Jaswant Singh Mehta vs P.O. Industrial Tribunal And Anr.
2007 Latest Caselaw 1581 Del

JUDGMENT

Hima Kohli, J.

1. The petitioner has assailed an award dated 20th December, 1996 passed by the Industrial Tribunal (hereinafter referred to as 'the Tribunal') wherein, considering the fact that no statement of claim was filed by the petitioner workman and none appeared on his behalf, a no relief award was passed. The petitioner workman has also challenged the orders dated 1st May, 1998 by which his application seeking to set aside the aforesaid exparte award dated 20th December, 1996 was allowed conditionally upon payment of Rs. 100/- as costs to the respondent management by 21st May, 1998. The petitioner workman has also challenged the order dated 21st May, 1998 on which date, the file was consigned to the record room for the reason that none was present on his behalf and nor had compliance of the order dated 1st May, 1998 been made. The last order challenged in the present proceedings is the order dated 5th February, 2002 rejecting the application filed by the petitioner workman for setting aside the order dated 21st May, 1998, on the ground that no sufficient cause had been shown by the petitioner workman for non-compliance of the orders dated 1st May and 21st May, 1998 and that the explanation offered on his behalf did not inspire confidence for want of reliable record.

2. The factual matrix of the case is as follows. The petitioner workman was employed as a Driver in the respondent management and was assigned the the duty of driving the vehicle of the Director of the respondent management. It is alleged by the respondent management that while on duty at the residence of the Director, the petitioner workman along with a security guard molested an ayah and they were apprehended red handed in the act in the presence of witnesses.

3. The stand of the respondent management is that the services of the petitioner workman could have been terminated at that point itself in accordance with law on the grounds of moral turpitude, but at the insistence of the petitioner workman that he be given another opportunity, his services were not terminated and instead, he was transferred from Delhi to Bangalore as per the terms of his contract of employment, along with the security guard who was simultaneously transferred to Lucknow. While the security guard duly complied with the transfer order, the petitioner workman refused to comply with the said order and instead of reporting for duty at Bangalore, he sent a notice dated 5th December, 1994 to the respondent management through the union seeking revocation of the order of transfer. Thereafter, he raised an industrial dispute before the conciliation officer followed by the reference made to the Tribunal in the following terms:

Whether the transfer of Sh. Jaswant Singh Mehta Driver from Delhi to Bangalore is justified? If not to what relief is he entitled and what directions are necessary in this respect?

4. As noted above, an award dated 20th December, 1996 was passed by the Tribunal holding that the petitioner workman was not entitled to any relief as he did not file any statement of claim and did not appear before the Tribunal.

5. An application was filed by the petitioner workman praying inter alia for setting aside of the aforesaid award on the ground that a wrong date had been noted by the authorised representative of the petitioner workman which resulted in none appearing on his behalf and the award being passed. The said application was contested by the respondent management. However, after hearing the parties, the Tribunal held that sufficient cause had been shown by the petitioner workman for setting aside the award subject to payment of Rs. 100/- as costs to the respondent management. The costs were directed to be paid by the next date of hearing, i.e. 21st May, 1998 and it was observed that in case the costs were not paid, the application shall be deemed to have been rejected. Ordering so, the case was listed on 21st May, 1998 for payment of costs and further orders.

6. At the hearing held on 21st May, 1998, as the Labour Court found that the petitioner workman had not complied with the orders dated 1st May, 1998 directing him to pay costs, and none was present on his behalf, the file was consigned to the record room. On 6th July, 1998, the petitioner workman filed an application for setting aside the the order dated 21st May, 1998. The relevant paras which formed the basis of passing the impugned order dated 5th February, 2002 are reproduced hereinbelow:

(2) That on 1-5-98, the court passed orders allowing the application of the workman making a conditional order to be complied on 21-5-98, the AR of the workman Sh Atul Nagarajan came to know of the said orders in the afternoon of 21-5-98.

(3) That the AR of the workman wrongly noted the next date of hearing as 4-6-98 instead of 21-5-98 inadvertently due to a mistake on 1-5-98 while reading the orders passed by the hon. court.

(4) That A.R. of the workman appeared before the hon. court on 4-6-98 and was shocked to know that the case was already rejected on 21-5-98 due to non appearance on behalf of the workman.

(5) That the non appearance on behalf of the workman on 21-5-98 is bonafide and due to the reasons explained above.

7. The aforesaid application was duly considered by the Tribunal and after hearing arguments it was rejected, vide order dated 5th February, 2002, by arriving at the conclusion that no sufficient cause had been shown by the petitioner workman for non-compliance of the orders dated 1st May and 21st May, 1998. The averments in the application to the effect that the authorised representative of the petitioner workman wrongly noted the next date of hearing on 1st May, 1998 as 4th June, 1998 instead of 21st May,1998, due to a mistake, was disbelieved for the reason that when arguments on the said application were heard on 29th April, 1998, the authorised representatives of both the petitioner workman and the respondent management were present and the case was fixed for orders on 1st May, 1998, on which date the application was allowed subject to payment of costs of Rs. 100/- by 21st May, 1998. It was observed that no extract from the diary of the authorised representative of the petitioner/workman was placed on the record to show that the date was wrongly noted. It was also observed that the averments were contradictory for the reason that while it was submitted that the authorised representative of the petitioner workman came to know of the order in the afternoon of 21st May, 1998, there was no explanation offered as to why he did not take any steps and at the same time it was also mentioned that by mistake he noted the wrong date on 1st May, 1998. By observing that the averments made in the application did not inspire confidence, the application was dismissed.

