Jammu & Kashmir High Court
J&K; Industrial & Technical ... vs Sh. R. K. Bakshi And Others on 24 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: OWP No.774/2003
Date of decision:-24.11.2017
J&K Industrial & Technical Consultancy Organisation
Vs.
Sh. R. K. Bakshi and others
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. R. P. Sharma, Advocate.
For the respondent(s): None for respondent No.1.
Mr. Manuj Mahjan, GA for respondent Nos. 2 & 3.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. This Writ Petition is filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir for issuance of an appropriate writ, direction or order in the nature of Certiorari to quash the ex-parte Award of learned Presiding Officer, Industrial Tribunal/Labour Court J&K Jammu dated 13.08.2002 alongwith its judgment/order dated 15.07.2003 rejecting application for setting aside ex- parte award.
2. The case of the petitioner is that the petitioner is a Govt. Company sponsored by Industrial Development Bank of India with registered office at 17 B/B Gandhi Nagar, Jammu engaged in providing consultancy service to the Industrial entrepreneurs. The Presiding Officer, Industrial Tribunal/Labour Court J&K, Jammu passed an ex-parte award dated 13.08.2002 in case File No.697/LC titled Sh. R. K. Bakshi Vs. managing OWP No.774/2003 Page 1 of 13 Director, J&K ITCO Ltd. Jammu holding that the order terminating the services of respondent No.1 was illegal as he was working as Project Associate from July, 1998 till 24th April, 2000, and terms of Section 25-F of Industrial Disputes Act have not been complied with. Respondent No.1 was held deemed to be in service and entitled to all back wages as he was getting before his illegal retrenchment from service. Respondent No.1 was also held entitled to interest on the back wages at the rate of 9% per annum. It is further stated that the petitioner-company on getting knowledge of the passing of ex parte Award, applied for setting aside the ex parte award. Learned Presiding Officer after hearing the parties rejected the application for setting aside ex parte award vide order dated 15.07.2003. It is also stated that the said Award/judgment are not based on facts proved by cogent evidence led by the respondent before the tribunal. These are liable to be set aside on the following grounds:-
a) That the said Tribunal has failed to appreciate law and facts in accordance with settled principles essential for passing decision by a Judicial or a Quasi Judicial Authority or Tribunal in accordance with principles of natural justice, equity, fair play and good conscience.
b) That respondent was not an employee of petitioner during the period of July 1998 to 24th April, 2000. No appointment letter was ever issued to him by any competent officer of the Company. There is no post of Project Associate with the company against which the alleged claim of respondent could lie. He has no right of employment as such on any basis.
c) That the respondent was given contractual assignments as Project Associate to help in arranging entrepreneur Development Projects on need basis from time to time and was never given any regular employment with the company. The claim of respondent was baseless against any documentary or oral proof adduced before the OWP No.774/2003 Page 2 of 13 Tribunal. Even the ex parte award could not be passed without formal proof of regular employment establishing relationship of employer and employee for a continuous period of one year as alleged. Allegations can not take the place of proof. The said ex parte award thus is a nullity and liable to be set aside and quashed as the said award has caused a failure of justice.
d) That while working on contractual basis the respondent received an amount of Rs.5000/- from one of the clients of the Company as per the complaint received by the company from Mr. Sushil of Rajouri.
On confronting the said complainant and on fearing legal action, the respondent left the contractual assignment and committed another offence of stealing attendance register of the employees. FIR was filed with the Police Station Gandhi Nagar, Jammu.
e) That the Tribunal has wrongly rejected application of the company for setting aside ex parte award and the impugned order is liable to be quashed. The reasons given by the Industrial Tribunal/Labour Court in rejecting the application of petitioner for setting aside ex parte award are not tenable in law.
f) That the award has not been published by the Govt. as yet. The publication of copy of award in the Govt. Gazette does not amount to publication by the Govt. of its acceptance of the award. The Govt. has a power to either accept or modify the same as per provisions of Section 17 and 17-A of the Industrial Disputes Act. As such, the holding of Industrial Tribunal/Labour Court that the application of petitioner is barred by time having been made after expiry of 30 days from the date of publication is against law as the award has not been published by the appropriate Govt. as yet.
