Orissa High Court
Ms. Sree Metaliks Ltd. vs State Of Odisha And Others on 19 April, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.220 of 2015
In the matter of application under Articles 226 and 227 of the Constitution of
India.
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M/s Sree Metaliks Ltd. ...... Petitioner
- Versus-
State of Odisha and others ...... Opposite Parties
For Petitioner : M/s Pramod K. Chand and N.Samal
For Opp.Parties : M/s Prafulla Kumar Rath, R.N.Parija,
A.K.Rout,S.K.Pattnaik, P.K.Sahoo,
A.Behera,S.K.Behera( for O.Ps.3 to 62).
Mr. M.S.Sahoo,
Additional Government Advocate ( for O.Ps.)
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 19.4.2017
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S. N. Prasad, J.This writ petition is under Articles 226 and 227 of the Constitution of India whereby and where under the order dated 16.9.2014 passed in I.D.Case No.23/2013(RMC-1/14) and the order dated 22.11.2014 passed in Restoration Misc.Case No.9 of 2014 by the Industrial Tribunal, Bhubaneswar respectively are under challenge.
2. Brief facts of the case is that the petitioner who is a company registered under the Companies Act having its factory at Loidapada in the district of Keonjhar wherein several employees were working under different capacities for production of pig iron. Due to low productivity, the management-petitioner was compelled to insist their workers to stay at staff quarters so that production of the unit should not hamper but the employees 2 did not accept the proposal and the workers who are coming outside did not turn up to work at the Blast Furnace unit and non-availability of raw materials due to government restriction and financial crisis, the petitioner-management closed down the Blast Furnace unit with effect from 19.8.2011. The petitioner-management has issued notice dated 19.8.2011 to all the workers of Blast Furnace informing them to take total and final payment, in pursuance to the above notice, the petitioner-management has circulated a circular dated 20.8.2011 pasted in the notice board and thereafter 55 employees were retrenched with effect from 19.8.2011 by offering them full and final settlement dues.
3. Sixty employees out of 98 employees raised dispute before the District Labour Officer-cum-Conciliation Officer, Keonjhar challening their termination from job. Conciliation having been failed, the District Labour Officer sent failure report to the Government, in turn, the Government has referred the dispute to the Industrial Tribunal by referring the dispute to the effect:
"Whether the termination of services of Sri Maguni Charan Baidya and 59 others workmen(as per list) of Blast Furnace Unit by way of retrenchment w.e.f. 19.8.2011 by the management of M/s Sree Metalics Ltd., Loidapada, Dist. Keonjhar is legal and/or justified ? If not, what relief these workmen are entitled to ?"
The above reference was numbered as I.D.Case No.23 of 2013 in the file of the Industrial Tribunal, Bhubaneswar.
The Tribunal, after initiating the proceeding for adjudication to answer the reference, has issued notice to the petitioner-management in which the management has put its appearance but not contested the case, hence the dispute was set exparte and thereafter the award has been passed on 28.1.2014. The petitioner-management has filed an application for restoration of exparte order dated 10.1.2014 and subsequent passing of exparte award dated 28.1.2014, stating therein that although time was allowed for filing written statement in the I.D. case but due to some unavoidable circumstances written statement could not have been filed and due to non-filing of written 3 statement the award has been passed against them, hence the management has highly been prejudiced, as such prayer has been made to recall the exparte order dated 10.1.2014 and exparte award dated 28.1.2014.
4. The Industrial Tribunal has passed order dated 21.7.2014, while disposing of the restoration application, set aside the exparte award dated 28.1.2014 subject to payment of cost of Rs.500/- for setting aside the said award and payment of cost imposed earlier and filing of the written statement on or before 7.8.2014. The matter was posted with consent on the other date, the management, on the date fixed, has filed an application for granting six weeks time to them to file written statement in the above I.D.Case. The Tribunal has passed order on 7.8.2014 by which time was allowed subject to payment of cost of Rs.1000/- by the management to the workman and the case was adjourned to 28.8.2014 for filing written statement by the management without fail, failing which the case would be proceeded in accordance with law.
On 28.8.2014 cost of Rs.1000/- as per the order dated 7.8.2014 has not been paid by the management, the management has filed a petition for time on the ground that due to strike of workers union, the management could not enter the premises to locate the relevant documents and in the circumstances, prayer has been made to allow further time for filing written statement, the Tribunal has passed order adjourning the case to 16.9.2014 for filing written statement by the management failing which the case was directed to be proceeded in accordance with law. The management has also been directed to pay cost of Rs.2000/- i.e. Rs.1000/- as per order dated 7.8.2014 and Rs.1000/- as per order dated 28.8.2014.
