WP(C)/4954/2016
2024 Latest Caselaw 8223 Gua

Gauhati High Court

WP(C)/4954/2016 on 11 November, 2024

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                             Page No.# 1/10

GAHC010173012016




                                                        2024:GAU-AS:10994

                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/4954/2016

     Burnie Braes Tea Estate,
     Rep. by its Manager, Burnie Braes Tea Company,
     Having its registered office at 12,
     India Exchange Place, Kolkata,
     West Bengal, Pin- 700001,
     P.O. Burnie Braes, Dst- Hailakandi,
     Assam, Pin-788801.
                                                           .....Petitioner.
                        -Versus-


     1. The State of Assam,
     To be Rep. by the Commissioner and Secy.
     To the Govt. of Assam,
     Deptt. of Labour and Employment,
     Assam Civil, Secretariat, Dispur, Ghy- 6.


     2. The Presiding Officer,
     Industrial Tribunal,
     Cachar, Silchar, Dist.- Cachar
     Assam, Pin- 788001.

     3. The Labour Commissioner, Assam
     Guwahati- 781016.
                                                                      Page No.# 2/10

     4. The Dy. Commissioner,
     Hailakandi, P.S. and Dist.- Hailakandi
     Assam, Pin- 788001.

     5. The Secretary,
     Barak Cha Sramik Union
     Silchar, Dist. - Cachar
     Assam, Pin- 788001.

     6. Amita Rabi Das @ Anita Rabi Das
     W/O- Sri Jahar Rabi Das Retrenched Workman
     Burni Breas, Dist.- Hailakandi, Assam, Pin- 788113.


                                                                 ......Respondents.
                                       BEFORE
               HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA


     Advocate for the Petitioner              : Mr. A. B. Dey.

     Advocate for the respondents             : Mr. K. Gogoi.

     Date of hearing & judgment               : 11.11.2024

                                   JUDGMENT & ORDER


     Heard Mr. A. B. Dey, learned counsel for the petitioner. Also heard Mr. K.
Gogoi, learned counsel for the respondent Nos. 1, 2, 3 & 4. No one appears for
the respondent Nos. 5 & 6.


2.   The management (writ petitioner) has made a challenge to the ex-parte
Award dated 24.08.2015 passed by the learned Industrial Tribunal, Cachar,
Silchar (hereinafter referred to as the learned Tribunal) in Reference Case No.
1/2014. The petitioner has also made a challenge to the order dated 22.06.2016
passed in Misc. Case No. 1/2016, which was an application filed by the
petitioner under Order IX Rule 13 CPC, for modification/vacation of the ex-parte
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Award dated 24.08.2015.


3.   The case of the workman (respondent No. 6) is to the effect that she was
a permanent worker at Burni Breas Tea Estate, Hailakandi and that she was
terminated illegally by the petitioner without any cause. The workman's further
case is that before termination of her service, the management did not issue
any show cause notice, which was mandatory.


4.    To cut a long story short, the following issues were framed by the
Government to be decided by the learned Tribunal, which are as follows:-


     "(i)   Whether the management was justified in effecting work stoppage to the
     workman since July, 2009?

     (ii) Whether the workman was entitled to reinstatement with full back wages
     including other fringe benefits."

5.   The petitioner did not participate in the proceedings before the learned
Tribunal, despite being given time for filing written statement, on the asking of
the petitioner. The learned Tribunal thereafter took the evidence of the workman
and passed the impugned ex-parte Award dated 24.08.2015 in Reference Case
No. 1/2014, by directing reinstatement of the petitioner with full back wages.


6.   The writ petitioner (management) thereafter submitted Misc. Case No.
1/2016 before the learned Tribunal under Order IX Rule 13 read with Section
151 CPC, for vacating the ex-parte Award dated 24.08.2015. Misc. Case No.
1/2016 was dismissed, vide order dated 22.06.2016, on the ground that Order
IX Rule 13 CPC was not attracted, keeping in view the fact that a petition dated
30.01.2014 had been filed by the petitioner in Reference Case No. 1/2014,
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seeking time to file written statement and after that, the petitioner had not
appeared on his own volition before the learned Tribunal.


