Madras High Court
The Management Of Murali ... vs The Presiding Officer on 29 September, 2021
W.A.No.1133/2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.09.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.A.No.1133 of 2011
The Management of Murali Enterprises
rep. by its Proprietor Mr.Murali,
No.643, M.K.N.Road,
Guindy, Chennai-32. ... Appellant
-vs-
1. The Presiding Officer,
I Additional Labour Court,
Chennai.
2. P.Thangppan ... Respondents
Prayer: Writ Appeals filed under Clause 15 of the Letters Patent
against the Order of the learned Single Judge made in
W.P.No.31167/2003 dated 7.1.2009.
For Appellant : Mr.P.Sunil @ Sunil Prakash
For 2nd respondent : Mr.R.Lawrance
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W.A.No.1133/2011
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
This Writ Appeal has been filed challenging the correctness of the
impugned order passed in W.P.No.31167/2003 dated 7.1.2009
wherein the learned Single Judge, while confirming the order dated
17.10.2003 passed in I.A.No.226/2002 in I.D.No.414/1995 by the 1st
respondent herein, applying the ratio laid down by the Hon'ble Apex
Court in a case reported in 2004 AIR SCW 5452 in Sangham Tape
Company v. Hans Raj and also relying on a decision of the Apex
Court in Grindlays Bank Limited v. Central Government
Industrial Tribunal and others reported in 1980 (Supp) SCC 420
holding that the Labour Court would become functus officio as no other
petition was filed within 30 days, dismissed the Writ Petition. Against
which, the present Writ Appeal has been filed.
2. While challenging the correctness of the order, learned
Counsel for the appellant submitted that the order of the learned
Single Judge dismissing the writ petition on the ground that the Labour
Court has become functus officio is also incorrect in the light of the Full
Bench judgment of the Apex Court in M/s.Haryana Suraj Malting
Limited vs. Phool Chand reported in 2018(4) W.L.N. 36 wherein
the Full Bench after referring to Grindlays Bank Limited case following
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W.A.No.1133/2011
Satnam Verma v. Union of India and J.K.Synthetics Limited v.
Collector of Central Excise reported in (1996) 6 SCC 92 has finally
come to the conclusion that when an application for setting aside the
ex-parte award is made at the instance of the management, the
Labour Court/Tribunal has to balance equities because the Industrial
Disputes Act, 1947 is a welfare legislation intended to maintain
industrial peace and the Labour Court is not functus officio, after the
award has become enforceable as far as setting aside an ex-parte
award is concerned.
3. In this regard, it is pertinent to extract the relevant portion
here under:
''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 pending 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
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W.A.No.1133/2011
filed after the award has 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.
36. We may also add that when an application for
setting aside an ex-parte award is passed at the instance of
the management, the Labour Court/Tribunal has to balance
equities. The appeals are hence disposed of as follows: The
awards are remitted to the Labour Court for consideration
as to whether there was sufficient cause for non-
appearance of the management. Since the litigation has
been pending for a long time, we direct the appellants to
pay an amount of Rs.1,00,000/- in each case to the
workmen by way of provisional payment. However, we
make it clear that the payment is subject to the final
outcome of the awards and will be adjusted appropriately.
We record our deep appreciation for the gracious assistance
rendered by Mr.Shekhar Naphade.''
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W.A.No.1133/2011
Following the aforesaid decision, in this case, since the learned
Single Judge and also the learned Labour Court/1st respondent herein
have wrongly decided the issue against the settled legal position, we
are of the view that for the mistake on the part of the court, the
litigant cannot be put to suffer.
4. At this stage, learned Counsel for the 2nd respondent
submitted that when the termination of the service of the 2nd
respondent was set aside by the I Additional Labour Court, Chennai,
the appellant being the Management is liable to pay 17-b wages and
now that 17-b wages also has not been paid for a long time.
5. But the case of the appellant herein stands on a different
footing. It is the claim of the appellant Management that the 2nd
respondent has stopped coming to employment from November, 1990
onwards and his accounts were settled on 23.2.1991. After that, he
was working in Tamil Nadu Press Tools Private Limited at Industrial
Estate, Ekkattuthangal. When the appellant Management has stated
that the 2nd respondent worker was not only working in Tamil Nadu
Press Tools Private Limited but also working in MPTC and that he has
also forged a document as though he was working under the appellant
for which the appellant has also filed a false complaint that reached
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W.A.No.1133/2011
only the CSR stage, the matter needs to be examined by the I
Additional Labour Court/the 1st respondent herein as to whether the 2nd
respondent was indeed terminated from service or not.
6. Learned Counsel for the 2nd respondent further submitted
that the appellant has not questioned the correctness of the award
which argument does not carry any weightage. The reason being that
when the I.A.No.226/2002 in I.D.No.414/1995 was dismissed by the
1st respondent herein against which W.P.No.31167/2003 was filed that
was also dismissed against which W.A.No.1133/2011 was filed with
delay, the delay application is allowed by this Court in the light of the
decision of the Apex Court reported in (1981) 2 Supreme Court
Cases 788 in Rafiq and another vs. Munshilal and another that
for the fault on the part of the counsel, poor litigant should not be put
to any prejudice. Therefore, this argument shall not carry any
weightage either before this Court or before the Labour Court.
7. In view of the foregoing reasons, the order passed in
W.P.No.31167/2003 dated 7.1.2009 by the learned Single Judge is set
aside subject to the payment of Rs.15,000/- (Rupees Fifteen Thousand
Only) payable by the appellant herein to the 2nd respondent worker,
within two weeks from the date of receipt of a copy of this Order and
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W.A.No.1133/2011
the matter is remitted back to the I Additional Labour Court, Chennai,
who shall take up the matter and dispose of the same on merits and in
accordance with law, after giving opportunity of hearing to both sides,
within a period of eight weeks thereafter. The parties are also
directed to co-operate with the 1st respondent Labour Court.
8. With the above observations and directions, the present Writ
Appeal is allowed. No costs.
(T.R.J.,) (T.V.T.S.J.,)
29.09.2021
tsi
To
The Presiding Officer,
I Additional Labour Court,
Chennai.
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W.A.No.1133/2011
T.RAJA, J.
and
T.V.THAMILSELVI, J.
tsi
W.A.No.1133/2011
29.09.2021
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W.A.No.1133/2011
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