Greaves Cotton Limited vs Government Of Nct Of Delhi & Ors.
2010 Latest Caselaw 4562 Del

*            HIGH COURT OF DELHI : NEW DELHI

                     W.P (C) No. 4809 of 2007


GREAVES COTTON LIMITED                      ......Petitioner
              Through: Mr. D. R. Thadani, Adv.


                      Versus


GOVERNMENT OF NCT OF DELHI & ORS.          ....Respondents
              Through: Mr. B. K. Pal, Adv.


                                 Judgment decided on : 28.09.2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    No

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

MANMOHAN SINGH, J.

1. The present writ petition has been filed by the petitioner

under Articles 226 and 227 of the Constitution of India seeking

direction to quash the order dated 09.05.2007 passed by the Labour

Court whereby the Presiding Officer allowed an application filed by the

respondent No.3 in October 2002 for setting aside the ex-parte award

dated 1.8.2002.

2. The brief facts of the case leading up to the present writ

petition are that the petitioner is a Public Limited Company registered

under Section 3 of the Indian Companies Act, 1956 with its registered

office at Mumbai and regional office in New Delhi. The respondent No.

3 claims to be an employee of the petitioner and he moved the

respondent Nos. 1& 2 for conciliation and for making a reference to the

Labour Court regarding a dispute of his alleged termination by the

petitioner. The petitioner was issued a notice and therefore the petitioner

made an appearance before the respondent Nos. 1 & 2 and denied

having any employer and employee relationship with the respondent

No.3.

3. Since no settlement could be arrived at between the parties,

Respondent Nos. 1 & 2 passed the order dated 24.04.1995 referring the

dispute to the Labour Court to decide the following :

"Whether the services of Sh. Abhay Singh Yadav have been terminated illegally and/or unjustifiably by the management and if so, then what relief is he entitled and what directions are necessary in this respect"

4. In his statement of claim filed before the Labour Court on

01.09.1995 respondent No.3 stated that he was employed as driver with

the petitioner w. e. f. 25.07.1991 and on 29.11.1991 his services were

illegally terminated by the petitioner. The petitioner denied the claim of

the respondent No.3 and further stated that infact respondent No. 3 was

employed by Shri Y. K. Chib who was the Dy. Regional Manager of the

petitioner as his personal driver. During the proceedings the matter was

adjourned from time to time and the workman/respondent No. 3

remained absent on five hearings, ultimately on 22.07.2002 when the

matter was listed for cross-examination of respondent No. 3 who was

again absent, the matter was reserved for orders and on 01.08.2002 an

Ex-parte Award was passed by the Labour Court.

5. Admittedly, an application for setting aside the order dated

1.8.2002 was made by the respondent No.3 on 22.10.2002. The award

was published on 21.2.2003 and it became enforceable with effect from

23.3.2003.

6. The finding of the Labour Court is that since the application

for restoration was pending before the award was enforced, therefore,

the Court had the jurisdiction to deal with the same.

7. The learned counsel for the petitioner has argued that under

the Scheme of Industrial Disputes act, 1947, the file is deemed to have

been withdrawn from the Labour Court on the enforcement of the award

and the Court having become functous officio on the enforcement had

no further jurisdiction to deal with the matter in any manner whatsoever.

It is further argued that after passing the award, the dispute was no

longer pending before the Labour Court. Therefore, the application

filed by the respondent No.3 could not have been entertained by the

Labour Court. In support of his submissions, he has referred to the

following judgments:

1. Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, 1980 (Supp.) SCC

2. Sangham Tape Co. Vs. Hans Raj, 2005 (9) SCC

3. Jammu Tehsil Vs. Hakumar Singh and Others, 2007 (1) SCC (L & S) 940.

4. Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu (Dead) Through Legal Representative, 1971 (3) SCC 124.

5. Shiv Kumar Sharma Vs. Santosh Kumari, 2007 (8) SCC 600.

6. Hari Singh Mann Vs. Harbhajan Singh Bajwa

and Others, 2001 (1) SCC 169.

7. M/s. Lakshmiratan Engineering Works Ltd. Vs. Asst. Commissioner (Judicial) I. Sales Tax, Kanpur Range, Kanpur and another, AIR 1968 SC 488.

8. After having gone through the judgments referred to by the

learned counsel for the petitioner, I am of the considered view that none

of the judgments referred will help the case of the petitioner. The crux

of the law is that the application for setting aside ex-parte award is not

maintainable after the publication of the award as under Section 17-A of

the Act and an award becomes enforceable after the expiry of 30 days

from the date of its publication and thereafter Tribunal becomes

functous officio on the date of enforcement. However, at the same time

the Tribunal would be deemed to continue till the date on which the

award becomes enforceable under Section 17-A of the Act retain

jurisdiction over the dispute referred to it for adjudication and upto date

it has the power to entertain the applications in connection with such

dispute. The jurisdiction of the Tribunal had to be seen on the date of

the application made to it. Nothing contrary has been held in the

decisions referred by the learned counsel for the petitioner. On the

contrary, the said decisions do help the case of the respondent No.3.

Thus, the Tribunal rightly took the view that since the application for

recalling the order was made before the award had become enforceable

and the Tribunal under these facts of the case had not become functous

officio and had jurisdiction to entertain the application for recalling the

order.

9. For the above said reasons, I am of the considered view that

the present writ petition deserves to be dismissed. No costs.

MANMOHAN SINGH, J.

September 28, 2010 jk/dp