OWP No.774/2003 Page 3 of 133. Counter stands filed on behalf of respondent No.1 stating therein that the learned Presiding Officer, Industrial Tribunal/Labour Court, J&K, Jammu summoned the petitioner but the duly authorized officials of the petitioner M/s S. P. Sood and R. K. Sumbali appeared before the Tribunal and the copy of the petition filed by the respondent was supplied to them. The said officials of the petitioner sought opportunity to file objections and accordingly time was granted to the petitioner, thereafter, the petitioner remained absent so there was no alternative with the Presiding Officer of the Industrial Tribunal except to proceed ex-parte against the petitioner. It is further submitted that the petitioner cannot plead in the petition that they were not afforded an opportunity of being heard rather they were summoned, appeared on 27.07.2001, sought opportunity to file objections and thereafter petitioner remained absent their intentional absence cannot be a ground for setting aside ex parte award dated 13.08.2002 and the said award was notified in the Government Gazette on 26th of September, 2002. As a matter of fact, petitioner has appointed the respondent as Project Associate on 1st of July, 1998, subsequently petitioner issued Identify Card to the respondent showing designation of the respondent. The petitioner sent the respondent on Tour programme to Udhampur w.e.f. 21.10.1998 to 24.10.21998 for Prime Minister Rozgar Yojna and State Self Training Programme. It is further submitted that the petitioner also sent the respondent for Tour Programme w.e.f. 13.11.1998 to 22.11.1998 to Srinagar in connection with Entrepreneurship Development Programme. Petitioner again sent the respondent on Tour Programme w.e.f. 3 rd of June 1999 to 6th of June, 1999 to Srinagar to fill up the forms of the Entrepreneurship Development Programme vide its letter dated 02.06.1999. The petitioner has sent the respondent on tour programme w.e.f. 21.06.1999 to 22.06.1999 at Kathua for the purpose of Prime Minister Rozgar Yojna/State Self Employment Programme vide its letter dated 18.06.1999 and also sent the petitioner on tour programme w.e.f. 10.12.1999 to OWP No.774/2003 Page 4 of 13 14.12.1999 for promotional work of EDP (Science and Technology) and tour programme at Samba w.e.f. 07.08.1999 to 14.08.1999 to assit in promotional work of Rural Entrepreneurship Development Programme (Samba). It is further stated that above mentioned letters and orders issued by the petitioner thereby permitting and directing the respondent to conduct the Tour Programme in different places in the State of J&K in the capacity of Project Associates clearly proves on record that the respondent was working as Project Associate with the petitioner and the respondent was their employee and worked in their office under their employment and was drawing the monthly salary of Rs.3200/- along with other allowances. Whereas petitioner was appointed and enrolled as permanent regular employee of the petitioner and attendance of the respondent was marked in the register maintained by the petitioner but the petitioner without affording an opportunity of being heard and without serving any show cause notice terminated the service of the respondent even without issuing any termination order in writing, therefore, action of the petitioner was illegal, in-violation of the Rules and guidelines as well as provisions of law. Thereafter, respondent being permanent regular employee of the petitioner filed petition before the Industrial Tribunal/Labour Court J&K, Jammu and agitated all his grievances in the application filed by the respondent. Petitioner appeared through their officials M/s S. P. Sood and R. K. Sumbali in the case on 27.07.2001 and they sought opportunity for filing objections but thereafter petitioner remained absent in the petition filed by the respondent before the Tribunal and ultimately there was no option with the Tribunal except to proceed ex-parte against petitioner. Respondent produced all the cogent evidence before the Tribunal and the Hon'ble Tribunal has passed the legal, valid and appropriate order vide its award dated 13.08.2002. The said Award was also notified in the Govt. Gazette on 26th September, 2002. Now the petitioner cannot say that the petitioner was not summoned by the tribunal. The Tribunal had summoned the OWP No.774/2003 Page 5 of 13 petitioner, afforded opportunity but the negligent and careless act of the petitioner cannot be a ground to condone their negligent act, therefore, time barred application for setting aside ex parte award was made by the petitioner, which was dismissed by the Tribunal by assigning the reasons and grounds, therefore, the legal and valid award is passed by the Tribunal. It is submitted that respondent has not received alleged amount of Rs.5,000/- from Sh. Sushil R/o Rajouri, client of the petitioner as alleged by the petitioner. It is also stated that the attendance register is always in the custody of the petitioner and their officials so the question of stealing the said attendance register by the respondent does not arise at all because said register never remained in the custody of the respondent. Only false allegations are leveled against the respondent with the intention to oust the respondent from service. Petitioner has leveled false report with the police station Gandhi Nagar, Jammu. Neither so far had police of police station Gandhi Nagar called the respondent in the said FIR lodged by the petitioner. With afore stated submissions, respondent has prayed that writ petition filed by the petitioner be dismissed.
