Jayantkumar vs Zaveri on 21 August, 2008

[Cites 14, Cited by 0]

Gujarat High Court

Jayantkumar vs Zaveri on 21 August, 2008

Learned advocate Mr. Mayur S. Barot, waives service of Rule on behalf of respondent. In this petition, the petitioner, a workman of respondent No.1, has challenged an order dtd 24.10.2007 passed by Labour Court, Bharuch in Miscellaneous Application No. 8/2007 in Ref. (LCB) No. 248/99.

2. The challenge arises in the background of the facts that the the learned Labour Court by an ex-parte order dtd. 28.11.2003 dismissed Reference being Ref. (LCB) No. 248/1999 on ground of non-prosecution in view of absence of present petitioner during the proceedings before the Labour Court. Then, the petitioner herein belatedly i.e., after prescribed period of 30 days, preferred Miscellaneous Application No. 19/2004 requesting the learned Labour Court to set aside the ex-parte order dismissing the Reference proceedings and to restore the Reference proceedings and to hear and decide the same after giving him opportunity of hearing. The Labour Court after hearing the petitioner and the respondent, passed order dated 14.10.2006 rejecting the said miscellaneous application. Thereafter, the petitioner filed Misc. Application No. 8/2007 with prayer for condonation of delay and by the impugned order dtd. 24.10.2007 the Labour Court rejected the said application also.

3. Thus, the petitioner is actually aggrieved by the order passed in Miscellaneous Application No. 19/2004 and also by ex-parte order in Reference No. 248/1999 as well as by order in the Miscellaneous Application No. 8/2007, and though aggrieved by the aforesaid orders, the petitioner has, somehow, challenged only the order dtd. 24.10.2007.

4. The facts involved in and relevant for present petition are that the petitioner claimed that he was employed with the respondent company and after 4 years of service he was terminated, by oral order, on 9.10.1998. Aggrieved by the said order terminating his service the petitioner raised an industrial dispute which was referred by order of Reference dated 9.6.1999. In the said Reference the petitioner filed his statement of claim on or around 15.3.2000. It appears that some time after filing statement of claim, the petitioner did not remain present on certain dates when the proceedings were scheduled for hearing before the Labour Court. The Labour Court, therefore, passed order dated 28.11.2003 due to absence of petitioner and dismissed the said Reference (LCB) No. 248 of 1999 on the ground of non-prosecution. When the petitioner came to know about the said ex-parte order he preferred a miscellaneous application under Rule 26(A) of Industrial Dispute (Gujarat) Rules, 1966 ('the Rules' for short) requesting the Labour Court to set aside the ex-parte order and to restore the Reference proceedings. The said miscellaneous application was registered as Miscellaneous Application No. 19/2004 and after hearing the parties the Labour Court rejected the said miscellaneous application on the ground that upon completion of 30 days and after the publication of the award it became functus officio. It appears that the petitioner herein subsequently preferred another Misc. Application No. 8/2007 requesting the Court to condone the delay. The said application also came to be rejected by the Labour Court by the impugned order dtd. 24.10.2007. The petitioner has challenged said order dtd. 24.10.2007.

5. Heard Mr. HM Shah, Advocate for the petitioner and Mr. Mayur Barot, Advocate for the respondent.

6. Mr. Shah for the petitioner submitted that the petitioner had filed the statement of claim in the Reference proceedings, however, due to financial difficulties he could not engage an Advocate and though he was usually attending the proceedings on almost all dates the petitioner could not attend the hearing on some dates due to certain personal problems as well as financial constraints and on the particular date when the impugned ex-parte order came to be passed he could not atend the hearing because he had to go to hospital for treatment of his physically handicapped son and unfortunately the proceedings came to be dismissed for non-prosecution. In light of such facts and reasons, Mr. Shah submitted that there were sufficient reasons for setting aside the ex-parte award, however, Labour Court failed to appreciate the difficulties of the petitioner and the genuine and bonafide reasons urged by him in support of his request. He, on such ground, submitted that the ex-parte award in the Reference proceeding is unsustainable and the order in the miscellaneous application deserves to be set aside, and the petitioner may be granted an opportunity to prosecute the Reference proceedings on merits.

