Bombay High Court
Bombay Film Laboratories Pvt. Ltd. vs L.G. Vasule & Ors. on 7 July, 1994
JUDGMENT
Pendse J.
1. The dispute in this appeal lies in a very narrow compass and only few facts are required to be stated to appreciate the grievance of the appellants. The respondents was employed as a Workman by the appellant on February 1, 1972. The respondents was subsequently promoted to the post of Senior Development in the film laboratory run by the appellants. The appellants claim that on June 13, 1984 the respondent was retrenched as the post of Senior Developer was abolished. Against the order of retrenchment, the respondent raised dispute and after the failure report was made by the Conciliation Officer, the dispute was referred for adjudication to the Labour Court. The proceedings before the Labour Court were adjourned from time to time and on June 2, 1989 when the appellants and Advocate were absent, an ex-parte award in favour of the respondent came to be passed. The award provided reinstatement of the respondent with full backwages.
2. On July 13, 1989 the appellants filed an application for setting aside the ex-parte award by claiming that there was sufficient reason to remain absent on the day when the ex-part award was passed. Even this application was rejected for default on September 26, 1991. The appellants then filed one more application claiming that the appellants had appeared before the Labour Court on the same day when the second application was dismissed but the Labour Court directed to file third application. The third application was rejected by the Labour Court by order dated March 12, 1993 on the ground that the Labour Court has no jurisdiction to entertain the application for setting aside ex-parte award. The Labour Court felt that the powers conferred upon the Labour Court are not identical as those on the Civil Court and the inherent jurisdiction available under section 151 of the Code of Civil Procedure is not available to the Labour Court. The Labour Courts did not examine the case of the appellants on merits.
The order of the Labour Court was challenged by the appellants by filling Writ Petitions No. 1484 of 1983 but by petition was summarily dismissed by the learned Single Judge by order dated August 2, 1993. The order of the learned Single Judge is under challenge.
3. After the admission of the appeal, the enforcement of the award was stayed and thereupon the respondents took out Notice of Motion No. 1889 of 1993 for relief under section 17B of Industrial Disputes Act. This Court passed an order granting relief to the respondent inter alia providing that the appellants shall pay wages from the date of the award. Shri Ganguli, learned counsel appearing for the respondent has taken our Notice of Motion No. 738 of 1994 complaining that the order passed by this Court under section 17B is not complied with as the appellants had paid the wages from the date of grant of stay of the enforcement of the award by this Court and not from the date of declaration of the award. Shri Ganguli submits that the appellants are in contempt and therefore appeal should not be heard. It is not possible to accede to the submission of the learned counsel. In the first instance, plain reading of provisions of section 17B makes it clear that the Court has power to direct payment of wages only for the period when the enforcement of the award of reinstatements is stayed. It is open for the Court to direct payment from the date of the award. Shri Ganguli also submitted that the entire wages were not paid by the appellants but deductions were made in respect of Employees Provident Fund. We are unable to appreciate how any grievance can be made about the deductions which are statutory in nature and failure to do so would lead to prosecution of the employer. In our judgment, the Motion taken out for adopting proceedings under the Contempt of Courts Act against the appellants are misconceived and are liable to be dismissed.
4. Shri Anilkumar, learned counsel appearing on behalf of the appellants, submitted that the view taken by the Labour Court that the Court becomes functus officio on passing of the award and the Labour Court has no jurisdiction to entertain the application for setting aside the award in incorrect. The learned counsel urged that by catena of decisions of this Court, it has been settled that the labour Court has power to entertain the application for setting aside ex-parte award. The submission is correct and deserves acceptance. Shri Ganguli did not dispute the position that the Labour Court has jurisdiction to entertain the application but urged that the ex-parte award should not be set aside because the proceedings are pending for several years. We do not wish to express any opinion on the issue as to whether the ex-parte award should be set aside or not in the present proceedings and that question is left for determination of the Labour Court. In our judgment, the Labour Court was clearly in error in concluding that the application for setting aside ex-parte award was not maintainable and that order therefore is required to be set aside and proceedings are remitted back to the Labour Court for fresh determination. Shri Ganguli submitted that as the proceedings are pending for a long period, direction should be given to the Labour Court to dispose of the application on merits before the stipulated period. In our judgment, the submission is correct and deserves acceptance.
5. Accordingly, appeal is allowed and order dated March 12, 1993 passed by 5th Labour Court, Bombay in Miscellaneous Application No. 83 of 1992 and order dated August 2, 1993 passed by the learned Single Judge in Writ Petition No. 1484 of 1993 are set aside and Miscellaneous Application No. 83 of 1992 is remanded back for determination on merits to 5th Labour Court, Bombay. The parties are directed to appear before the Labour Court on July 25, 1994 for direction for fixing the date of hearing. The Labour Court is directed to finally dispose of the applications on merits by end of August 1994. As indulgence is shown to the appellants, the appellants shall pay the costs of the appeal to the respondent. The stay of the operation of the award to continue till the date of the disposal of the application by the Labour Court. Notice of Motion No. 738 of 1994 is dismissed with no order as to costs.