Madras High Court
The Superintending Engineer vs The Presiding Officer on 6 July, 2021
W.A.No.2553 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.2553 of 2018
and C.M.P.No.20565 of 2018
1.The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Ltd.,
Mettur Electricity Distribution Circle,
Mettur Dam - 01,
Salem District - 638 401.
2.The Chief Engineer/Distribution,
Erode Region,
Tamil Nadu Generation and Distribution
Corporation Ltd.,
Erode - 638 009. .. Appellants
Vs
1.The Presiding Officer,
Labour Court,
Salem.
2.P.Duraisamy .. Respondents
Appeal filed under Clause 15 of Letters Patent against the order
dated 11.12.2017 made in W.P.No.32026 of 2017.
For Appellants : Mr.Karthikrajan
For Respondents : R1 - Court
No appearance for R2
Page 1 of 9
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
Heard the learned counsel appearing for the appellants. Despite
service of notice and the name of the second respondent having been
printed in the cause list, there is no representation on behalf of the
contesting respondent.
2.The appeal lies in a very narrow compass. The second
respondent was an employee of the appellant. The appellants imposed
the punishment of stoppage of increment for a period of two years
with cumulative effect after conducting enquiry. This was put to
challenge before the Labour Court by filing I.D.No.129 of 2013. The
appellants were set exparte. They filed an application to set aside the
exparte award. That was dismissed on the ground that the award has
been published and therefore the Labour Court has become functus
officio. Challenging the same, the writ petition was filed. The learned
single Judge dismissed the writ petition and hence the appeal.
3.Placing reliance upon the judgment of the Apex Court in
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
Haryana Suraj Malting Limited Vs. Phool Chand ((2018) 16 SCC
567), learned counsel for the appellant submitted that the aforesaid
view as expressed by the Labour Court, confirmed by the learned
single Judge is contrary to law. Reliance has been made on the
following paragraphs:
27. In Radhakrishna Mani Tripathi (supra) the argument was that
Rule 26 (2) of the Industrial Disputes (Bombay) Rules is ultra
vires. The Rule as quoted in the decision, to the extent relevant,
reads as follows:
“(2) Where any award, order or decision is made ex parte under
sub-rule (1), the aggrieved party, may within thirty days of the
receipt of a (2006) 12 SCC 193 copy thereof, make an application
to the Board, Court, Labour Court, Tribunal or an arbitrator, as the
case may be, to set aside such award, order or decision. If the
Board, Court, Labour Court, Tribunal or arbitrator is satisfied that
there was sufficient cause for non-appearance of the aggrieved
party, it or he may set aside the award, order or decision so made
and shall appoint a date for proceeding with the matter:
Provided that, no award, order or decision shall be set aside on
any application as aforesaid unless notice thereof has been served
on the opposite party.” It was contended that under Section 17-
A of the Act an award becomes enforceable on expiry of 30 days
from the date of its publication whereupon the Labour Court is
rendered functus officio. Reliance was placed on certain
observations in Grindlays (supra) and it was further submitted that
the provision of Rule 26(2) of the Bombay Rules was in derogation
of Section 17-A of the Act. However, the Court held as follows:
“15. Similarly, the Court pointed out in Grindlays Bank, the
provision of Rule 24(b) empowered the Industrial Courts to refuse
to adjourn the hearing and to proceed ex parte. Hence, in a case
in which the Industrial Court makes an ex parte award the
provisions of Order 9 Rule 13 CPC would be clearly attracted.
It logically follows that the Tribunal is competent to entertain an
application to set aside an ex parte award. (Vide para 12 of the
decision.) The Court thus founded the Industrial Court’s
jurisdiction and power to recall an ex parte award on Rules 22 and
24(b) of the Central Rules. It is thus to be seen that in
Grindlays Bank what this Court held to be implicit in Rule 22 of the
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
Central Rules is made explicit and clear in the Bombay Rules in the
form of sub-rule (2) of Rule 26.”
