Madras High Court
The Management vs The Presiding Officer on 17 July, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
W.P. No. 5282 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.07.2023
CORAM
THE HON'BLE MR. JUSTICE M.DHANDAPANI
W.P. No. 5282 of 2017
and W.M.P. Nos.5597 and 5598 of 2017
The Management
No.27, Mannargudi Co-operative Urban Bank Ltd.
Rep. by its Managing Director
Mannargudi – 614 001
Tiruvarur District. … Petitioner
-vs-
1. The Presiding Officer
Labour Court, Cuddalore.
2. P.Dhanaraj ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorari, calling for the entire records
relating to the impugned award I.D.No.78 of 2010 dated 18.08.2014 passed by
the Labour Court, Cuddalore and quash the same.
For Petitioner : Mr.K.Premkumar
For Respondents : R1-Court
Mr.K.Sathiyamurthy (R2)
ORDER
The writ petition has been filed seeking to quash the impugned award I.D.No.78 of 2010 dated 18.08.2014 passed by the Labour Court, Cuddalore. https://www.mhc.tn.gov.in/judis 1/7 W.P. No. 5282 of 2017
2. The case of the petitioner is that the second respondent applied for doing appraising work on commission basis with the petitioner Society and the petitioner Society also engaged the second respondent to act as Appraiser. Without any intimation and permission, the second respondent abstained from duty, but after lapse of two years, the second respondent has raised an Industrial Dispute under Section 2A(2) of the Industrial Disputes Act, before the Labour Court, Cuddalore. The Labour Court has passed an award in favour of the workmen and directed the petitioner to reinstate him along with backwages. Aggrieved over the said order, the present writ petition has been filed.
3. The learned counsel for the petitioner submitted that the second respondent was not appointed in the service of the Society but was required to do the work of appraiser on commission basis at the rate of Rs.100/- and Rs.150/- respectively per day and he was not paid any salary for his engagement for his work as appraiser and without affording any opportunity to the Society, the Labour Court passed an ex-parte award and the same is perverse. In support of his contention, the learned counsel relied upon the judgment of the Hon'ble Division Bench of this Court in the case of Haryana Suraj Malting Limited Vs. Phool Chand reported in 2018 (16) SCC 567. https://www.mhc.tn.gov.in/judis 2/7 W.P. No. 5282 of 2017 Therefore, the learned counsel prays to allow the writ petition and quash the impugned order passed by the first respondent and remand the matter back to the first respondent.
4. The learned counsel for the second respondent submitted that this Court may fix the time limit to dispose of the same.
5. Heard the learned counsel for the petitioner and the learned counsel for the second respondent and perused the materials available on record.
6. The facts of the case are not in dispute. The second respondent was working as an Appraiser in the petitioner Society on commission Basis and he was unauthorized absent to the duty. Due to which, the petitioner terminated the service of the second respondent. After lapse of two years, the second respondent raised an Industrial Disputes and the same was set ex-parte by the Labour Court.
7. In such circumstances, the learned counsel for the petitioners relied upon the decision of the Division Bench of this Court in the case of Haryana Suraj Malting Limited Vs. Phool Chand reported in 2018 (16) SCC 567 is https://www.mhc.tn.gov.in/judis 3/7 W.P. No. 5282 of 2017 squarely applicable to the case on hand. For better appreciation, the relevant portion of the said order is quoted hereunder :-
''12. Thus, under the statutory scheme, the Labour Court/Tribunal is empowered to follow its own procedure as it thinks fit, meaning thereby, a procedure which is fit and proper for the settlement of the industrial dispute and for maintaining industrial peace. If a party fails to attend the Court/Tribunal without showing sufficient cause, the Court/Tribunal can proceed ex parte and pass an ex parte award. The award, ex parte 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.
13. In case of an ex parte award, whether the Court/Tribunal can set aside the same after 30 days of its publication, is the question to be considered.
14. 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, is no more res integra. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others4, it has been held at 1980 (Supp) SCC 420 paragraph-14 that:
“14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub- section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section https://www.mhc.tn.gov.in/judis 4/7 W.P. No. 5282 of 2017
17. The proceedings with regard to a reference under Section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17-A…….” At paragraph-6 in Grindlays (supra), it was held that the Tribunal can exercise such powers, if it thinks fit, in the interest of justice. It has also been held that the Tribunal is endowed with such incidental or ancillary powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties, unless there is any express indication in the statute to the contrary.''
8. In view of the order passed by the Hon'ble Division Bench as stated supra and considering the facts and circumstances of the case, this Court has to necessarily interfere with the impugned order passed by the first respondent dated 18.08.2014 and accordingly, this Court sets aside the impugned order dated 18.08.2014 passed by the first respondent and remads the matter back to the first respondent. The Labour Court shall dicide the issue afresh on merits and in accordance with law, after providing opportunity to the petitioner as well as the second respondent, within a period of four months from the date of receipt of a copy of this order.
https://www.mhc.tn.gov.in/judis 5/7 W.P. No. 5282 of 2017
9. With the above observation, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is also closed.
17.07.2023 Rli Index: Yes/No NCS : Yes/No To
1. The Presiding Officer Labour Court, Cuddalore.
https://www.mhc.tn.gov.in/judis 6/7 W.P. No. 5282 of 2017 M.DHANDAPANI, J.
Rli W.P. No. 5282 of 2017 17.07.2023 https://www.mhc.tn.gov.in/judis 7/7