Allahabad High Court
M/S Nandan Talkies vs Po Industrial Tribunal And Another on 12 July, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - C No. - 8204 of 2011 Petitioner :- M/S Nandan Talkies Respondent :- Po Industrial Tribunal And Another Counsel for Petitioner :- Anjani Kumar Mishra,Piyush Bhargava Counsel for Respondent :- C.S.C.,M.P.S. Chauhan,Nitin Kumar Agarwal Hon'ble Saumitra Dayal Singh,J.
Heard Shri Piyush Bhargava, learned counsel for the petitioner and Shri Nitin Kumar Agarwal, learned counsel for the respondent-workmen.
By means of present writ petition, the petitioner has challenged the award of the Industrial Tribunal, Agra dated 04.11.2008 and the further order passed by that Tribunal dated 24.01.2011 rejecting the petitioner's application to recall the ex-parte award dated 04.11.2008 whereby relief of reinstatement with back-wages had been awarded.
Having heard learned counsel for the parties and having perused the record, in the first place, it is clear that the Industrial Tribunal has rejected the application filed by the petitioner to recall the award dated 04.11.2008 on the primary reasoning that the application filed after thirty days from the date of publication of the award (made on 23.8.2010), was not maintainable.
That order appears to have been passed on wrong application of a principle of law inasmuch as upon reference made to a larger bench, a three-judge bench of the Supreme Court in Haryana Suraj Malting Ltd. Vs. Phool Chand dealt with the following questions referred to it :
?1. Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases.
2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. v. Hans Raj a two-Judge Bench held and observed that an application for recall of an ex parte award may be entertained by the Industrial Tribunal/Labour Court only in case it is filed before the expiry of 30 days from the date of pronouncement/publication of the award. A contrary view was taken in Radhakrishna Mani Tripathi v. L.H. Patel to which one of us (Aftab Alam, J.) was a party.
3. In both cases, that is to say, Sangham Tape Co. and Radhakrishna Mani Tripathi, the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal and Anil Sood v. Labour Court but read and interpreted those two decisions completely differently.
4. The conflict which has arisen as a result of the two decisions can only be resolved by a larger (2009) 2 SCC 81 (2012) 8 SCC 579 Bench. Let these cases be, therefore, listed before a three-Judge Bench.?
The above questions were answered by the larger bench of Supreme Court in Haryana Suraj Malting Ltd. Vs. Phool Chand 2018 LLR 815 wherein it was held as under :
"35. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. 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. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.
36. We may also add that when an application for setting aside an ex parte award is made at the instance of the management, the Labour Court/Tribunal has to balance equities. The appeals are hence disposed of as follows. The awards are remitted to the Labour Court for consideration as to whether there was sufficient cause for non- appearance of the management. Since the litigation has been pending for a long time, we direct the appellants to pay an amount of Rs.1,00,000/- in each case to the workmen by way of provisional payment. However, we make it clear that the payment is subject to the final outcome of the awards and will be adjusted appropriately. We record our deep appreciation for the gracious assistance rendered by Mr. Shekhar Naphade."
Also insofar as the ex-parte award is concerned, it is seen, the same is largely unreasoned. No cogent reasoning has been given to accept the plea setup by the workmen. Only vague and general observations have been made and repeated in the award.
In such facts, in the first place it cannot be disputed that the Labour Court erred in observing that the recall application filed by the petitioner was not maintainable, it having been filed more than thirty days after the date of publication of the award and second even otherwise the award of the Labour Court is found to be not sustainable.
The writ petition is accordingly allowed. The award dated 4.11.2008 and order dated 24.01.2011 are set-aside subject to payment of cost Rs.35,000/- to be deposited before the Tribunal within a period of one month, to be released in favour of respondent-workmen.
Petitioner undertakes not to seek adjournments in the proceedings which may recommence from the stage of evidence. Parties may act with sense of self-discipline to ensure that the proceedings are concluded as expeditiously as possible preferably within a period of six months from the date of compliance made by the petitioner.
Order Date :- 12.7.2022 Shiv