Madras High Court
Management Of Tiruttani Co-Operative ... vs Presiding Officer, Industrial ... on 7 August, 2001
Equivalent citations: (2002)ILLJ589MAD, (2001)3MLJ548
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The management of Tiruttani Co-operative Sugar Mills Limited, Thiruvalangadu, Chengai Anna District, is the writ petitioner. The second respondent is the Tiruttani Co-operative Sugar Mills Employees Union, Thiruvalangadu, Chengai-Anna District, represented by its Secretary. The writ petitioner is referred to as the management and the second respondent is referred to as the Union, in this order.
2. The Union submitted a charter of demands on August 21, 1989 to the Assistant Commissioner of Labour (Conciliation) listing out 18 demands. One of the demands was that Promotion Policy should be formulated and the petitioner/management should stop giving promotions in its discretion. The said demand was made on the ground that about 395 workers were appointed as daily rated by the, management during the year 1985 and they were appointed without reference to the employment exchange. There were 300 posts vacant, for which the members of the Union could be promoted as per the seniority following the qualifications contained in second wage board. The management for the purpose of promotion insisted additional qualifications. Such additional qualifications for the purpose of promotion should not be insisted upon in the case of promotion of workers who were appointed without reference to minimum educational qualification. Hence, the Union demanded that the promotion should be made without insisting any additional educational qualifications for the daily rated workers.
3. The management filed a reply on January 30, 1990 to the said demand. According to the management, there were about 90 vacancies for 90 Mazdoor posts which could be filled up from among CLR workers. By the time the demand was so made, the Commissioner of Sugar issued circulars prescribing minimum qualifications for each posts and the promotions could be made only on the basis of educational qualification. The Union was not justified in seeking promotion of the workers to the higher posts, even though they do not possess the minimum educational qualifications as prescribed in the said circulars. It was also contended that the management is a Co-operative Sector functioning under the control of the Commissioner of Sugar and the Government of Tamil Nadu contributed Rs. 300 lakhs towards share capital of the management mills and therefore, the management is bound to carry out the instructions issued by the Government of Tamil Nadu from time-to- time in the matter of recruitment, promotion and other matters pertaining to personnel. The circular issued by the Commissioner of Sugar prescribed educational qualifications for each category of post, particularly for the post of Turner Grade I, the educational qualification was pass in 8th standard and also a certificate in I.T.I. and also a National Grade Certificate for Turner with 6 years experience. For the post of Switch Board Attendant, the educational qualification prescribed was pass in 8th standard and a certificate in wireman with 2 years experience in Sugar Mills, with an added qualification of I.T.I. or diploma in Electrical. Hence the management prayed for rejection of the claim by the Union.
4. Based upon the demand made by the Union and the reply offered by the management, the Assistant Commissioner of Labour (Conciliation) took up the dispute for conciliation and submitted a Conciliation failure report dated September 22, 1990 to the Government. The Government in G.O.(ID) No. 782 dated December 24, 1990 referred the dispute for adjudication in respect of the demand No. 15 and the reference is as follows:
"Whether the demand of the workmen to frame promotion policy containing the guidelines for promotion and educational qualifications is justified. If so to determine the basis on which the promotion would be given."
5. The dispute was taken up in I.D. No. 9 of 1991 by the first respondent, the Presiding Officer, Industrial Tribunal, Madras. A summon was sent to the management for appearance on February 21, 1991. The said summon was acknowledged by the management and the then administrator who received the summons did not instruct the Labour Consultant of the management as he misplaced the summons. Hence, the management did not represent in the Industrial Dispute. The first respondent proceeded with the adjudication and framed the point for determination as referred to by the Government. On behalf of the Union, the Secretary of the Union was examined himself as a witness and marked Exs. W-1 to W-5. The first respondent on consideration of the oral and documentary evidence found that at the time when the workmen of the Union were employed, they were not insisted with any educational qualification and they were not also sponsored through employment exchange as daily rated workmen. The Labour Court also took note of the directions of the Government made in G.O.Ms. No. 221, (P& AR) (Per. S. Dept.), dated May 10, 1990 in relaxing the general educational qualification to entry post as far as possible to be avoided in cases where the qualification is considered absolutely necessary for manning the higher posts, in the same service once relaxation of general qualification is granted is valid, general minimum qualification shall not be insisted for promotion. The Labour Court also relied upon the judgment of this Court in W.P. No. 106 of 1979 and W.P. No. 211 of 1986, wherein, it has been held that:
"when the exemption was granted on merits, authorities had taken into consideration his experience, capacity and then only such exemption was granted on merits, and which exemption must be deemed to have exempted the respondent, for any post which requires such prerequisite qualification".
