Madras High Court
The Chairman And Managing Director, ... vs The Presiding Officer, Industrial ... on 25 August, 2000
Equivalent citations: 2000(4)CTC131, [2000(87)FLR423], (2001)ILLJ441MAD
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the award of the Industrial tribunal, Chennai in I.D. No. 66 of 1990 on 21.10.1992, the Chairman and Managing Director, Tamil Nadu Minerals Limited (TAMIN), Chennai 5 has filed the above writ petition to quash the same.
2. The case of the petitioner is briefly stated hereunder:- The petitioner is engaged in mining of graphite stones and other minor and major minerals. The mining operations carried on by TAMIN also includes quarry operations where TAMIN engages contractors and gang leaders to dress the stone quarry by the petitioner. The chislemen are engaged by the gang leader on daily rated basis and they are the independent contractors engaged for specific quarries. There is no relationship of master and servant between the chislemen engaged in various quarries and Tamin. Their engagement is contingent upon availability of works. The chislemen are in the position of independent contractors in their own right and by no such imagination they could be construed as "workmen" within the meaning of section 2(a) of the Industrial Disputes Act. In the above circumstances, the second and third respondents raised a dispute under section 2(k) of the Industrial Disputes Act, 1947 alleging non-employment of the chislemen and praying for their regularisation on permanent basis. After failure of conciliation proceedings, the matter was referred for adjudication before the first respondent in I.D.No.66 of 1990. Respondents 2 and 3 herein filed claim statement and the writ petitioner filed its counter. However, the repeated absence of officials of Tamin resulted in the first respondent passing an ex parte award on 21.10.92 in I.D.No.66 of 1990. The petitioner came to know of the ex parte award only after a long time. Immediately thereafter they filed a petition to condone the delay of 1245 days in filing the petition to set aside the ex parte award. The said application was dismissed. The only remedy available thereafter to the petitioner is to file a writ petition against the ex parte award. Allowing the award to become final without an adjudication on the merits of the various issues involved therein would be prejudicial to the interest of the writ petitioner apart from setting up a precedent for the other chislemen contractors similarly engaged in various quarries in the State. In view of all these factors it is imperative and imminent to get an authoritative pronouncement of the issues enumerated above to define and demarcate with precision the nature of the relationship between the writ petitioner and the chislemen engaged in various quarries. The ex parte award is exfacie illegal and unsustainable and opposed law and the same requires to be set aside by this Court.
3. In the light of the above factual position, 1 have heard the learned counsel for the petitioner as well as respondents 2 and 3.
4. Mr. R. Viduthalai, learned counsel appearing for the petitioner, would state that though there is enormous delay in approaching this Court, in view of the fact that the first respondent has not assigned any reason and the same having been passed without considering the merits of the case contained in the counter statement filed, the impugned award of the Industrial Tribunal is liable to be set aside. According to him, it is also opposed to the provisions of Rule 22 of the Industrial Disputes Central Rules, 1957. It is also contended that in view of the fact that there is no relationship of master and servant or employer and employee between the writ petitioner and the chislemen engaged for dressing the stones by the gang leaders on contingent and piece rate basis, the impugned award of the Industrial Tribunal is liable to be set aside.
5. There is no dispute that respondents 2 and 3 herein raised an industrial dispute under Section 2(k) of the Industrial Disputes Act against non-employment of the Chislemen and praying for their reinstatement and regularisation on permanent basis. After failure of the conciliation proceedings, the matter was referred to the Industrial Tribunal which culminated in I. D. No.66 1990. The terms of reference is as follows:-
"Whether the action of the management of M/s Tamil Nadu Minerals Limited, Chennai in discharging the chislemen is justified if not to what reliefs are the workmen entitled?"
