Gujarat High Court
Piyush Jamiyatram Aasmani vs Sunderlal Girdharlal Modi Heris And ... on 6 April, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/7909/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7909 of 2010
With
SPECIAL CIVIL APPLICATION NO. 6211 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PIYUSH JAMIYATRAM AASMANI....Petitioner(s)
Versus
SUNDERLAL GIRDHARLAL MODI HERIS AND LEGAL REPRESENTATIVE &
2....Respondent(s)
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Appearance:
MR UT MISHRA, ADVOCATE for the Petitioner(s) No. 1
MS SANDHYA NATANI, RULE SERVED for the Respondent(s) No. 1.1 - 1.3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 06/04/2017
COMMON ORAL JUDGMENT
1. Since, both the petitions involve similar questions of law and facts, they are heard together and are being disposed of by this common judgment.
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2. Special Civil Application No. 7909 of
2010 is preferred by the petitioner (heir of the employer)-original applicant challenging the order dated 30.04.2007 of the Labour Court, Surat, rendered in Miscellaneous Application No. 62 of 2002 in Reference (LCG) Application No. 836 of 1997, whereas, he has preferred Special Civil Application No. 6211 of 2010 challenging the order passed by the Labour Court, Surat, dated 07.04.2010 in Recovery Application No. 30 of 2008.
3. Brief facts leading to the present petitions are as follows:
The husband of the respondent had instituted a reference before the Labour Court, Surat, being Reference (LCG) Application No. 836 of 1997, claiming reinstatement with continuity of service, backwages and other benefits. The original Respondent-workman had worked with the firm for more than 35 years. The firm was doing the business of commission agent and selling of vegetables and the workman was also doing selling of vegetables and other miscellaneous works. He fell ill on 24.09.1996 and could not attend the work for about 18 days and after getting recovery, when he reported for duty, he was relieved from the work without paying any dues.
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4. The workman therefore moved the Labour Court by filing the Reference No. 836 of 1997 under Section 10 of the Industrial Disputes Act, 1947 (for short, the ID Act') Reference and the Labour Court proceeded ex parte against the Firm and passed an award on 12.09.2000, directing the petitioner-firm to reinstate the workman with continuity of service, backwages and other benefits. The firm was closed on 01.08.1998, which was an HUF firm. The 'Karta' of the firm, namely Jamiyatram unfortunately expired on 14.02.2002 and his son-present petitioner chose not to carry on the business of the Firm. It is his case that since his father original opponent-
employer, was not served with the notice of the Reference, the reference proceeded ex parte. He, therefore, preferred an application being Miscellaneous Application No. 62 of 2002 in the said reference seeking to set aside the award dated 12.09.2000.
5. Learned Presiding Officer vide judgment and order dated 30.04.2007 rejected the said application being Miscellaneous Application No. 62 of 2002 in original Reference No. 836 of 1997.
6. On the ground that the petitioner had not preferred the said application within a Page 3 of 15 HC-NIC Page 3 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT period of 30 days from the date of the award, the Labour Court chose not to condone the delay.
6.1 Pursuant thereto, respondent-workman filed Recovery Application No. 30 of 2008 before the Labour Court, Surat. During the pendency of the said application, an interim order was needed to be obtained and therefore, the petitioner has rushed to this Court seeking following reliefs in Special Civil Application No. 7909 of 2010:
"15. ...
a. Be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the judgment and order dated 30/4/2007 passed by the Labour Court, Surat in Misc. Application No. 62 of 2002 in Reference (LCG) Application No. 836/1997.
b. Pending admission, hearing and
final disposal of the present
petition, be pleased to stay the proceedings of Recovery Application No. 30/2008 pending before the Labour Court, Surat and further be pleased to stay the operation and execution of award dated 14/6/2001 passed in Reference (LCG) Case No.836/1997.
c. ..."
7. whereas, in Special Civil Application Page 4 of 15 HC-NIC Page 4 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT No. 6211 of 2010 he has sought reliefs as under:
"7. ...
(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order passed by the learned Labour Court, Surat in Recovery Application No. 30 of 2008 dated 7th April, 2010 - Annexure 'A' herein, being illegal, perverse, arbitrary, without application of mind and contrary to the records.
(B) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order passed by the learned Labour Court, Surat in Recovery Application No. 30 of 2008 dated 7th April, 2010 -
Annexure 'A', in the interest of justice;
(C) ..."
8. This Court has heard the learned
Advocate, Mr. U.T. Mishra, appearing for the
petitioner in each petition. He urged that the workman himself has passed-away so also the 'Karta' of the HUF firm. The firm, itself, was closed down in the year 1998, i.e. during the pendency of the award. He further urged that the application filed though was belatedly, the Page 5 of 15 HC-NIC Page 5 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT Labour Court has powers to condone the delay. Moreover, this is a matter where an ex parte award has been passed, and therefore, there should also be a need to avail an opportunity to the legal heirs who have been deprived of the opportunity to contest. He also further pointed out that an undertaking has been given by the petitioner to this Court assuring that he shall not transfer or sell the property during the pendency of these petitions.
9. Learned Advocate, Ms. Sandhya Natani, appearing for the heirs of the original workman fervently made her submissions urging that by way of R.P.A.D. due service was effected and yet within the given time-frame no written submissions had been filed on behalf of the Firm.
The original workman had worked for about 35years with the Firm from morning till evening and he was being paid a sum of Rs.1500/- per month. She further contended that on account of his illness he took leave of about 18 days from 24.09.1996. Pursuant there to the workman was never allowed to join his duties and no notice, notice pay, retrenchment compensation was given nor any other procedure under the law was followed and instead he was terminated illegally. She further urged that application was preferred to execute the award passed by the Labour Court Page 6 of 15 HC-NIC Page 6 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT on 12.09.2000, whereas, the application for setting aside the order came to be filed after 30 days from the date of the award.
10. At this stage the provisions of Section- 17A of the Industrial Disputes Act, 1947, requires reproduction "17A. 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 Page 7 of 15 HC-NIC Page 7 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT 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 Page 8 of 15 HC-NIC Page 8 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT enforceable under sub- section (1) or sub- section (3), as the case may be.]"
11. Anytime there is an ex parte order, award or report, the Labour Court or the Tribunal may set aside the same under the Industrial Disputes Central Rule after notice to the opposite side such order, award or report if sufficient cause is shown. It further provided in sub-Rule 26A that those authorities, i.e. a board, court, tribunal or an arbitrator are empowered on sufficient cause being shown to extend the period of 30 days. Therefore, when the petitioner herein made an application, the Court was within its power to set aside the award after notice to the other side ex parte award, order or report as the case may be. Such a period of 30 days also could be more and the discretion lies with the authorities to condone the delay of such a party in the event of sufficient cause being shown.
12. The Apex Court in 'SANGHAM TAPE CO. VS. HANS RAJ', (2005) 9 SCC 331, held that an industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947, and the rules framed thereunder. The rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure.
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Once the provisions of the Code of Civil
Procedure are made applicable to the industrial adjudication, indisputably the provisions of Order 9 Rule 13 of the Code of Civil Procedure thereof would be attracted.
12.1 However, according to the Apex Court unlike the ordinary Civil Court industrial tribunals and the labour courts have limited jurisdiction in that behalf. While an industrial court will have jurisdiction to set aside an ex parte award but having regard to the provisions contained in Section 17-A of the Act, an application therefore must be filed before the expiry of 30 days from the publication thereof. Till then the tribunal retains the jurisdiction over the dispute referred to if for adjudication and only up to that date, it has the power to entertain an application in connection with such dispute. This is because an award made by an Industrial Court becomes enforceable under Section 17-A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and / or Labour Court becomes functus officio.
"6. An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act) and the rules framed Page 10 of 15 HC-NIC Page 10 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT thereunder. The rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure. Once the provisions of the Code of Civil Procedure are made applicable to the industrial adjudication, indisputably the provisions of Order IX Rule 13 thereof would be attracted. But unlike an ordinary Civil Court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf.
An award made by an industrial court becomes enforceable under Section 17A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or Labour Court becomes functus officio.
7. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others [(1980) Supp. SCC 420] held that the Tribunal does not become functus officio provided an application for setting aside the award is filed within thirty days of publication of award having regard to the provisions contained in Section 11 of the Act and Rules 22 and 24 of the Industrial Disputes (Central) Rules, 1957 stating :
"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 Page 11 of 15 HC-NIC Page 11 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT 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 the Tribunal 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. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent 3, acting on behalf of respondents 5 to 17 on January 19, 1977 i. e, before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal."
8. The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award but having regard to the provision contained in Section 17A Page 12 of 15 HC-NIC Page 12 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT of the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto that date, it has the power to entertain an application in connection with such dispute."
14. In the matter before the Apex Court the application for setting aside the award of the Labour Court was filed after one month of the publication of the award. While referring to the decision in 'J.K. SYNTHETIC LTD. VS. COLLECTOR OF CENTRAL EXCISE', (1996) 6 SCC 92, the Apex Court held that such jurisdiction can be exercised by the Labour Court within a stipulated time period, i.e. within 30 days from the date of the publication of the award. Once the award become enforceable, the Tribunal does not retain any jurisdiction in relation to the setting aside of an award passed by it. Thus, in other words, "Upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, Labour Court becomes functus officio. There are decisions also which have been cited by the Apex Court, namely 'SATNAM VERMA VS. UNION OF INDIA', 1984 Supp SCC 712, 'J.K. SYNTHETIC LTD. VS. COLLECTOR OF CENTRAL EXCISE' (Supra)etc..
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15. Thus, it is quite clear that the award was passed ex parte and after expiry of 30 days, an application was made for setting aside the same being Miscellaneous Application No. 62 of 2002, where, the Labour Court on the ground of Rule 26-A rejected the said application for the same being filed beyond the period of 30 days, as the Labour Court would become functus officio once the award is published. No error is found in such findings arrived at by the Labour Court.
16. So far as Recovery Application No.32 of 2008 is concerned, the Court notices that yet another petition being Special Civil Application (Stamp) No. 1473 of 2009 had been preferred by the very applicant and on 29.04.2009, the same came to be dismissed by this Court as office objections had not been cleared by the petitioner. However no order was produced before the Court concerned. Bearing in mind all these aspects, the learned Presiding Officer of the Labour Court, Surat, quantified various amounts and had directed the petitioner to pay the same to the Respondent.
17. This Court notices that the challenge to the award itself had failed due to non-removal of office objections and thereafter, no attempt is made to challenge such an order nor to remove Page 14 of 15 HC-NIC Page 14 of 15 Created On Mon Aug 14 10:31:38 IST 2017 C/SCA/7909/2010 JUDGMENT office objections. Instead the challenge in both these petitions is to the order of dismissal of application to set aside the ex parte award and to the order passed in the recovery application. Nothing illegal or perverse could be found. On the contrary the Court has followed the law while rejecting request of ex parte award.
18. Resultantly, no interference is called for at the hands of this Court and both the petitions fail and are DISMISSED. The undertaking given by the petitioner, not to sell the property in question shall continue, till the recovery is made of the entire awarded amount. No order as to costs.
(MS SONIA GOKANI, J.) UMESH Page 15 of 15 HC-NIC Page 15 of 15 Created On Mon Aug 14 10:31:38 IST 2017