7. Mr. Shah also submitted that if the proceedings are restored and the ex parte order is set aside the petitioner would not insist for backwages for intervening period,i.e., for the period from the date of ex parte order in the Reference proceedings until the order setting aside the ex-parte order, i.e., till restoration of Reference proceedings.

8. On the other hand, Mr. Barot submitted that the petitioner herein remained completely negligent towards the proceedings and it is settled legal position that law would not help an indolent litigant. Mr. Barot also submitted that the Reference proceedings were initiated in 1999 and Labour Court waited until 2003 and it was after almost 4 years that the proceedings came to be dismissed for non-prosecution in view of petitioner's absence and that therefore the order passed by the Labour Court is justified and does not call for any intervention. He further submitted that the miscellaneous application was also delayed and the petitioner failed to make out any cause for condonation of delay and/or for restoration of the Reference proceedings. Mr. Barot further submitted that the award is to be treated as an award passed on merits. In his submission, the order passed in miscellaneous application is also passed on merits. Mr. Barot submitted that as per Rule 26A such miscellaneous application is required to be filed within 30 days, whereas the petitioner filed the Miscellaneous Application No. 19/2004 after the limitation expired and that therefore the Labour Court rightly rejected the miscellaneous application. In his submission, there were sufficient reasons to pass ex-parte order disposing the Reference on ground of non-prosecution and to reject miscellaneous application, and the Labour Court has not committed any error in rejecting the same. Mr. Barot, during his submissions, placed heavy reliance on the judgment in the case of M. Jagdamba Dyeing & Printing and Anr. Vs. Ramkumar Ramchal Mishra, C/o. Surat Silk Labour Union, reported in 2006 (1) G.L.H. 545;

and the judgment in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others, reported in AIR 1981 S.C. 606;

and the judgment in the case of M/s.

Sangham Tape Company vs. Hans Raj, reported in 2004 LAB.I.C. 4039.

9. It is pertinent that the petitioner herein had submitted in the miscellaneous application that usually the petitioner was remaining present during the proceedings and it was due to unavoidable circumstances and personal difficulties that he could not remain present on 8.11.2003 and on certain dates before 8.11.2003. The petitioner appears to have also given the reason for not remaining present in the Labour Court on 8.11.2003 and explained that he had to take his physically handicapped son for treatment to hospital and that is why he was not present when the matter was taken up for hearing on 8.11.2003.

10. The legal position is settled by judgment of this Court in the case between Prathansinh K. Patel vs. Chairman, Vochhaved Dudh Utpadak Sahkari Mandali Ltd. In the said judgment, this Court (Coram: N.N. Mathur, J., as His Lordship then was) relying on the judgment reported in 1968 Lab.I.C. 139 and 1969 Lab.I.C. 729, held that:-

5. The definition clearly stipulates determination of the industrial dispute or any question relating thereto referred to the Labour Court or the Industrial Tribunal. There can be no determination of a dispute much less the industrial dispute unless there is an adjudication on merit.

The determination may be interim or final but mere dismissal of a reference for non-prosecution by no stretch of imagination can be said to be determination of a dispute. It is of course true that when a matter is withdrawn, there remains no dispute which requires any adjudication and the Labour Court and the Tribunal may permit withdrawal. That would be entirely a different situation. Thus, in any view, a reference made under Section 10 of the Industrial Disputes Act cannot be rejected for want of prosecution. I am fortified in my view by the two decisions referred by the learned advocate for the petitioner.....ýý Accordingly, the said Special Civil Application was allowed and the order of the Labour Court rejecting the Reference therein was quashed and set aside and the Reference therein was restored to the file of the Labour Court.ýý Thus, the Labour Court could not have, in light of the legal position, passed an order dismissing Reference proceedings on ground of non-prosecution. This Court has held that once an Order of Reference is made, the Labour Court is bound to decide the same on merits. Hence, the order dtd. 28.11.2003 in Ref. (LCB) 248/1999 does not deserve to be maintained. As the discussion hereinafter would show, the other submissions on behalf of the respondent are without merits.