4. Objections stands filed on behalf of respondent No.3 also stating therein that none of the rights, much less a fundamental right of the petitioner has been violated or infringed at the hands of respondent, as such, the writ petition is liable to be dismissed on merits. The petitioner has misrepresented the material facts before the Hon'ble Court and misled the Court rendering petition devoid of merits, hence liable to be dismissed. It is stated that the Tribunal has passed the award following the settled principles of natural justice, equity, fair play and good conscience. Respondent No.1 by virtue of adducting sufficient evidence to the effect of being an employee of petitioner company has put this contention of the petitioner to rest. The provisions of Industrial Disputes Act, 1947 may be invoked even by a temporary employee fulfilling other laid down conditions and as such the contentions of the petitioner company are OWP No.774/2003 Page 6 of 13 vociferously rejected. It is submitted that the application of petitioner company for setting aside the ex parte award was rejected by the Industrial Tribunal on the ground of same being time barred. It is further submitted that the case in hand has its origin to the year 2002 and the records pertaining to it, despite repeated sincere efforts are untraceable. The possibility of the same having got destroyed during the floods of 2014 is also not ruled out. But an award gets published in the Government Gazette only after being requested by a Government Department and as such if the said award stands published in the J&K Government Gazette, 26 th Sept., 2002/4th Asv., 1924. 191, the same must have been on the request of respondent No.3. As regards Section 17 and 17-A of the Industrial Disputes Act, 1947, their plain reading nowhere suggest that the government is bound to reject or modify the award passed. Once the government requests the government press to publish an award, it is understood that the award has been accepted by it.
5. Heard learned counsel for petitioner and learned GA representing respondent Nos.2 & 3 and gone through the impugned Award/order passed by the Tribunal. No one has put in appearance on behalf of respondent No.1.
6. The only law point raised by the petitioner is that award has not been published by govt. as per provisions of Section 17 and 17-A of the Industrial Disputes Act, as such, the holding of Industrial Tribunal/Labour Court that the application of petitioner is barred by time having been made after expiry of 30 days from the date of publication, is against law.
7. Before deciding controversy as projected by counsel for petitioner, it is opt to reproduce relevant extract of the Award dated 13.08.2002, it reads:
"Vide SRO No.154 dated 25th April, 2001, the Government of Jammu and Kashmir referred the following questions for adjudication of this Court:OWP No.774/2003 Page 7 of 13
i/- legality or otherwise of the action of the management of the Industrial and Technical Consultancy Organisation Limited, Jammu in terminating the services of the aforesaid employee, Sh. R. K. Bakshi; and ii/- award appropriate relief to the said employee in case illegality of the action of the said management is established.
On the receipt of the reference, the Court directed its registration in the concerned register and also for issuance of notice to the parties. The petitioner appeared on 27th July, 2001, whereas Messers S. P. Sud and R. K. Sumbali, Senior Consultants of the respondents appeared on 27 th Aug. 2001. They requested for time to file the letter of authority. On the same date the petitioner was also directed to file statement of claims. The Court orders show that the respondents did not attend the proceedings after their initial appearance on 27th August, 2001. Therefore, they were put exparte on 29th Oct. 2001. Till date the respondents have not appeared in this Court.
