Calcutta High Court
Hindusthan Tobacco Company vs The First Labour Court And Ors. on 16 January, 1995
Equivalent citations: (1995)1CALLT172(HC), 1995(1)CHN398, 99CWN391, [1995(70)FLR895], (1995)IILLJ904CAL
JUDGMENT
Nisith Kumar Batabyal J.
1. This hearing arises out of an application under Article 226 of the Constitution of India. The writ petitioner is a Registered Partnership Firm. The respondent No. 3 was an employee of the said firm. There was an industrial dispute between the employer and the employee and the matter was under adjudication before the Learned 1st Labour Court, West Bengal and was registered as Case No. 29/85 under Section33(C)(2) of the I.D. Act. 1947. During the pendency of (he said proceeding, on January 14, 1993, the respondent No. 3 who was the applicant in that proceeding was absent and the Learned Court was pleased to dismiss the case for default. Thereafter, the respondent No. 3 filed a petition for restoration of the case after setting aside the order of dismissal for default on January 3, 1994. In that petition, the respondent No. 3 who was the applicant stated that he was delingently conducting the case from 1985 but he was tormented by the acute illness of his wife and his mother from the year 1988 to 1993. He annexed 5 copies of Medical certificates with the said petition. He also stated that in connection with a call by a Match Company of Tamilnadu he went to Tamilnadu to finalise the deal in the last week of December, 1992 and could not return till the 3rd week of January, 1993. As a result of which he could not establish contact with his lawyer on the eve of his departure for Madras. The respondent No. 3 accordingly prayed before the Learned Court for restoration of the case after setting aside the order of dismissal.
2. The said application was contested.
3. In the objection petition filed on behalf of the writ petitioner/opposite party it was stated that the petition was mis- conceived and not maintainable in law as Rule 27 of the West Bengal Industrial Rules, 1958 had no jurisdiction in the facts and circumstances of the case. It was further submitted that the Labour Court after passing the final order had no power to review the said order of dismissal. It was also stated that the application for restoration was not a bona fide one. The Learned Court after hearing both sides of the impugned order No. 55 dated March 17, 1994 has been pleased to allow the application for restoration of the case after setting aside the order of dismissal.
4. Being aggrieved by and dissatisfied with the said order the Company-petitioner has come before this court.
5. The writ application is opposed by the respondent No. 3.
6. Mr. Ganguly, Learned Advocate for the writ petitioner has submitted that Rule 27 of the West Bengal Industrial Dispute Rules, 1958 has no application in the instant case. He has further submitted that the inherent power of the Learned Court below to restore the case after setting aside the order of dismissal was lacking as no such power was conferred on the said Court under the statute. His further contention is that the Learned Court below cannot review its own order and that there was absolutely no material on which the Learned Court below could come to a finding about the sufficiency of the grounds for absence of the respondent No. 3 on January 14, 1993.
7. Mr. Jana, Learned Advocate for the respondent No. 3 has submitted that though the power of restoration of a case dismissed for default has not been conferred upon the Learned Court below by any express provision of law under the I.D. Act, 1947 but the power to restore the case after setting aside the order of dismissal under certain circumstances has been recognised by the apex Court of the land. In this connection he has referred to the principles laid down in Grindlays Bank Ltd v. Central Government Industrial Tribunal and Ors. (1981-I-LLJ-327) at 330. In that case it was held that where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. An award without notice to a party is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.
8. It was further held in that case that it is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or Body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties. The words "shall follow such procedure as the Arbitrator or other Authority may think fit" occurring in Section 11(i) of the I.D. Act, 1947 are of the widest amplitude and confer ample power upon the Tribunal and other Authorities to devise such procedure as the justice of the case demands.
9. In that case the apex Court of the land referring to the language of Rule 22 of the Industrial Disputes (Central) Rules, (1957) unequivocally, has held that Rule 22 makes the jurisdiction of the Tribunal to render an ex parte award and carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. And in view of Rule 24 of the Central Rules when an ex parte award is passed provisions of Order 9 Rule 13 of the C.P.C. are attracted.