It is not further disputed that before the first respondent, respondents 2 and 3 namely, the Sangam and Union filed their claim statements and the writ petitioner, namely, Tamin filed the counter. Since no one represented the Tamin on several occasions, the Industrial Tribunal passed the impugned award on 21.10.92 to direct the management to reinstate chislemen with back-wages with continuity of service and other attendant benefits and make them permanent workers as prayed for. As stated earlier, the filing of counter statement by the management-Tamin disputing claim of the Union/Sangam is not disputed. No doubt, on behalf of the Union, one K. Vijayan, General Secretary was examined as W.W.I. Because of the absence of the management on 16.9.92, W.W.1 was not cross-examined, hence the case was adjourned to 22.9.92. Even on that date also the management was absent and no representation was made on behalf of the management. After saying that "the evidence let in by W.W.1 proves the claim of the workmen", the Industrial Tribunal passed the impugned award. Mr. R. Viduthalai by drawing my attention to Rule 22 of the Industrial Disputes Central Rules, 1957, would state that the labour court/Industrial Tribunal should take into consideration the statement submitted by the party who remained ex parte and only on the comparative merits of the claim and counter claim, an ex parte order has to be passed. In this regard, it is worth- while to refer Rule 22 of the Industrial Disputes Central Rules, 1957 (hereinafter referred to as "the Rules").
"Rule 22. Board, Court, Tribunal. Labour Court, National Tribunal or Arbitrator may proceed ex parte:- If without sufficient cause being shown, any party to proceeding before a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be represented, the Board. Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed as if the party had duly attended or had been represented."
A reading of the abovesaid condition would undoubtedly show that the Industrial Tribunal, in such circumstances in which any party to proceeding did not show sufficient cause, may proceed as if the party had duly attended or had been represented. In other words, the adjudicatory forum should take into consideration the statements filed by the party which remained ex parte and only on the comparative merits of claims and counter claims an ex parte award has to be passed. It is clear that the ex parte award passed without considering the contentions raised in the counter statement filed before the conciliation officer or before the Labour Court or Industrial Tribunal would not be valid. I have already stated that even though the management has filed a counter statement before the conciliation officer as well as the Industrial Tribunal, without considering the defence taken by them, merely on the basis of the evidence of W.W.1 in chief and without any discussion with reference to the issue referred, the Industrial Tribunal has passed the impugned award which cannot be sustained since the same is opposed to Rule 22 of the Rules extracted above. The contention of Mr. R. Viduthalai in this regard is well founded.
6. Mr. Viduthalai has very much relied on a judgment of the Kerala High Court in F.A.C.T. Employees Association v. F.A.C.T. Ltd., 1997 (1) L.L.J. 182. T. Kochu Thommen, J., of the Kerala High Court, after referring to section 10 of the Industrial Disputes Act and Rule 20(2) and 22 of the Kerala Industrial Disputes Rules, 1957 as well as similar ex parte award, has passed the following observation:-
"...It had to apply its mind like any other judicial officer who examines evidence and hears arguments before forming conclusions. The Tribunal had to focus its judicial mind on the merits of the points in dispute, impartially, dispassionately and objectively."
The learned Judge has also referred to a decision of the Andhra Pradesh High Court in Dawood Khan v. Labour Court, Hyderabad, 1969 (II) L.L.J. 611. wherein the Andhra Pradesh High Court had occasion to consider this aspect of the question. This is what the Court says:
"The absence of a party does not entail the consequence that an award will straightaway be made against him. It is still the duty of the presiding officer of the Labour Court to go into the merits of the dispute and give such findings as he can on the material placed before him."
In Har Prasad Engineering Workshop v. State of U.P., 1964 (I) L.L.J. 607 at 608, the Allahabad High Court says--
"In my opinion, this rule merely permits the Labour Court to proceed ex parte against party who fails to file a written statement, but it does not empower it to decide the matter without going into the merits of the case".
It is worth-while to refer the decision of the Supreme Court in Agra Electric Supply Co., v. Labour Court, Meerut, 1970 (1) L.L.J. 1 wherein after referring Rule 16 (1) of the Uttar Pradesh Industrial Disputes Rules, which is similar to Rule 22 of the Central Rules, the Court has concluded thus:-
"That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein "to proceed with the case in his absence," either on the date fixed or on any other date to which the hearing may be adjourned coupled with the further direction "and pass such order as it may deem fit and proper,' clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default".
In the light of the language used in Rule 22 of the Rules and in view of the specific stand taken by the management in their counter statement, it is the duty of the Presiding Officer of the Industrial Tribunal to go into the merits of the dispute and give such findings as he can on the materials placed before him. I am in agreement with the views expressed by various other High Courts referred to above.