28. After referring to and quoting paragraph-14 in Grindlays
(supra), it was further held that:
“16. ...From the above quotation it would appear that in Grindlays
Bank the recall application was filed within thirty days from the
date of publication of the award and hence, the objection raised on
the basis of Section 17-A did not arise in this case. In Grindlays
Bank this Court did not say that the Industrial Courts would have
no jurisdiction to entertain an application for setting aside an
award made after thirty days of its publication. Nevertheless, on
the basis of the passage marked in italics in the above quotation
Ms Issar strongly contended that that is the true import of the
judgment.
17. We are unable to accept. The position is made clear in the
later decision in Anil Sood v. Labour Court. In Anil Sood
interestingly the Labour Court had rejected the recall application
on the very same ground that after making the award it became
functus officio in the matter. The order of the Labour Court was
challenged before the High Court but the High Court also took the
same view. In appeal this Court noted that the award was made
on 11-9-1995 and the application for its recall was filed on 6-11-
1995. …
18.In light of the decision in Anil Sood we find no substance in the
appellant's submission based on Section 17-A of the Act. There
being no substance in the first limb of the submission there is no
question of any conflict between Rule 26(2) of the Bombay Rules
and Section 17-A of the Act.” (Emphasis supplied)
29. Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and
Weaving Mills Ltd. and Another 7 is a decision by a Bench of 3
Judges which has also referred to Grindlays (supra). It is a case
where the award was made on 12.06.1987 and published on
10.08.1987. The recall application was made on 07.09.1987,
before the expiry of the 30 days period provided under Section
17A. It is also to be noted that the application for recall of the
award was with a prayer for raising an additional issue. To quote
from paragraph-20 of the judgment, “...The recall of the award of
the Tribunal was sought not on the ground that in passing the
award the Tribunal had committed any procedural illegality or
mistake of the nature which vitiated the proceeding itself and
consequently the award, but on the ground that some matters
which ought to have been considered by the Tribunal were not
duly considered. (2005) 13 SCC 777 Apparently the recall or
review sought was not a procedural review, but a review on
merits. Such a review was not permissible in the absence of a
provision in the Act conferring the power of review on the Tribunal
either expressly or by necessary implication.” Therefore, Kapra
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
(supra) is distinguishable on facts and on the question of law dealt
with therein: it was a case of substantive review whereas, setting
aside an ex parte award is a matter of procedural review. In the
case of procedural review, as held in Kapra (supra), the party “...
has to establish that the procedure followed by the court or the
quasi-judicial authority suffered from such illegality that it vitiated
the proceeding and invalidated the order made therein, inasmuch
as the opposite party concerned was not heard for no fault of his,
or that the matter was heard and decided on a date other than the
one fixed for hearing of the matter which he could not attend for
no fault of his. In such cases, therefore, the matter has to be
reheard in accordance with law without going into the merit of the
order passed. The order passed is liable to be recalled and
reviewed not because it is found to be erroneous, but because it
was passed in a proceeding which was itself vitiated by an error of
procedure or mistake which went to the root of the matter and
invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central
Govt. Industrial Tribunal it was held that once it is established that
the respondents were prevented from appearing at the hearing
due to sufficient cause, it followed that the matter must be
reheard and decided again.”
30. Therefore, all the decisions hereinabove noted by us referred
to Grindlays (supra). On a close reading of paragraph-14 of
Grindlays (supra), in the background of the analysis of law under
paragraphs-10 to 13, it is difficult for us to comprehend that the
power to set aside an ex parte award is not available to a Labour
Court/Industrial Tribunal. On the principles of natural justice, and
on a purposive interpretation of the scheme of the Act and Rules,
we find it difficult also to discern that the ratio of the decision in
Grindlays (supra), is what is stated in paragraph-14 to the extent
that an application for setting aside an ex parte award has to be
filed within 30 days of publication of the award. On the contrary,
the ratio in Grindlays (supra) is that the Tribunal can exercise its
ancillary and incidental powers, on the broader principles
contained under Order IX Rule 13 of the CPC. No doubt,
the Limitation Act, 1963 is not applicable to the Labour
Court/Tribunal8.