10. It was further held in that case that merely because an ex parte award is based on evidence it will not amount to review. Sub-sections (1) and (3) of Section 11 of the I.D. Act, 1947 themselves make a distinction between procedure and powers of the Tribunal under the Act. Furthermore different considerations arise, on review. The expression 'review' is used in two distinct senses, namely, (1) a procedural review, and (2) a review on merits. When a review is sought due to a procedural defect the inadvertent error committed by the Tribunal must be corrected ex de bito justitiae to prevent the abuse of its process and such power inheres in every Court or Tribunal.
11. Mr. Ganguly, Learned Advocate for the Company has first referred to the principles laid down in McLeod & Co. v. 6th Industrial Tribunal AIR 1958 Cal. 237. In that case it was held that where an Industrial Tribunal arrives at a finding of fact that privileges and conditions of service of Officers apply to certain employees and the service conditions of Clerks ceased to apply to him and still it holds, as application of the law or inference from such fact, that he still remained a clerk and therefore, was a workman within the meaning of the I.D. Act, it is a manifest error patent on the face of the proceedings and a petition for a writ of certiorari lies in the case. Mr. Ganguly has also referred to the principles laid down in Ramendra Narayan Dev. v. 8th Industrial Tribunal, West Bengal 1975 Lab.I.C. 94. In that case a Division Bench of this Court held that it is well settled that where the jurisdiction of a Tribunal depends upon a preliminary finding of fact, the High Court in a writ proceedings is entitled to determine upon its independent judgment, the correctness or otherwise of the findings. Mr. Ganguly has further referred to the principles laid down in Gunga Ram Tea Co. v. 2nd Labour Court (1967-II-LLJ-325)(Cal). In that case it was held the Tribunal is a statutory authority. It has therefore no inherent powers to direct a matter to be heard afresh after an order was recorded that evidence was closed. Mr. Ganguly has also referred to the principles laid down in Kalu Singh v. Madanlal 1985 Lab IC 130, In which case a Learned Judge of the Rajasthan High Court held that the power of review is not inherent in any Court or Tribunal it must be conferred by statute. An Industrial Tribunal cannot amend or modify its award which has become final under its inherent powers.
12. From a consideration of the principles laid down in the cases referred to above, it appears that in the Supreme Court cases cited by Mr. Jana, the Supreme Court held that the Tribunal does not become functus officio provided the application for setting aside the ex parte order is filed within 30 days of the publication of the award but within the period of 30 days i.e. till the award becomes enforcible under Section 17(A) of the I.D. Act, the Tribunal retain the jurisdiction to pass the order of setting aside the ex parte order of dismissal. In view of the observation of the Apex Court of our land the dictum laid down in Kalu Singh's case (supra) cannot hold the field any longer as a general proposition of law. It further appears from the principles laid down in Grindlays Bank. Ltd. case (supra) that the principles laid down in Gunga Ram's case (supra) cannot stand in the way of the Tribunal or Authority under the I.D. Act to hear a matter of setting aside an ex parte order of dismissal for default within certain parameters. No submission has been made by Mr. Jana with respect to the other two cases cited by Mr. Ganguly namely, Ramendra Narayan's case (supra) and McLeod & Co's case (supra). The principles laid down in those two cases remain unseasoned.
