Madras High Court
M.Ravi vs The Presiding Officer on 24 January, 2023
1/11 W.A.No.2720/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 24-01-2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A.No.2720 of 2021
M.Ravi ... Appellant
-vs-
1.The Presiding Officer,
Labour Court,
Salem District.
2.The Management of S.527,
Kelamangalam Agricultural Producers' Co-op.
Marketing Society Ltd., rep. by its President,
Kelamangalam, Denkanikottai Taluk,
Krishnagiri District. ... Respondents
Appeal is filed under under Clause 15 of the Letters Patent against the
order, dated 01.11.2019, passed in W.P.No.4472 of 2014, on the file of this Court.
For Appellant : Mr.Stalin,
for Mr.T.Sundarvadanam.
For Respondent 2 : No appearance
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JUDGMENT
This appeal has been preferred against the order of the learned single
Judge, dated 01.11.2019, passed in W.P.No.4472 of 2014.
2. According to the appellant-workman, he was dismissed from service on
06.06.2001. Pursuant to that, an industrial dispute was raised, questioning the dismissal.
Since the appellant was not present, an award was passed by the Labour Court,
dismissing the industrial dispute for default. The relevant portion of the award is
extracted below :
''AWARD
Petition filed u/Sec.2 (A) (2) of the I.D.Act to declare the
order of the Respondent dated 6.6.2001 as illegal, void and against the
principles of natural justice and to reinstate the petitioner in service
with continuity and backwages.
P.W.1 continuously absent for several hearings. Petitioner
in other I.Ds. also absent. Petition is dismissed for default. No costs.''
3. The award has come into force, as could be seen from the
communication of the Labour Officer, dated 15.04.2008.
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4. An application in I.A.No.250 of 2012, dated 18.12.2012, was filed to
condone the delay of 1738 days in restoring the I.D. on file. The relevant portion of the
averment in the affidavit is scanned below :
Beyond that, no other reasons were given. However, the appellant had gone into the
witness box and stated that he was down with yellow fever and hence he could not file
the application within time in terms of Rule 48 (2) of the Tamil Nadu Industrial
Disputes Rules,1958.
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5. The Respondent-Management had filed a counter, contending that no
sufficient reasons were given in the application, except the one that the workman was
taking treatment for six years under the pretext of suffering from jaundice.
6. The Labour Court, considering the pleadings of both the parties, came to
the conclusion, by not accepting the case of the appellant that he was suffering from
jaundice, on the ground that there was no proof and that the said contention was
imaginary in nature. The relevant portion of the award is scanned below:
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Thus, the award of the Labour Court has become final in terms of Section 17 (A) of the
Industrial Disputes Act.
7. Aggrieved over the award of the Labour Court, dated 29.02.2008, passed
in I.D.No.180 of 2002 and the order, dated 29.07.2012, passed in I.A.No.250 of 2012,
the Writ Petition was filed. The learned single Judge dismissed the Writ Petition, by
not agreeing with the contention of the writ petitioner, who is the appellant herein.
8. Though it is contended by the appellant before this Court that the learned
single Judge has gone beyond the scope of the writ petition by referring to
regularisation, Umadevi's case and that the employee would not be entitled to
regularisation, the said finding, in our view, is necessary to be interfered with. As
contended by the appellant, the said reasons, given by the learned single Judge, may not
be relevant to the issue on hand. But, in Paragraphs 2 and 3 of the order, the learned
single Judge has referred to the point that there is no reason assigned with regard to
condoning the delay of 1738 days in setting aside the ex-parte award.
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9. It is, no doubt, true, that when a party is absent, it is the duty cast upon
the Labour Court to pass an award as if both the parties are present after calling for
records from the Conciliation Officer or from the party, who is present before the Court.
The award, as such, is not sustainable in the eye of law. However, in order to set aside
the award and restore the I.D. on file, there should be genuine reasons for condoning the
delay of 1738 days. Only after the delay is condoned, the I.D. can be restored to file.
The averment that there was a delay of 1738 days in filing an application in one
paragraph and that the employee was suffering from jaundice for more than six years
was rightly not accepted by the Labour Court, which has been affirmed by the learned
single Judge. We reiterate that issues, such as regularisation, may not be relevant to the
case on hand.