The Tribunal/the first respondent also found the denial of promotion on the ground that the workmen do not possess requisite or prescribed qualification, was not justifiable. On the basis of the above findings, the first respondent held that the demand of the workmen to frame promotion policy containing the guidelines for promotion and educational qualification was justified and the seniority and experience are the basis on which the promotion shall be given and finally passed an award directing the management to promote the seniors by drawing the seniority list with the date of entry into service as criterion and promote other workmen from one grade to another grade post solely on seniority and experience without reference to educational/technical qualification.
6. Challenging the above award the management has preferred the present writ petition.
7. Mr. V. Karthick, the learned counsel appearing for the petitioner would contend that even though a summon for appearance before the first respondent appears to have been received by the then Administrator of the management, he did not bring the same to the notice of the Labour Consultant and therefore, the management could not present its case before the first respondent and the first respondent passed the ex parte award. Since, the award was passed on merits, the management could not file any application to set aside the ex parte award, and hence, the present writ petition.
8. In challenging the award the learned counsel submitted that, the demand of workmen to frame a promotional policy is totally unjustifiable and unwarranted, since the workmen of the Union were employed without reference to the employment exchange and without reference to the minimum educational qualifications. When they sought promotion to the higher posts, the management was well within its right to insist the minimum educational qualifications. Even though the management filed a reply to the demand totally disputing the claim of the Union and the said reply was marked before the first respondent as Ex. W-2, there is no reference to the contentions of the management in the award. The Tribunal has miserably failed in not considering the contentions raised by the management disputing the claim of the Union. In the said reply, it has been specifically stated that the Commissioner's proceedings have stipulated the minimum educational qualifications for each category of post and in the event the minimum educational qualification is lacking, such workmen cannot be promoted. Therefore, the learned counsel submitted that in the absence of consideration of the representatives of management marked as Ex. W-2, the impugned award is liable to be set aside and the matter has to be remitted back to the first respondent for reconsideration. However, the learned counsel submitted that, by the time the demand was raised, 3rd Bipartite Settlement came into force prescribing minimum educational qualification for the posts for which the workers of the Union seek promotion policy to be framed. The workmen are bound by such Bipartite Settlement and only such of those workmen who are qualified alone can be promoted and therefore, the award directing the management to promote the workmen on the basis of seniority alone, without reference to the educational qualifications is bad. On this ground, the learned counsel seeks to assail the award.
9. Mr. D. Hariparanthaman, the learned counsel appearing for the Union on the other hand would submit that the management after remaining ex parte and failed to put forth its case before the first respondent and without resorting to approach the first respondent for setting aside the ex parte award cannot invite an order from this Court on merits by challenging the award. In any event, the learned counsel submitted that the first respondent has gone into the merits of the case and based upon the available oral and documentary evidence has held that the demand of workmen is justified and therefore only the award has been passed directing the management to effect promotions on the basis of seniority without insisting on educational qualifications. Further, the learned counsel submitted that as per the second Bipartite Settlement, there is no minimum educational qualification prescribed for the workmen being promoted to next higher posts. He also submitted that when once relaxation is given for entry into a post, such relaxation shall be deemed to be given for subsequent promotional post also. For the said principle, the learned counsel relied upon the Division Bench Judgment of this Court in The Collector of Salem and two Ors. v. S. Kuppusamy, W.A. No. 211 of 1986, dated April 26, 1989.