It may be noted here that the notices to the respondents were issued to them under registered cover vide postal receipt No.3341 dated 9th Aug. 2001, placed on record. The registered cover carrying the notice was not received back even after the expiry of statutory period, which ended on 9th Sept. 2001. It seems this fact weighed with the Court at the time of initiating exparte against the respondents on 29th Oct. 2001. Petitioner filed the statement of claims on 3rd Dec. 2001. After considering the pleadings, brought on record, the Court felt that the issues i.e. points of reference, framed by the Government did not need any change and accepted the same as issues to be joined by the parties. The Court directed the petitioner to produce the evidence in support of his claims. The petitioner appeared as witness for him and also produced Messers Surinder Kumar and Rakesh Sharma as his witnesses.
-------------------evidence of petitioner ------------ From the evidence produced by the petitioner, it is made out that the petitioner had worked for the respondents from July, 1998 to 24 th April, 2000. This way it is proved that the petitioner had worked for the respondents for more than one year. The evidence produced shows that the work of petitioner was to do jobs of the respondents, like preparation of project reports, deliver lectures and motivate the unemployed youth to establish their own units. He worked on the direction of respondents and under their supervision. Therefore, he served the respondents as a skilled workman.
In terms of Sec. 25 F of the Industrial Disputes Act, a workman who works for his employer, continuously for one year, earns some rights. Before his retrenchment, he is required to be given one month's notice or wages for one month as notice salary. He is also required to be paid 15 days' average salary for each completed year of service as compensation of retrenchment. In such a case the employer is also required to serve a notice on the appropriate government that the services of such and such employee are going to be retrenched. Where, this is not done, the order of retrenchment become illegal.OWP No.774/2003 Page 8 of 13
The record of the file does not show that the respondents complied with the provisions of Sec. 25-A of the Industrial Disputes Act. The respondents have not come forward to say that they had given notice of retrenchment or salary in lieu of notice period to the petitioner, and paid compensation to him. They have also not brought on record anything to show that the notice of retrenchment of services of petitioner was given to the appropriate government. The provisions of Sec. 25-F of Industrial Disputes Act are thus shown to be completely ignored by the respondents. Therefore, I hold that the order terminating the services of petitioner by the respondents was illegal and is declared so.
Now it is to be seen as to what is the effect of declaring the order of retrenchment of services of petitioner as illegal, void abinitio. In the case of Mohan Lal Vs. Management of Bharat Electronic Ltd. reported in 1981 Labour and Industrial Case 815, Hon'ble Supreme Court held as under:
"If the termination of services is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits."
In State of Bombay Vs. Hospital Mazdoor Sabha reported in (1960) I.L.L.J. 251, Hon'ble Supreme Court held that non compliance of the mandatory conditions of Section 25 F would render the impugned retrenchment invalid and inoperative. A similar view was taken in National Iron and Steel Co. Ltd. Vs. State of West Bengal reported as 1967 (II) LLJ 23.
In view of the settled principles of law the petitioner is deemed to be in service and entitled to all backwages as he was getting before his illegal retrenchment from service. He is also entitled to interest on the backwages at the rate of 9% P.A. This answers the points referred by the Government for adjudication.
Let a copy of the award be sent to appropriate Government for necessary action. The file of this Court be consigned to records after due completion."
Sd/-
District Judge Presiding officer Industrial Tribunal /Labour Court J&K, Jammu."
8. Bare perusal of this award, it is evident that it is well reasoned and detail award, thereby deciding all facts and laws in issues. This award has also been published in Government Gazette of 26th Sept. 2002. Thereafter, it appears that petitioner herein filed an application for setting aside ex-parte award on 11.11.2002 on various grounds including that copy of notification of award was received in the office of company on 11.10.2002 and for first OWP No.774/2003 Page 9 of 13 time it was learnt that ex-parte proceedings were taken and award has been passed against company. Respondent filed objections and tribunal below dismissed the application on the ground that after 30 days of publication of award, it cannot be set-aside and petitioner herein did not show any sufficient reason for absence during proceedings as M/S S.P.Sud and R.K Sumbali appeared on 27.8.2001 and thereafter did not appear on 28.9.2001 and 29.10.2001; so was set was ex-parte.