The case was again adjourned to 16.9.2014, on that date a petition was filed on behalf of the management praying therein to grant time for filing written statement on the ground that the workers of the factory did not allow the officers of the management to enter inside the factory premises pursuant to total strike at their behest. The Tribunal, after taking into consideration that the management, has allowed time on several dates but even then written statement has not been filed, hence passed order on 4 16.9.2014 to the effect that the exparte order dated 28.1.2014 has been passed by rejecting the petition dated 15.4.2014 for non-compliance of the order dated 21.7.2014 and accordingly held therein that the exparte award dated 28.1.2014 is in force since the conditional order passed on 21.7.2014 has not been complied with.
5. The management has again filed an application to recall the order dated 16.9.2014 passed in Restoration Misc.Case No.1 of 2014 and to accept its written statement, but the Tribunal, by taking note of the fact that the award since been sent to the Director, Printing, Stationery and Publications, Cuttack for its publication in the Official Gazette vide its notification dated 26.2.2014 and in view of the provisions of Section 17A of the Industrial Disputes Act, which provides that the Labour Court or the Industrial Tribunal does not retain any jurisdiction for setting aside of an exparte award after the expiry of 30 days from the date of its publication in the Gazette, accordingly the restoration petition preferred by the petitioner-management has been rejected being devoid of merit.
6. The management being aggrieved with the order dated 16.9.2014(Annexure-6) and the order dated 22.11.2014(Annexure-10) is before this Court by assailing these orders on the ground that the finding given by the Tribunal with respect to the proposition of law concerning the provisions of Section 17A of the Industrial Disputes Act has not rightly been interpreted by the Tribunal and the Tribunal cannot be said to be functus officio.
Learned counsel for the petitioner-management submits that in the given facts of the case since the management has not been allowed by the workers to enter inside the premises of the factory, documents could not have been brought outside the premises, hence written statement could not have been filed, the reason has been explained before the Tribunal but the Tribunal without taking into consideration this factual aspect has declined to entertain the prayer made by it.
57. Learned counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Apex Court in the case of M/s Sangham Tape Company -vs- Hans Raj, reported in 2004(7) Supreme 118.
While on the other hand, learned counsel representing the workmen has submitted that the statute is very clear. He referred to the provision of Section 17-A of the Industrial Disputes Act which stipulates that once award is being notified in the Official Gazette in exercise of powers under Section 17 of the Industrial Disputes Act, it would be enforceable on expiry of thirty days from the date of its publication and here in the instant case the award has been passed on 28.1.2014 and thereafter it has been sent for its publication vide notification dated 26.2.2014, hence one month after 26.2.2014 it would be enforceable in the eye of law, hence the Tribunal after taking into consideration the legal position, has rightly observed while rejecting the plea of the management that the Tribunal has become functus officio. He further submits that the Tribunal at the initial stage considered the grievance of the management, allowed them time to contest the case and the case had been adjourned time and again but the management only in order to prolong the litigation has not submitted written statement, the Tribunal after taking into consideration the attitude of the management, has rightly passed order, hence the same needs no interference by this Court.
8. Heard learned counsel for the parties and perused the documents available on record.
9. We, after hearing the learned counsel for the parties and going through the facts of the instant case, thought it proper to discuss the legal proposition. It is relevant to refer here the provision of Section 17 and Section 17-A of the Industrial Disputes Act,1947 as well as the Industrial Disputes(Central) Rules,1957.
Section 17 of the I.D.Act pertains to the provisions of publication of reports and awards which stipulates a provision that every report of a Board or Court together with any minute of dissent recorded there with, every arbitration award and every award of a Labour Court, Tribunal or National 6 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, subject to the provisions of Section 17A, 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 17A contains provision of commencement of the award which contains a provision that an award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17 and thereafter proviso is there conferring power upon the Central Government to declare that the award shall not be enforceable on the expiry of the period of 30 days on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, and provision of sub-section(2) of Section 17A of I.D.Act contains provisions that 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 the State Government, or before Parliament, if the order has been made by the Central Government. Sub-Section(3) of Section 17A provides that 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). Further under the provision of sub-section (4) of Section 17A, it provides that 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.
7It transpires from the statutory provision as contained under section 17A that award passed under the provisions of Section 17A shall become enforceable within period of thirty days from the date of its gazette notification subject to some relaxation to be exercised by Central Government or the State Government, as the case may be. This provision stipulates that once the award has been passed the Tribunal or the Labour Court shall have got no jurisdiction to look it afresh.