10. The learned counsel in any event would further submit that for the post of. unskilled worker, the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 are not applicable. The learned counsel submitted that the daily rated workmen were all unskilled workmen and therefore placing reliance that the workmen were not recruited through Employment Exchange is also not sustainable. In this context, the learned counsel relied upon the Division Bench judgment of this Court reported in The School Committee and Anr. v. The District Educational Officer, 1991 T.N.L.J. 1.
11. The learned counsel would also submit that in the absence of any counter-affidavit even before the first respondent, the management is not justified in challenging the award on the grounds which are not available before the first respondent, when the first respondent adjudicated upon and decided the Industrial, Dispute based upon the materials available before him. Except stating mat the reply dated January 30, 1990 marked as Ex. W-2 as to the minimum educational qualification prescribed by the proceedings of the Commissioner no material was produced before the first respondent and hence the learned counsel submitted that it is not open to the management to raise such of those grounds which were not raised or argued before the first respondent.
12. In view of the rival submissions, the points to be considered are:
"1. Whether the first respondent was justified in proceeding with the case when the management remained ex parte and
2. Whether the award was supported by materials available on due consideration."
13. In order to decide the first point a reference to Rule 22 of the Industrial Disputes (Central) Rules, 1957, is useful and the same reads as under:
"Rule 22. Board, Court, Tribunal, Labour Court, National Tribunal or Arbitrator may proceed ex parte: If without sufficient cause being shown, any party to 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."
14. The said Rule came up for consideration before a learned single Judge of this Court in the Judgment C.& M.D. Tamin Limited v. P. O., Industrial Tribunal, 2001-I-LLJ-441, wherein, the learned Judge has held as follows at p. 444:
"A reading of the above said condition would undoubtedly show that the Industrial Tribunal, in such circumstances in which any party to proceedings did not show sufficient cause may proceed as if the party had duly attended or had been represented, In other words, the adjudicatory forum should take into consideration the statements filed by the party which remained ex parte and only on comparative merits of claims and counterclaims an ex parte award has to be passed. It is clear that the ex parte award without considering the contentions raised in the counter-statement filed before the Conciliation Officer or before the Labour Court or Industrial Tribunal would not be valid."
15. The very same Rule also came up for consideration before the Supreme Court in the judgment reported in Agra Electric Supply Company v. Labour Court, Meerut, , their Lordships of the Supreme Court have held as follows at pp. 5 and 6 of LLJ:
"That provision which, clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein to proceed with the case in his absence either on the date fixed or any other date to which the : hearing may be adjourned coupled with the further direction and pass such order as it may deem fit and proper, clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default."
16. Likewise, Kerala High Court in the Judgment F. A. C. T. Employees' Association v. F.A.C.T. Limited, 1994-III-LLJ (Supp.)-736 (Ker.), while considering similar provision in Rules 20(2) and 22 of the Kerala Industrial Disputes Rules, 1957, has observed as follows:
"It had to apply its mind like any other judicial Officer who examines evidence and then arguments before forming conclusions.
The Tribunal had to focus its judicial mind on the merits of the points in dispute, impartially, dispassionately and objectively".
17. Andhra Pradesh High Court in the judgment Dawood Khan v. Labour Court, Hyderabad, 1969-II-LLJ-611, has held as follows on the same question at p. 612:
"..... ...The absence of a party does not entail the consequence that an award will straightway be made against him. It is still the duty of the Presiding Officer of the Labour Court to go into the merits of the dispute and give such findings as he can on the material placed before him".
18. On a combined reading of the above judgments, it would be clear that even though the management remained absent, the first respondent was required to consider the dispute and pass award giving reasons. Of course, such an award should be a speaking order on merits and based on materials available before the first respondent. While passing the award there must be a judicial application of mind and the order must be based on acceptable materials. In view of the above settled positions, I do not find any error in the first respondent in proceeding with the Industrial Dispute and disposed of the same.