11. As mentioned earlier, Mr. Barot for the respondent relied on the judgments of the Hon'ble Apex Court and of the Hon'ble Division Bench of this Court. So far as the judgment of the Hon'ble Division Bench in the case of Jagdamba Dyeing & Printing and Anr.(supra)on which the respondent has placed reliance is concerned, the issue before the Hon'ble Division Bench was not about an ex parte award given by the Labour Court dismissing the Reference for non-prosecution but the issue before the Hon'ble Division Bench was about the case where Labour Court had ex-parte allowed the reference in favour of workman and the applicant had approached for setting aside of ex-parte order after delay of 2 years. In present case, by the ex parte order dated 28.11.2003 the Labour Court has rejected/dismissed the Reference on ground of non-prosecution, (unlike the case before the Hon'ble Division Bench wherein the Reference was allowed) and thereafter the petitioner-workman approached the Court with miscellaneous application on 2nd June 2004. Thus, in the facts of present case, the said judgment does not help the respondent.

12. In view of the facts of present case, the judgment of the Hon'ble Apex Court in the case of Grindlays Bank Ltd [supra] also would not help the respondent inasmuch as the Hon'ble Apex Court has, in the said judgment, held that ýSwhere a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award it is as if the party is visited with an award without a notice of the proceeding. An award without a notice to a party is nothing but a nullity. In such circumstance, the Tribunal has not only the power but also duty to set aside the ex parte award and to direct the matter to be heard afresh.ýý In the said judgment, the Hon'ble Apex Court has also held that, ýSFurther, on passing of award the Tribunal does not become functus officio in view of the provisions of Section 17-A and 20 the proceedings with regard to a reference under Section 10 not deemed to be concluded until expiry of 30 days from the publication of the award. Till then the Tribunal retains the jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute....ýý In the said case also, the issue before the Hon'ble Supreme Court was not pertaining to the rejection of Reference for non-prosecution but the Tribunal, in the said case, had passed order on merits, inasmuch as it was on the basis of statement recorded by the Manager, the Tribunal held that the respondents No. 5 to 7 were not employees of the Bank but were the employees of the officers of the Bank and therefore were not entitled to the benefits enjoyed by the drivers of the bank, though ex-parte, and thereby declined to grant the relief. This exactly is the distinguishing point on factual aspects in the matter since in present case the Labour Court avoided to pass order on merits and instead dismissed the Reference of the workman for default and in absence of petitioner i.e., on ground of non-prosecution. The Labour Court, in this case, could have, even in absence of the workman (if he was consistently remaining absent) recorded the evidence of the other side like in case of Grindlays Bank and examined the case on merits and then passed order either allowing or disallowing the Reference on merits.

13. In the judgment between M/s. Sangham Tape Company vs. Hans Raj (supra), the Hon'ble Supreme Court has, upon considering Section 11 & 17-A held that the Labour Court can exercise jurisdiction to set aside an ex-parte award within 30 days from the date of publication of the award and after expiry of 30 days from the date of publication of award, the Court becomes functus officio. In present case, from perusal of the order passed in Miscellaneous Application No. 19/20004, it comes out that the ex-parte order dated 28.11.2003 was published on 12th January 2004. As per the judgment of the Hon'ble Supreme Court, the Labour Court would become functus officio in respect of an ýSawardýý, on expiry of 30 days after its publication. Thus, in present case, the Court would have become functus officio after 11.2.2004, if what was passed and what was published was an ýSAwardýý, as defined u/s. 2 (b) of the Act. In view of the judgment of the Hon'ble Apex Court, the Labour Court would have been justified in disallowing or in not entertaining the miscellaneous application after expiry of 30 days from the alleged date of publication, provided what was published was ýSawardýý.

14. However, the question which is lost sight of by the Labour Court is about the ex parte order in the Reference (LCB) No. 248/1999 and the Labour Court failed to consider whether the said ex-parte order was and can be said to be an ýSawardýý u/s. 2(b) of the Act. The said legal position i.e., the Labour Court being rendered ýSfunctus officioýý would arise and become applicable only where the order passed by the Court is an ýSawardýý.

15. As per the definition of the said term in Section 2(b), ýSawardýý means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10-A.

16. In view of the said definition, an order which does not determine, as an interim or final determination, the lis/dispute between the contesting parties on merits would not be an ýSawardýý.

