Orissa High Court
M/S. Hcil-Adhikarya-Arss (Jv) vs The Chief Personnel Manager on 8 September, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13160 of 2021
M/s. HCIL-Adhikarya-ARSS (JV) .... Petitioner
Mr. Debendra Mohanta, Advocate
-versus-
The Chief Personnel Manager, Rail
Vikash Nigam Limited and Others .... Opp. Parties
Mr. Sanjay Kumar Mishra, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
Order No. 8.9.2021
Dr. S. Muralidhar, J.
04. 1. The present petition has been filed by M/s.HCIL Adhikarya -
ARSS(JV) assailing an order dated 17th September, 2020 passed by the Central Government Industrial Tribunal (CGIT)-cum- Labour Court, Bhubaneswar („Tribunal‟) rejecting the Petitioner‟s Industrial Dispute Restoration Misc. Case No.1 of 2019 arising out of I.D. Case No.41 of 2007. By the impugned order the Tribunal has declined to entertain the restoration application to set aside the ex-parte Award dated 11th December, 2014 in I.D. Case No.41 of 2007 and another ex-parte order dated 16th November, 2017 in I.D. Misc. Case No.4 of 2015.
2. The background facts are that the services of five workmen who belong to the Odisha Nirmal Majdoor Sabha (Opposite Party No.3) working with the Management of the Petitioner, were terminated 10th April, 2007. The Petitioner is a joint venture company formed Page 1 of 11 // 2 // to construct Railway Bridges, Tracks and other construction work for the Rail Vikash Nigam Ltd. (RVNL) (Opposite Party No.1).
3. As a result, an industrial dispute was raised before the Regional Labour Commissioner (RLC), Bhubaneswar. After the conciliation failure report was submitted by the RLC, the Appropriate Government on 16th November, 2007 referred the following dispute for adjudication by the Tribunal:
"Whether the action of the management of M/s.HCIL- Adhikarya-ARSS(JV) by terminating the services of Shri Prahallad Pradhan & 4 others, is legal and justified? If not, to what relief the workers are entitled?"
4. On 15th January, 2008 the Opposite Party no.3 - Union appeared in the said I.D. Case No.41 of 2007 and filed its claim statement. On 19th February, 2008 when the matter was listed, neither the Petitioner nor the Management of RVNL appeared. Notices were issued by the Tribunal for their appearance. On 9th June, 2008 while the Petitioner appeared and filed its written statement, RVNL remained absent. On 10th December, 2008 the position was same. The Union filed its rejoinder and the matter was adjourned to 1st January, 2009 and again to 19th January, 2009 for further orders.
5. On 19th January, 2009 RVNL was set ex-parte. Issues were settled and I.D. Case No.41 of 2007 was adjourned to 12th March, 2009 for evidence from the side of the Union. On 21st February, 2011 the Petitioner did not appear to pursue an application filed by it for engagement of a lawyer. That application was accordingly Page 2 of 11 // 3 // rejected. The case was adjourned by the Tribunal to 31st March, 2011 for evidence of the Union.
6. On 31st March, 2011 the Petitioner was absent and set ex-parte. It was observed therein that the earlier order dated 22nd December, 2010 has not been complied with and therefore the written statement filed by the present Petitioner was asked to be taken off the record. It may be noted here that there was in fact no order dated 22nd December, 2010 of the Labour Court. However, the fact remains that the Petitioner did not appear on 31 st March, 2011 and was set ex-parte.
7. On 31st May, 2011 both the Petitioner as well as the Union appeared before the Tribunal. The Union filed its affidavit- evidence. Since the representative of the Petitioner Management stated that he had not received a copy thereof, the case was adjourned to 9th August, 2011. On that date an authorized representative of the Petitioner management was present but Union asked for some time due to non-availability of witnesses. On 11th April, 2012 the Petitioner again was not present. The evidence of the workmen‟s witness W.W.No.1 was closed and matter was adjourned to 8th May, 2012 for further evidence from the side of workmen.
8. The other dates are not relevant because despite notices neither the Petitioner nor RVNL was present before the tribunal thereafter. Notices were issued for the presence of the present Petitioner on 12th August, 2014, 23rd September, 2014 and 26th September, 2014. On 11th December, 2014 when despite issuing repeated Page 3 of 11 // 4 // notices the Petitioner-Management did not appear, the ex-parte Award was passed. The operative portion of the Award was that the Petitioner would have to pay the workmen all the financial benefits concerning monthly wages from the date of the termination of their services till the existence of the project work of the Petitioner in the establishment of RVNL. The amounts were to be paid within three months from the date of publication of the Award. On 23rd February, 2015 the Award was published in the Gazette of India.
9. On account of non-implementation by the Petitioner of the above Award, the Union filed an application U/s.33-C(2) of the I.D. Act before the Tribunal on 24th August, 2015 for computation of the arrears of wages of the workers in terms of the said Award. This application was registered as I.D. Misc. Case No.4 of 2015. When this case was taken up on 3rd February, 2016 the Petitioner was absent and notice was directed to be issued to it. Again notices were issued in this I.D. Misc. Case No.4 of 2015 to the Petitioner on 12th February, 2016, 4th April, 2016 and 12th April, 2016. On 16th June, 2016 the Petitioner did not appear. Ultimately an order was passed on 17th October, 2017 by the Tribunal computing the financial benefits in favour of the 5 workmen in terms of the aforementioned Award dated 11th December, 2014 passed in I.D. Case No.41 of 2007.