7. It is also relevant to refer a Division Bench decision of this Court in T.N.H.B., v. P.O., II Additional Labour Court, Madras, 1997 (1) L.L.J. 923. Their Lordships of the Division Bench after considering similar Rule 48 of the Tamil Nadu Industrial, Disputes Rules, 1958 as well as an ex parte award passed by the Labour court, have observed thus:-
"6. Thus, from the aforesaid award, it is clear that the Labour Court has not considered the evidence on record. Even though the appellant remained absent, nevertheless, there was evidence on record. There were the statements of the case pleaded by the petitioner and the respondent. The Labour Court was required to consider and give reasons for passing the award in favour of the 2nd respondent workman. As no such reason is given, not even the facts of the case are stated, the award cannot at all he considered to be a speaking order, as such it cannot be sustained. The Presiding Officer is an officer of the District Judge grade. He should not have decided the dispute in such a manner. There is no judicial application of mind of the Presiding Officer of the Labour Court. Such exercise of jurisdiction causes great and incalculable damage to the parties and also to the administration of justice. The Presiding officer would do better, if he discontinues such a habit of disposal of cases."
In the case before the Division Bench, when the dispute was taken up for enquiry, the respondent-management was absent and set ex parte. On the side of the workman, W.W.1 was examined and Exs. W-1 to W-4 were marked. The Labour Court after stating that W.W.1 was examined, that Exs. W-1 to W-4 were marked, and that claim is proved, passed an award directing the respondents management to reinstate the workman in service with back-wages, continuity of service and other attendant benefits with cost of Rs.100. The said award was set aside by the Division Bench stating that the Labour Court has not assigned any reason and has not stated even the facts of the case. It is clear that in a matter like this even if the respondent was absent, it is the duty of the Labour Court/Industrial Tribunal to consider and give reason for passing the award. Inasmuch as the Presiding Officer is an officer of the District Judge grade as observed by Their Lordships in the Division Bench, he should not have decided the dispute in such a manner. There must be a judicial application of mind and his order must be based on acceptable materials. By applying the ratio laid down in the Division Bench decision, the impugned order cannot be sustained. In W.P.No.6346 of 1998 dated 14.8.2000, I had an occasion to consider similar ex parte award passed by First Additional Labour Court, Chennai in I.D.No.120 of 1994. In the light of the Division Bench decision referred to above, I set aside the ex parte award with a direction to pay cost to the workman concerned by the management and directed the Labour Court to decide the dispute on merits. The decision of mine also supports the contention of the learned counsel for the petitioner.
8. Mr. D. Hari Paranthaman, learned counsel for the respondents 2 and 3, while stating that the impugned award cannot be sustained in the eye of law, in view of the various decisions, has also stated that there was considerable delay in approaching this Court after passing of the impugned award, and hence he prays for dismissal of the writ petition. I am unable to accept the said contention. Though it is true that the ex parte award was passed on 21.10.92, it is stated that because of various reasons namely, change of the officers of the Tamin, Law Officers etc.. they could not file proper application to set aside the ex parte award in time. They filed application namely, M.A.No. 124 of 1996 only in the month of April, 1996 and the same was dismissed by the Industrial Tribunal on 8.11.96. It is equally true that even thereafter, the Tamin has not approached this Court within a reasonable time and only on 27.2.98 filed the above writ petition. The way in which the Tamin approached this Court after six years for questioning the ex parte award cannot be appreciated. However, in view of the fact that Tamin is an undertaking of the Government of Tamil Nadu and the question referred before the Industrial Tribunal is an important one and in the light of their stand in the counter statement filed before the Conciliation Officer as well as the Industrial Tribunal and also of the fact that the Order passed by the Industrial Tribunal is not a judicious order, I am of the view that the matter has to be disposed of on merits. In view of the fact that the Tamin has not taken prompt steps at the appropriate stage, I am of the view that interest of justice would be met by awarding cost in favour of respondents 2 and 3 herein.
9. The impugned award of the Industrial Tribunal, Chennai, in I.D.No.66 of 1990 dated 21.10.92 is quashed with cost of Rs.10,000 to be paid to the respondents 2 and 3 herein (each Rs.5000) by the petitioner-management by way of Demand Draft on or before 22.9.2000 on which date the Industrial Tribunal, Chennai shall call this case and restore I.D.No.66 of 1990 to its file. The petitioner shall pay the aforesaid amount of cost on or before the said date. The industrial Tribunal is directed to decide the matter on merits within a period of six months thereafter. The Writ Petition is allowed as stated above. W.M.P.No.4376 of 1998 is closed.