16.1. When the Labour Court adjudicates and determines the rights and takes decision on merits and pronounces its decision, after adjudication on merits about rights and obligations of the contesting parties, then such decision and its pronouncement becomes an ýSawardýý as defined u/s. 2(b) and contemplated u/s. 17 r/w. 17-A of the Act.

16.2. It is the publication of such ýSdeterminationýý of lis/dispute on merits which is contemplated u/s. 17. The said Section 17 requires publication of ýSawardýý and not of the orders which do not adjudicate and determine, on merits, the rights & obligations of contesting parties. From conjoint reading of Sections 2(b), 17 & 17-A, it transpires that even if any order which does not determine, on merits, the rights & obligations of the parties and does not ýSdetermineýý the lis/dispute, is published, then also it would not be publication of ýSawardýý as contemplated u/s. 17 and publication of an ýSorderýý would not lend its force and support so as to make it an ýSawardýý. It is only a duly published ýSawardýý which is enforceable u/s. 29 of the Act.

16.3. It is necessary and appropriate, to have in focus the meaning of the term ýSdeterminationýý used in the definition of ýSawardýý in Sec. 2(b) so as to appreciate the scope and effect of the term ýSawardýý defined u/s. 2(b) of the Act and also to appreciate the difference between ýSorderýý which does not determine the lis/dispute and the rights and obligations; as against or in contra-distinction to ýSawardýý, which does.

16.4. As per West's Legal Thesaurus, ýSdeterminationýý means:- ýS(1). A decision (the agency made an unwise determination), Judgment, conclusion, resolution, adjudication, opinion, appraisal, solution, finding, decree, arbitration, settlement, diagnosis, verdict, resolve, confirmation, verification, discovery, pronouncement, recommendation, declaration....and the term ýSdetermineýý means ýS(1) adjudge, decide, define (2) settle; determinationýý.

As per Shorter Oxford English Dictionary (5th Edition), the terms ýSdeterminationýý means;

1. The settlement of a suit or controversy by the authoritative decision of a judge or arbiter; a settlement or decision so made, an authoritative opinion. The settlement of a question by reasoning or argument. The discussion and resolving of a question or the upholding of a thesis in a scholastic disputation; (performance in) a university exercise consisting of a series of disputations, qualifying a bachelor of arts to proceed to a master's degree,.

2.......

3.......

4. The action of definitely locating, identifying, or establishing the nature of something; exact ascertainment of a fact established, a conclusion or solution reached.

5. .......

6. .......

7. .......

8. .......

As per P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edition), the expression ýSdeterminationýý means;

ýSThe expression, ýSdeterminationýý signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal.ýý As per the abovesaid Dictionary, the term ýSdetermineýý means;

1. Put an end to; come to an end.

2. .......

3. .......

4. .......

5. Come to a judicial decision; make or give a decision about something.

6. Lay down authoritatively; pronounce; declare.

7. ........

8. ........

9. ........

10. ........

11. ........

12. Bring oneself to a decision or resolve.

13. Come to a decision that; resolve to do; on doing; on a course of action.

14. ........

16.5. Thus, making of an award, as per the definition in S. 2(b), requires an ýSauthoritative decision by reasoningýý and/or ýSresolving a questionýý and/or ýSa judicial decisionýý or ýSgiving a decision about the questionýý. When considered in light of the definition and meaning of the term determination/determine, in the term ýSawardýý, the order dtd. 28.11.2003 in Ref. No. 248/99 does not qualify as an ýSawardýý as from even a cursory glance it comes out that the Reference has been dismissed by the Labour Court only because of the absence of the petitioner-workman and the Court has not given any decision on merits of the case and has not adjudicated and determined the lis/dispute between the parties and/or has not decided the rights and obligations of the parties nor has pronounced any authoritative decision but has avoided to do so and has merely dismissed the Reference for default i.e. on ground of non-prosecution.

16.6. It cannot be said that in in making of said order dtd. 28.11.2003 there was any adjudication at all on merits and/or any determination of ýSindustrial disputeýý or ýSquestion relating theretoýý. When the Court dismisses the case for default/non-prosecution, the Court is not deciding the ýSmatter at issueýý or ýSfacts-in-issueýý on merits. Under the circumstances, even if such order is published purportedly provision under Section 17, then also such an order would not qualify as an ýSawardýý and merely on publication it will not get the status or characteristics of award.