10. One of the partners of the Petitioner joint venture, viz. ARSS Infrastructure Projects Limited (AIPL) preferred two writ petitions before this Court, i.e. W.P.(C) No.16179 of 2018 challenging the order dated 17th October, 2017 passed by the Tribunal in ID. Misc.
Page 4 of 11// 5 // Case No.4 of 2015 and W.P.(C). No.16198 of 2018 challenging the Award dated 11th December, 2014 passed in I.D. Case No.41 of 2007. In para 9 of the W.P.(C) No.16198 of 2018 it was averred by AIPL that the JV Company had been dissolved because of some internal issues.
11. During the pendency of the above two writ petition W.P.(C) No.22187 of 2018 was filed by the present Petitioner in this Court questioning both the Award dated 11th December, 2014 in I.D. Case No.41 of 2007 as well as the order dated 17th October, 2017 passed by the Tribunal in I.D. Misc. Case No.4 of 2015.
12. On 7th February, 2019 by a common order the two writ petitions of AIPL viz., W.P.(C) Nos.16179 and 16198 of 2018 were dismissed by this Court primarily for the reason that no sufficient cause had been shown by AIPL for not remaining present before the Tribunal during the pendency of I.D. Case No.41 of 2007 or I.D. Misc. Case No.4 of 2015.
13. During pendency of W.P.(C) No.22187 of 2018 in this Court, the present Petitioner filed Restoration Misc. Case No.1 of 2019 before the Tribunal to recall both the ex-parte Award dated 11th December, 2014 as well as the order dated 17th October, 2017 passed by the Tribunal in I.D. Misc. Case No.4 of 2015. This application was filed after four years and four months of the Award. After notices were issued by the Tribunal in the said application, the Union appeared and filed its show cause on 24 th July, 2019.
Page 5 of 11// 6 //
14. On 16th September, 2019 AIPL filed Review Petition Nos.294 and 295 of 2019, both of which were dismissed by this Court upholding the common judgment dated 7th February, 2019.
15. On 24th November, 2019 the present Petitioner‟s W.P.(C) No.22187 of 2018 was also dismissed by the DB of this Court. The operative portion of the said order reads as under:
"The record further reveals that the present impugned orders had also been challenged by ARSS Infrastructure Projects Ltd. In W.P.(C) No.16198 of 2018, which was dismissed on 7th February, 2019. In the said order, this Court has observed as follows:
"Considering the rival contention of the parties and after going through the records, it appears that on 31.03.2011 non-appeared for the management nor they have taken any step in the case for which they were set exparte. The said fact was not in dispute. After the said date, the management has participated in the proceeding to know about the exparte order. In spite of that, they have not taken any step to set aside the exparte order explaining the sufficient cause for their non-appearance. In the present proceeding also there was no explanation regarding sufficient cause for non-appearance of the management in the proceeding before the Tribunal. As such the conduct of the management is tell tale as there was no sufficient cause for non- appearance of the management in the proceeding after notice was duly served and they have filed their written statement, rightly the Tribunal passed the exparte order. After such exparte order, the management has also participated in the proceeding but neither filed an application to set aside the exparte order nor they have explained their previous non-appearance even though the management was present. During examination of the witnesses of the workmen however they did not cross-examine the witnesses nor appeared in the Page 6 of 11 // 7 // proceeding from that stage again. There was no sufficient cause explained by the Petitioner to interfere with the impugned award as well as the order passed under Section 33-C(2) of the Act in exercise of the jurisdiction conferred under Article 227 of the Constitution of India. Hence, we are not inclined to entertain both the writ applications and the same are, accordingly dismissed."
In view of the above, we are not inclined to interfere with the impugned orders. Since the application of the Petitioner is still pending with the Tribunal, as submitted by learned Counsel for the Petitioner, it is open to the Petitioner to raise the question, if any, before the Tribunal, if he is so advised.
The writ petition is accordingly dismissed."
16. All the above orders of this Court were brought to the notice of the Tribunal in the Restoration Misc. Case No. 1 of 2019 by the Union by an additional affidavit dated 28th January, 2020. On 17th September, 2020 the impugned order was passed by the Tribunal dismissing the I.D. Restoration Misc. Case observing, inter alia, as under:
"Undoubtedly in its order dated 26.11.2019 the Hon‟ble Court, while declining to interfere with the impugned orders, made an observation that since the application of the Petitioner is still pending with the tribunal, it is open to the Petitioner to raise the question if any, before the tribunal, if he so advised. Taking through such observation it is forcefully submitted by the learned counsel for the Petitioner that the Hon‟ble Court has given liberty to the Petitioner to prosecute the issue in the tribunal, if so advised. Therefore, the tribunal is no way restrained from deciding the merit of the application of the Petitioner by virtue of dismissal of the writs preferred before the Hon‟ble Court. Though, such contention of the learned counsel appears to have force, perusal of the orders of the Hon‟ble Court arising out of Page 7 of 11 // 8 // writ applications reveals that the Hon‟ble Court has made a detailed discussion and gave finding in the W.P.(C) No.16198 of 2018 that there was no sufficient reasons on the part of the petitioner to justify its non- attendance/non-participation in the adjudication before the tribunal. Such observation seems to have been made on the identical cases of action raised in the present misc. case. Therefore, it would be unethical and judicial impropriety on the part of this tribunal to re-examine the issues raised by the Petitioner and given its own finding when the order of the Hon‟ble Court is not specific that the tribunal is at liberty to decide the merit of the petition pending before the tribunal on its own finding without being influenced by the order of the Hon‟ble Court. Therefore, I am not inclined to accept the contention raised on behalf of the Petitioner and to set aside the exparte award as well as the order passed in ID case No.41 of 2007 and ID Misc. Case No.4 of 2015 respectively inspite of the fact that there was no order dated 22.12.2010 of the tribunal for compliance and the fact that notices to the petitioner management were found unserved as alleged when re-examination of W.W.1 in ID Case No.41 of 2007 was taken place and order of exparte was passed in Misc. Case No.4 of 2015.
Accordingly the application and misc. case being devoid of merit stands dismissed. Communicate the order to the parties by post."
17. Mr. Mohanta, learned counsel appearing for the Petitioner submits that this Court had in its order dated 26 th November, 2019 granted „liberty‟ to the Petitioner to pursue its restoration case before the Tribunal on merits and therefore it was incumbent upon the Tribunal to decide the said restoration application without reference to the observations made earlier by this Court in its judgment dated 26th November, 2019 in the Petitioner‟s W.P.(C) No.22187 of 2018 or in the order dated 7th February, 2019 in W.P.(C) No.16198 of 2018 filed by the AIPL. He submits that in the impugned order itself the Tribunal had acknowledged that Page 8 of 11 // 9 // there was no order dated 22nd December, 2010 of the Tribunal for compliance and notices to the Petitioner were found unserved during re-examination of W.W.1 in ID case No.41 of 2007 and that this constituted sufficient reason for the Tribunal to recall the ex parte Award dated 11th December, 2014 in I.D. Case No.41 of 2007 and another ex parte order dated 16th November, 2017 in I.D. Misc. Case No.4 of 2015.
18. Mr. S.K. Mishra, learned counsel appearing for the workmen, on the other hand, placed before the Court the detailed list of events to show how repeatedly both AIPL as well as the present Petitioner despite several opportunities failed to appear before the Tribunal. The Petitioner had filed the restoration application long after the ex-parte Award was passed and in any event only after the order dated 17th October, 2017 was passed in ID Misc. Case No.4 of 2015 under Section 33-C(2) of the ID Act. Neither the Petitioner nor AIPL could have assumed that no orders were going to be passed in the above cases and particularly in ID Case No.41 of 2007 where they had been appearing on and off prior to remaining absent.
19. The Court having carefully considered the above submissions is not inclined to agree with Mr. Mohanta that on the strength of the order dated 26th November, 2019 of this Court it was open to the present Petitioner to have urged before the Tribunal that the proceedings in ID No. 41 of 2007 should be restored by recalling the ex-parte Award. A careful perusal of the order dated 26th November, 2019 of this Court reveals that the Court was not convinced by the reasons adduced by the Petitioner for remaining Page 9 of 11 // 10 // absent in ID Case No.41 of 2007 and subsequently in ID Misc. Case No.4 of 2015. The Court reiterated the observations it had earlier made in its order dated 7th February, 2019 in W.P.(C) No.16198 of 2018 filed by AIPL in which the Court had discussed the untenability of the reasons adduced by AIPL. A complete reading of the order dated 26th November, 2019 would reveal that this Court had expressed a final opinion on the unsatisfactory nature of the explanation offered by the present Petitioner for remaining absence in the above proceedings before the Tribunal.
20. The fact remains that the last paragraph of the order dated 26 th November, 2019 did not clarify that the observations of this Court in its orders dated 7th February and 26th November, 2019 would not be binding upon the Tribunal and that the Tribunal was free to decide the restoration application uninfluenced by those observations. In fact, there was no „liberty‟ granted to the Petitioner by this Court to urge before the Tribunal any submission to that effect. In the circumstances, no fault can be found in the impugned order of the Tribunal declining to entertain the restoration application in view of the observations of this Court in its orders dated 7th February, 2019 and 26th November, 2019.
21. The fact also remains that till date the Petitioner has not chosen to challenge the order dated 26th November, 2019 of this Court in the writ petition filed by it which clearly rendered findings against the present Petitioner. It did not choose to file a review petition to urge the points now sought be urged in the present petition. Consequently, the Court sees no reason why any indulgence should be granted to the Petitioner any further in the matter.
Page 10 of 11// 11 //
22. The petition is entirely without merit and is accordingly dismissed, but in the circumstances, with no order as to costs.
23. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar) Chief Justice ( B.P. Routray) Judge M.K. Panda Page 11 of 11