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Judgment
S.S. Nijjar, J.—This petition under Articles 226/227 of the Constitution of India seeks quashing of the award dated 13.10.1997, Annexure P-1 and the order dated 20.8.1999, Annexure P-2, passed by the Presiding Officer. Labour Court, Ambala. by issuance of a writ of Certiorari or any other appropriate writ, order or direction.
Respondent No. 1 (hereinafter referred to as "the workman"), was appointed as driver with petitioner No. 3 in the year 1981. While working as such, he absented from duty w.e.f. 20.9.1988. The workman was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal), Rules, 1987. A departmental enquiry was conducted against the workman. The charges were found to be proved. The Punishing Authority agreed with the findings of the Enquiry Officer. Show-cause notice was issued to the workman on 23.8.1989 proposing punishment of termination of service. The workman submitted his reply to the show-cause notice on 13.9.1989. He was also given personal hearing on 25.7.1990. The workman made a plea of mercy and stated that if the punishment is kept in abeyance, he will show an improvement in his conduct to the petitioners. Consequently, the punishment imposed on the workman was kept in abeyance. However, on 28.8.1990, he again remained absent without permission/leave. Thus, on 5.11.1990, services of the workman were terminated. The workman filed an appeal on 3.4.1991. This appeal was not decided for almost a period of three years, compelling the workman to file Civil Writ Petition No. 7655 of 1994. On 3.6.1994, this Court directed petitioner No. 1 to decide the appeal within a period of two months from the date of copy of the order received by him. Hence, the appeal was decided vide order dated 15.8.1994. The appeal was dismissed. The workman again filed Civil Writ Petition No. 15643 of 1994, challenging the order passed in appeal. However, the workman was relegated to the remedy available under the Industrial Disputes Act. Hence, respondent No. 1 served a demand notice before the Labour-cum-Conciliation Officer, Ambala. The dispute was ultimately referred to the Labour Court, Ambala, vide reference No. 258/96, for adjudication.
The Labour Court, Ambala, proceeded ex-parte against the petitioners on 3.2-1997. Thereafter, the Labour Court decided the reference ex-parte against the petitioners by award dated 13.10.1997. The workman was reinstated with continuity of service and full back-wages. The petitioners moved an application on 12.2.1998 for setting aside ex-parte award. This application was dismissed by order dated 20.8.1999.
Learned counsel for the petitioners submitted that an application for setting aside the ex-parte award was presented within a period of 30 days, i.e. 12.2.1998 after award came to the notice to the petitioners on 15.1.1998. It is not denied that the award was published in the official gazette on 22.12.1997. It is, however, pleaded that the petitioners came to know about the award dated 13.10.1997 only when the workman presented an application on 15.1.1998 for implementation of the award. It is also submitted by the learned counsel that application dated 12.2.1998 could not be taken up for hearing as the officer was under transfer. It is, therefore, submitted that no fault lies with the petitioners in not moving the application within stipulated period. Learned counsel further submitted that even if the ex-parte award is to he upheld, it is still required to be modified to the extent that the workman, in view of the proven misconduct, was not entitled to the grant of full back wages.
I have considered the submission made by the learned counsel for the petitioners.