16.7. When an industrial dispute is referred by appropriate Government, the Labour Court or the Tribunal has to, as per Section 15 of the Act, ýSsubmit its awardýý to the appropriate Government, hence, it has to pass/make an ýSawardýý as defined & contemplated u/s. 2(b). Thus, the Labour Court has to adjudicate the lis/dispute. If one of the parties is ignoring the proceedings, then the Labour Court may proceed in the matter by taking into account, in accordance with law and upon intimation to the absentee, the evidence of the other side and on that basis decide the lis/dispute. In such circumstances the matter would be decided, though in absence of one side, on merits after considering the available material and submissions and though it would be ex parte, it would be a determination of lis and decision on merits and therefore an ýSawardýý and such decision would stand on different platform than the order rejecting reference for default/non-prosecution.

16.8. In view of the object and scheme of the Act the Labour Court does not have power to pass such orders, i.e., ex-parte order dismissing Reference on ground of non-prosecution. The Labour Court cannot abdicate its duty of ýSdeterminationýý by simply passing an order dismissing reference for non-prosecution, else it would amount to serious lapse and jurisdictional error or failure in properly exercising jurisdiction. At this stage, it is appropriate to make reference of the judgment of Hon'ble Karnataka High Court in the case between N.M. Naik Vs. P.O. Labour Court, Hubli, [1997 (77) FLR 914] wherein the Hon'ble Court has held:-

ýSIn my opinion, the rejection of reference for default of the workman cannot be called an 'award' within the meaning of Section 2(b) of the Act. This is the view taken in other decisions also, to be presently referred to.

Section 2(b) inter alia defines award as meaning an interim or a final determination of any industrial dispute or any question relating thereto by any Labour Court. Such determination of an industrial dispute or question relating thereto is undertaken by the Labour Court on reference being made under Section 10 of the Act, or by an application under Section 10(4A) of the Act, where the said section is applicable. In both the events, what is prerequisite is that there was a dispute that needed to be adjudicated upon. Where a dispute is felt so important as to necessarily need an adjudication by the concerned forum, and not a frivolous one in respect of which reference could be refused by the appropriate Government, it is expected that such a dispute has to be determined on merits. The Labour Court/Industrial Tribunal, therefore, cannot treat such reference as just a dispute between two individuals in a civil proceeding so that it could be dismissed for default of the workman who would be in the position of plaintiff in a suit. The essence of the entire scheme of reference of the dispute for adjudication to a Labour Court/Industrial Tribunal under the Act being one of determination of the dispute on merits, just because the Labour Court/Industrial Tribunal disposes of the reference for the absence of the workman, such an order cannot be called an 'award' within the meaning of Section 2(b) of the Act, since, as required under the said Section 2(b), there would be no determination of any industrial dispute at all but would merely be a disposal of reference.ýý 16.9. The aforesaid discussion brings out that the said order dtd. 28.11.2003 is unsustainable in law and in light of the settled legal position the Labour Court could not have passed order ex parte dismissing the Reference on ground of non-prosecution and such order does not qualify as an ýSawardýý within the scope and meaning of Section 2

(b) of the Act.

17. There is yet another facet of this matter which requires to be mentioned.

The respondent ý while objecting petitioner's application then and while objecting the petition now - as well as the learned Labour Court, while rejecting the miscellaneous applications, have, unfortunately, lost sight of sub-rule (2) of Rule 26-A of the Rules which contains a provision empowering the Court to entertain an application for relief of setting aside ex-parte award or order, even after the period of 30 days upon condoning the delay after being satisfied about sufficiency of reasons for delay. The Labour Court ought to have considered and examined the application with the aid of said Rule 26-A(2). This failure also vitiates the impugned order.

18. Since the impugned order dtd. 24.10.2007 has been passed without considering the aforesaid aspects, the same deserves to be set aside.