10. For the sake of convenience, Rule 48 (2) of the Tamil Nadu Industrial
Disputes Rules,1958, and Section 17(A) of the Industrial Disputes Act,1947, are
extracted below :
''48. Ex-parte Proceedings. –
(1) xxxx
(2) The Board, Court, Labour Court, or Tribunal or an Arbitrator
may, for sufficient cause, set aside, after notice to the opposite party, the
ex-parte decision either wholly or in part, on an application made within
15 days of the ex-parte decision :
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Provided that an application may be admitted after the said period
of 15 days, if the applicant satisfies the Board, Court, Labour Court or
Tribunal or Arbitrator, as the case may be, that he had sufficient cause
for not preferring the application within that period.''
''17A. Commencement of the award.-
(1) An award (including an arbitration award) shall become
enforceable on the expiry of thirty days from the date of its publication
under section 17: Provided that--
(a) if the appropriate Government is of opinion, in any case
where the award has been given by a Labour Court or Tribunal in
relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the
award has been given by a National Tribunal, that it will be inexpedient
on public grounds affecting national economy or social justice to give
effect to the whole or any part of the award, the appropriate
Government, or as the case may be, the Central Government may, by
notification in the Official Gazette, declare that the award shall not
become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award
under the proviso to sub- section (1), the appropriate Government or
the Central Government may, within ninety days from the date of
publication of the award under section 17, make an order rejecting or
modifying the award, and shall, on the first available opportunity, lay
the award together with a copy of the order before the Legislature of
the State, if the order has been made by a State Government, or before
Parliament, if the order has been made by the Central Government.
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(3) Where any award as rejected or modified by an order made
under sub- section (2) is laid before the Legislature of a State or before
Parliament, such award shall become enforceable on the expiry of
fifteen days from the date on which it is so laid; and where no order
under sub- section (2) is made in pursuance of a declaration under the
proviso to sub- section (1), the award shall become enforceable on the
expiry of the period of ninety days referred to in sub- section (2).
(4) Subject to the provisions of sub-section (1) and sub-section
(3) regarding the enforceability of an award, the award shall come into
operation with effect from such date as may be specified therein, but
where no date is so specified, it shall come into operation on the date
when the award becomes enforceable under sub- section (1) or sub-
section (3), as the case may be.''
11. Under the Tamil Nadu Industrial Disputes Rules,1958, an application to
condone the delay will have to be filed within a period of 15 days from the date of a
decision taken for setting a party ex-parte or dismissing the matter for default. The Rule
also contemplates that an award has got to be passed on merits as if the other party is
present. The issue with regard to recalling the award and restoring the I.D. on file may
not arise as stated supra, as there are no sufficient reasons given by the appellant -
employee to condone the delay and restore the I.D. on file. The Labour Court has
rendered a finding of fact, which has been affirmed by the learned singe Judge.
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12. In terms of Section 17 (A) of the Industrial Disputes Act,1947, read
with a decision of the Supreme Court in Grindlays Bank Ltd. v. Central Government
Industrial Tribunal and Others, 1980 (Supp) SCC 420, it is very clear that once the
award has come into force, the Labour Court has become functus officio. In fact, the
Labour Court ought not to have entertained the delay petition, as the Labour Court has
become functus officio, when the application was filed in the year 2012.
13. The appellant has relied upon a decision of the Supreme Court in
M/s.Haryana Suraj Malting Ltd. v. Pool Chand, 2018 (16) SCC 567, to state that
merely because an award has become enforceable does not necessarily mean that it has
become binding and for an award to become binding, it should be passed in compliance
with the principles of natural justice and that 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.
14. We are entirely in agreement with the finding rendered by the Apex
Court in the above case. An award can be interfered with by the High Court and not by
the Labour Court when it becomes functus officio. Till the award has come into force,
in the light of the decision of the Supreme Court in Grindlays Bank's case, cited supra,
the Labour Court has got powers and it will not become functus officio.
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15. In the case on hand, there is a delay of 1738 days, which was not
properly explained by the appellant. Hence, we find no reason to interfere with the
order of the learned singe Judge. Accordingly, this Writ Appeal is dismissed. No costs.
Consequently, the connected C.M.P.No.17721 of 2021 is also dismissed.
Index : Yes/No (S.V.N.,J.) (J.S.N.P.,J.)
Internet : Yes/No 24-01-2023
Speaking / Non-speaking Order
dixit
To
The Presiding Officer,
Labour Court,
Salem District.
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11/11 W.A.No.2720/2021
S.VAIDYANATHAN,J.
AND
J.SATHYA NARAYANA PRASAD,J.
dixit
W.A.No.2720 of 2021
24-01-2023
https://www.mhc.tn.gov.in/judis
