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Judgment
M. Jaichandren, J.—The Writ Petition has been filed praying for the issuance of a Writ of Certiorarified Mandamus to call for the records in
I.D. No. 106 of 2003 on the file of the Central Government Industrial Tribunal-cum-Labour Court, Chennai, the first respondent herein and quash
the impugned order, dated 04.02.2004, passed therein and further direct the first respondent tribunal to restore the said dispute No. 106 of 2003
to file and dispose of the said dispute in accordance with law.
Heard the learned Counsel for the petitioner as well as the respondents. By consent of the counsels appearing for the petitioner as well as the
respondents, the writ petition itself has been taken up for hearing and disposal.
The brief facts of the case, as stated by the petitioner, are as follows:
The petitioner is a Central Public Sector undertaking under the Ministry of Petroleum and Natural Gas. Amongst its various activities, the petitioner
company had a small establishment at Coimbatore, for buying tea from tea auction. The tea bought by the petitioner company was meant for
export and for supply to the defence services. The said activity was not continuous and it depended on the availability of orders. However, the unit
had been closed down due to fierce competition and for want of adequate business.
The second respondent was engaged for a limited period on daily wage basis, as a casual labourer. Since the second respondent was engaged
purely on a temporary basis, the normal rules of recruitment have not been followed. The work for which the second respondent had been
engaged having come to an end, he was merely disengaged from the job he was doing. Therefore, no right or interest had accrued to him in the
service he was doing. However, the second respondent had raised an industrial dispute alleging that he was terminated from employment, on
24.06.1998. Therefore, he had sought for reinstatement along with other benefits. The first respondent Central Government Industrial Tribunal had
taken up the dispute in I.D. No. 106 of 2003.
During the course of the hearing of the dispute, the respondent in the industrial dispute and the petitioner in the present writ petition, had been set
ex parte and an ex parte order was passed by the tribunal, on 4.2.2004 and the same was communicated to the petitioner, on 19.04.2004. On
receipt of a copy of the ex parte order, the petitioner had taken steps to set aside the ex parte order, by filing an application. However, the said
application was returned un-numbered, since the Central Government Industrial Tribunal had become ""functus officio"" in accordance with the law
laid down by the Apex Court reported in 2005 (1) MLJ 39.
The main reason stated by the petitioner company for its non-appearance in I.D. No. 106 of 2003 was that it was waiting for the copy of the
statement from the second respondent in the present writ petition, with regard to the dispute raised by him before the Central Government
Industrial Tribunal. The non-appearance by the petitioner before the Central Government Industrial Tribunal was neither wilful nor wanton. It was
also stated that the petitioner company will be put to serious and irreparable loss, unless the ex parte award, dated 04.02.2004, passed by the
Central Government Industrial Tribunal-cum-Labour Court, Chennai, in I.D. No. 106 of 2003 is not set aside and heard on merits. It is further
stated that no prejudice would be caused to the second respondent. It is also stated that the petitioner company has sufficient materials to prove
that the second respondent cannot claim the privilege of having been an employee of the petitioner company and that he was terminated from
service illegally. Further, the learned Counsel appearing on behalf of the petitioner had relied on an order passed by the Division Bench of this
Court, in Tamil Nadu Housing Board, Madras, and the Presiding Officer, II Additional Labour Court, Madras, and Anr. reported in 1997 1 L.L.J.
109, wherein it was held that the Labour Court was required to consider the evidence on record and give reasons for passing the award in favour
of the workman, even if the respondent had remained ex parte. However, while setting aside the ex parte award the Division Bench had awarded
exemplary costs to be paid by the Tamil Nadu Housing Board, Madras, for not availing the opportunity of defending itself and for causing
consequent delay.
On the other hand, the learned Counsel appearing on behalf of the second respondent had vehemently contended that the petitioner company
had not appeared to defend itself before the Central Government Industrial Tribunal-Cum-Labour Court, Chennai, in I.D. No. 106 of 2003,
inspite of knowing full well the consequences that would follow. They have not shown sufficient cause for remaining ex parte and therefore, the ex
parte award passed by the Central Government Industrial Tribunal, in I.D. No. 106 of 2003, has to be confirmed by this Court. It was further
stated that it is only for the reason of delaying the benefits being given to the second respondent, the petitioner had remained ex parte during the
hearing of the industrial dispute and has now come forward with the present writ petition before this Court. There is no bonafide reason or excuse
for the petitioner company either under law or on facts to set aside the ex parte order.
