Technological Institute of Textiles vs Labour Court and Another

K.S. Bhalla, J.—An Industrial Dispute arose between Shri Hanuman Prasad Saini (hereinafter called "the workman"), respondent No. 2, and the Technological Institute of Textiles, Bhiwani (hereinafter called "the management"), petitioner and at the instance of the workman, question of termination of his services was referred to Labour Court, Rohtak, for adjudication u/s 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter called "the Act"). The matter was fixed before the Labour Court on 8th April, 1983, camp at Bhiwani, for evidence of the management after the workman had already concluded Kis evidence. On 8th April, 1983, the workman failed to appear before the Labour Court. Although he informed the Labour Court through telegram that he was ill, the Labour Court decided the case. On 8th April, 1983, ex parte and, without going into the merits of the case, the reference was ordered to be dismissed for non-prosecution on the part of the workman. Subsequently, the workman sent an application dated 1st July, 1983, for restoration of the proceedings in the reference in question contending that he suddenly fell ill on 7th April, 1983, that he informed the Labour Court through telegram with regard to that fact and also sent a medical certificate thereafter. To explain the delay in filing that application he said that in the middle of the month of April, 1983, appointment of the Presiding Officer of the Labour Court was set aside by this court as a result of which everything became fluid and he was informed that a new presiding officer may be appointed after summer vacation. That application of the workman was allowed by the Presiding Officer, Labour Court, Rohtak and vide his order dated 2nd August, 1985 (Annexure P-8), he held that the workman had been able to establish sufficient cause for his absence on 8th April, 1983, that on account of this court''s judgment rendered on 13th April, 1983, by which, appointment of Presiding Officer, Industrial Tribunal, Faridabad, was quashed, there was a lot of confusion in the minds of the general public about the functioning of such courts in Haryana for which reason a case for condonation of delay in filing the application for setting aside the ex parte order of the Labour Court was made out. Consequently, the reference was fixed for evidence of the management for its adjudication on merits at which stage it was dismissed for non-prosecution. Through present writ petition, the management has assailed the said order dated 2nd August, 1985, of the Labour Court, Rohtak, and has sought its quashing.

It has been held by the Labour Court that sufficient cause was shown for the absence of the workman on 8th April, 1983. If the workman had suddenly fallen ill on 7th April, 1983, the said conclusion of the Labour Court cannot be treated to be incorrect. The Labour Court was intimated through a telegram and medical certificate supporting illness of the workman also followed.

An ex-parte decision is possible under Rule 22 of the Industrial Tribunal (Central) Rules, 1957, which provides a fictional position that it may proceed as if the party had duly attended or had been represented. Rule 24 thereof also embraces applicability of the Code of Civil Procedure, 1908, in certain respects. Even otherwise, when passing of ex parte award has been made permissible, in exercise of the principles of natural justice, ancillary powers of setting aside of ex parte decisions should also be presumed. Where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. An award without a notice to a party is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh. This conclusion of ours finds support from Grindlays Bank Ltd. v. Central Government Industrial Tribunal 1981 II LLJ 327, wherein it was held as under (headnote of AIR)'':

"It is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The words ''shall follow such procedure as the arbitrator or other authority may think fit'' occurring in Section 11(1) are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands.

The language of Rule 22 of the Industrial Disputes (Central) Rules, 1957, unequivocally makes the jurisdiction of the Tribunal to render an ex parte award and carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. And in view of Rule 24, when an ex parte award is passed, provisions of Order 9 Rule 13, CPC are attracted".

Once it is accepted that power for setting aside ex parte orders or awards exists, the Labour Court is well in its justification to extend time for filing an application for the setting aside of the award on sufficient cause shown. Ex parte decision in this case was made on 8th April 1983, and on April 13, 1983, through Full Bench Judgment of this Court in Tul-Par Machine & Tool Company v. Joginder Pal ILR (1984) P & H 357, position with regard to appointment of Presiding Officers of Labour Courts and Industrial Tribunal in the State of Haryana became fluid. As a result thereof, there was confusion in the minds of the general public of that State including the workman in question and he could very well think that after that decision the Presiding Officer of Labour Court, Rohtak, was not competent to transact business. Ultimately, submitting to that decision, vide notification of the State Government of Haryana (Annexure P-6), the Governor of Haryana dispensed with the services of Presiding Officer, Industrial Tribunal, Faridabad and Presiding Officers of Labour Courts, Faridabad and Rohtak with effect from the afternoon of 30th June, 1983. Immediately thereafter, i.e., on 1st July, 1983, the workman sent an application for the setting aside of the ex parte decision against him. Thus, the impugned order of the Labour Court is not assailable with regard to findings in favour of the workman on sufficient cause shown for extension of time.

The contention of learned counsel for the petitioner that the Labour Court had become functus officio u/s 20(3) read with Section 17A of the Act on the expiry of 30 days after the publication of its order dated 8th April, 1983 (Annexure P-4), the same having been published in the Haryana Government Gazette on May 24, 1983 (Annexure P-5) too, does not cut ice with us. According to Section 2(b) of the Act "award" means an interim or a final determination of any industrial dispute or any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made u/s 10A. Order dated 8th April, 1983, Annexure P-4, being simpliciter dismissal of reference for non prosecution without going into the merits of the case, cannot be treated as interim or final determination of the industrial dispute or any question relating thereto so as to constitute an award. Evidence of the workman had already concluded and the case was fixed for evidence of the management on 8th April, 1983. If the Labour Court wanted to pass an ex parte award in the absence of the workman it was required to record evidence of the management and pass an order on merits. Had it done so, it would have amounted to determination of the industrial dispute or an exparte award. In that case, the contention of the management could possibly prevail, But the position in the present case is completely different. Rule 22 of the Industrial Tribunal (Central) Rules, 1957, only enables the Labour Court to proceed as if a party has duly attended or has been represented, even if such party is absent and if sufficient cause is not shown for his absence. It does not enable the Labour Court either to do away with the enquiry or to straightaway pass an award without giving a finding on the merits of the dispute. Trie Labour Court cannot, by making a rule or otherwise, absolve itself of the duty to determine the industrial dispute referred to it on merits. The absence of a party does not entail the consequence that an award will straightaway be made against him. A reference made to the Labour Court is required to be answered and Labour Court is bound to proceed and decide the matter on merits even if the applicant absents himself. Reference u/s 10 of the Act sets in motion adjudication proceedings and they cannot stop except by the passing of an award. Once made it cannot be withdrawn or cancelled by the Government and the Tribunal cannot refuse to adjudicate on the dispute. Strictly speaking, it cannot even dismiss the dispute for non-prosecution and, in any case, any action so taken would not constitute an award to entail subsequent consequences as recognised under the Act. The Labour Court/Tribunal as of necessity has to make an award and forward the same to the Government. Only an award, once published, and after 30 days have expired from the date of publication, is final and enforceable and not any other order made by the Presiding Officer, Labour Court. For the purpose of finality, Section 20(3) of the Act relates to an award alone as only an award becomes enforceable u/s 17A of the Act, Because order annexure P-4 is not an award the argument advanced on behalf of the petitioner to make the Labour Court functus officio is not open to learned counsel for the petitioner. Waring Co-operative Agriculture Services Society Limited v State of Punjab (1986) 69 FJR 121, relied upon by learned counsel for the petitioner in this respect is distinguishable on facts as in that case it was an ex parte award and not an ex parte order of dismissal simpliciter without determination of the industrial dispute or any question relating thereto.

For the foregoing reasons, we find no merit in this writ petition and the same is dismissed with costs.