Rule has also been framed in this regard i.e The Industrial Disputes (Central) Rules,1957 and The Orissa Industrial Disputes Rules,1959.
In the Central Rules,1957 provision has been made under Rule 22 so as under Rule 23 of Orissa Rule 1959 with respect to the matter of exparte proceeding which provides that if without sufficient cause being shown, any party to the 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.
Thus it is evident that both in the Central as well as Orissa Rules provision is that if without sufficient cause being shown, any party to proceedings before the Tribunal, fails to attend or to be represented, the Tribunal may proceed, as if the party had duly attended or had been represented.
This statutory provision has been considered by the Hon'ble Apex Court in the case of Grindlays Bank Limited -vs- Central Government Industrial Tribunal, reported in 1980 Supp.SCC 420 similar question arose before the Hon'ble Apex Court and the Hon'ble Apex Court on the basis of the facts and circumstances of that case, has laid down at para-14 that the Labour Court or the Tribunal has got jurisdiction to set aside exparte order in the interest of justice but the said power can only be exercised if the application for restoration will be filed before publication of gazette notification of the award and on this factual aspect the Hon'ble Apex Court in the said case has laid 8 down proposition that since the application was filed on 19.1.1977 i.e. before expiry of 30 days of its publication as because gazette notification was issued on 25.12.1976 and from that date one month was to be completed only on 24.12.1976 and since application for restoration was filed on 19.1.1977, hence Hon'ble Court as been pleased to pass order for restoration confirming the view of the Tribunal, for ready reference para-14 of the said judgment is quoted herein below:
"The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the exparte 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 . Under Section 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 . In the instant case, the tribunal made the exparte 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 exparte 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. It had jurisdiction to entertain it and decide it on merits."
The Hon'ble Supreme Court in the case of Anil Sood -vs-
Presiding Officer, Labour Court, reported in (2001) 10 SCC 534, by taking into consideration the Rule 22 of the Central Rules which includes power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and the Tribunal must necessarily have power to set aside the exparte award.
In the said case, the fact was that no notice of the proceeding in the reference has been served upon the appellant of the said case and taking 9 into consideration that aspect of the matter judgment has been rendered by the Hon'ble Apex Court for setting aside exparte award and in that pretext it has been held that the view of the High Court and the Tribunal was said to be an error in stating that the Labour Court had become functus officio after making the award exparte.
In the case of Radhakrishna Mani Tripathi -vs- L.H.Patel and another, reported in (2009)2 SCC 81 no notice was issued to the appellant in the said case and by taking into consideration factual aspect of the said case, judgment has been rendered.
Ram Shiroman Mishra -vs- Viswanath Panday, reported in (2912)8 SCC 575, same was the position as because no notice was served upon the appellant in the said case and on that factual aspect judgment had been rendered. However, due to divergent view the matter had been referred before the Larger Bench.
10. From perusal of the statutory as well as authoritative pronouncement of the Hon'ble Apex Court there is no dispute about the fact that the Tribunal has got power to set aside exparte order but the same depends upon the factual aspect of each and every case, in the case of exparte hearing if party has chosen not to appear after putting representation for several dates, in that situation exparte award can be set aside if the award has not become enforceable within the provision of section 17A(1) as because other provisions of section 17A confers power upon the Central Government to extend the date of publication in the exigency as provided under the said provision, meaning thereby the Labour Court or the Tribunal has got no power once the award become enforceable.
However, in the case where no notice has been given and the proceeding has been set up for exparte hearing then in that situation Labour Court has got power to set aside exparte order by exercising power conferred under section 22 of the central Rule read with Rule 23 of the Orissa Industrial Disputes Rules,1959.
1011. We have examined the case in hand in the light of the statutory provisions and authoritative pronouncement, from its perusal it is evident that the fact which is not in dispute is that the management, after the dispute having been referred before the Tribunal, had appeared to contest the case which is the admitted position as has been disclosed by the management in their application for restoration of exparte order dated 10.1.2014 at para-2 where it has been stated that "the petitioner-1st party-management, for good reasons, took some adjournments for filing written statement in the above I.D. case". This specific stand taken by the management in their restoration application specifically clarifies the position that the management had appeared before the Tribunal but subsequently chosen not to appear, the Tribunal after taking note of this fact has proceed exparte hearing and then passed the award on 28.1.2014.
The management has filed application for restoration of the exparte order dated 10.1.2014 and the exparte award dated 28.1.2014. Application filed in this regard is dated 10.4.2014. Thus the application for restoration having been filed after delay of about 3 months from the date of passing of the award.
The other undisputed fact is that the award has been sent for its publication vide order dated 26.2.2014 and thereafter it was published in the official gazette vide notification dated 26.2.2014.
Provision of Section 17 of the Industrial Disputes Act,1947 is very much clear that the award has become enforceable on or after 26.3.2014 as per the provision of Section 17-A of the Act. The management has filed Restoration Misc.Case No.1 of 2014 on 10.4.2014 which is much after expiry of one month from the date of publication of the award in the Official Gazette i.e. 26.2.2014.
In view of this factual position, case of the management is not coming under the parameter of the judgment in Grindlays Bank Limited -vs- Central Government Industrial Tribunal(supra) since in that case application for recall was filed before completion of one month period from the 11 date of gazette notification of the award. Case of the management is not coming under the parameter of the judgments rendered in the cases of Anil Sood -vs- Presiding Officer, Labour Court II(supra), Radhakrishna Mani Tripathi -vs- L.H.Patel and another(Supra) and Ram Shiroman Mishra -vs- Viswanath Panday(supra) wherein no notice was served upon the appellant of those cases and as such taking into consideration the provision of Rule 22 of the central Rules,1957 order has been passed that there was sufficient cause having been shown by the management for recall of the order but such situation is not existing in the instant case for the reason that in this case notice has been issued, the management had appeared but subsequently chosen not to appear and take adjournments time and again for filing written statement and filed restoration application on 10.4.2014.
However, the Tribunal has allowed restoration application dated 10.4.2014 subject to condition of payment of cost of Rs.500/- along with direction to file written statement on or before 7.8.2014, but on the pretext or the other, written statement has not been filed and accordingly the Tribunal has passed order on 16.9.2014 rejecting the subsequent application dated 15.4.2014 for setting aside the exparte award for non-compliance of the order dated 21.7.2014 and came to finding that since exparte award was directed to be restored subject to condition of payment of cost of Rs.500/- and filing of written statement within the stipulated time, since not complied, the force of the order dated 21.76.2014 has lost its significance, in consequence of the same, the exparte award dated 28.1.2014 has come into force.
12. The management-petitioner has again filed an application for restoration of the order dated 16.9.2014, same has been rejected on the ground of publication of the award under section 17 of the Industrial Disputes Act and its enforcement under the provisions of Section 17A of the Act and the moment the award has become enforceable the Industrial Tribunal ceased its jurisdiction to pass any order.
It is settled that there is difference in between exparte proceeding and exparte hearing. Exparte proceeding is where no notice has been issued 12 upon the party or it has not been served sufficiently then court used to fix the proceeding exparte but exparte hearing means that party has already appeared and in the midst chosen not to appear before the court of law or the Tribunal and Tribunal having no option but to fix the case for exparte hearing so that the matter be decided expeditiously.
The instant case is of the exparte hearing and not exparte proceeding, hence judgments referred by the learned counsel for the management herein above are not applicable in the facts and circumstances of the case. Taking into consideration the provisions of law and the authoritative pronouncement of the Hon'ble Apex Court, we are of the considered view that the Tribunal has not committed error in passing the exparte order and the exparte award.
13. We are constrained to say that even the order dated 21.7.2014 by which the Tribunal has recalled the exparte award by allowing the restoration application was also not legal reason being that the restoration application was filed on 10.4.2014 which is much after the date of enforcement of the award, as such as per the facts of Grindlays Bank Limited and its ratio as discussed above, it cannot be said to be justified order.
14. We have also thought it proper to discuss the judgment relied upon by the learned counsel for the petitioner-management as referred to above in the case of M/s Sangham Tape Company -vs- Hans Raj(supra) and examined the facts of the said case which is the case in which no notie was issued, hence not applicable. Moreover, this case is based upon the finding of the Hon'ble Apex Court of its judgment rendered in the case of Grindlays Bank Limited -vs- Central Government Industrial Tribunal(supra).
We have perused the judgments referred to above and found that the case of Grindlays Bank Limited -vs- Central Government Industrial Tribunal(supra) is not applicable to the facts and circumstances of the instant case. In the said case the Hon'ble Apex Court after taking note of the provision of Section 17A of the Industrial Disputes Act has declined to interfere with the order of the High Court since the restoration application 13 was filed before the Labour Court before expiry of the period of one month from the date of publication of the award, as such this judgment is of no help to the petitioner.
15. We, on taking into consideration the factual aspect and the proposition of law as narrated above, find no reason to interfere with the impugned orders.
In the result, the writ petition stands dismissed.
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S.N. Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 19th April,2017/Palai