It was further stated that the petitioner had earlier filed a writ petition before this Court, in W.P. No. 25022 of 2004, and the same had been
dismissed and it would operate as res judicata against the petitioner, who has filed the present writ petition for the same relief. On a perusal of the
order of this Court, dated 02.03.2005, while dismissing the said writ petition, the learned Judge had observed that it was open to the petitioner to
challenge the award independently. Therefore, the claim of the respondent with regard to res judicata cannot prevent the petitioner from
maintaining the present writ petition in view of the earlier order of this Court, dated 02.03.2005.
The learned Counsel appearing for the second respondent had relied on Sangham Tape Company v. Hans Raj reported in 2004 Labour and
Industrial Cases 4039. In the said decision, it is found that the Apex Court had followed the law laid down in Grindlays Bank Ltd. Vs. Central
Government Industrial Tribunal and Others, which was subsequently followed in Satnam Verma v. Union of India 1984 Supp. SCC 712 and M/s.
J.K. Synthetics Ltd. Vs. Collector of Central Excise, 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 Industrial Disputes Act, 1947, an application therefore 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 upto that date
it has the power to entertain an application in connection with such dispute. It was further held that 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"".
Delhi Cantonment Board v. Central Government Industrial Tribunal and Ors. reported in 2006 Labour Industrial Cases 1140, relied on by the
learned Counsel for the second respondent is with regard to Section 2(s) and Section 25F of the Industrial Disputes Act, 1947. The said decision
cannot support the case of the petitioner at this stage as it was with regard to the definition of ''workman'' in Section 2(s) of the Act and with
regard to the conditions laid down u/s 25F of the Act to be followed as a condition precedent to the termination of the services of a workman.
In Anil Sood Vs. Presiding Officer, Labour Court II, , the Supreme Court has held as follows:
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.
In LML Ltd v. Presiding Officer of Labour Court and Ors. reported in 2002 (2) LLN 585,(Del.), while dealing with the case where the
petitioner''s application for setting aside the ex parte award passed by the Labour Court was not entertained for the reason that it was made after
the prescribed period of 30 days from publication of award, the Supreme Court had held that in view of the judgment of the Apex Court, in the
case of Anil Sood Vs. Presiding Officer, Labour Court II, , the matter is no longer res integra. Based on such a view, the Supreme Court had
directed the disposal of the application for setting aside the ex parte award.
It is found that the above cited cases are only reiterating the position of law with regard to the status of the Industrial Tribunal, under Sections
11 and 17-A of the Industrial Disputes Act, 1947. Therefore, the points raised by the second respondent are with regard to the jurisdiction of the
Industrial Tribunal in entertaining an application relating to the dispute after it has become ""functus officio"" and they are not with regard to the
exercise of the powers of this Court under Article 226 of the Constitution of India. However, there can be no doubt that the powers of this Court
under Article 226 of the Constitution of India are very wide in nature and they can be invoked in such situations to meet the ends of justice.
In the present case, the petitioner had stated that an application had been filed before the Central Government Industrial Tribunal-Cum-Labour
Court, Chennai, to set aside the ex parte award, dated 04.02.2004, made in I.D. No. 106 of 2003 and for condonation of the delay of 64 days in
filing the application for setting aside the ex parte award and it had been returned un-numbered for the reasons that the tribunal had become
functus officio"" after 30 days from the date of publication of the award. Therefore, the learned Counsel appearing for the petitioner states that all
necessary steps were taken, promptly, to set aside the ex parte award of the Central Government Industrial Tribunal-cum-Labour Court, dated
04.02.2004, made in I.D. No. 106 of 2003 and there is no undue delay in coming before this Court with the present writ petition.
In the facts and circumstances of the present case and based on the decisions cited by the learned Counsels appearing for the parties and on a
perusal of the available records, this Court is of the considered view that it would be appropriate to set aside the ex parte award of the Central
Government Industrial Tribunal, dated, 04.02.2004, made in I.D. No. 106 of 2003, on condition that the petitioner pays to the second respondent
a sum of Rs. 7,500/- as costs, within a period of ten days from today and the Central Government Industrial Tribunal, Chennai, is directed to
restore I.D. No. 106 of 2003, on file and hear the same, giving sufficient opportunity to the parties concerned, and dispose it of on merits and in
accordance with law, within a period of 3 months from the date of receipt of a copy of this order.
The writ petition is ordered accordingly. Consequently, the connected W.P.M.Ps and W.V.M.P. No. are closed.
In Sangham Tape Company Vs. Hans Raj, , the Supreme Court has held as follows:
An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 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. 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 therefore 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. This is because 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.