Rajasthan High Court - Jaipur
Executive Engineer vs Sardar Singh Son Of Shubhkar Singh on 16 February, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023/RJJP/002324]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2020/2023
1. Executive Engineer, Irrigation Department, Sikar.
2. Assistant Engineer, Irrigation Department, Sikar.
----Petitioners
Versus
Sardar Singh Son Of Shubhkar Singh, P.o. Charan Ka Bat,
District Nagour, Via V.k. Mishra, 411 Mahaveer Nagar, Tonk Road,
Jaipur, Rajasthan.
----Respondent
For Petitioner(s) : Dr. Vivek Tyagi, Dy.GC
For Respondent(s) : Mr. Hanumant Singh Rathore for
Mr. Kan Singh Rathore
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
RESERVED ON:- February 9th, 2023
PRONOUNCED ON:- February 16th , 2023
REPORTABLE
The petitioner-Irrigation Department, by way of instant writ petition, has assailed the order dated 12.09.2022 passed by the Labour Court No.2, Jaipur, dismissing Restoration Application No. No.10/2018 filed by the petitioner on 14.12.2017, and denied revival of the order dated 11.07.2017, consequently, has declined to set aside an ex parte award dated 03.07.2004 in LCR No.601/1998 passed in favour of respondent-employee for his reinstatement in service as daily wager.
2. Learned counsel for respondent-employee has appeared as Caveator.
(Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (2 of 25) [CW-2020/2023]
3. Having heard learned counsel for both parties and from perusal of record, following facts have been culled out:-
I) On Reference No.27/1997 dated 15.10.1997, respondent workman submitted a statement of claim dated 24.11.1997 before the Labour Court stating inter alia that he was appointed as daily wager employee on 02.07.1986 and since then continuously worked as labour in the Office of Assistant Engineer Irrigation Department, Sikar. He had worked with due satisfaction without any complaint and rendered his services for more than 240 days in a calendar year, preceding to his removal.
However he was removed from service w.e.f. 01.11.1988 without any notice or notice pay and reason. Therefore, respondent
-employee challenged his removal from service w.e.f. 01.11.1988 claiming violation of Section 25 (F) and 25 (H) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act of 1947"); II) Statement of claim submitted by respondent-workman came to be registered as LCR Case No.601/1998 before the Labour Court No.2, Jaipur and since no response by the petitioner- department was made, learned Labour Court proceeded to decide this case ex parte and passed an award dated 03.07.2004 in favour of respondent-employee in following terms:-
"आदेश अत: राज्य सरकार के रे फरर स स संख्या 27/97 दिदनाा संक 15.10.97 उत्तर इस आश्य से दिद्या जाता है दिक अधीशाषी अदिि्य संता, दिस संचाई दिििाग एि सं सहा्यक अदिि्य संता दिस संचाई दिििाग सीकर दारा ज जो श्रदिश्रमिक सरदारदिस संह क जो दिदनाा सं 1.11.1988 से सेिाश्रमिुक्त दिक्या है, िह अनाुदिचत एि सं अिैध है। श्रदिश्रमिक क जो - -तुरनत प्रिाि से सेिा श्रमिर लेनाे का आदेश दिद्या जाता है। श्रदिश्रमिक क जो दि पिछले िेतना ि अदिधलाि रू पि श्रमिर दस हजार रु पि्ये िी दिद्ये जानाे का आदेश दिद्या जाता है । अिार् ककी प्रदित राज्य सरकार क जो िावासते प्रकाश् नाार् िेजी जा्ये ।
अिार् आज दिदनाा संक 03.07.2004 क जो श्रमिेरे दारा दिलखा्या जाकर सील्युक्त हवासताक्षर कर सरे इजलास सुनाा्या ग्या। ।"(Downloaded on 11/11/2023 at 04:14:27 PM)
[2023/RJJP/002324] (3 of 25) [CW-2020/2023] III) Petitioner-Department filed an application dated 22.12.2004, seeking to set aside the ex parte dated 18.03.2004 as also the order of ex parte award dated 03.07.2004. In the application, the petitioner-department admitted that only notice of statement of claim was served on department on 15.10.2003, without accompanying with the copy of statement of claim and thereafter, though the Court issued fresh notices on 15.01.2004 but the same were never received. However, the Labour Court has wrongly presumed service of department and vide order dated 18.03.2004, ex parte proceedings were commenced. Thereafter, an ex parte award dated 03.07.2004 for reinstatement of respondent-workmanalongwith a fixed sum of Rs.10,000 in form of back wages and benefits has been passed.
IV) It is not in dispute that till the date of filing of the application to set aside the award on 22.12.2004, the award dated 03.07.2004 was not published in the Official Gazette as the same was published in the Official Gazette on 15.02.2005, and was notified on notice board on 09.03.2005.
V) respondent-workman opposed the application, however Labour Court, after hearing both parties and as per record allowed the application vide order dated 11.07.2017 and set aside the ex parte award dated 03.07.2004 subject to condition to pay/deposit cost of Rs.1500/- (Rs.300 to be deposited in legal aid and Rs.1200 to pay to the respondent-employee). It was specifically made clear in the order dated 11.07.2017 itself that in case of non-payment of the cost, the order allowing application to set aside the award, would expire automatically. (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (4 of 25) [CW-2020/2023] VI) It is not in dispute that the petitioner-department failed to make payment of the cost of Rs.1500/- and could not comply with the pre-condition of the order dated 11.07.2017. Therefore, as a consequence, the Labour Court observed that due to non- payment of cost, the order dated 11.07.2017 has automatically expired, and accordingly, vide order dated 02.11.2017, the application was consigned to record.
VII) Since the award dated 03.07.2004 has been published in Gazette Notification on 15.02.2005 and has become enforceable by virtue of Section 17-A of the Act of 1947, respondent- workman proceeded for contempt for non-complaince of the award, under Section 29 of the Act of 1947.
VIII) The petitioner-department filed another application dated 14.12.2017 with a prayer to cancel the order dated 2.11.2017 and sought permission to deposit the cost and to restore the order dated 11.07.2017, whereby the award was set aside. It may be noticed that no separate application under Section 5 of the Limitation Act was filed seeking condonation of delay in depositing the cost. However in the application dated 14.12.2017 itself, it is indicated that due to not receiving any information to deposit the cost, the same could not be paid within prescribed time and the default is neither deliberate nor malicious. It is also indicated that counsel for the department had filed reply of statement of claim on 14.09.2017 before the Labour Court, but the same was not taken on record due to non-payment of the cost.
IX) respondent-workman filed reply and contested this application dated 14.12.2017.Respondent contended that there is no sufficient reason for non-compliance of the order dated (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (5 of 25) [CW-2020/2023] 11.07.2017 and further the award dated 03.07.2004 has already been notified in the Gazette on 15.02.2005, as such has become enforceable after expiry of 30 days by virtue of Section 17-A of the Act of 1947. Therefore, now the Labour Court has become functus officio and has no jurisdiction to entertain the application dated 14.12.2017 and the proceeding of the statement of claim cannot be revived.
X) Learned Labour Court, vide order dated 12.09.2022 dismissed the application dated 14.12.2017. This order has been challenged in the present writ petition.
