Allahabad High Court
Nagar Panchayat Kithore Through Its ... vs Prescribed Authority/Peethasin ... on 19 February, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the petitioner and perused the record.
2. Brief facts of the case are that Smt. Damyanti Devi wife of late Virendra Prakash filed Misc. Case No. 114 of 2003 before the Presiding Officer, Labour Court, U.P. Meerut under Section 6-H (2) of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') claiming that she was entitled to receive (1) a sum of Rs. 2,83,355 from M/s. Nagar Panchayat Kithor district Meerut and (2) a sum of Rs. 2679.15P from M/s. Nagar Panchayat Tikri, district Baghpat towards retiral dues, leave encashment, wages for the period of suspension, unpaid salary for the period 4.6.1982 to 3.8.1993, dues of insurance payable to her late husband etc.
3. It was alleged by Smt. Damyanti Devi, the applicant before the Labour Court that her husband late Virendra Prakash was employed as 'Baxi' under Executive Officer, Nagar Panchayat Kithor district Meerut. He died in harness on 5.8.1993. It was also claimed by her that late Virendra Prakash had also been employed with Nagar Panchayat Tikri, district Baghpat during the period 1984-85, as such, she was entitled to the aforesaid dues from both the Nagar Panchayats.
4. It appears from record that late Virendra Prakash was under suspension from 16.6.1984 to February, 1985 while employed in Nagar Panchayat Tikri (Opposite Party No. 2 before the Labor Court) but had not been paid suspension allowance amounting to Rs. 2679.15P for the aforesaid period; that late Virendra Prakash, her husband used to receive Rs. 3315 - per month (Rs. 1390 as basic pay, Rs. 923 as dearness allowance and other allowances) for the period 5.6.1982 to 3.8.1993 but the same had not been paid to him. She claimed Rs. 36,465/- as the unpaid wages for the period 4.6.82 to 3.8.2003 from respondent No. 1. It was also claimed by her that Nagar Panchayat Kithor, the petitioner, in the instant case, was also liable to pay a sum of Rs. 19,890 towards leave encashment of 180 days and a sum of Rs. 44,000 towards insurance amount.
5. It was lastly claimed by her that she was also entitled to receive a sum of Rs. 1500/- per month as family pension for which she had moved an application in August, 1993, as such, non-payment of the aforesaid benefits were capable of computing money under Section 6-H(2) of the Act. She, therefore, prayed that her entitlement may be determined and the concerned authorities may be directed to pay her outstanding dues together with interest at the rate of 18% per annum till the date of actual payment.
6. The Presiding Officer vide order dated 9.10.2003 issued notices/summons to the employers which were neither received back nor the employers were present on the date fixed, i.e. 12.12.2003. Accordingly, the case was directed to proceed ex parte fixing 19.12.2003.
7. It further appears that the case was decided ex parte on 16.1.2004 against the petitioner, as such, restoration application dated 30.4.2004 was filed by the petitioner inter alia that they had not received any summons or notice in the case and they came to know about the ex parte order dated 16.1.2004 when they received letter dated 15.3.2004 from Smt. Damyanti Devi, the claimant on 18.3.2004 together with a copy of award dated 16.1.2004 passed by the Labour Court.
8. It was further stated in the restoration application that on coming to know about the award, they consulted the officers of the Department and obtained legal opinion. Thereafter, they moved an application for inspection of record. It was also stated that after inspection, it transpired that though the notices/summons had been sent by registered post but no acknowledgement card was sent.
9. It was prayed that as the restoration had been filed within the period of limitation prescribed by law from the date of knowledge, as such, the case may be heard on merits after allowing the restoration application and recalling the order dated 16.1.2004.
10. Objections to the restoration application were filed by the applicant.
11. The petitioner has averred in its application that procedure for delivery of service under Order V Rule 9 of Code of Civil Procedure has not been followed. Order V Rule 9 of Code of Civil Procedure is as under:
9. Delivery of transmission of summons for service- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.
12. The petitioner filed letter dated 14.11.2006 issued by Chairman/Executive Officer, Nagar Panchayat Kithor, district Meerut addressed to the Post Master of Post Office, Kithor, district Meerut regarding confirmation of delivery of notices/summons No. 574 dated 8.10.2003 issued by the Labour Court, Meerut vide registered letter No. 1435 dated 9.10.2003 (Annexure 5 to the writ petition). Letter issued by Post Master of Post Office Kithor (Annexure 6 to the writ petition) has also been filed by the petitioner before the Labor Court, Meerut wherein the Post Master informed that since record was more than 3 years old, they are not available, hence verification of delivery of summons aforesaid cannot be made in absence of record. It may be noted that following sin-rule (3) to Rule 9 of Order V was added vide High Court Amendments (14-4-1962:
(3) In lieu of, or in addition to the procedure indicated in Sub-rule (1), such summons may be served by registered post addressed to the defendant at the place where he resides or carries on business or works for gain or to the agent at the place where he resides. Unless the cover is returned undelivered by the post office on account for want of proper address or any other sufficient reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course.