7.   The petitioner has thereafter filed the present writ petition, praying for
setting aside the ex-parte Award dated 24.08.2015 passed in Reference Case
No. 1/2014 and the order dated 22.06.2016 passed in Misc. Case No. 1/2016.


8.   The petitioner's counsel submits that the petitioner had submitted a letter
dated 30.01.2014 in Reference Case No.1/2014, which the learned Tribunal
should have accepted as the written statement of the petitioner. He further
submits that the management neither terminated the service of the respondent
No. 6 nor initiated any domestic proceeding against her. As the respondent No.
6 was absent from service from June, 2009, the petitioner had no other
alternative, but to stop making payment of wages on account of no work no
pay. He also submits that though the management had repeatedly informed the
respondent No. 6 to attend to her duties, but she neither attended to her duties,
nor gave reasons for her absence to the management. He submits that due to
there being no Presiding Officer, for a certain period of time to preside over the
learned Tribunal, the petitioner was expecting that a notice would be issued to
it, as and when the Presiding Officer started presiding over the learned Tribunal,
without realising that the concerned District Judge was in-charge Presiding
Officer of the learned Tribunal, during the absence of the Presiding Officer. He
accordingly submits that the ex-parte Award dated 24.08.2015 and the order
dated 22.06.2016 passed in Reference Case No. 1/2014 and Misc. Case No.
1/2016 respectively, should be set aside and the matter should be remanded
back to the learned Tribunal, to enable the petitioner to file his written
statement and contest Reference Case No. 1/2014.
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9.     The petitioner's counsel submits that as the petitioner was prevented from
sufficient cause from appearing before the learned Tribunal and in terms of
Order IX Rule 13 CPC, the ex-parte Award dated 24.08.2015 can be set aside,
upon such terms that may be allowed by this Court to be just, subject to
payment of cost.


10. Mr. K. Gogoi, learned counsel for the respondent Nos. 1 to 4 submits that
the ex-parte order dated 24.08.2015 passed in Reference Case No. 1/2014 was
published in the Assam Gazette on 15.02.2016, which has been referred to in
the letter dated 21.03.2016 issued by the Assistant Labour Commissioner,

Silchar, i.e. Govt. Notification No. GLR.216/2013/15 dated Dispur, the 15 th

February, 2016, having Memo No. GLR.216/2013/15-A dated Dispur, the 15 th
February, 2016.


11.     The counsel for the respondent Nos. 1 to 4 submits that in terms of
Section 17(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the
Act), subject to the provision of Section 18(A), an award published under Sub-
section (1) of Section 17 shall be final and cannot be called into question by any
Court in any manner whatsoever. Section 17 of the Act states as follows:-


      "17. Publication of Reports and Awards -
        (2) Subject to the provisions of Section 17-A, the award published under sub-
       section (1) shall be final and shall not be called in question by any Court in any
       manner whatsoever.


12. The counsel for the respondent Nos. 1 to 4 further submits that the letter
dated 30.01.2014 issued by the Manager of the writ petitioner cannot be
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considered to be a written statement, inasmuch as, the petitioner's application
under Order IX Rule 13 CPC in Misc. Case No. 1/2016, states that on receiving
notice from the Court on 26.01.2014, the management filed one petition on
30.01.2014, praying for time for filing written statement. He accordingly submits
that as it is not denied by the petitioner that notice was received by the
petitioner, Order IX Rule 13 CPC would not be attracted. Due to the non-
submission of a written statement and non-appearance of the petitioner before
the learned Tribunal in Reference Case No. 1/2014, the passing of the ex-parte
Award by the learned Tribunal did not suffer from any infirmity. Similarly, there
was no infirmity in dismissing the application under Order IX Rule 13 read with
Section 151 CPC in Misc. Case No. 1/2016.


