Hemant Kumar Nayak vs State of C.G. and Others

Sanjay K. Agrawal, J.—The root question that arises for consideration is whether the Labour Court has power and jurisdiction to dismiss the reference validly made by the appropriate Government under Section 10(1) of the Industrial Disputes Act, 1947 in default?

On the request being made by the petitioner to the appropriate Government, the appropriate Government by its order dated 4-12-2009 referred the matter to the Labour Court for adjudication that whether the termination of the petitioner is valid and whether the petitioner is entitled for any relief. After the matter was referred, the reference was fixed for evidence of the petitioner on 11-3-2011 and on that day, in absence of the petitioner, reference so made was dismissed for default.

The petitioner filed an application for restoration under Order 9 Rule 4 of the Code of Civil Procedure, 1908, with a delay of 5 months 4 days along with an application for condonation of delay stating inter alia that he was suffering from Hepatitis B and Jaundice and, therefore, he could not appear on the date of hearing when the matter was called for hearing. By the impugned order, learned Labour Court dismissed the application holding that the cause shown by the petitioner is not sufficient as such, the Labour Court rejected the application for condonation of delay as well as the application for restoration.

Feeling dissatisfied, the instant writ petition has been filed stating inter alia that the Labour Court has no jurisdiction and authority to dismiss the reference petition validly made in exercise of provisions contained in the Industrial Disputes Act, 1947 and the Labour Court rejected his application for restoration, though sufficient cause was shown for delay in filing the substitution application.

Return has been filed by the State Government opposing the writ petition and supporting the impugned order dismissing the application for restoration filed under Order 9 Rule 4 of the CPC.

Mr. K.P.S. Gandhi, learned counsel for the petitioner, would submit that once reference has been made by the appropriate Government under the provisions of the Industrial Disputes Act for adjudication then the Labour Court has no jurisdiction to dismiss the same for want of prosecution. Alternatively, he would further submit that the petitioner was suffering from Jaundice and Hepatitis B and as such, he was unable to make such representation and, therefore, the cause shown by the petitioner was sufficient, delay ought to have been condoned and the reference ought to have been restored.

On the other hand, Ms. Astha Shukla, learned Panel Lawyer appearing for the State/respondents, would vehemently oppose the submissions advanced on behalf of the petitioner and would submit that the petitioner has failed to substantiate his ground of suffering from Hepatitis B and Jaundice and as such, learned Labour Court is absolutely justified in rejecting the application for condonation of delay resultantly, the application for restoration. Therefore, the petition deserves to be dismissed.

I have heard learned counsel for the parties and also perused the records of the case with utmost circumspection.

At this stage, it would be proper to notice the definition of award defined under Section 2(b) of the Industrial Disputes Act, 1947.

Section 10(1) of the ID Act, 1947 provides for reference of disputes to the Boards, Courts or Tribunals. It provides as under:--

"10. Reference of disputes to Boards, Courts or Tribunals.--(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):

Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

Provided also that where the dispute in the relation to which the Central Government is the appropriate Government, it shall be competent for the government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."

Sections 14 and 15 of the ID Act provides for duties of the Labour Court/Tribunal upon reference as under:--

"14. Duties of Courts.--A Court shall inquire into the matters referred to it and report thereon to the appropriate government ordinarily within a period of six months from the commencement of its inquiry.

Duties of Labour Court, Tribunal and National Tribunals.--Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of Section 10 , submit its award to the appropriate Government."

The Central Government in exercise of powers conferred by Section 38 of the Industrial Disputes Act, 1947 has framed the Rules namely the Industrial Disputes (Central) Rules, 1957. Rule 10B(9) of the aforesaid Rules, which is as under, prescribes that the Labour Court may proceed with the reference ex parte in absence of any party and decide the reference:--

"10B. Proceeding before the Labour Court, Tribunal or National Tribunal.--

****

****

****

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

Provided that the Labour Court, Tribunal or National Tribunal, as the case may be, shall submit its award to the Central Government within one month from the date of arguments oral hearing or within the period mentioned in the order of reference whichever is earlier."

A careful perusal of the above-stated provision would show that the Labour Court is obliged to answer the reference notwithstanding the fact that any party to reference makes default or fails to appear in any stage and the Labour Court has no jurisdiction to pass award as no dispute award on the ground that one party to reference did not appear before the Labour Court.

In the matter of Sital Sukhiram Vs. Central Government Industrial Tribunal Cum Labour Court, Jabalpur and Others, , the Madhya Pradesh High Court has held that the Labour Court has no jurisdiction to dismiss the reference petition for default by holding as under:--

"9. The main question for consideration is whether the Tribunal could, as it did in this case, accept an amicable settlement between the parties which "did not specify the manner in which the dispute have been settled" and make an award in terms of that settlement because "there now remains nothing for adjudication" by the tribunal so far as these five specific demands are concerned. We are clearly of opinion that the Tribunal could not act in that way without disregarding the provisions of the Act. The word "award" as defined in clause (b) of Section 2 of the Act means "an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10-A ". We think that the word "determination" used in the definition implies adjudication upon relevant material by the Labour Court or the Tribunal. So, it has been held that, once a reference has been made under Section 10(1) of the Act, it cannot be rescinded or cancelled: State of Bihar v. Ganguli, (1958) II JLJ 834 (SC). It cannot also be dismissed for default because that would amount to putting an end to the proceedings otherwise than by adjudicating upon the dispute."

13.Thus, it is limpid that once a valid reference is made by the appropriate Government exercising the jurisdiction vested in it, the Labour Court has no authority and jurisdiction to dismiss the reference and the Labour Court is obliged to answer the reference ex parte in absence of defaulting parties.

14.Having ascertained the legal position with reference to the jurisdiction of Labour Court, turning back to the facts of the case to decide the correctness of the impugned order, it would be appropriate to notice the reference made by the appropriate Government to the Labour Court for adjudication, which states as under:--

The above-stated reference made by the appropriate Government has been registered as Reference Case No. 31/ID Act/2009 Reference in the Labour Court, Korba. The said Court fixed the case for evidence of the petitioner workman on 11-3-2011 and on the said date, the Labour Court dismissed the reference for want of prosecution by recording following order:--

"11.03.2011

It appears that the Labour Court has dismissed the reference validly made by the appropriate Government without deciding the reference on merits. Such a course is impermissible in law and the order dated 11-3-2011 deserves to be set aside on this ground only.

There is an additional reason for not upholding the impugned order. The Labour Court failed to consider the application for restoration of the reference petition as well as application for condonation of delay in its proper prospective, as there is an uncontroverted material on record to demonstrate that the petitioner was suffering from Hepatitis B and Jaundice on 11-3-2011 when the case was called-up for hearing. The reason assigned for rejecting the application is unsustainable as the petitioner has shown sufficient cause for non-appearance, when the reference petition was called-up for hearing on 11-3-2011.

As a fallout and consequence of aforesaid discussion, the impugned order dismissing the restoration petition and the order dated 11-3-2011 dismissing the reference petition is ex-facie without jurisdiction and without authority of law. It is held that the Labour Court has no jurisdiction to dismiss the reference petition in default. The reference once made has to be decided on its own merit. Consequently, the impugned order as well as the order dated 11-3-2011 are quashed and Reference Case No. 31/ID Act/2009 is restored to its original number for hearing and disposal, in accordance with law.

Since the matter is pending since 2009, the Labour Court, Korba is directed to consider and decide the case within three months from the date of receipt of a certified copy of this order.

The writ petition is allowed to the extent indicated hereinabove.