19. In the light of the above finding it is to be now seen as to, "Whether the first respondent has considered the materials available before him before passing the impugned award? Whether the said relaxation would ensure their benefit for the purpose of further promotion?"
20. In the judgment reported in C. & M. D. Tamin Limited v. P. O. Industrial Tribunal, (supra) wherein, the learned single Judge of this Court had an occasion to consider an ex parte award. In that case, even though the management remained ex parte, a counter-affidavit was filed on behalf of the management and the Labour Court proceeded with the adjudication proceedings and passed the award without reference to the averments made in the counter-affidavit. Therefore, the learned Judge found that even though a party to the proceedings remained ex parte, it is the duty of the Labour Court/Tribunal to adjudicate upon the dispute on merits. Holding so, the learned Judge found that non-consideration of the counter-affidavit filed by the management would not be valid and finally remanded the matter for reconsideration.
21. In the present case, even though the reply dated January 30, 1990 filed by the management marked as Ex. W-2 containing the defence of the management, there was no discussion about those defences put forth by the management. The first respondent, Tribunal, has simply referred the said Exhibit and did not give any reason as to the defence put forth by the management against the demand.
22. In my considered view the non-consideration of Ex. W-2 by first respondent would vitiate the award. It is true that the management remained ex parte and not even a counter- affidavit was filed on behalf of the management. However, the reason as stated in the affidavit filed in support of the writ petition for the non-appearance of the management before the first respondent is that the summon appears to have been received by the then Administrator who has not brought the same to the notice of the Labour Consultant and therefore only the management could not appear before the first respondent. It is to be noted that except the said one summon, no further opportunity was given to the management. Therefore, I am inclined to accept the said reason adduced by the management for its non-appearance before the first respondent to defend the industrial dispute. Since the award was passed on merits, the writ petition came to be filed. In view of my finding that the award could not be sustained for non-consideration of the materials before the first respondent, in the interest of justice the matter has to be remanded back to the first respondent for fresh adjudication. The management also should be given an opportunity to put forth its case only with reference to the stand taken by the management to dispute the demands raised by the Union as contained in Ex. W-2.
23. In so far as the contention of the learned counsel for the petitioner as the non-applicability of The Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, the provisions of Sections. 3, 2(2)(1)(7) of the said Act are not applicable to the appointments of unskilled workers. The said principle has been reiterated in the judgment of a Division Bench of this Court reported in The School Committee V. The District Educational Officer, (supra) That judgment relates to the appointments at the" initial stage where appointments need not be through employment exchange when the posts are filled up from among the unskilled workers. However, the right of the management to insist minimum educational qualification when such unskilled workers are promoted to the higher post is an entirely different aspect. The said issue was not raised before the Tribunal nor discussed. Accordingly I am not inclined to go into the question as to whether the workmen will have the benefit of the non- applicability of the Act even for promotion. Equally the issue as to the entitlement of benefit of relaxation of age for entry post would automatically ensue for the promotions also there was no discussion by the Tribunal after taking note of the Commissioner's proceedings prescribing educational qualification for each category of post. The said finding without considering Ex. W-2 cannot be sustained.
24. In view of the above discussions, the award of the first respondent, Tribunal, made in I.D. No. 9 of 1991, dated June 27, 1994 is set aside and remanded back to the first respondent for reconsideration of the same on the materials available more particularly taking into note of Ex. W-2. The writ petitioner, management, would be permitted to represent in the industrial dispute on payment of a sum of Rs. 5000 (Rupees five thousand only) to the Union as cost to be paid by way of demand draft within a period of one month from the date of receipt of copy of this order and approach the 1st respondent for hearing within ten days from such payment. The first respondent shall take up the dispute and decide the same on merits and as indicated in this order within a period of four months from the date of payment of cost by the writ petitioner to the 2nd respondent Union.
25. On the above direction, this writ petition is allowed. Consequently, the connected W.M.P. No. 26255 of 1994 is closed.