Madras High Court
The Management Of vs The Presiding Officer on 21 December, 2023
W.P.No.15798 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.P.No.15798 of 2009 &
M.P.No.1 of 2009
The Management of
Arul Mosaic Floorings,
97, Perur Main Road,
Selvapuram, Coimbatore -641 026. … Petitioner
Vs
1.The Presiding Officer,
Labour Court,
Coimbatore -18.
2.R.Arumugam … Respondents
PRAYER:- Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records
culminating in order of the first respondent in Interlocutory Application
No.103 of 2006 in I.D.No.476 of 1999, dated 29.06.2006, on the file of
Labour Court, Coimbatore, quash the same and direct the first
respondent to condone the delay in filing the application to set aside the
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W.P.No.15798 of 2009
exparte order passed against the petitioner on 05.06.2000, consequently
direct the first respondent to number the interlocutory application to set
aside the exparte order passed against the petitioner on 05.06.2000,
consider the same on merits and pass such further order.
For Petitioner : Mr.G.B.Saravanabhavan
For Respondents : R1- Labour Court
Mr.C.K.Chandrasekar for R2
ORDER
The challenge in this Writ Petition is the rejection of the
application filed by the petitioner to condone the delay in filing the
application to set aside the exparte award passed against the petitioner
on 05.06.2000.
2. Heard Mr.G.B.Saravanabhavan, learned counsel appearing for
the petitioner and Mr.C.K.Chandrasekar, learned counsel appearing for
the second respondent.
3. The case of the petitioner is that an exparte award which came
to be passed against the petitioner on 29.06.2006, directing the
petitioner to reinstate the second respondent with continuity of service
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with full backwages and other benefits.
4. Immediately on having the knowledge of an exparte award, an
application had been filed seeking to set aside the exparte award along
with an application to condone the delay.
5. The learned counsel appearing for the petitioner would submit
that the Tribunal had held that the notice of the summons in the
Industrial Disputes had constructively been served on the petitioner and
that the Tribunal had become functus officio in view of the dictum laid
in 2004 III LLJ page 1141, that upon on expiry of 30 days from the
date of publication of award, the award become enforceable and the
Labour Court would become functus officio had rejected the application
to condone the delay.
6. The learned counsel for the petitioner would rely upon the
judgment of the Hon'ble Apex Court made in Civil Appeal No.5650 of
2018, dated 18.05.2018 and contend that the Hon'ble Apex Court had
held that merely because an award become enforceable does not
necessarily mean the award is binding. For an award to be binding, it
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should have been made in compliance with the principles of natural
justice and that the Labour Court had not become functus officio, after
the award has become enforceable as far as setting aside the exparte
award is concerned. Therefore, he would submit that the order passed
by the Tribunal in the order impugned would have to be set aside and
the Tribunal ought to be directed to consider the application on merits.
7.Countering his arguments, Mr.C.K.Chandrasekar, learned
counsel appearing for the second respondent would submit that the
Tribunal had considered the case of the petitioner on merits also to
come to a conclusion that the petitioner had been constructively served
with the summons in the main OP. Therefore, he would submit that the
Tribunal had not only the rejected the claim of the petitioner on the
ground it had become functus officio and but also on merits.
Therefore, there is no necessity to interfere with the order passed by the
Tribunal.
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8. I have considered the rival submissions made on either side
and perused the materials placed on record.
9. An exparte award had been passed against the petitioner which
is sought to be set aside by filing an appropriate application along with
an application to condone the delay. A perusal of the order impugned
before this Court, it could be seen that the same had been made on the
ground that the summons had been served on the petitioner in the main
OP and that the first respondent had become functus officio, as the
award become enforceable. The first respondent had not considered the
application for the delay particularly. It has not dealt with the reasons
that had been stated by the petitioner in its application to condone the
delay and thereafter, proceeded to pass orders on merits. It had been
mainly driven by the conclusion made in the judgment reported in 2004
III LLJ page 1141, that the Tribunal beyond the period of 30 days had
become functus officio. In such circumstances, it would be useful to
analyse the judgment of the Hon'ble Apex Court relied upon by the
learned counsel for the petitioner made in Civil Appeal No.5650 of
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2018, the Hon'ble Apex Court in the aforesaid judgment had held as
follows:-
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,
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incidental or inherent.
10. The Hon'ble Apex Court in the aforesaid judgment had held
that as just because an award had become enforceable would not mean
the Tribunal become functus officio as far as setting aside the exparte
award is concerned. Further the Hon'ble Apex Court in clear terms had
held that for an award to become binding, it should have been passed in
compliance with the principles of natural justice. The Tribunal ought to
have decided that there was no violation of principles of natural justice.
11. In view of the aforesaid reasonings and findings, I am
inclined to interfere with the order impugned in this Writ Petition.
12. In fine, the Writ Petition is allowed and the order impugned is
set aside and the first respondent is directed to take application for
condoning the delay in setting aside the exparte award and pass orders
on merits and thereafter proceed further. However, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
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21.12.2023
pbn
Index : Yes/No
Speaking order : Yes/No
Neutral Citations : Yes/No
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K.KUMARESH BABU,J.
pbn
To
The Presiding Officer,
Labour Court,
Coimbatore -18.
21.12.2023
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