Madras High Court
G.Sentil Selvan vs The Presiding Officer on 15 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/12/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.671 of 2007 & M.P.(MD).No.1 of 2007 G.Sentil Selvan .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Trichy. 2.The Management, Alagiri Spinning and Weaving Mills (P) Ltd., P.B.No.3, Ambathurai R.S., Madurai Road, Dindigul. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorari to call for the records of the first respondent in I.A.No.26 of 2006 in I.D.No.73 of 1996 and quash the order dated 01.12.2006 passed in I.A.No.26 of 2006 in I.D.No.73 of 1996. !For Petitioner ... Mr.T.Ravichandren ^For Respondent ... Mr.K.Jeyaraman for R2 :ORDER
The petitioner is a workman. In this writ petition, he has come forward to challenge an order passed by the Labour Court, Tiruchirappalli in I.A.No.26 of 2006 in I.D.No.73 of 1996, dated 01.12.2006.
2. By the impugned order, the Labour Court set aside the earlier exparte award made in I.D.No.73 of 1996 dated 28.05.1999. The workman aggrieved by the said order, came up before this Court with this writ petition.
3. In this writ petition notice of motion was ordered on 24.01.2007 returnable by four weeks and pending the notice period an interim stay was granted. There is nothing on record to show that the interim stay was extended subsequently by any order.
4. Not withstanding there being no stay order, the restored I.D.No.73 of 1996 is yet to be disposed of either on account of there was no Presiding Officer for the Labour Court for some time or the Labour Court had misunderstood, that since the matter was seized by this Court, it cannot proceed with the main Industrial Dispute.
5. In any event, the aggrieved party being the second respondent management were happy with the situation as it was the workman who himself had stalled the further proceedings by filing the present writ petition.
6. The Labour Court by its impugned order noted the following management's contentions a) the workman was not competent to raise an Industrial Dispute, b) the industry was a sick industry and c) the award was not passed in terms of the provisions of the Act. Hence, as there was a prima facie case to set aside the exparte award, it passed the impugned order.
7. On the question of functus officio of the Labour Court in view of the publication of the award under Section 17-A of the Industrial Disputes Act, (hereinafter referred as the Act) the Labour Court had stated that even the exparte award itself was under challenge as non est in law, there was no impediment for the Labour Court to set aside its earlier exparte award.
8. The contention of the workman before this Court was that once an award was published and 30 days elapsed, it becomes enforceable. Thereafter, the Labour Court has no power to deal with the Award as it had become functus officio.
9. However, subsequent, to the impugned order, much water has flown under the bridge. The earlier confusion as to whether the Labour Court after the publication of its award becomes functus officio or in the light of the Rules framed by the appropriate Government under Section 11 of the Act, whether the Labour Court still has power to deal with an exparte award having similar power as that of a civil Court came to be considered by the Supreme Court vide its judgment in Radhakrishna Mani Tripathi v. L.H.Patel and another reported in 2009 (2) SCC 815 = 2009 (1) LLN 786. The Supreme Court in that ruling held that the Labour Court will not loose its power merely because of the publication of the award in terms of Section 17-A of the Act.
10. The State Government had framed Rules known as Tamil Nadu Industrial Disputes Rules, 1958. Under the proviso to Rule 48(2) when an application is filed beyond 15 days, the Labour Court can entertain the application if there were sufficient cause shown for not preferring the application beyond 15 days. Apart from this, Rule 34 empowers the Labour Court with powers in terms of Section 11(3) of the Industrial Disputes Act akin to that of Order XI of the I Schedule to the CPC.
11. Section 11(3) of the Industrial Disputes Act reads as follows:-
"11. Procedure and powers of Conciliation Officer, Boards, Courts and Tribunals:-
(1) and (2) . . .
(3) Every Board, Court, (Labour Court, Tribunal and National Tribunal) shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a Suit, in respect of the following matters, namely-
(a) enforcing the attendance of any person and examining him an oath:
(b) compelling the production of documents and material objects:
(c) issuing commissions for the examination of witnesses;
(c) in respect of such other matters as may be prescribed;
and every inquiry or investigation by a Board, Court, (Labour Court, Tribunal or National Tribunal), shall be deemed tobe a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860)"
The rules framed under the Act more particularly Rule 34(11) and Rule 48(2) provides for setting aside an exparte award. Therefore, it cannot be said there is no power available to the Labour Court to set aside an exparte order.
12. Yet another factor in favour of the management was that the management had earlier filed a writ petition before this Court directly challenging the exparte award on the ground that the award was not in conformity with Rule 48 of the Industrial Disputes Rules, 1958. But, subsequent to the impugned order which came in their favour, they withdrew the writ petition. In the earlier exparte award, the Labour Court had merely noted that the workman was examined and five documents were filed. Thereafter, simply made a one line Award that the claim was proved. Therefore, the workman was eligible to get reinstatement with all backwages.
13. Such procedure came to be found fault with by a Division Bench of this Court in Tamil Nadu Housing Board v. Presiding Officer, II Additonal Labour Court, Madras, reported in 1997 (1) LLJ 923. The Division Bench took an exception to the Labour Courts passing such awards without even discussing the materials on record found during the exparte proceedings.
14. Rule 48 of the Industrial Disputes Rules, 1958, which enables the Labour Court to pass an exparte award, clearly stipulates that an exparte award can be passed as if the other party was present. In that view of the matter, the contentions raised by the workman cannot be countenanced by this Court.
15. It is rather unfortunate that it is the workman who had delayed the proceedings for more than 4 years without any justification. If he had won on merits of his case and if the management comes before this Court against such an award, under 17-B of the Act he would have got the payment of last drawn wages pending disposal of the writ petition.
16. In any event, since the exparte award passed by Labour Court stood set aside and the Industrial Dispute was restored, the Labour Court is directed to proceed with the Industrial Dispute as expeditiously as possible. This Court finds that the labour Court in the impugned order itself had stated that an exemplary costs of Rs.500/- was awarded as a condition precedent for restoring the Industrial Dispute. It was stated that the amount had already been paid and the Industrial Dispute bas been restored.
17. In any event, when the Labour Court says it was granting exemplary costs, the cost of Rs.500/- cannot be exemplary costs. Considering the fact that the workman got an exparte award as early as on May 1999 and also filed a claim petition in the year 2002 and the management filed the interlocutory application only in the year 2006, the exemplary costs mentioned by the Labour Court is inadequate.
18. Under such circumstances, this Court directs that Rs.5,000/- (Rupees five thousand only) should be paid by the management to the worker as a condition precedent for proceeding with the Industrial Disputes. If a cost memo to that effect is filed within a period of eight weeks from the date of receipt of a copy of this order, the Labour Court is hereby directed to dispose of the Industrial Dispute within a period of three months thereafter, after giving due notice to both sides. If the Cost is not paid then the exparte award will stand restored and the workman will be at liberty to execute the Award.
19. With the above directions, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
jikr To
1.The Presiding Officer, Labour Court, Trichy.
2.The Management, Alagiri Spinning and Weaving Mills (P) Ltd., P.B.No.3, Ambathurai R.S., Madurai Road, Dindigul.