19. This brings in picture the order dtd. 14.10.2006 in Miscellaneous Application No.19/2004 and ex-parte award dtd. 28.11.2003 in Ref.(LCB) No. 248/99. On scrutiny of the relief clause in the petition, it comes out that the petitioner has, unfortunately, not expressly challenged the order dtd. 14.10.2006 or ex-parte award dtd. 28.11.2003 and has challenged only the order dtd. 24.10.2007. It deserves to be mentioned that the respondent has not at all raised this contention during the hearing. However the Court is conscious of this unfortunate lapse of petitioner which is matched only by the failure in not amending the petition. The Court is also very alive and conscious about the limitation and settled legal position that a relief which is not prayed for should not be granted.

20. The question which, therefore, arises is that whether the Court should or should not give precedence to meaningful justice over the rules or whether the means should be permitted to turn into the end itself. This Court is of the view that in exceptional circumstances and for doing meaningful justice and for equitable and just reasons, where the error or lapse appear to be bonafide, this Court can, in exercise of prerogative powers, look beyond such limitations and relax the constraint, albeit on just and equitable grounds, so as to allow meaningful justice to triumph over the rules and limitations in the matter of granting the relief.

21. In present case if only the relief which is expressly prayed for is taken into account then this Court cannot touch the order in Misc. Application No. 19/2004 and/or order in Reference (LCB) No. 248/1999 and that therefore even if the order in Miscellaneous Application No. 8/2007 is set aside, the position, so far as petitioner is concerned, will not substantially improve since the petitioner will have to address the tribunal on the point of justifiablity of the prayer for condonation of delay in making the application and for quashing the order in Misc. Application No. 19/2004 and technically the order dtd. 28.11.2003 in Ref. No. 248/1999 would survive until it is set aside and declared untenable and the petitioner will also have to address the learned Labour Court for setting aside the said ex parte order in Reference proceedings. In the facts of present case, it does not appear just or equitable or necessary to relegate the petitioner to Labour Court only to make him go through the entire formalities again which may just tier-out the petitioner workman, more so when this Court is of the view that the said ex parte order dtd. 28.11.2003 is unsustainable.

22. It is pertinent that on one hand the order dtd. 28.11.2003 in Ref. No. 248/99 is unsustainable in law being against the dicta of the provisions under the Act and also contrary to settled legal position whereas on the other hand the petitioner has a handicap son to serve and he might have a good case on merits against termination of his service. Above all, the petitioner has already stipulated at the outset that he will not claim any wages for the interregnum and that therefore the respondent-employer has no justiciable reason to shy away from contesting the Reference proceedings on merits and the respondent-employer shall have opportunity to justify and defend its action on all available grounds and to oppose the relief prayed for by petitioner. Thus, in the facts and circumstances of this case, and on overall consideration of the matter, this Court, in light of the foregoing discussions, would not feel disinclined or restrained in setting aside the said ex-parte order dtd.28.11.2003 also, while setting aside the order dtd. 24.10.2007, though the petitioner has missed to expressly make a prayer to set aside the said order dated 28.11.2003.

23. Further, even if it is held that the order passed in Miscellaneous Application No. 19/2004 does not suffer from any error, then also this Court is of the view that in view of the reason given by the petitioner for his absence, the ex-parte order dated 28.11.2003 passed in Reference (LCB) No. 248/99 deserves to be set aside and the petitioner, in the interest of justice, deserves to be afforded an opportunity to prosecute the Reference on merits, more particularly in view of the fact that the petitioner has stipulated that for the interregnum he will not ask for any backwages if he ultimately succeeds in the Reference proceedings. Thus, in view of the said stipulation made by the petitioner the order dated 28.11.2003 also is set aside with a clarification that the petitioner herein would not be entitled for wages for the interregnum i.e., from the date of ex parte order till the date of restoration of the Reference proceedings if ultimately he succeeds in the Reference on merits.

24. With the aforesaid clarifications, the petition is allowed. The impugned orders dated 24.10.2007 and 28.11.2003 are set aside. The proceedings of Reference (LCB) No. 248/99 are directed to be restored to file. Since the termination of the petition is of 1999 and almost 9 years have passed by, it is hoped that the Labour Court would hear and decide the Reference proceedings, on merits after affording opportunity of hearing to the petitioner as well as to the respondent as early as possible. Rule is made absolute. No order as to costs.

[ K.M. Thaker, J. ] rmr.

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