The Management Of M/S. General ... vs Satish Kumar
2011 Latest Caselaw 2311 Del

$~6.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LETTERS PATENT APPEAL NO. 923/2010

                              Judgment delivered on : 29th April, 2011

       THE MANAGEMENT OF M/S. GENERAL INDUSTRIES
       COMPANY AND ANOTHER                ..... Appellants
                   Through Ms. Kum Kum Jain, Advocate.

                     Versus

       SATISH KUMAR                                      ..... Respondent

Through Nemo.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ? YES.

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

SANJIV KHANNA, J.:

In this intra-Court appeal filed by the General Industries

Company, the appellant, the challenge is to the order dated 5th

October, 2010 by which the learned single Judge has dismissed

the Writ Petition (Civil) No. 10507/2006. In the said writ petition,

the appellant had challenged the ex parte impugned award

dated 8th December, 2004 passed by the Industrial Adjudicator

in I.D. No. 346/1999. By the said award, the Industrial

Adjudicator had held that the appellant had not been able to

prove and establish misconduct by the respondent-workman.

The respondent had worked for nine years but instead of

reinstatement and backwages, lumpsum compensation of

Rs.70,000/- has been directed to be paid by the appellant to the

respondent. The appellant had also challenged the order dated

10th March, 2006 dismissing his application for setting aside the

ex parte award.

2. The industrial dispute was referred vide order dated 14th

July, 1999. The respondent had filed statement of claims stating

that he had started working with the appellant with effect from 3rd

April, 1989 but his services were terminated on 14th October,

1998. His last drawn wages were Rs.2,361/- per month. The

averments in the statement of the claims were proved by the

respondent by evidence by way of affidavit. The respondent

denied that he was absenting from duties or was threatening the

management. He had stated that he was unemployed but his

wife was working in an export house. He had his own house.

The appellant had filed written statement but did not lead

evidence and failed to prove that the services of the respondent-

workman were terminated in accordance with law.

3. The aforesaid award was made on 8th December, 2004

and was published in the gazette on 27th July, 2005. On 19th

September, 2005, the appellant filed an application for setting

aside the ex parte award. By order dated 10th March, 2006, the

application for setting aside of the ex parte award was dismissed

by the Industrial Adjudicator holding, inter alia, that the same

had been filed beyond 30 days of publication of the award and,

therefore, the Labour Court had become functus officio.

4. Learned single Judge in the impugned order dated 5th

October, 2010 has noticed the said facts and has dismissed the

writ petition. He has upheld the finding of the Industrial

Adjudicator given in the order dated 10th March, 2006 that he

had become functus officio after 30 days of the publication of the

award and, therefore, he did not have jurisdiction and authority

to recall the ex parte award.

5. Learned counsel for the appellant has relied upon Anil

Sood versus Presiding Officer, Labour Court II, (2001) 10

SCC 534 and Radhakrishna Mani Tripathi versus L.H. Patel

and Another, (2009) 1 SCC (L&S) 358 and it is submitted that

the Industrial Adjudicator did not become functus officio after 30

days of the publication of the award and, therefore, had

jurisdiction to entertain the application for setting aside of the ex

parte award.

6. In Radhakrishna Mani Tripathi (supra), the ex parte

award was made on 12th June, 1998 and was published on 5th

August, 1998 and on 29th January, 1999 the application was

filed for recall of the award. The Supreme Court held that the

Industrial Tribunal was competent to entertain the application for

setting aside of the ex parte award and upheld the judgment of

the High Court. However, what is relevant and material is that

the case was governed by the Industrial Disputes (Bombay)

Rules, 1957 (Bombay Rules, for short). Rule 26(2) of the

Bombay Rules postulate that an application for setting aside of

an ex parte award, order or decision can be made within 30

days of the receipt of the copy thereof. In Radhakrishna Mani

Tripathi (supra), it was noticed that the application for setting

aside of the award was filed within 2 days of the receipt of the

copy of the award and was within the time stipulated in Rule

26(2) of the Bombay Rules. Bombay Rules are not applicable in

Delhi.

7. In Radhakrishna Mani Tripathi (supra), reference was

made to the judgment of the Supreme Court in Grindlays Bank

Limited versus Central Government Industrial Tribunal,

1981 SCC (L&S) 309 as well as the judgment in the case of Anil

Sood (supra). It was held that the reliance placed on these two

decisions and Section 17A of the Act which deals with

enforcement of the awards does not negate and is not

repugnant to Rule 26(2) of the Bombay Rules. There was no

conflict or contradiction between the two and Rule 26(2) of the

Bombay Rules operates within its own field.

8. Judgment in the case of Anil Sood (supra) was

considered by the Supreme Court in M/s. Sangham Tape

Company versus Hans Raj, (2005) 9 SCC 331. In the said

case, the ex parte award was passed on 5th February, 1996 but

the application for setting aside the ex parte award was made

after a lapse of 30 days from the date of publication. The

application was allowed and the ex parte award was set aside.

This order was successfully challenged before the High Court,

which allowed the writ petition. The matter was taken to the

Supreme Court but without success. Decision of the Supreme

Court in Grindlays Bank Limited (supra) was referred to and

was explained as under:-

"8. The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award but having regard to the provision contained in

Section 17-A of the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto that date, it has the power to entertain an application in connection with such dispute."

9. It is clear from the aforesaid paragraph that the decision in

the case of Grindlays Bank Limited (supra) holds that the

Industrial Adjudicator has jurisdiction to set aside the ex parte

award but having regard to the provisions of Section 17A of the

Act, an application for setting aside an ex parte award must be

filed before expiry of 30 days from the publication of the award

and not afterwards. If an application for setting aside an ex

parte award is filed after 30 days of the publication of the award,

then the Industrial Adjudicator will not have jurisdiction to

entertain the said application as he becomes functus officio.

This is clear from paragraph 8 quoted above and from the

following observations in Sangham Tape Company (supra):-

"10. In view of this Court's decision in Grindlays Bank (supra), such jurisdiction could be exercised by the Labour Court within a limited time-frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any

jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the Gazette, the same having become enforceable, the Labour Court would become functus officio."

10. Judgment in the case of Anil Sood (supra) was also

considered by the Supreme Court in M/s. Sangham Tape

Company (supra) and it was observed as under:-

"12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact, situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh v. State of Maharashtra (2004) 2 SCC 362]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession."

11. In the light of the aforesaid discussion, reliance placed by

the appellant on Radhakrishna Mani Tripathi (supra) and Anil

Sood (supra) is misconceived. It may be noted here that a

Division Bench of this Court has taken similar view in LPA No.

860/2010 titled Greaves Cotton Limited versus Government

of NCT of Delhi and Others, decided on 6th December, 2010.

12. In view of the aforesaid, we do not find any merit in the

present appeal and the same is dismissed.

SANJIV KHANNA, J.

CHIEF JUSTICE

APRIL 29, 2011 VKR