13. I have heard the learned counsels for the parties.


14.   In the ex-parte Award dated 24.08.2015 passed in Reference Case No.
1/2014, the learned Tribunal has made the following observation:-


            "After receipt of the said Reference Case from the Government, notice
      had been issued to the both sides to submit their respective W/S. In response
      notice issued by the Court. Union side has appeared through their counsel and
      submitted their written statement. In spite of receipt of the notice,
      management side did not turn up to submit their W/S. Although management
      has received notice issued by the Court and sought time to submit their W/S.
      Accordingly, petition submitted by the management side is allowed. After the
      aforesaid petition, management side did not turn up to submit their written
      statement. Although several opportunities were given to the management side
      to submit their W/S and ultimately this Court, Vide Order dated 13.02.2015,
      passed an order that this case will proceed ex parte against the management.
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     ............................

Learned counsel on behalf of management side had failed to appear in the Court, so evidence led by the Union side remains unchallenged."

15. The learned Tribunal passed the operative portion of the ex-parte Award dated 24.08.2015 in Reference Case No. 1/2014 as follows:-

"Considering all aspects and evidence adduced by the union side and perusal of the documents submitted by the union side, order passed by the management for stoppage of work of the delinquent workman since July 2009 Is 'set aside. As management has failed to contest this case and also failed to justify the stoppage of work of the delinquent workman since July 2009 by providing sufficient documentary evidence. So, the workman is to be reinstated to her service with all full back wages. Award is accordingly passed with the aforesaid observations. Send 5 (five) copies of award to the Government for notification in the Official gazette. This case is accordingly disposed of ex parte. Award is accordingly passed with the aforesaid observations.

Send 5 (five) copies of award to the Government for notification in the Official gazette.

This case is accordingly disposed of ex-parte.

Given under my hand and seal of this Court, this 24th day of August, 2015."

16. The observations of the learned Tribunal made in the ex-parte Award dated 24.08.2015 clearly show that the writ petitioner had received notice and had also sought time to file written statement, which it did not do so. The petitioner also failed to appear before the learned Tribunal on subsequent dates. Though Page No.# 8/10

the petitioner has tried to make out a case that the letter dated 30.01.2014 issued by the Manager of the writ petitioner company should have been treated as a written statement by the learned Tribunal, para 2 of the petitioner's petition under Order IX Rule 13 CPC petition, registered as Misc. Case No. 1/2016 before the learned Tribunal, goes to show that the same could not be treated as a written statement, as the said letter was for seeking time to file written statement.

17. Para 2 of the petitioner's Misc. Case 1/2016 is reproduced herein below as follows:-

"2. That the Management side received notice from the Court on 26.01.2014, and the date was fixed on 30.01.2014 for appearance and W/S. Accordingly, the Management side filed one petition on 30.01.2014, praying for time for filing the W/S objection."

18. The petitioner's Order IX Rule 13 CPC petition was made on 19.04.2016, while the ex-parte order dated 24.08.2015 was notified in the official Gazette earlier, i.e. on 15.02.2016.

19. The above being said, Order IX Rule 13 CPC provides that the Court shall make an order for setting aside the ex-parte order, if the Court is satisfied that summons were not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing.

20. Order IX Rule 13 CPC states as follows:-

"13. Setting aside decree ex-parte against defendants - In any case in Page No.# 9/10

which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

1[Provided further than no Court shall set aside a decree passed ex parte

merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.]

2[Explanation.--Where there has been an appeal against a decree passed

ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] "

21. On a query raised by this Court to the writ petitioner's counsel as to whether the respondent No. 6 was working at present with the writ petitioner, the petitioner's counsel submits that he does not have any instruction/knowledge with regard to the above query.

22. On considering the fact that the petitioner had consciously failed to file the written statement, even though it had asked for time to file the written statement, besides not appearing on subsequent dates fixed by the learned Page No.# 10/10

Tribunal without giving sufficient cause for the same, this Court does not find any infirmity with the learned Tribunal in passing the ex-parte Award dated 24.08.2015. With regard to the challenge made to the rejection of the petitioner's application under Order IX Rule 13 CPC, this Court is of the view that the said provision is not attracted to the facts of this case, as the petitioner had received notice and no sufficient cause/reason has been shown as to why the petitioner did not appear before the learned Tribunal on subsequent dates.

23. Accordingly, in view of the above reasons, this Court does not find any ground to exercise its discretion in this case. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant