Orissa High Court
Pradeep Kumar Bisoi vs The Presiding Officer on 25 September, 2023
Bench: K.R. Mohapatra, R.K. Pattanaik
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 27-Sep-2023 11:22:56
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 36458 of 2022
(An application under Articles 226 and 227 of the
Constitution of India)
*****
Pradeep Kumar Bisoi ...... Petitioner
-Versus-
The Presiding Officer,
Labour Court, Sambalpur and another ....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Aditya Mishra, Advocate
For Opp. Parties : Miss. Soumi Dash &
Mr. Santosh Kumar Nanda,
Advocates
(For Opposite Party No.2)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE R.K. PATTANAIK
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Heard & Disposed of on : 25.09.2023
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Petitioner, in this writ petition, seeks to assail the order dated 18th May, 2022 (Annexure-8) passed by learned Presiding Officer, Labour Court, Sambalpur in Restoration Misc. Case No.1 of 2018 and prays for a direction to allow the petition restoring the Industrial Dispute Case to file.
W.P. (C) NO. 36458 of 2022 Page 1 of 6 Signature Not Verified // 2 // Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 27-Sep-2023 11:22:56
3. Mr. Mishra, learned counsel for the Petitioner submits that the Petitioner-Management was not served with notice in ID Case No.6 of 2015. Hence, it could not contest the case. As such, an ex- parte award was passed on 16th December, 2016. When the Petitioner came to know about the ex-parte award, it filed an application on 13th February, 2018, for setting aside the ex-parte award, which was registered as Restoration Misc. Case No.1 of 2018. Learned Presiding Officer, Labour Court, Sambalpur, while adjudicating the matter relied upon the ratio in the case of Sangham Tape Co. Vs. Hans Raj, reported in 2004 (103) FLR 699, wherein it is held that after thirty days of passing of the award, the Labour Court becomes functus officio and the award becomes binding on the parties. Thus, learned Presiding Officer, Labour Court held that it has no jurisdiction to set aside the ex- parte award after its publication in the official gazette. He, therefore, dismissed the application. As such, this writ petition has been filed.
3.1 Mr. Mishra, learned counsel for the Petitioner placed reliance upon the case law in the case of Haryana Suraj Malting Ltd. Vs. Phool Chand, reported in (2018) 16 SCC 567, wherein, it is held as under: -
"37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the W. P. (C) NO. 36458 OF 2022 Page 2 of 6 Signature Not Verified // 3 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 27-Sep-2023 11:22:56 Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent."
It is submitted by Mr. Mishra, learned counsel for the Petitioner- Management that there were divergent views to entertain an application for setting aside the ex-parte award after thirty days of its pronouncement and publication in official gazette. Hence, the case of Haryana Suraj Malting Ltd. (supra) was referred to larger Bench to answer the following: -
"2. In view of the conflict between two decisions of this Court -- Sangham Tape Co. v. Hans Raj [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331 : 2005 SCC (L&S) 65] and Radhakrishna Mani Tripathi v. L.H. Patel [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 : (2009) 1 SCC (L&S) 358] , by order dated 21-1-2011 in Haryana Suraj Malting Ltd. v. Phool Chand [Haryana Suraj Malting Ltd. v. Phool Chand, (2012) 8 SCC 579 : (2012) 2 SCC (L&S) 710] , a reference to a larger Bench was made in the following terms : (Phool Chand case [Haryana Suraj Malting Ltd. v. Phool Chand, (2012) 8 SCC 579 : (2012) 2 SCC (L&S) 710] , SCC pp. 579-80, paras 1-4)
1. Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases.W. P. (C) NO. 36458 OF 2022 Page 3 of 6 Signature Not Verified // 4 // Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 27-Sep-2023 11:22:56
2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. v. Hans Raj [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331: 2005 SCC (L&S) 65] a two-Judge Bench held and observed that an application for recall of an ex parte award may be entertained by the Industrial Tribunal/Labour Court only in case it is filed before the expiry of 30 days from the date of pronouncement/publication of the award. A contrary view was taken in Radhakrishna Mani Tripathi v. L.H. Patel [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 :
(2009) 1 SCC (L&S) 358] to which one of us (Aftab Alam, J.) was a party.
3. In both cases, that is to say, Sangham Tape Co. [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331 : 2005 SCC (L&S) 65] and Radhakrishna Mani Tripathi [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 : (2009) 1 SCC (L&S) 358] , the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 : 1981 SCC (L&S) 309] and Anil Sood v. Labour Court [Anil Sood v. Labour Court, (2001) 10 SCC 534 : (2009) 1 SCC (L&S) 494] but read and interpreted those two decisions completely differently.
4. The conflict which has arisen as a result of the two decisions can only be resolved by a larger Bench. Let these cases be, therefore, listed before a three-Judge Bench."
3.2 While answering the reference, Hon'ble Supreme Court at para-37 held as quoted above. He, therefore, submits that the view taken in Sangham Tape Co. (supra) can no more held to be a good law. As such, the impugned order is not sustainable and is liable to be set aside.
4. Miss Dash, learned counsel for the Opposite Party- Workman although does not dispute the legal position, but submits that the Petitioner-Management was served with notice and it was thoroughly negligent to participate in the proceeding before the learned Labour Court. She also refers to the order sheet of the ID Case No.6 of 2015 and submits that no fruitful purpose will be W. P. (C) NO. 36458 OF 2022 Page 4 of 6 Signature Not Verified // 5 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 27-Sep-2023 11:22:56 served if the impugned order is set aside and the matter is remitted to Labour Court, Sambalpur for fresh adjudication. She, therefore, prays for dismissal of the writ petition.
5. Considering the rival contentions of the parties and the case law in Haryana Suraj Malting Ltd. (supra), this Court is of the considered opinion that even after expiry of thirty days of pronouncement of the award and its publication in the official gazette, the Industrial Adjudicator is not denuded of its jurisdiction to entertain an application to set aside the ex-parte award.
6. It appears that learned Presiding Officer, Labour Court, Sambalpur has not adjudicated the petition to set aside the ex-parte award on merit; rather it was rejected solely on the ground of lack of jurisdiction of Labour Court to entertain such an application. In view of the discussions made above as well as the ratio in Haryana Suraj Malting Ltd. (supra), this Court has no hesitation to set aside the order under Annexure-8.
7. Accordingly, the order under Annexure-8 is set aside and the matter is remitted to Labour Court, Sambalpur to adjudicate the Restoration Misc. Case No.1 of 2018 afresh on its own merit giving opportunity of hearing to the parties concerned.
7.1 To avoid further delay, parties are directed to appear before learned Labour Court, Sambalpur on 16th October, 2023 to receive further instruction in the matter.
8. The writ petition is allowed to the aforesaid extent.
W. P. (C) NO. 36458 OF 2022 Page 5 of 6 Signature Not Verified // 6 // Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 27-Sep-2023 11:22:56
9. Interim order dated 31st July, 2023 passed in IA No.17930 of 2022 stands vacated.
Urgent certified copy of this judgment be granted on proper application.
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(K.R. Mohapatra) Judge ...........................
(R.K. Pattanaik) Judge Orissa High Court, Cuttack, Dated 25th September, 2023 s.s.satapathy W. P. (C) NO. 36458 OF 2022 Page 6 of 6