed in 2007, the judgment of the Supreme Court at that time dealing with the powers of the Labour Court in setting aside the ex parte award after 30 days from the date of publication was as held in Sangham Tape Company vs. Hans Raj [2004(5) CTC 104 (SC)]. That was also a case where after the expiry of 30 days from the date of publication of the ex parte award, the application filed to set aside the ex parte award came to be allowed and when a similar contention was raised that after the lapse of 30 days from the date of publication, the Labour Court has no jurisdiction, the High Court set aside the award of the Labour Court which was challenged by the employer.


13. In that case, the Supreme Court considered the judgment in Grindlays Bank v. Central Government Industrial Tribunal and others [1980 Supp.SCC 420] wherein it was held that by virtue of the provisions of section 11 of the Industrial Disputes Act, 1947 and Rules 22 to 24 of the Industrial Disputes (Central) Rules,1957 if within 30 days from the date of publication of award any application is filed to set aside the award, the same can be entertained and therefore, it was only till 30 days from the date of publication of the award, the Tribunal retains its jurisdiction, and having held that the judgment of the Supreme Court in Anil Sood vs. Presiding Officer, Labour Court [2001 (2) Scale 193] did not lay down any law contrary to the judgment in Grindlays Bank case (cited supra), the Supreme Court held as follows:


?12. This Court in Anil Sood (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. [See Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362]. 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.?


14. It was based on the said dictum laid down by the Supreme Court which was holding the field at that time, the Labour Court rejected the application filed by the petitioner beyond 30 days from the date of publication of the award on the ground that the Labour Court became functus officio. But, as brought to the notice of this Court by the learned counsel for the petitioner, the Supreme Court had an occasion to consider the said issue recently in Radhakrishna Mani Tripathi vs. L.H.Patel and another [2009(1) LLN 786] wherein the judgment in Sangham Tape Company vs. Hans Raj [2004(5) CTC 104] was not considered, but, at the same time considered in detail the judgments in Grindlays Bank and Anil Sood (cited supra) in the light of the Industrial Disputes (Bombay) Rules, 1956. Rule 26 of the Industrial Disputes (Bombay) Rules is slightly different from the relevant provision in the Tamil Nadu Rules in the sense that it enables a party affected by an ex parte award to file application within 30 days of the receipt of copy of the said award. The said rule is as follows:


?26. Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex parte.-


(1) If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an arbitrator fails to attend or to be represented, the Board, Court, Labour court, Tribunal or arbitrator may proceed ex parte.


(2) Where any award, order or decision is made ex parte under sub-rule (1), the aggrieved party, may within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or Arbitrator as the case may be, to set aside such award, order or decision. If the Board, Court, Labour Court, Tribunal or Arbitrator is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter:


Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party.?


15. That was a case where an ex parte award was made by the Labour Court on 12.6.1998 which was published in the gazette on 5.8.1998 and the application to recall the award was filed on 29.1.1999 with a plea that the Labour Court notice was not served and the employer was not aware of the proceedings. As per Rule 26(2) of the Bombay Rules, the said application was well within the time since the said application is stated to have been filed within 2 days from the date of receipt of copy of the award, but a contention was raised that under section 17A of the Industrial Disputes Act, 1947 the award became enforceable 30 days after the date of its publication and thereafter the Labour Court became functus officio and therefore, there was a conflict between the Rule 26(2) of the Bombay Rules and section 17A of the Act. Rejecting the said contention, it was held that Rule 26(1) of the Bombay Rules is identical to Rule 22 of the Industrial Disputes (Central) Rules. It was also held that while making ex parte award by the Industrial Tribunal, Order 9, Rule 13 CPC would be attracted and the relevant portion of the judgment is as follows:


?15. Similarly, the Court pointed out in Grindlays Bank (1981 (1) LLN 196) (vide supra), the provision of Rule 24(b) empowered the Industrial Courts to refuse to adjourn the hearing and to proceed ex parte. Hence, in a case in which the Industrial Court makes an ex parte award the provisions of Order 9 rule 13 CPC would be clearly attracted. It logically follows that the Tribunal is competent to entertain an application to set aside an ex parte award. (vide para 12 of the decision). The Court thus founded the Industrial Court?s jurisdiction and power to recall an ex parte award on Rules 22 and 24(b) of the Central Rules. It is thus to be seen that in Grindlays Bank what this Court held to be implicit in Rule 22 of the Central Rules is made explicit and clear in the Bombay Rules in the form of sub-rule (2) of Rule 26.?