13. Before the decision of the Supreme Court in Grindlays Bank's case (supra) there was no uniformity of decisions on the point whether Industrial Tribunals or Authorities under the I.D. Act had the power of restoration of proceedings after setting aside an ex parte orders. Some States, like Assam, Madras, Uttar Pradesh and Kerala framed Rules under the Act for setting aside ex parte decisions of the Industrial Tribunals on showing sufficient cause. But some other States, like, Andhra Pradesh, Maharashtra, Orissa etc. have no provisions for setting aside ex parte orders or awards. But in view of the decision in Grindlays Bank's case (supra) even if there is no express provisions of the Act or Rules framed under the I.D. Act, 1947 to set aside ex parte orders shall follow such procedure as the Arbitrator or other authority concerned may think fit in Section 11(i) of the Act, are of the widest amplitude and confer ample power upon the Tribunal and other Authorities to devise such procedure as the justice of the case demands. In view of this power, the Tribunal must necessarily be endowed with all powers which bring about adjudication of an Industrial dispute after affording the parties an opportunity of hearing. Therefore, where a party is prevented from appearing at the hearing due to sufficient cause and is faced with an ex parte award it is as if the party is visited with an award without a notice of the proceedings. And where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In the circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh. Though the apex court while laying down the principles laid down in the law considered Rule 22 of the Industrial Disputes (Central) Rules (1957) but the same applies equally in the case of Rule 21 of the West Bengal I.D. Rules, 1958 as the text of the said Rule is almost identical. The text of Rule 24 of the Central Rules is also identical with the text of Rule 24 of the said Rules.
14. In this view of the matter, I hold that the contentions of Mr. Ganguly, the Learned Advocate for the company-petitioner that the Industrial Court had no jurisdiction to entertain the matter after the passing of the order of dismissal for default falls flat.
15. The next contention of Mr. Ganguly, Learned Advocate for the Company is that the finding of the Learned Industrial Court that there was sufficient cause for the absence on the relevant date in this case is without any foundation and hence patently perverse. In a proceeding under Article 226 of the Constitution of India, the High Court cannot sit as a court of appeal over the findings recorded by a competent Tribunal to appreciate the evidence for itself or to correct an error of fact (State of U.P. v. Dharmander, . Judicial review of Article 226 is directed not against the correctness of the decision but against the correctness of the decision-making process, this has been observed in the same case but the High Court can interfere with a finding of fact if it is on a jurisdictional fact (State of M.P. v. Yadav, AIR 1965 SC 1186) or it is manifestly against the basic principle of natural justice (Mukunda v. Banshi, (1980) UJSC 526 para 16) or if it is shown that the finding of fact is not supported by any evidence at all Arjuh v. Jumuna Das, 1990 SCJ 59 para 15. In the case at hand it has already been stated above that according to the petition for restoration the respondent No. 3 was away at Madras on January 14, 1993. The case of the respondent No. 3 for setting aside the dismissal order dated January 14, 1993 is that he could not attend the Labour Court on that date because of the illness of his wife and his mother. He annexed with the petition 8 medical certificates in support of his contention. The Learned Industrial Court has also been pleased to allow the petition for setting the order of dismissal on the footing that the ground of absence on account of the illness of the wife and the mother of the respondent No. 3 was a sufficient ground. According to the petition for restoration, the absence on the ground of the illness of the wife and the mother is not the ground for the absence on January 14, 1993. There is no evidence on record that the respondent No. 3 had sufficient ground for not attending the Learned Court below on January 14, 1993 after coming from Madras. In the petition for restoration of the case filed on January 3, 1994, in paragraph 4, it has been stated that the petitioner left for Madras in the last week of December, 1992 and returned in the 3rd week of January, 1998. In paragraph 2 of the petition he has stated that his mother and his wife were ill during the period from 1988 to 1993. He annexed several medical certificates with the petition. Those petitions were not marked as exhibits in the case. Moreover, the specific case of the petitioner-respondent No. 3 for not attending court on January 14, 1993 is that he was in Madras at that time. So obviously the stand taken by him at the time of hearing that he was restrained from coming to court on the ground of illness of his mother and wife is obviously not true. Therefore, the finding of the Learned Industrial Court about the sufficiency of the ground for absence of the petitioner-respondent No. 3 on January 14, 1993 is based on no facts. As that finding of fact is a jurisdictional fact, the learned Court below committed a manifest error patent on the face of the proceedings and a petition for writ lies in the case.
In view of the discussions made above, the writ application succeeds. The impugned order is accordingly quashed.
In the circumstances of the case, no order as to costs.