8. Counsel for the petitioner workman argued that instead of dismissing the case of the petitioner for non-compliance of the order dated 1st May, 1998, the Tribunal ought to have extended the time for compliance of the order and that it could not have imposed costs. It was also contended that by passing a conditional order, the Tribunal exercised the jurisdiction vested in it in an improper manner. Lastly, it was submitted that the case of the petitioner workman could not have been dismissed for failure to deposit costs since as against non-deposit of costs, the party was entitled to recover the same as arrears of land revenue under Section 11(7) of the Industrial Disputes Act, 1947 and that the Tribunal does not have the power to dismiss a case for failure to deposit costs, and that such a power does not even vest in the civil court by virtue of Section 35-B of the Code of Civil Procedure. In support of his submissions, counsel for the petitioner referred to the following judgments:

(i) Raj Kishore Gupta v. Shanti Devi and Anr. ;

(ii) Ram Bahadur Singh v. Sheo Nath Singh and Ors. 1983 ALL. L.J. 444

9. Before dealing with the contentions of the counsel for the petitioner, this Court must take note of the manner in which the petitioner workman has prosecuted his case. The appropriate authority made a reference of the dispute on 22nd May, 1996. As the petitioner workman did not file any statement of claim and did not appear on 19th December, 1996, the same resulted in a no relief award being passed on 20th December, 1996. Thereafter, in the year 1997, the petitioner workman filed an application for restoration on the ground that a wrong date had been noted by his authorised representative resulting in none entering appearance before the Tribunal. The said application was allowed in terms of order dated 1.5.1998. Considering the fact that the order dated 1st May, 1998 allowing the application of the petitioner workman was conditional upon his paying costs of Rs. 100/- to the respondent management by 21st May, 1998, the petitioner workman ought to have been vigilant in complying with the orders of the Tribunal more so when he was seeking setting aside of an exparte no relief award passed against him. However, the same did not happen and the petitioner/workman again went unrepresented on 21st May, 1998, nor was compliance of the orders dated 1st May, 1998 made by the said date, thus resulting in the file being consigned to the record room.

10. After a month and half, the petitioner workman filed an application for setting aside the order dated 21st May, 1998. The explanation offered in the said application has rightly not inspired any confidence in the Tribunal as on the face of it, the averments made in the application are self-contradictory. The averments made in the application that on 1.5.1998, the authorised representative of the petitioner workman wrongly noted the next date of hearing as 4th June, 1998 instead of 21st May, 1998 while reading the orders passed by the court has been disbelieved by the Tribunal on the ground that when the arguments were heard on 29th April, 1998, both the parties were duly represented and the matter was fixed for orders on 1st May, 1998 in their presence. Further, despite the fact that the authorised representative of the petitioner workman came to know of the said orders in the afternoon of 21st May, 1998 the last date of paying the costs, no efforts were made to comply with the said order. Also, the diary of the authorised representative of the petitioner workman was not placed on record in support of his contention that the date was wrongly noted. Considering all the aforesaid facts of the case, the Tribunal was justified in not accepting the explanation offered for setting aside the orders dated 21st May, 1998 and in rejecting the application of the petitioner workman.

11. The plea raised by the counsel for the petitioner workman that the Tribunal did not have power to dismiss a case for failure to deposit costs, is misconceived as it was not the claim petition of the petitioner workman that was dismissed but the application for restoration which was disallowed for non-payment of costs imposed at the time of filing the earlier application for restoration. Also, the reliance placed by the counsel for the petitioner workman on the judgments in the cases of Raj Kishore Gupta (supra) and Ram Bahadur Singh (supra) is misconceived because the said cases specifically deal with the powers of the court in respect of Section 35B of CPC, whereas in the present case the issue is as regards Section 11(7) of the Act, which gives unfettered powers to the Industrial Tribunal/Labour Court to impose costs and issue directions in that respect.

12. Vast powers are conferred on the Industrial Tribunal/Labour Court in the I.D. Act for the purposes of deciding a reference of dispute and it cannot be held that the same can be stultified by giving a narrow interpretation to the provisions of Section 11(7) of the Industrial Disputes Act, as sought to be pleaded by the counsel for the petitioner workman. In fact, a perusal of the provisions of Section 11(7) of the Industrial Disputes Act shows that the legislature has conferred complete discretion on the Industrial Tribunal/Labour Court by stating that the said courts shall have full power to determine by whom, to whom and to what extent and subject to what conditions, if any, such costs are to be paid and also to give necessary directions for the aforesaid purposes. While stating so, the said provision goes on to stipulate that such costs may, on an application being made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as arrears of land revenue. The court can, therefore, not accept the plea of the counsel for the petitioner that the Industrial Tribunal was not vested with the power to allow the restoration application of the petitioner conditional upon payment of costs within a stipulated time.

13. A perusal of the record shows that the petitioner workman has not been vigilant and diligent in prosecuting the present proceedings as well inasmuch as the writ petition has been filed by the petitioner only on 15th April, 2004, i.e. after a lapse of two and a half years from the date of the rejection order passed by the Tribunal. The explanation offered by the petitioner workman by filing an additional affidavit referring to the ill-health of his wife and his financial unsoundness is not convincing and is not acceptable in the light of the past conduct of the petitioner/workman.

14. Much water has flown under the bridge in the past over a decade. Considering the long lapse of time from the date of making of the reference in the year 1996, even on merits, this Court is of the view that no useful purpose would be served by setting aside the award dated 20th December, 1996 and the impugned orders dated 1st May, 1998, 21st May, 1998 and 5th February, 2002. This Court is not inclined to exercise the discretion vested in it under Article 226 of the Constitution of India in favor of the petitioner.

15. The writ petition is therefore rejected. No order as to costs.