M/S Orient Craft Ltd. Through Its ... vs The Presiding Officer Labour ...
2019 Latest Caselaw 3348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 47
 

 
Case :- WRIT - C No. - 3224 of 2018
 

 
Petitioner :- M/S Orient Craft Ltd. Through Its Director Namely Sudhir Dhingara
 
Respondent :- The Presiding Officer Labour Court(I) Uttar Pradesh , Ghaziabad
 
Counsel for Petitioner :- Mr Sarwar Ali Siddique
 
Counsel for Respondent :- C.S.C.,Shailesh Kumar,Subedar Mishra
 

 
Hon'ble J.J. Munir,J.

Heard Sri S.A. Siddique, learned counsel for the petitioner and Sri Subedar Mishra, learned counsel for the respondent No. 2, who has filed a counter affidavit today.

This petition is directed against an order dated 18.12.2017 whereby an application to set aside an ex parte award dated 24.10.2016 passed by the Presiding Officer, Labour Court (1), U.P., Ghaziabad in Adjudication Case No. 47 of 2015, has been rejected. The ex parte award also has been challenged by the petitioner. At the hearing, the learned counsel for the petitioner has confined his challenge to the impugned order dated 18.12.2017 passed by the Labour Court, rejecting the application to set aside the ex parte award dated 24.10.2016 on the understanding that in the event the restoration application is allowed here or upon remand, the ex parte award would go. It has been pointed out by learned counsel for the petitioner that the legal representative, appearing on his behalf, was an employee of the petitioners going by the name of Sri Anil Kumar Singh, who attended proceedings before the Court from 11.05.2015. Sri Anil Kumar Singh without informing the petitioner absented from proceedings before the Labour Court on 09.07.2016, in consequence of which an ex parte award dated 24.10.2016 came to be passed. All this happened without the petitioners' knowledge as they had reposed faith in Sri Anil Kumar Singh. The ex parte award was published on 14.12.2016, and it was served upon the petitioner on 19.01.2017 through a security guard, when the petitioner company came to know for a first about all the ex parte proceedings and the ex parte result. For the first time, they also came to know thereafter, that after 09.07.2016, Anil Kumar Singh had not appeared.

A recall application was filed on 23.01.2017, seeking recall of the ex parte award, and to restore the Adjudication Case to its original file and number, with opportunity to the petitioner to defend. The recall application has come to be rejected by means of the impugned order dated 18.12.2017.

A perusal of the impugned order shows that the Labour Court has not accepted the explanation given by the petitioner that their authorized representative, Anil Kumar Singh absented from proceedings after 09.07.2016, and that the petitioner did not come to know about all that went ex parte until 19.01.2017.

A careful perusal of the entire facts and circumstances on record, including the counter affidavit filed on behalf of the respondent workmen shows, that the approach of the Labour Court in disbelieving of the genuineness of the cause of absence for the petitioner from proceedings, is the result of a rather unsparing approach, which ought to have been a little more liberal in favour of a hearing on merits. What appears to have weighed with the Labour Court, in adopting an approach of this kind, is the fact that the Labour Court has recorded a finding that the application to set aside the ex parte award was not at all maintainable, as the Labour Court lost jurisdiction to entertain the application, 30 days after publication of the award, in view of Section 6 of the U.P. Industrial Disputes Act and had become functus officio. The Labour Court referred to a decision of the Supreme Court. In fact, this was the settled position of law by which the Labour Court went prior to the decision of Hon'ble Supreme Court in Haryana Suraj Malting Ltd. vs. Phool Chand, 2018 (16) SCC 567, where their Lordships have held that the jurisdiction of the Labour Court to grant restoration is not lost, merely because the award becomes enforceable after a period of 30 days of its publication. The aforesaid decision is a three Judge Bench Decision of their Lordship. It has been held that the Labour Court or Tribunal is required to balance equities and decide whether there was sufficient cause for non appearance of the management. It is not that the Labour Court becomes functus officio. In this connection, the law laid down in Haryana Suraj Malting Ltd (Supra) finds mention in paragraph 34, 35, 36 and 37 of the report which reads thus:-

"34. In case a party is in a position to show sufficient cause for its absence before the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal.

35. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise, as held in Grindlays [Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 : 1981 SCC (L&S) 309] , an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law.

36. In this context, it is also necessary to refer to Section 29, the penal sanction which includes imprisonment for breach of award:

"29. Penalty for breach of settlement or award.? Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach."

37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent."

In the aforesaid changed perspective of the law, this Court is of firm opinion that the impugned order passed by the Labour Court is flawed and is liable to be quashed in the interest of justice; so also, the ex parte award dated 24.10.2016. At the same time, it must not be lost sight of that the workman has suffered considerable hardship in the process of the employer going absent from the proceedings, where the clock has now been put back.

It has been brought to the notice of this Court that the respondents-workman, who is a tailor by profession, has in the mean time left for his native town Hardoi. He would now be required to attend proceedings before the Labour Court at Ghaziabad, travelling all this distance, since he is no longer gainfully employed at Ghaziabad. As such, he is required to be compensated by the adequate costs. Accordingly, this Court is of opinion that the workman would be adequately compensated by costs in the sum of Rs. 30,000/-, subject to which alone, relief granted in this petition would operate. Accordingly, this petition succeeds and is allowed.

The impugned orders dated 08.12.2017 as well as ex parte award dated 24.10.2016 passed by the Presiding Officer, Labour Court (1), U.P., Ghaziabad in Adjudication Case No. 47 of 2015, M/s Orient Craft Ltd. vs. Beerpal are hereby quashed subject, however, to the petitioner remitting to the second respondent through a demand draft within, 15 days of date, a sum of Rs. 30,000/-. In the event, costs, as above awarded, are not remitted to the second respondent, in the manner directed, the impugned orders, since quashed, shall stand revived.

It is further directed that the Labour Court will proceed to decide the Adjudication Case expeditiously, and in no case later than six months from the date of production of a certified copy of this order, after compliance with the order regarding costs.

Order Date :- 23.4.2019

BKM/-