16. While dealing with the contention relating to section 17A of the Industrial Disputes Act, the Supreme Court analyzed the judgments in Grindlays Bank and Anil Sood (cited supra) and ultimately held that in the light of the decision of the Supreme Court in Anil Sood, the Labour Court would have the power to set aside the ex parte award even beyond 30 days from the date of its publication. It is worthwhile to reproduce various paragraphs in which the Supreme Court has clearly analysed the entire issue as follows:


?16. Coming now to the submission based on S.17A of the Act the Court in para 14, at pages 201 and 202 of 1981 (1) LLN 196 of the decision held and observed as follows:


?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-sec.(3) of S.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 under S.17A. Under S.17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S.17. The proceedings with regard to a reference under 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 under S.17A. In the instant case, the Tribunal made the ex parte award on 9th December 1976. That award was published by the Central Government in the Gazette of India dated 25th December 1976. The application for setting aside the ex parte award was filed by Respondent 3, acting on behalf of respondents 5 to 17 on 19th January 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. (Emphasis supplied).


From the above quotation it would appear that in Grindlayss Bank (vide supra), the recall application was filed within thirty days from the date of publication of the award and hence, the objection raised on the basis of S.17A did not arise in this case. In Grindlays Bank (vide supra), this Court did not say that the Industrial Courts would have no jurisdiction to entertain an application for setting aside an award made after thirty days of its publication. Nevertheless, on the basis of the passage marked in italics in the above quotation Ms.Issar strongly contended that this is the true import of the judgment.


17. We are unable to accept. The position is made clear in the later decision in Anil Sood v. Presiding Officer, Labour Court (2001 (2) LLN 611). In Anil Sood interestingly the Labour Court had rejected the recall application on the very same ground that after making the award it became functus officio in the matter. The order of the Labour Court was challenged before the High Court but the High Court also took the same view. In appeal this Court noted that the award was made on 11th September 1995 and the application for its recall was filed on 6th November 1995. the Court referred to the earlier decision in Grindlays Bank (1981 (1) LLN 196) (vide supra), and the provisions of sub-secs.(1) and (3) of S.11 of the Act and in paras.6 to 8, at page 612, of the decision observed and held as follows:


?6. The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in S.11. When matters are referred to the Tribunal or Court they have to be decided objectively and the Tribunal/Courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules and natural justice.


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.?


18. In the light of the decision in Anil Sood (2001 (2) LLN 611) (vide supra), we find no substance in the appellant?s submission based on S.17A 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 S.17A of the Act.?


17. Applying the latest dictum of the Supreme Court wherein the Honble Supreme Court has taken note of Rule 22 of the Central Rules which is similar to Rule 26(1) of the Bombay Rules, to the facts of the present case, as elicited above, Rule 34(10) and (11) of the Tamil Nadu Industrial Disputes Rules, 1958, especially the proviso to Rule 34(11) which enables an applicant to set aside the ex parte award even after 30 days of publication, since no maximum period of limitation is mentioned even after the period of 15 days, and the same is relatable to Rule 22 of the Central Rules and Rule 26(1) of the Bombay Rules as stated above.


18. In fact, by referring to the said Rule 22 of the Central Rules, this Court in Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai vs. Presiding Officer, Industrial Tribunal, Chennai and others [2000(3) LLN 1025] was dealing with an application to set aside ex parte award which was filed after a delay of 1245 days. In that case, P.Sathasivam,J.(as he then was) by relying upon the judgment of this Court in T.N.H.B. v. Presiding Officer, Second Additional Labour Court, Madras [1997(1) LLJ 923] held that when the ex parte award was passed, the Labour Court did not choose to give any reason and even the facts of the case were not mentioned and the award was passed in a casual manner without application of mind. It was also held as under:


?7. It is also relevant to refer a Division Bench decision of this Court in T.N.H.B. v. Presiding Officer, Second Additional Labour Court, Madras (1997 I L.L.J. 923). Their Lordships of the Division Bench after considering similar rule 48 of the Tamil Nadu Industrial Disputes Rules, 1958, as well as an ex parte award passed by the Labour Court, have observed thus:


?6. Thus, from the aforesaid award, it is clear that the Labour Court has not considered the evidence on record. Even though the appellant remained absent, nevertheless, there was evidence on record. There were the statements of the case pleaded by the petitioner and the respondent. The Labour Court was required to consider and give reasons for passing the award in favour of the second respondent-workmen. As no such reason is given, not even the facts of the case are stated, the award cannot at all be considered to be a speaking order, as such it cannot be sustained. The Presiding Officer is an officer of the district Judge grade. He should not have decided the dispute in such a manner. There is no judicial application of mind of the Presiding Officer of the Labour Court. Such exercise of jurisdiction causes great and incalculable damage to the parties and also to the administration of justice. The Presiding Officer would do better, if he discontinues such a habit of disposal of cases.?


