Punjab-Haryana High Court
M/S E.E.L. India Ltd vs The Presiding Officer on 30 August, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) L.P.A. No. 1170 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour Court, Faridabad and
others
..... RESPONDENTS
(2) L.P.A. No.1274 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Harender Kumar and another
..... RESPONDENTS
(3) L.P.A. No.1275 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Krishan Kumar and another
..... RESPONDENTS
(4) L.P.A. No.1276 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Raghubir Singh and another
..... RESPONDENTS
(5) L.P.A. No.1277 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Harmohan Sharma and another
..... RESPONDENTS
LPA No. 1170 of 2012 & other connected LPAs -2-
(6) L.P.A. No.1278 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Suchan Pal and another
..... RESPONDENTS
(7) L.P.A. No.1279 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Balbir Singh and another
..... RESPONDENTS
(8) L.P.A. No.1280 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Rajesh Rajput and another
..... RESPONDENTS
(9) L.P.A. No.1281 of 2012 ( O&M )
DATE OF DECISION : 30.08.2012
M/s E.E.L. India Ltd., Gurgaon
.... APPELLANT
Versus
Pale Ram and another
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr. D.S. Nalwa, Advocate,
for the appellant.
***
LPA No. 1170 of 2012 & other connected LPAs -3-
SATISH KUMAR MITTAL, J.
This order shall dispose of bunch of nine Letters Patent Appeals (LPA Nos. 1170 and 1274 to 1281 of 2012), which are arising from the common order dated 3.5.2012, passed by the learned Single Judge, whereby a bunch of nine Civil Writ Petitions (CWP Nos. 15149, 19781, 19803, 19804, 19810, 19823, 19824, 19782 and 20836 of 2010) were disposed of; the ex-parte award dated 15.1.2010 and the order dated 21.5.2010 passed by the Labour Court, dismissing the application filed by the claimants-workmen for setting aside the aforesaid ex-parte award were quashed; and the matter was remanded to the Labour Court with a direction to decide the reference within a period of one year, after providing full opportunity to both the parties to lead their respective evidence.
For the sake of brevity and convenience, we have taken the facts from LPA No. 1170 of 2012 against the order passed by the learned Single Judge in CWP No. 15149 of 2010.
In this case, services of some of the workmen, who were working on various posts with the appellant-management, were terminated. The State Government, in exercise of powers conferred by clause (c) of Section 10 (1) of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'), referred the following dispute for adjudication to the Labour Court :
"Whether the termination of services of Sh. Suraj Kaushik, Vijender Singh, Dheer Singh, Dinesh Verma, Lal Mohan Singh, LPA No. 1170 of 2012 & other connected LPAs -4- Rup Chand Sharma, is justified or not ? If not, what relief they are entitled to ?"
When the said dispute was pending before the Labour Court, both the parties filed separate applications. The Management, in its application, raised objection that representative of the workers' Union cannot represent the workmen, as their Union has been de-recognised. The workmen filed application stating therein that a legal practitioner should not be allowed to represent the Management. These applications remained pending before the Labour Court for quite long time. Finally, arguments were heard on these applications on 23.12.2009 and the order was reserved. On 11.1.2010, the Labour Court pronounced the order. On that day, neither the workmen nor their representative were present. The Labour Court allowed the application of the Management holding that representative of the workers' Union could not represent the workmen-claimants, because their Union had been de- recognised. The application of the claimants-workmen was also allowed. Since the claimants/workmen were not present on that day, they were proceeded ex-parte on the same day, without issuing any notice to them. Subsequently, after four days, i.e. on 15.1.2010, ex-parte award was passed against the claimants in their absence, deciding the reference against them.
Immediately thereafter, the claimants filed application for setting aside the order dated 11.1.2010 proceeding them ex-parte as well as the ex-parte award dated 15.1.2010, on the ground that their authorised representative neither appeared before the Labour Court on both the LPA No. 1170 of 2012 & other connected LPAs -5- aforesaid dates nor the claimants-workmen were informed about the dates fixed. The Labour Court, vide its award dated 21.5.2010, dismissed the said application.
The claimants challenged the ex-parte award dated 15.1.2010 as well as the aforesaid order dated 231.5.2010, by filing writ petition, which was disposed of by the learned Single Judge, while observing as under :
"It is admitted case of the parties that none of the parties led their respective evidence. No documents were exhibited before the Labour Court. The reply filed before the Labour Court to the application of the petitioners for setting aside the ex-parte order and the award shows that the Management has mentioned Annexure/Exhibit- 1, Annexures/Exhibits-3 to Annexure 6. Admittedly, these documents so produced by the Management before the Labour Court were neither duly exhibited, nor tested, nor examined even in Examination-in- Chief before the Labour Court. So, it is a case of no evidence. The submission of the learned counsel for the Management that the petitioners lingered on the matter for 10 years is also misconceived. No material has been placed on record before this Court to show that the petitioners lingered on the matter for 10 years. There is also no finding in the impugned order dated 21.5.2010 (Annexure P-5) and the award dated dated 15.1.2010 (Annexure P-2) passed by the Labour Court that the petitioners are guilty of lingering on the matter for 10 years. In fact the petitioners were proceeded ex-parte on 11.1.2010 and the impugned award was passed on 15.1.2010 i.e. just after three days of declaring the representative of the petitioners de-
LPA No. 1170 of 2012 & other connected LPAs -6- recognized and on the very same day, the petitioners were proceeded ex-parte. The award has not been passed on merits. In this view of the matter, I find that it is purely a case of no evidence and the petitioners have been condemned unheard."
Learned counsel for the appellant - Management argued that the learned Single Judge has erred in law, while setting aside the ex-parte award passed by the Labour Court. According to him, when no representative of the workmen was present on 11.1.2010, they were rightly proceeded ex-parte and subsequently, on the basis of the material available on record of the Labour Court, the ex-parte award was passed on 15.1.2010. Learned counsel argued that when the Labour Court allowed the application of the Management while holding that representative of the workers' Union could not represent the workmen-claimants, because their Union had been de-recognised, there was no requirement on the part of the Labour Court to issue notice to the claimants, whose dispute with regard to their termination was referred for adjudication before the Labour Court. Therefore, the Labour Court did not commit any illegality while proceeding ex-parte against the claimants. Learned counsel further argued that in the present case, the industrial dispute was referred under Section 2 (k) of the Act, therefore, the workmen had no right to file writ petition challenging the ex- parte order, as it was not the industrial dispute referred under Section 2A of the Act. According to the learned counsel, the industrial dispute in the case was between the workers' Union and the Management, therefore, the respondents - workmen (claimants) could not have challenged the order LPA No. 1170 of 2012 & other connected LPAs -7- passed by the Labour Court, for the simple reason that their case was exposed by the Union and the individual workmen had no right to be heard before the Labour Court and challenge the ex-parte award. In support of his contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case Between Ram Prasad Vishwakarma and Industrial Tribunal, Patna, and others, 1961 I.L.L.J. 504.
After hearing learned counsel for the appellant - Management and going through the impugned order passed by the learned Single Judge, the ex-parte order and the ex-parte award, as well as the other material filed with this appeal, we do not find any merit in the aforesaid contention raised by learned counsel for the appellant, or any ground to interfere in the order passed by the learned Single Judge.
It has not been disputed that on 11.1.2010, Labour Court allowed the application filed by the Management to the effect that the authorised representative of the workers' Union, was not entitled to defend the claimants, who were members of the Union, because their Union had been de-recognised. Earlier to that, the claimants were being represented by the representative of the Union. After passing the said order, in the peculiar facts of the case, when no body was there on behalf of the claimants to pursue their claim, in our opinion, the Labour Court should have issued notice to the claimants and then proceeded with the reference. It is also admitted fact that on that day, neither the authorised representative of the workers' Union nor the claimants were present, and within four days of LPA No. 1170 of 2012 & other connected LPAs -8- proceeding the claimants ex-parte, final ex-parte award was passed on 15.1.2010. On these facts, in our opinion, the claimants, whose dispute regarding termination was referred to the Labour Court for adjudication and who were real party to the reference, were not provided fair hearing. The principle of fair hearing and reasonable opportunity of being heard is the fundamental principle of natural justice, which was to be complied with by the Labour Court.
The argument of learned counsel for the appellant -
Management that since in the present case, the industrial dispute was referred under Section 2 (k) of the Act and the respondents - workmen were being represented through their Union, they in their individual capacity had no right to defend their case before the Labour Court, cannot be accepted in the peculiar facts of this case. In Ram Prasad Vishwakarma's case (supra), an industrial dispute with regard to termination of one workman was referred by the Government for adjudication before the Labour Court. He was being represented by the Union. When the Union alleged to have settled the dispute by a settlement before the Labour Court, the aggrieved workman made an application that he should be permitted to represent his case by a person of his own choice. The application was dismissed by the Labour Court and the said order was upheld by the Hon'ble Supreme Court, while observing as under :
"..... the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen who have by their sponsoring turned the LPA No. 1170 of 2012 & other connected LPAs -9- individual dispute into an industrial dispute, can therefore claim to have a say in the conduct of the proceedings before the tribunal.
It is not unreasonable to think that Section 36 of the Industrial Disputes Act recognises this position, by providing that the workman who is a party to a dispute shall be entitled to be represented by an officer of a registered trade union of which he is a member. While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should, in our opinion, be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the tribunal to permit other representation of the workman concerned."
These observations clearly indicate that in exceptional circumstances, the Labour Court can permit the workman to pursue his case through other representative. It cannot be accepted as a general rule that once the dispute has been referred under Section 2 (k) of the Act through Union, the workman has no say in the adjudication of the said industrial dispute before the Labour Court. In exceptional circumstances, he can claim that he should be permitted to pursue his case through a person of his own choice.
After the aforesaid judgment, Section 2A of the Act was also introduced, giving right to an industrial workman to raise the dispute arising out of his discharge, dismissal, retrenchment or termination notwithstanding that no other workman nor any union of workman is a party to the dispute. Thus, in our opinion, in the present case, when the Labour Court allowed the application of the Management, before proceeding ex-parte, the LPA No. 1170 of 2012 & other connected LPAs -10- workmen - claimants should have been given notice to enable them to arrange a person of their own choice to represent them before the Labour Court. But the Labour Court, without giving notice and in gross violation of the principle of natural justice, proceeded the claimants ex-parte, and within four days, passed the award against them, which in the facts and circumstances of the case was not justified at all.
Secondly, the learned Single Judge has rightly observed that when the workmen were proceeded ex-parte, by that time, none of the parties had led any evidence. In view of this fact also, the learned Single Judge deemed it appropriate to get the matter decided after providing full opportunity to both the parties to lead evidence in support of their claim and defence. Merely because, the matter is pending for more than 10 years, the ex-parte award could not have been allowed to prevail and the long pendency before the Labour Court can be taken care of by the Labour Court while awarding necessary relief to the parties.
In view of the above, we do not find any illegality in the impugned order passed by the learned Single Judge.
No merit. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
August 30, 2012 ( INDERJIT SINGH )
ndj JUDGE