9. Now in this petition, petitioner has raised disputed question of facts that Tribunal has failed to appreciate law and facts in accordance with settled principles essential for passing decision by a Judicial or a Quasi Judicial Authority or Tribunal in accordance with principles of natural justice, equity, fair play and good conscience; that respondent was not an employee of petitioner during the period of July 1998 to 24 th April, 2000; no appointment letter was ever issued to him by any competent officer of the Company; that there is no post of Project Associate with the company against which the alleged claim of respondent could lie.
10. Law is clear that disputed questions of facts cannot be adjudicated in writ petition, unless there is some grave perversity in the award. In present, case I do not find any perversity in the finding of facts recorded by the Tribunal.
11. Law point raised by counsel for petitioner is that award in question was not published by Govt. in terms of section 17 of Industrial Tribunal Act, so it was not final award, and so his application for setting aside was maintainable. For deciding this controversy, let us go through the relevant provisions of law. Section 17 of the Act reads as under:-
"Section 17. Publication of reports and awards-(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.OWP No.774/2003 Page 10 of 13
(2)Subject to the provisions of Section 17-A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.
Section 17-A Commencement of the award.-
(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17: Provided that--
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to sub- section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.
(3) Where any award as rejected or modified by an order made under sub-
section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub- section (2) is made in pursuance of a declaration under the proviso to sub- section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub- section (2).
(4) Subject to the provisions of sub- section (1) and sub- section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub- section (1) or sub- section (3), as the case may be.]."
12. Bare perusal of these relevant provisions of law, it is evident that after the award is made by tribunal, it has to be published by Govt. and after it has been published, then it becomes final after 30 days of its publication. Thereafter, Tribunal become functus officio and cannot entertain any application.
OWP No.774/2003 Page 11 of 1313. In 1980 (Supp) SCC 420 - Grindlays Bank Ltd. Vs. Central Govt.
Industrial Tribunal, a three judges bench has held as under :-
"Two questions arise in the appeal, namely (1) whether the Tribunal had any jurisdiction to set aside the ex parte award, particularly when it was based on evidence, and (2) whether the Tribunal became functus officio on the expiry of 30 days from the date of publication of the ex parte award under Section 17, by reason of sub-section (3) of Section 20and, therefore, had no jurisdiction to set aside the award and the Central Government alone had the power under sub-section (1) of Section 17-A to set it aside. ....
14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub- section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. The proceedings with regard to a reference under Section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then theTribunal retains jurisdiction over the dispute referred to it for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17-A.--------------------------."
14. Thus, from the above reading of the ratio laid down in the case, it is clear that the Labour Court would become functus officio, beyond thirty days from the date of publication. In present case award was published on 26.9.2002 and application for setting aside was made on 11/11/2002 , after more than 30 days. The ground taken that award has not been published by Govt. in terms of section 17 of Act, but by Court itself, is not tenable. Because award has been published in Government gazette, so presumption is drawn that it has been got published by Govt. Secondly, this argument is based on assumption, as except bald aversion there is nothing on record.
15. Industrial Disputes Act is welfare legislation and is intended to protect and safeguard welfare and interest of large work-force working under various employers including private managements. Thus, having regard to legislative history and imperative need to give liberal construction to welfare legislation, harmonious construction of provisions is necessary.
OWP No.774/2003 Page 12 of 1316. I, therefore, see no perversity in the findings recorded by the Industrial Tribunal necessitating interference by this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. It is settled principle of law that the scope of judicial review on award passed by the Industrial Tribunal is very limited to where labour Court commits serious error of law or findings recorded suffers from error apparent on face of it. The writ Court does not Act as a Court of Appeal against the award passed by the Industrial Tribunal.
17. In view of above, this petition is dismissed. Order of tribunal is upheld.
Petitioner shall comply the order/award of Industrial Tribunal within two months from the date of this order as already more than 15 years has passed. Petitioner is also burdened with costs of Rs.20,000/-; out of this costs, Rs.10,000/- shall be paid to respondent as costs of litigation and rest shall be deposited in Advocates Welfare Fund. This costs shall be deposited within two months failing which Registrar Judicial shall take steps to recover the costs.
(Sanjay Kumar Gupta) Judge Jammu 24.11.2017 Narinder OWP No.774/2003 Page 13 of 13