31. In Union of India and another v. Paras Laminates (P) Ltd9 this
Court held that the legislature has intended and has conceded
certain powers to the tribunals in their assigned field of jurisdiction
for the efficacious and meaningful exercise of their power. Such
powers are implied in every tribunal unless expressly barred. “8.
There is no doubt that the Tribunal functions as a court within the
limits of its jurisdiction. It has all the powers conferred expressly
by the statute. Furthermore, being a judicial body, it has all those
incidental and ancillary powers which are necessary to make fully
effective the express grant of statutory powers. Certain powers are
recognised as incidental and ancillary, not because they are
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
inherent in the Tribunal, nor because its jurisdiction is plenary, but
because it is the legislative intent that the power which is
expressly granted in the assigned field of jurisdiction is
efficaciously and meaningfully exercised. The powers of the
Tribunal are no doubt limited. Its area of jurisdiction is clearly
defined, but within the bounds of its jurisdiction, it has all the M.P.
Steel Corporation v. Commissioner of Central Excise (2015) 7 SCC
58; Nityananda, M. Joshi and others v. Life Insurance Corporation
of India and others (1969) 2 SCC 199. (1990) 4 SCC 453 powers
expressly and impliedly granted. The implied grant is, of course,
limited by the express grant and, therefore, it can only be such
powers as are truly incidental and ancillary for doing all such acts
or employing all such means as are reasonably necessary to make
the grant effective. As stated in Maxwell on Interpretation of
Statutes (11th edn.) “where an Act confers a jurisdiction, it
impliedly also grants the power of doing all such acts, or
employing such means, as are essentially necessary to its
execution”. [See also ITO v. M.K. Mohammed Kunhi].” In J. K.
Synthetics Ltd v. Collector of Central Excise10, while dealing with
a case from the Customs, Excise and Gold (Control) Appellate
Tribunal (CEGAT), this Court went a step further to hold that there
are certain inherent powers vested in every tribunal in regulating
their own procedure. It held at paragraph-6 as follows:
“6. If, in a given case, it is established that the respondent was
unable to appear before it for no fault of his own, the ends of
justice would clearly require that the ex parte order against him
should be set aside. Not to do so on the ground of lack of power
would be manifest injustice. Quite apart from the inherent power
that every tribunal and court constituted to do justice has in this
respect, CEGAT is clothed with express power under Rule 41 to
make such order as is necessary to secure the ends of justice.
CEGAT has, therefore, the power to set aside an order passed ex
parte against the respondent before it if it is found that the
respondent had, for sufficient cause, been unable to appear.”
32. In case a party is in a position to show sufficient cause for its
absence before the Labour Court/ Tribunal when it was (1996) 6
SCC 92 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.
33. 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
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
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, an award which may be a nullity will have to
be technically enforced. It is difficult to comprehend such a
situation under law.
34. 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.”
35. 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.
4.In the light of the aforesaid pronouncement, we are of the
view that the order passed by the Labour Court in I.A.No.445 of 2014
as confirmed by the learned single Judge requires to be interfered
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
with. We are also satisfied with the reasons assigned for the
condonation of delay. After all, the appellant seeks an adjudication on
merit.
5.In such view of the matter, we are inclined to set aside the
order passed in I.A.No.445 of 2014 and as confirmed by the learned
single Judge in W.P.No.32026 of 2017. Consequently, I.A.No.445 of
2014 stands ordered and the Labour Court is directed to decide the
dispute on merit. Taking into consideration the fact that the claim
petition in I.D.No.129 of 2013 is pending for quite number of years,
the Labour Court is directed to dispose of the same within a period of
four months from the date of receipt of a copy of this judgment.
6.With the above observation, the writ appeal stands allowed. No
costs. Consequently, connected miscellaneous petition is closed.
(M.M.S., J.) (R.N.M., J.)
06.07.2021
Index:Yes/No
mmi/ssm
To
The Presiding Officer,
Labour Court, Salem.
https://www.mhc.tn.gov.in/judis/
W.A.No.2553 of 2018
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
W.A.No.2553 of 2018
06.07.2021
https://www.mhc.tn.gov.in/judis/