The Labour Court took notice of the fact that the hearing of the case was fixed for 3.1.1997. Shri Rajesh Kumar, Clerk, had appeared on that date and the case was adjourned to 3.2.1997. Shri Rajesh Kumar, Clerk, did not mention the next date in the diary maintained for the cases. Due to this reason, no official attended the Court on 3.2.1997, when ex-parte proceedings were ordered against the petitioners. Consequently, ex-parte award was passed against the petitioners on 13.10.1997. It was contended before the Labour Court by the learned counsel appearing on behalf of the workman, which has been reiterated by the learned counsel for the workman in the present writ petition that the Labour Court had no jurisdiction to entertain the application as the same had been filed after the lapse of 30 days from the date of the publication of the award. It was submitted that after a period of 30 days of the publication of the award in the official gazette, the LabourCourt became functus officio. In support of his submission learned counsel relied on ajudgment in the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, . After considering the aforesaid submissions, the learned Labour Court came to the conclusion that the award was published u/s 17(1) of the Industrial Disputes Act on 5.12.1997 and the copy of that notification was received in the Labour Court on 22.12.1997. It is also not disputed that the application for setting aside ex-parte award was made on 12.2.1998. 30 days period for moving an application for setting aside ex-parte award expired on 4.1.1998. The Labour Court relying on the judgment of the Rajasthan High Court in the case of State of Rajasthan v. Panna Ram 1999 Lab. I.C. 490 : 1999(3) SCT 763 (SC), has held that where an application for setting aside an ex-parte award was filed within 30 days of publication, the Tribunal was competent to entertain the same. The Labour Court had to compute the period of 30 days from the date of the publication of the award in the official gazette. As noticed earlier, the awarded in the present case was published in the official gazette on 5.12.1997. The application was made on 12.2.1998 when clearly the Labour Court had become functus of-ficio. Learned counsel for the workman has brought to my notice a Division Bench judgment of this Court rendered in L.P.A. No. 1113 of 1985, The Warring Co-operative Agriculture Services Society Ltd, v. The State of Punjab and others, decided on 28.2.1986, reported in RSJ (1950-1988), 604. In that case, the Division Bench considered a similar situation. The award was published in the official gazette on 22.6.1984. The Appellant Society moved an application on September 24, 1984, before the Labour Court seeking the setting aside of the ex-parte award. It was pleaded therein that in December, 1983, the Managing Committee of the Society ceased to function and an Administrator was appointed in its place. The workman played a fraud and got the summons issued by the Labour Court delivered on a person who was not competent to receive the same on behalf of the appellant-society. The Administrator of the society did not receive any summons and was not served in any manner. The Administrator came to know about the ex-parte award, on September 21, 1984, when Harjit Singh visited the Society''s Office and apprised the Administrator about the award and sought his permission to join duty. This application was dismissed by the Labour Court on the ground that the Labour Court had becomefunctus officio. Aggrieved, the appellant Society filed a Civil Writ Petition No. 1 of 1985 under Articles 226/227 of the Constitution of India impugning the ex-parte award and the order of the Labour Court dated 13.12.1984. The learned Single Judge upheld the orders of the Labour Court dismissing the appellant-Society''s application as incompetent and dismissed the writ petition. Hence, the Letters Patent Appeal in which the judgment has been given by the Division Bench.
From the narration of the aforesaid facts, it becomes apparent that the situation in the present case is almost identical with regard to the presentation of the application for setting aside the ex-parte award beyond the period of 30 days. Considering the identical submissions made, the Division Bench took note of the judgment of the Hon''ble Supreme Court in Grindlays Bank''s case (supra) and observed that after 30 days of the publication of the award the Labour Court has be-come functus officio. The Division Bench has also adverted to the judgment of the Hon''ble Apex Court in the case of Satnam Verma Vs. Union of India (UOI), , After considering the entire matter, the Division Bench has held as follows :-
"A reading of the whole of para 14 of the report of Grindlays Bank''s case (supra) leads to an irresistible conclusion that proceedings in a reference u/s 10 of the Act are not deemed to be concluded until the expiry of 30 days after the publication of the award. 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 dispute, impliedly thereafter it becomes functus officio and cannot entertain an application for setting aside an ex-parte award. In this situation we are in respectful disagreement with the view taken in M/s Ram Sarup Jiwan Lal s case (supra). It does not lay down correct law. It runs counter to the ratio of this Court''s decision in Sarbjit Singh''s case (supra) and Ved Parkash''s case (supra), and the two decisions of the Final Court in Grindlays Bank''s case (supra) and Satnam Verma''s case (supra). We overrule it."
In view of the above, it is held that at the time when the application for setting aside ex-parte award was made in the present case, the Labour Court had become functus officio.
Mr. Ashok Singh Chaudhary, learned counsel for the petitioners had also submitted that the award needs to be modified as the conduct of the workman did not entitle him to grant of full back wages. This submission of the learned counsel has also to be rejected in view of the decision given by the Full Bench of this Court in the case of Hart Palace, Ambala City v. The Presiding Officer, Labour Court P.L.R. Vol. LXXXI-1979, 720. The Full Bench observed as follows :-
"6. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms :
"Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer."
And again :
"Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure."
The aforesaid view has then been reiterated by their Lordships in G.T. Lad and others v. Chemicals and Fibres India Ltd."
It, therefore, becomes apparent that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating a departure. A perusal of the award as well as the writ petition shows that no cogent reasons have been given for departing from the normal rule.
In view of the above, present writ petition is dismissed. No costs.
Petition dismissed.