13. Burden of proof was on the employer to have established that the notice or summons were not served on them which could not be proved by them before the Labour Court.
14. The Post Master also could not verify that the notice/summons were not served in absence of record which was more than three years old. Hence, the presumption cannot be drawn that the notice/summons were not served upon the petitioner.
15. Therefore, the contention that the delivery had not been made on the employers and that the order of the Labour Court is in contravention of Order V Rule 9 C.P.C has no force.
16. As regards the contention of violation of procedure prescribed in Order IX Rule 7 C.P.C is concerned, it deals with dismissal of suit after return of the summons unserved, the plaintiff fails to apply for fresh summons. In the instant case, the Court found from records that summons had not returned unserved. In fact, the Court in its order has specifically stated that neither registered cover nor acknowledgement has returned. This itself shows that summons had been sent to the petitioner by registered post with acknowledgement card. The averment made by the petitioner in the application for setting aside the ex parte order that on inspection it transpires that acknowledgement card was not appended with the registered letter has rightly been disbelieved by the Court as there, was no material on record to come to this conclusion by the petitioner in the admitted fact that the registered cover had not been received back with or without acknowledgement card. I, therefore, give credence to the order passed by the Labour Court which shows that summons had been sent to the petitioner under registered post with acknowledgement card; and disbelieved the contention of the petitioner to the contrary.
17. The Labour Court, vide order dated 11.10.2006 after hearing the parties and appreciation of records held that there was no illegality in the order dated 12.12.2002 passed by the then Presiding Officer for proceeding the misc. case ex parte. It was also held that there was no illegality in the order dated 26.1.2006 holding that the claimant was entitled to receive a sum of Rs. 2,83,355 from Nagar Panchayat Kithor and a sum of Rs. 2679.15P from Nagar Panchayat Tikri, district Baghpat as the summons had been sent by registered post to the employers which was rightly presumed to be served on the employers as neither acknowledgement nor registered cover had been received back in the Court file. The Court also considered the objections of the petitioner that house, Gali or road numbers had not been mentioned in the address of the Nagar Panchayats, aforesaid hence address was incomplete and the employers could not be deemed to have been served on an incomplete addresses.
18. The Court found this objection to be fallacious holding that Nagar Panchayat itself is complete address and no house, Gali or road number is required for recognition of prominent concern of the State Government, i.e., Nagar Panchayat, Kithor.
19. Labour Court also held that the petitioner came to know about order on 18.3.2004 but moved the application for inspection of records admittedly on 2.4.2004, i.e. beyond 10 days of limitation from the date of the order as prescribed by Rule 16 of the U.P. Industrial Disputes Rules, 1957 framed under the Act (hereafter referred to as 'the Rules') as such, application was time barred and no relief could be granted. It was also held by the Labour Court that the explanation and reason given by the petitioner regarding condonation of delay were not sufficient and that in any case.
20. Relying upon Hina Restaurant and Bar and Ors. v. Madhukar M. Devadisa 2002(94) F.I.R-292; State of Rajasthan and Anr. v. Rajendra Samaria and Anr. 2002(94 F.L.R-411 and Bansal Industries v. Dharam Sinsh and Ors. 2000(85) F.L.R.-37, the Labour Court held that in view of absence of sufficient ground and reasonable basis for setting aside the order on restoration application, the application for restoration/recall was rejected.
21. The petitioner has come up in this writ petition challenging the aforesaid orders dated 12.12.2003, 6.1.2004 and 11.10.2006 appended as Annexures 1,2 and 8 respectively to the writ petition on the ground that (1) no notice/summons had been served upon the petitioner, it has been denied reasonable opportunity of hearing and on the facts and in the circumstances of the case, the Labour Court was required to set aside the ex parte orders in view of Order IX Rule 5 C.P.C and ought to have decided the case on merits after hearing the employers (2) procedure of service under Order IX Rule 5 Code of Civil Procedure has not been followed and the Labour Court illegally presumed the service to be sufficient against the aforesaid provisions; (3) notice cannot be deemed to have been served on the employers on the incomplete address and (4) restoration application was filed within the prescribed period of limitation from the date of knowledge as contained in the Code of Civil Procedure and Limitation Act, as such, application for restoration was liable to be allowed.
22. The Industrial Disputes Act, 1947 is a specific Act which is a complete Code in itself. Therefore, before dealing with the contentions of counsel for the petitioner regarding violation of procedure prescribed under Order IX Rule 15 of the Code of Civil Procedure. The provision of Rule 16 of the Rules which provides that The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. Labour Court, Tribunal or an Arbitrator may proceed ex parte and pass such orders as it may deem fit and proper. Rule 16 of the Rules is as under:
16. Labour Court or Tribunal or Arbitrator may proceed ex parte:
(1) If, on the date fixed or on any other date to which the hearing may be adjourned, any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper.
(2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order.
A perusal of Rule 16(2) of the Rules clearly shows that the Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence.
23. Rule 11 of the U.P. Industrial Rules, 1957 provides for service of summons or notice. It provides that any notice, summons, process or order issued by a Board, Labour Court or Tribunal or Arbitrator may be served either by personal delivery or by registered post or in any other manner prescribed in this behalf in the Code of Civil Procedure, 1908.
24. Admittedly, the notice/summons had been sent to the petitioner by registered post as prescribed in Rule 11 of the aforesaid Rules, 1957. A categorical finding of fact has been recorded by the Labour Court that service is deemed to be sufficient as neither acknowledgement card nor registered cover has been received back by the Court. The Labour Court thereafter on valid presumption of service in law, proceeded with the case and determined the amount under Section 6-H(2) of the Act which was payable to the claimant- Smt. Damyanti Devi from the employers.
25. It may be noted that the employers, in their application, have stated that they had inspected the records and came to know that though summons had been sent to them by registered post but acknowledgement card was not sent along with it hence they presumed that it was not sent.
26. Suffice it to say that from perusal of rule, it is apparent that service of summons can be made by registered post or by any other manner prescribed in this behalf under the provisions of Code of Civil Procedure. Rule 11 does not provide that Registered letter with acknowledgement is required to be sent at the address of the parties for service of notice or summons etc., hence there is no procedural error in order of the Court dated 12.12.2002 in this regard.
27. Regarding limitation, the Rules framed under the Act, which is special Act, shall have precedence over any other law for the time being in force. Sub-rule (2) of Rule 16 provides 10 days time for making application for setting aside an ex parte order passed by the Labour Court on showing sufficient grounds for absence by the concerned party. Rule 16(2) of the Rules has come up for consideration in a catena of decisions by the Courts.
28. The relevant question which is involved in the case on hand is as to whether an application for setting aside ex parte award was barred by Rule 16(2) of the Rules.
29. The Labour Court has rightly rejected the restoration application of the petitioner on the ground of delay and laches.
30. This point has been considered in Shree Talkies, Mohaddipur, Gorakhpur v. Labour Court (U.P.) at Gorakhpur and Anr. 2005(2) Education and Service Cases-1075, wherein after considering law laid down by Hon'ble the Apex court as to whether Labour Court or Tribunal becomes functus officio after expiry of 30 days of publication of award and considering the decisions in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. 1981 (42) F.L.R. 088 and Sanghavi Tape Company v. Hans Rai 2004 SCW 5452 and considering the rules framed under the U.P. Industrial Disputes Act, 1947 (Central) as well as decision rendered by Hon'ble Supreme Court in Deen Dayal Shodh Sansthan v. State 1997(1) LLJ 982 and U.P. State Road Transport Corporation v. State 1996 (1) LLJ 31 held as under:
The Apex Court also in a catena of decisions has held that the Labour Court or Tribunal does not become functus officio till expiry of 30 days from the publication of award. Reference may be made to case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) and Sanghavi Tape Company v. Hans Ran 2004 AIR SCW 5452.
A Full Bench of this Court in case of Badri Prasad Haridas 1983 U.P. Local Bodies and Education Cases page 56 : 1984(48) FLR- 315 relying on the case of Grindlays Bank Case 1981 SC-606 held that Labour Court/Industrial Tribunal retains power to set aside exparte proceedings till award is enforced after 30 days of the publication.
31. Thus, application filed after 10 days would be barred by limitation and can be filed together with an application under Section 5 of the Limitation Act within 30 days of publication of award. Thereafter, the restoration application cannot be entertained.
32. Question of limitation of 10 days provided under rule 16(2) of the rules read with Limitation Act came up for consideration before this Court in State of U.P. V. Presiding Officer Labour Court (II) Meerut U.P and Ors. 2005(2) U.P. L.B.E.C -1751 wherein it has been held that:
This Court after discussing the case laws on the question of limitation for recall of the order of award to proceed ex-parte under Section 16(2) of the Industrial Disputes Act as well as the provisions of the Limitation Act held as under:
3. This Court after discussing the case laws on the question of limitation for recall of the order of award to proceed ex parte under Section 16(2) of the Industrial Disputes Act as well as the provisions of the Limitation Act held as under; ' Limitation Act, 1963 provides for limitation for suits and applications. Section 29(2) of the Limitation Act, 1963 provides as under:
29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
4. Under entry 123 limitation for moving application for ex-parte decree is 30 days but in view of Section 29(1) the limitation of 30 days. It will have to be read as 10 days in cases governed by U.P. Industrial Disputes Act, which is a special Act. The provisions of Limitation Act have not been excluded by the U.P. Industrial Disputes Act. Hence Sections 4 to 24 of Limitation Act including Section 5 thereof applies to proceedings under U.P. Industrial Disputes Act also and a party can file application under Rule 16(2) of U.P. Industrial Disputes Rules with application under Section 5 of the Limitation Act explaining the delay in not filing application within 10 days and the Labour Court has full power to decide it providing of course the application is moved within 30 days of the publication of the ex-parte order or award. If application is filed after said 30 days the Labour Court cannot entertain it as it becomes functus officio on expiry of 30 days.
5. A Full Bench of this Court in case of Badri Prasad Haridas 1983 U.P. Local Bodies and Education Cases page 56 : 1984(48) FLR 315 relying on the case of Grindlays Bank Case 1981 SC-606 held that Labour Court/Industrial Tribunal retains power to set aside ex-parte proceedings till award is enforced after 30 days of the publication.
6. Admittedly, the notice was served on the manager of the Cinema Hall of the petitioner, hence it cannot be said that the summons had not been served on the employer. The application for setting aside the ex-parte award had been filed after about 7 months from the date of the publication of the award and the employer was negligent not even to attend the court without sufficient cause. Under Rule 16 of the U.P. Industrial Disputes Rules, 1957 framed under the U.P. Industrial Disputes Act, 1947 the application for setting aside the ex-parte award should have been moved within 10 days from the date of the passing of the ex-parte award. Any application filed beyond the aforesaid time prescribed would be beyond the limitation for which sufficient cause has to be shown. This is because the rule provides 10 grace days for moving the application for setting aside the ex-parte award.
33. It follows that application for setting aside an order including interlocutory and ex parte order in reference under Section 4-K for adjudication of dispute can be entertained on application for setting aside an exparte order within 10 days and thereafter upto 30 days of publication of award along with an application under Section 5 of the Limitation Act but cannot entertain any application thereafter for setting aside the award but in a misc. case under Section 6-H(2) in which award is not passed and only orders are passed computing the money in terms of existing right, the application can be filed only with limitation of 10 days from the date of the order.
34. Admittedly, in the instant case, the petitioner came to know about the ex parte award on 18.3.2004 in pursuance of letter dated 15.3.2004 together with copy of the award sent by the claimant. It is also admitted that they moved application for inspection on 2.4.2004 and after inspection of the file on 26.4.2004 application was moved on 30.4.2004.
35. In my opinion, the recall application having been filed after period of limitation prescribed under law, from the date of order and not from the date of knowledge as contended by the counsel for the petitioner, was not maintainable. This is because statutory Rule 16 of U.P. Industrial Disputes Rules, 1957 and law laid down by the High court and Hon'ble the Apex Court, as discussed above.
36. Even otherwise, retiral and other dues of the late husband of the claimant, who died in harness, ought to have been paid to her within reasonable time. On account of her legitimate dues, the claimant was compelled to file claim petition after ten years. She was made to run from pillar to post but the employers had no sympathy for a widow of their deceased employee. No limitation is prescribed under Section 33-C(2) of the Act for filing application under Section 6-H(2) of the Act which is para materia to Section 33-C(2) of the Act and which has been enacted for only this purpose.
37. The contentions of counsel for the petitioner that parties were not properly arrayed and the address of the employers was incomplete or that the Labour Court hurriedly decided the misc. application in a summary manner and that the cause shown by the employers had not been considered are without force, as stated above.
38. In fact, application of the employers for recall of the award was not at all maintainable after a period of 10 days from the date of publication of the award which was passed on 16.1.2004. Reasons shown by them for moving belated restoration application has been rightly found insufficient by the Labour Court. There is no illegality or infirmity in the orders impugned calling for interference in the writ jurisdiction.
39. A perusal of record and from the argument of counsel for the petitioner, it is apparent that in spite of order having been passed in favour of the claimant, no payment has yet been made to her.
40. For all the reasons stated above, the writ petition fails and is dismissed. The employers are directed to pay the entire decretal amount to the claimant-Smt. Damyanti Devi within a period of one month from today together with compound interest at the rate of 10% per annum.
Costs
41. So far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India has held that-
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
42. Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
43. Following the ratio laid down in Salem Advocate bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
44. Since this writ petition has also been filed after 90 days of the order dated 11.10.2006 and the employers have protracted the litigation with a view to deprive the widow of their employee her legitimate dues, who must have been passing her days in chill penury, cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of decretal amount together with compound interest, the employers will also pay cost of Rs. 10,000/-(Rupees Ten Thousand) to the claimant- Smt. Damyanti Devi within a month from today. In case the employers fail to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.