4. Learned counsel, Dr. Vivek Tyagi, Dy. G.C., appearing for the petitioner-department has vehemently argued that the Labour Court fell in error of law and wrongly swayed away by the contention of the counsel for respondent-workman that after expiry of 30 days from the date of publication of award in Gazette Notification, the Labour Court becomes functus officio and thereafter cannot entertain application to set aside the ex parte award. He has strenuously urged that the Labour Court had allowed the application to set aside the award vide order dated 11.07.2017 and that order was never challenged by the respondent-workman. The only default on the part of department is not to make payment of the cost amount of Rs.1500/-, for which sufficient explanation has been assigned in the application dated 14.12.2017 itself. Therefore, the Labour Court ought to have adopted a liberal approach to condone the delay of hardly 12 days in filing the application dated 14.12.2017 and permission should have been granted to deposit the cost of Rs.1500/-, in the interest of justice and the order dated 11.07.2017 ought to have (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (6 of 25) [CW-2020/2023] been revived, to the effect of setting aside the ex parte award dated 03.07.2004. He has also pointed out that after passing the order dated 11.07.2017, the department has filed reply of statement of claim on 14.09.2017. Copy of which has been supplied to the counsel for respondent-employee and the same is annexed herewith as Ann.4. Therefore, it may not be construed that the department is not interested in contesting the statement of claim. He pointed out that since the respondent-workman was a daily wager, for a short period, therefore, at the most he could have been compensated by way of awarding the compensation, and on merit, the order of reinstatement stands bad in law. Therefore, it would be in the interest of justice to accord an opportunity to the petitioner-department to contest the statement of claim and the impugned order dated 12.09.2022 be quashed and the petitioner may be permitted to deposit the cost in compliance of the order dated 11.07.2017 by virtue of revival of order, ex parte award dated 03.07.2004 be treated as set aside.
5. Per contra, learned counsel appearing on behalf of respondent-workman has placed reliance on the judgment of Hon'ble Apex Court in case of M/s Sangham Tape Company Vs. Hans Raj.[(2005) 9 SCC 331], and argued that as per dictum of law expounded by Hon'ble Apex Court in this judgment, the Labour Court becomes functus officio to entertain and allow the application dated 14.12.2017, as prior to that, the ex parte award dated 03.07.2004 was published in the Gazette Notification on 15.02.2005 and the same was notified on the Notice Board on 09.03.2005. As such in view of the provision of Section 17-A read with Section 20 (3) of the Act of 1947, the award has become (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (7 of 25) [CW-2020/2023] enforceable in law. He argued that as far as the order dated 11.07.2017 is concerned, the same never came in effect, due to non-deposition of the cost, therefore, same cannot be restored. Learned counsel has not disputed the fact that copy of the reply of statement of claim was received by him on 14.09.2017.
6. In respect of condonation of delay in filing the application dated 14.12.2017, learned counsel has vehemently argued that the petitioner-department has not filed any separate application under Section 5 of the Limitation Act, alongwith the application dated 14.12.2017 therefore, the Labour Court is well within its jurisdiction and para meters of law to dismiss the application dated 14.12.2017 on account of limitation as well. Learned counsel has supported findings of Labour Court and his argument by the judgment of Coordinate Bench of Rajasthan High Court; delivered in case of Municipal Board Kaman, District Bharatpur Vs. The Judge, Labour Court, Bharatpur [S.B. Civil Writ Petition No.2829/2012 decided on 24.09.2019].
7. In rebuttal arguments, learned counsel for petitioner- department has replied arguments of learned counsel for respondent-workman by referring the judgment of Hon'ble Apex Court, in case of Haryana Suraj Malting Ltd. vs. Phool Chand [(2018)16 SCC 567], to contend that the Labour Court does not become functus officio and if the award is ex parte, then the same can be set aside even after publication in the Gazette Notification, following principles of natural justice. He also referred another judgment of Hon'ble Apex Court in case of Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd. and Anr. [2021 (7) SCC 313] wherein the Hon'ble Apex Court (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (8 of 25) [CW-2020/2023] opined that it is not mandatory to file an application in writing for seeking condonation of delay under Section 5 of the Limitation Act and the mandate of law is that there must be sufficient cause to explain the delay and the Court would appreciate the sufficiency of cause.
8. Having adverted to aforesaid factual and legal aspect, the questions which fall for consideration before this Court are as to whether the learned Labour Court committed any illegality or jurisdictional error in passing the order dated 12.09.2022 and declining to set aside the ex parte award dated 03.07.2004 and the impugned order requires any interference by this Court while exercising its jurisdiction under Article 227 of the Constitution of India.
9. At the out set, on the legal issue as to whether the Industrial Tribunal or Labour Court as the came may be becomes functus officio to entertain an application to set aside the award, after expiry of 30 days from the date of publication of award. A conjoint reading of Section 17, 17-A and 20 (3) of the Act of 1947 make it clear that proceedings with regard to a reference under Section 10 of the Act of 1947 are not deemed to be concluded until expiry of 30 days from the date of publication of the award. This issue came up for consideration before this Hon'ble Suprme Court, in case of M/s Sangham Tape Company (supra), in that case an ex parte award passed by the Labour Court dated 05.02.1996 was set aside, entertaining application after expiry of 30 days from the date of publication of award. The order of Labour Court was challenged before the Division Bench of Punjab and Haryana High Court and the writ petition was allowed, setting aside the order of (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (9 of 25) [CW-2020/2023] labour court. Matter reached before the Hon'ble Supreme Court, and the Hon'ble Supreme Court, placing reliance on the previous judgments in case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Ors [(1980) Spp SCC 420], opined the proposition of law that once the award of Labour Court becomes enforceable, after expiry of 30 days from the publication, the Industrial Tribunal/labour Court becomes functus officio.
10. The Co-ordinate Bench of this Court of Rajasthan High Court in case of Engineer Public Health & Engineering Department Hanumangarh Vs. Imamudeen Khatri & Anr.[(1996) 2 WLC 342], also placed reliance in case of Grindlays Bank Ltd. (supra) observed in para No.5 as under:-
"5. There is no quarrel about the proposition of law as argued by the learned counsel for the petitioner about the jurisdiction of the labour court to entertain an application to set aside the impugned ex parte award until expiry of 30 days from the date of publication of the award. I am of the opinion, that until the expiry of 30 days from the date of publication of the award, the Labour retains jurisdiction over the dispute referred to it for adjudication and up to that date, it has power to entertain an application in connection with such dispute. Thus, where an application for setting aside and ex parte award was filed within 30 days from the date of publication, the Tribunal is always competent to entertain it. But if such application is moved beyond 30 days from the date of publication of the award then such application is not maintainable."
11. Later on, the Apex Court in case of Radhakrishna Mani Tripathi Vs. L.H. Patel and Anr. [(2009) 2 SCC 81] expressed another view, which was not in conformity to the view expressed by the Hon'ble Supreme Court in erstwhile judgment in case of M/s Sangham Tape Company (supra), therefore, in view of conflict between two decisions of Hon'ble Supreme Court in case (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (10 of 25) [CW-2020/2023] of M/s Sangham Tape Company (supra), and Radhakrishna Mani Tripathi (supra), reference to the larger bench was made, in case of Haryana Suraj Malting Ltd. (supra) in following terms:-
"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.
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 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 to which one of us (Aftab Alam, J.) was a party.
3. In both cases, that is to say, Sangham Tape Co. and Radhakrishna Mani Tripathi, the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal and Anil Sood v. Labour Court 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."
12. Larger Bench of Apex Court, considered and replied the aforestated terms after adverting to the object, Scheme and procedure provided under the Industrial Disputes Act, 1947 for the investigation and settlement of the Industrial Disputes by the Labour Court or the Tribunal. Having adverted to Section 11 (1), Section 17 (1) and (2), Section 17-A, Section 20 as well as the relevant Rule of 10-B (9), 22 and 24 of the Industrial Disputes (Central) Rules, 1947 framed by the Central Government, invoking powers under Section 38 of the Act of 1947, it has been concluded that under the statutory Scheme, the Labour Court/Tribunal is empowered to follow its own procedure as it thinks fit. If a party fails to attend the Court/Tribunal without showing (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (11 of 25) [CW-2020/2023] sufficient cause, the Court/Tribunal can proceed ex parte and pass an ex parte award. The award, ex parte award or otherwise, has to be sent to the appropriate Government as soon as it is made and the appropriate Government has to publish it within 30 days of its receipt. The award thus published becomes enforceable after a period of 30 days of its publication. The Larger Bench of Hon'ble Apex Court extended thoughtful adherence to the judgment of Apex Court in case of Grindlays Bank Ltd. (supra) and observed that it is no more res integra, that an ex parte award can be set aside in case, the Court/Tribunal is approached within 30 days of its publication under Section 17 of the Act of 1947. It was noticed by the Larger Bench that in Grindlays Bank Ltd. (supra), the Court has unambiguously held that it is the power and duty of the Tribunal exercising its ancillary and incidental powers to set aside an award which is a nullity and in that process, the Tribunal is governed by the principles of order 9 Rule 13 CPC. On the particular facts of that case, the Hon'ble Supreme Court came to the conclusion in Grindlays Bank Ltd. case (supra) that the power to set aside an ex parte award remained only till the award had become enforceable under Section 17-A, before the expiry of 30 days from the date of its publication under Section 17, but the Court has summarized the legal position in this respect to the effect "There is no finality attach to ex parte award, because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power to deal with an application appropriately made before it for setting aside an ex parte award and pass suitable order".
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13. It has been noticed by the Larger Bench of Apex Court that in M/s Sangham Tape Company (supra), and Radhakrishna Mani Tripathi (supra), the decision in Grindlays Bank Ltd. case (supra) was referred and after referring few other judgments of Apex Court, wherein also the decision in Grindlays Bank Ltd. case (supra) was referred, the Large Bench finally opined as under:-
"30. Therefore, all the decisions hereinabove noted by us referred to Grindlays (supra). On a close reading of paragraph-14 of Grindlays (supra), in the background of the analysis of law under paragraphs-10 to 13, it is difficult for us to comprehend that the power to set aside an ex parte award is not available to a Labour Court/Industrial Tribunal. On the principles of natural justice, and on a purposive interpretation of the scheme of the Act and Rules, we find it difficult also to discern that the ratio of the decision in Grindlays (supra), is what is stated in paragraph-14 to the extent that an application for setting aside an ex parte award has to be filed within 30 days of publication of the award. On the contrary, the ratio in Grindlays (supra) is that the Tribunal can exercise its ancillary and incidental powers, on the broader principles contained Under Order IX Rule 13 of the Code of Civil Procedure. No doubt, the Limitation Act, 1963 is not applicable to the Labour Court/Tribunal.
32. In case a party is in a position to show sufficient cause for its absence before the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal.
33. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (13 of 25) [CW-2020/2023] Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise, as held in Grindlays, an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law.
35. 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 nonappearance in the 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."
14. Therefore, the correct legal proposition of law as has been expounded by the Larger Bench of Apex Court in case of Haryana Suraj Malting Ltd. (supra), emerges to the effect that the Court/Tribunal possess the power to set aside an ex parte award before expiry of 30 days of its publication as well as after expiry of 30 days of its publication, when the party shows a sufficient cause for non-appearance and where an award does not become (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (14 of 25) [CW-2020/2023] binding, being passed without compliance with principles of natural justice. Thus, it stands clear that the Labour Court/Tribunal does not become functus officio even after the award has become enforceable, as far as the ex party award is concerned. It is well within powers of the Labour Court/Tribunal to entertain an application as per the Scheme of the Act and in terms of Principle of Natural Justice.
15. This Court expressed its concern and displeasure that the correct proposition of law, on the issue discussed hereinabove, was not brought to notice of the Labour Court, before passing the impugned order dated 12.09.2022. It appears that the Labour Court was kept in dark and under wrong impression that the Court becomes functus officio, after expiry of 30 days from the date of publication of award, when the award becomes enforceable in law. The reference of the judgment in case of M/s Sangham Tape Company (supra) and Engineer Public Health & Engineering Department Hanumangarh (supra) by the counsel for workman before the Labour Court, without referring the judgment of Larger Bench of Apex Court in case of Haryana Suraj Malting Ltd. (supra) was misplaced and the impugned order dated 12.09.2022 remains erroneous to the extent of making its observations after placing reliance on the above referred two judgments, without adhering to the correct proposition of law as expounded in Haryana Suraj Malting Ltd. (supra).
16. Coming to the another argument raised by the counsel for workman that the Labour Court has not committed any error of jurisdiction, in not entertaining the application dated 14.12.2017, (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (15 of 25) [CW-2020/2023] filed after expiry of limitation of 30 days, from the order dated 02.11.2017 whereunder the earlier application dated 22.12.2004 to set aside the ex parte award dated 03.07.2004 was consigned to record, due to non-compliance of the order dated 11.07.2017. Because no separate application under Section 5 of the Limitation Act showing sufficient cause for delay and non-deposition of the cost in compliance of the order dated 11.07.2017 was filed. Simultaneously, counsel has also argued that there is no sufficient cause to condone the delay and to allow deposition of the cost amount as well as to entertain and allow the application dated 14.12.2017. In support, learned counsel for workman has placed reliance on the judgment of Coordinate Bench of Rajasthan High Court in case of Municipal Board Kaman, District Bharatpur (supra).
17. From perusal of the impugned order dated 12.09.2022, it appears that the Labour Court has given weigh on the issue that no separate application for condonation of delay has been filed, alongwith the application dated 14.12.2017.Although simultaneously, the Labour Court has also observed that there is no sufficient cause for non-payment of cost amount within prescribed time as if the department was willing to contest the statement of claim of the workman on merits. The compliance of order dated 11.07.2017 should have been made and mere showing ignorance or having no information about the fact of deposition of the cost of Rs.1500/- in compliance of the order dated 11.07.2017, to set aside the ex parte award, is of no help to the department.
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18. Learned counsel for petitioner-department has humbly urged that application for restoration had been filed on 14.12.2017 (Ann.7), to restore the previous order dated 11.07.2017 and to permit the petitioner-department to make payment of the cost of Rs.1500/-. This application is only delayed by 12 days, from the date on 02.11.2017, when the application to set aside the award was consigned to record due to non-compliance of the order dated 11.07.2017. He has pointed out that it is true that separate application for condonation of delay was not filed, but a sufficient reason has been mentioned in the application dated 14.12.2017 itself for non-deposition of the cost of Rs.1500/- and it has been stated that the delay is not at the behest of petitioner-department nor there is any deliberate negligence or maliciousness on the part of petitioner-department to cause the delay. Learned counsel has prayed that taking into consideration totality of facts and circumstances of present case, the reason assigned in the application dated 14.12.2017 for the delay and non-deposition of cost, be treated as sufficient and application be allowed.
19. In support of his contention, learned counsel has placed reliance on the recent judgment of Apex Court in case of Sesh Nath Singh & Anr. (supra), wherein the Apex Court had occasion to consider the scope of Section 5 of the Limitation Act, having powers to condone the delay on existence of sufficient cause, even without filing any separate application. The Hon'ble Apex Court was considering the maintainability of application under Section 7 of the Insolvency and Bankruptcy Code, 2016 on account of delay and powers to condone the delay. The Apex (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (17 of 25) [CW-2020/2023] Court, referring plethora of judgments of Apex Court, has held that Section 5 of the Limitation Act gives the Court a discretion, which is to be exercised in the manner in which judicial power and discretion ought to be exercised, upon principles which are well understood. The expression "Sufficient Cause" should be construed liberally to advance substantial justice. The condition precedent for condonation of delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute "Sufficient Cause" or not would depend upon facts of each case and there cannot be any straight jacket formula in this respect. In respect of filing a separate application under Section 5 of the Limitation Act, the Court has opined that it is not mandate of Section 5 and there is no bar to exercise powers under Section 5 of the Limitation Act by the Court/Tribunal to condone the delay, in absence of formal application. However, the Court can always insist that an application or an affidavit showing cause for delay be filed. For ready reference, relevant portion of the judgment is being extracted hereunder:-
"Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.(Downloaded on 11/11/2023 at 04:14:27 PM)
[2023/RJJP/002324] (18 of 25) [CW-2020/2023] A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."
20. Having enlightened with the view expressed by the Apex Court in Sesh Nath Singh & Anr. (supra), this Court is of the opinion that thrust is on the existence of "Sufficient Cause" to condone the delay, and not on filing a separate application under Section 5 of the Limitation Act. To this extent, the judgment passed by the Coordinate Bench in case of Municipal Board Kaman, District Bharatpur (Supra) also does not lay down any contrary view as such the argument of the counsel for respondent-workman that without filing an application under Section 5 of the Limitation Act, the delay cannot be condoned, can not be countenanced.
21. On close scrutiny of facts of the present case, it transpires that the respondent-workman states that he was a daily wager in the petitioner-department and was appointed on 02.07.1986 and was removed from service w.e.f. 01.11.1988 in violation of Section (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (19 of 25) [CW-2020/2023] 25-F & 25-H of the Act of 1947. On filing of statement claim, registered notice dated 15.10.2003 and 15.01.2004 were sent to petitioner-department, but when the registered notices were not returned, a presumption of service was drawn and the Labour Court proceeded ex parte on 18.03.2004. Thereafter passed an ex parte award dated 03.07.2004, allowing reinstatement of the respondent workman in service. The award has never been executed so far. It is not in dispute that on filing the first application dated 22.12.2004 by the petitioner-department seeking to set aside the ex parte award, the same was allowed by the Labour Court vide order dated 11.07.2017 and the ex parte award was set aside, subject to condition of payment of cost of Rs.1500/- by the department within a period of one month. The order dated 11.07.2017 was never challenged by the respondent- workman and the same attained finality. Thus, had the petitioner- department paid the cost of Rs.1500/-, the ex parte award dated 03.07.2004 would stand set aside. Later on, due to non-deposition of cost and non-compliance of pre-condition of order dated 11.07.2017, the application dated 22.12.2004 was consigned to record by the Labour Court vide order dated 02.11.2017. Thereafter, on 14.12.2017, the petitioner-department has moved the present application seeking restoration of earlier order dated 11.07.2017 and seeking permission to deposit the cost and to contest the statement of claim on merits. In the application dated 14.12.2017 the petitioner department has assigned the reason that the order of making the payment of cost of Rs.1500/- was not intimated to the petitioner-department and non-payment of cost of Rs.1500/- is not deliberate and malicious action on the part of (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (20 of 25) [CW-2020/2023] department. It has been pointed out that the department was always willing to contest the statement of claim, and even, after setting aside ex parte award vide order dated 11.07.2017, reply to statement of claim had been filed before the Labour Court on 14.09.2017, but the same was not taken on record, just due to non-payment of the amount of cost.
22. Learned counsel for petitioner has argued that in such peculiar facts, the department may not be held guilty for delay, as the application to set aside the ex parte award dated 03.07.2004 had been filed on 22.12.2004 and the same had been allowed vide order dated 11.07.2017. However, the order has been expired, only due to non-deposition of cost of Rs.1500/-, and thereafter the petitioner has filed application on 14.12.2017 seeking to revive the order dated 11.07.2017. He submits that in the given case, on merits as well, the impugned award dated 03.07.2004, allowing reinstatement of the daily wager workman, despite declaring his removal as illegal and invalid, is unwarranted. He submits that the award of reinstatement has never been executed and admittedly, from the date of alleged removal of respondent- workman on 01.11.1988 about 34 years have passed, and now he might have already crossed the age of superannuation. At the most, he can be compensated by awarding sufficient amount of compensation, in stead of sustaining his reinstatement in service. Therefore, he has prayed that the impugned order dated 12.09.2022 and ex parte award dated 03.07.2004 be quashed in the interest of justice by allowing to revive the order dated 11.07.2017, the petitioner may be permitted to deposit the cost (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (21 of 25) [CW-2020/2023] and allow to contest the statement of claim filed by the respondent-workman before the Labour Court on merits.
23. At this juncture, before proceeding further this Court deems it just and proper to refer few judgments of Hon'ble Apex Court in case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board & Anr. [2009 (15) SCC 327], the Apex Court opined as under:-
"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
24. In case of BSNL Vs. Bhurumal [2014)7 SCC 177], the Apex Court held as under:-
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages when the termination is found to be illegal is not applied mechanically in all case. While that may be a position where services of a regular/ permanent workman are terminated illegally and/ or malafide and/ or by way of victimisation, unfair labour (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (22 of 25) [CW-2020/2023] practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25F of the Industrial Disputes Act, this court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [State of Karnataka v. Umadevi (2006)4 SCC 1]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily- wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. While retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (23 of 25) [CW-2020/2023] such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied"
25. The judgment of BSNL Vs. Bhurumal (supra) has been recently followed in case of State of Uttarakhand and Anr. Vs. Raj Kumar [(2019) 14 SCC 353] by the Hon'ble Apex Court wherein also, in case of a removal of daily wager workman, compensation was awarded, setting aside the award of his reinstatement.
26. In case of Haryana Suraj Malting Ltd. (Supra), the Apex Court has observed that when an application for setting aside an ex parte award is made at the instance of management, the Labour Court/Tribunal has to balance equities.
27. Applying principle of balance of equities to facts of the present case, the ex parte award dated 03.07.2004 already set aside by the Labour Court vide order dated 11.07.2017 and thereafter, the petitioner -department had also filed its reply to statement of claim on 14.09.2017 before the Labour Court. The only default on the part of department is non-payment of cost of Rs.1500/-.
28. In facts and circumstances of present case, it may not be assumed that the department has deliberately committed a default of non-deposition of cost of Rs.1500/-. Though, it is not incorrect, that the order dated 11.07.2017 was passed in presence of both parties, however the non-payment/non-deposition of the cost within the prescribed time, may not be taken so fatal that the petitioner-department should not be given an opportunity to deposit the cost, when he has moved application dated (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (24 of 25) [CW-2020/2023] 14.12.2017 for such prayer. There is one more reason to restore the order dated 11.07.2017 that it is settled proposition of law that for an award to become binding, it should be passed in compliance with principles of natural justice. In facts and circumstances of the present case, as discussed hereinabove, this Court is not satisfied that the ex parte award dated 03.07.2004 was passed in compliance with principles of natural justice. Therefore, keeping in mind the ratio decidendi of judgments referred hereinabve, this Court, to meet ends of justice, deems it just and proper to set aside the order dated 12.09.2022 as also the ex parte award of re-instatement dated 03.07.2004.
29. However, in order to balance equities, since the litigation has been pending for a long time, therefore, to meet ends of justice, this Court directs the petitioner-department to pay an additional amount of Rs.50,000/- provisional, apart from depositing the cost of Rs.1500/- within a period of 30 days from today. On deposition of such amount, Rs.50,000/- be paid to the respondent-workman forthwith and cost amount of Rs.1500/- be disbursed as directed in the order dated 11.07.2017. On such terms, the instant writ petition is allowed.
30. The final out come is that the impugned order dated 12.09.2022 as well as the ex parte award dated 03.07.2004 stand set aside on the condition that the petitioner-department will deposit an amount of Rs.50,000/-, alongwith the cost of Rs.1500/- before the Labour Court within a period of 30 days from the first date of appearance before the Labour Court. However, this Court makes it clear that the payment of amount of Rs.50,000/- by the (Downloaded on 11/11/2023 at 04:14:27 PM) [2023/RJJP/002324] (25 of 25) [CW-2020/2023] petitioner shall be subject to final out come of the award and will be adjusted appropriately.
31. The reply of statement of claim, filed by department on 14.09.2017 shall be taken on record, or if not found on record, an opportunity to file a fresh reply be given to department, and after giving opportunity of hearing to both parties fresh award on merits be passed by the Labour Court in accordance with law.
32. Since the matter relates to removal of workman on 1.11.1988, the Labour Court shall expedite proceedings and would make all endevour to conclude proceedings within a period of one year from the date of first appearance of parties, if possible.
33. Both parties are directed to appear before the Labour Court No.2, Jaipur on 13.03.2023.
34. There is no need to issue any further notice for appearance to either of parties.
(SUDESH BANSAL),J TN/ (Downloaded on 11/11/2023 at 04:14:27 PM) Powered by TCPDF (www.tcpdf.org)