In the case before the Division Bench, when the dispute was taken up for enquiry, the respondent-management was absent and set exparte. On the side of the workmen, W.W.1 was examined and Exhibits W.1 to W.4 were marked. The Labour Court after stating that W.W.1 was examined, that Exhibits W.1 to W.4 were marked, and that claim is proved, passed an award directing the respondents-management to reinstate the workman in service with back-wages, continuity of service and other attendant benefits with cost of Rs.100. The aid award was set aside by the Division Bench stating that the Labour Court has not assigned any reason and has not stated even the facts of the case. It is clear that in a matter like this, even if the respondent was absent, it is the duty of the Labour Court/Industrial Tribunal to consider and give reason for passing the award. Inasmuch as the Presiding Officer is an officer of the District Judge grade, as observed by their Lordships in the Division Bench, he should not have decided the dispute in such a manner. There must be a judicial application of mind and his order must be based on acceptable materials. By applying the ratio laid down in the Division Bench decision, the impugned order cannot be sustained. In W.P.No.6346 of 1998, dated 14 August, 2000, I had an occasion to consider similar ex parte award passed by First Additional Labour Court, Chennai, in I.D.No.120 of 1995. In the light of the Division Bench decision referred to above, I set aside the ex parte award with a direction to pay cost to the workman concerned by the management and directed the Labour Court to decide the dispute on merits. The decision of mine also supports the contention of the learned counsel for the petitioner.?


19. Similar was the view taken by D.Murugesan,J. in the Management of Tiruttani Co.operative Sugar Mills Ltd., Thiruvalangadu vs. Presiding Officer, Industrial Tribunal, Madras

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and another [2001 (4) LLN 949]. In that case also the management did not appear and did not file any counter affidavit, as in the present case. It was held as follows: ?22. In my considered view the non-consideration of Exhibit W2 by the first respondent would vitiate the award. It is true that the management remained ex parte and not even a counter-affidavit was filed on behalf of the management. However, the reason as stated in the affidavit filed in support of the writ petition for the non-appearance of the management before the first respondent is that the summons was appears to have been received by the then Administrator who has not brought the same to the notice of the labour consultant and therefore only the management could not appear before the first respondent. It is to be noted that except the said one summons, no further opportunity was given to the management. Therefore, I am inclined to accept the said reason adduced by the management for its non-appearance before the first respondent to defend the industrial dispute. Since the award was passed on merits, the writ petition came to be filed. In view of my finding that the award could not be sustained for non-consideration of the materials before the first respondent, in the interest of justice the matter has to be remanded back to the first respondent for fresh adjudication. The management also should be given an opportunity to put forth its case only with reference to the stand taken by the management to dispute the demands raised by the union as contained in Exhibit W2.? 20. In such view of the matter, considering the view of the Supreme Court in its latest judgment in Radhakrishna Mani Tripathi vs. L.H.Patel and another [2009(1) LLJ 786] and for the reasons stated above, I am of the considered view that it cannot be said that the Labour Court has become functus officio after the publication of the award under section 17A of the Act. It is also relevant to note that the ex parte award passed by the Labour Court itself is, on the face of it, without application of mind and even the facts of the case have not been narrated by the Labour Court while passing the ex parte award which can certainly be said to be an award passed in a casual manner, as observed by this Court as elicited above. While the powers of C.P.C. are conferred on the Labour Court in respect of procedure to be followed in passing the award, certainly in case where ex parte award is sought to be passed, there should be proper application of mind and the presiding officer should be fair at least in narrating the facts of the case, especially in the circumstance where he allowed the claim against the termination, as pleaded by the second respondent-workmen. 21. Accordingly, the writ petitions stand allowed. However, since the ex parte award in this case was passed on 28.9.2005 and the matter has been pending for nearly 5 years, necessarily the second respondent-workmen have to be compensated by way of costs. Accordingly, the writ petitions are allowed and the impugned award passed by the Labour Court stands set aside on condition that the petitioner shall pay costs of Rs.5,000/- to the second respondent-workman in each of the Writ Petition within a period of two weeks from the date of receipt of copy of the order. On payment of such costs, the Labour Court shall restore I.D.Nos.24, 25 and 26 of 2005 and take the counter affidavits stated to have been filed along with the set aside petitions and decide the I.Ds. on merits and in accordance with law within a period of six months thereafter. No costs. Connected miscellaneous petitions are closed.
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