Orissa High Court
The Management Of Town Bidi Factory vs Presiding Officer, Labour Court And ... on 16 November, 1989
Equivalent citations: (1990)IILLJ55ORI
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT
A.K. Padhi, J:
1. Dispute arose in between the management of M/s Town Bidi Company, Cuttack and its workmen. The State Government under Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referred the matter to the Presiding Officer, Labour Court (hereinafter referred to as 'the Labour Court') for adjudication. The learned Labour Court giving due notice to both the sides entered into reference. The scope of the reference to the learned Labour Court is as follows:
"Whether the refusal of employment to 19 workmen by the Management of M/s. Town Bidi Co., Cuttack with effect from 21st October, 1977 is legal and/or justified? If not, to what relief they are entitled."
The case of the management was that the Bidi Rolling Unit under which the workmen were working was a separate establishment from M/s. Town Bidi Factory. The Town Bidi Rolling Unit was closed as it was not economically viable, with effect from 22nd October, 1977- The opp. parties - workmen were working in Bidi Rolling Unit. All the workmen concerned were given closure notice on 22nd September, 1977. Bidi Rolling Unit had only 39 workers.
2. The findings given in the award by the Labour Court are:
(a) From his said admission it is evident that 50 persons are working in the Town Bidi Factory at the time of alleged closure;
(b) Notice on the face of it appears to be invalid, in as much as the same is not in accordance with the provisions of Section 25FFA of the Act, 60 days notice was incumbent and when the first party Management has failed to give 60 days notice to the Government concerned before such ciosur notice Ext. 1 must be held to be void
(c) So, for all practical purposes the first party Management has miserably failed to establish that there was any ground for closure and in fact there was any such closure. There is also no valid notice justifying the said closure; and
(d) So, as a matter of fact Bidi Rolling Section was never closed and the present 19 workmen were only refused employment or, in other words, their services were terminated due to Trade Union activities and not signing the aforesaid resignation letters to the Union and petitions of withdrawal on the pursuation of M.W.I.
3. The learned advocate for the petitioner contends:
(a)The award which was passed on 15th January, 1980 being an award on merit, the learned Labour Court had no jurisdiction to pass a second award. For the contention that the award passed on 15th October, 1980 was an award on merit the learned Advocate submits that the entire evidence of the Management was on record, the workmen had adduced substantial evidence and only a formal witness was to be examined. The award was passed under Order 17, Rule 3, C.P.C., The same could not have been set aside under the provisions of Order 9, Rule 13, C.P.C.
(b) There was no material before the Court to come to the finding that Section 25FFA had any application, as it was the specific case of the Management that Bidi Rolling Unit was a separate Unit for which closure notice had been duly served on ail the workmen;
(c) It was a case of closure and not refusal of employment;
(d) The finding of the learned Labour Court that the representative of the Management has admitted that there were more than 50 employees working under the Management in the Bidi Rolling Unit is an error of record; and
(e) After the Bidi and Cigar Workers (Conditions of Employment) Act, 1966 came into force, this being a special statute which is applicable to this case, Section 31(1) of the Act permits the employer to dispense with the services of the employees for a reasonable cause. The learned Labour Court has not taken into consideration the provisions of Bidi and Cigar Workers (Conditions of Employment) Act, 1966 and therefore the award is patently illegal and cannot be sustained.
4. The advocate for the opp. parties on the other hand submits that the award of the learned Labour Court is justified and should not be interfered with. The award dated 15th January, 1980 was passed under Order 17, Rule 2, C.P.C., hence provisions of Order 9, Rule 13, C.P.C. was applicable. The grounds which are now urged were not urged before the learned Labour Court and there is no affidavit to the effect that such facts were brought to the notice of the Labour Court and the learned Labour Court has not taken them into consideration. Under such circumstances, the learned advocate submits that the award cannot be interfered with as there is no illegality apparent on the face of the award and in the writ application the Court has no jurisdiction to probe into the facts to find out the illegality.
5. Regarding the contention raised by the learned advocate for the petitioner that the Labour Court had no jurisdiction to pass the second award as the first award was on merit the same is not sustainable for the following reasons:--
The opp. parties were absent on 11th January, 1980 the date on which the matter was posted for hearing. It is evident from the record that the workmen wanted to adduce further evidence. On 11th February, 1980 the application for adjournment was refused and one witness for the Management was examined. The learned Labour Court had not specifically stated in the Order as to whether he intended to proceed under Order 17, Rule 2 or under Order 17, Rule 3, C.P.C. The award was pronounced on 15th January, 1980. Application under Order 9, Rule 13, C.P.C. was registered as Misc. Case in which both the parties were noticed and the Management had participated and thereafter the award passed on 15th January, 1980 was set aside. The Management did not challenge the order dated 23rd April, 1980 by which the award dated 15th January, 1980 was set aside, both the sides participated and thereafter the impugned award was passed.
6. Explanation has been added to the original Order 17, Rule 2, C.P.C. by the amending Act in 1976. The explanation which has been added by way of amendment is as follows:
"Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present."
7. The explanation to Order 17, Rule, 2, C.P.C. gives jurisdiction to the court to proceed under Order 17, Rule 3, C.P.C. even if a party is absent where substantial evidence has already been adduced. Whether substantial evidence was there before the court or not to proceed under Order 17, Rule 3, CPC is a question of satisfaction of the Court. In a case where the court entertains an application under Order 9, Rule 13, C.P.C. and sets aside the order, it is to be presumed that the 1 court had passed an ex parte award and had proceeded under Order 17, 'Rule 2, C.P.C.
8. In (AIR) 1925 All. 267 (Firm) Ganeshi Lal Hamarian v. Debt Das, it has been held that when the defendant did not appear on the date to which the hearing of the case had been adjourned and judgment was pronounced in the absence of any express mention that the order passed was under Order 17, Rule 3, C.P.C., it must be presumed that it was an order passed under Order 17, Rule 2, C.P.C.
In (AIR) 1953 Nagpur 222 Dayalji Wasanji and another v. Kedarnath Onkarmal & Co. it has been observed by his Lordship that the provisions of Rule 3 of Order 17, C. P.C. are penal in nature and must therefore be construed strictly. Where it is not clear whether a particular case is under Rule 3 or Rule 2 of Order 17, C.P.C. the Court must lean in favour of holding that the case falls under the latter provision and not the former.
In (AIR) 1976 A11.290 (F.B) M.S. Khalsa v. Chiranji Lal and Ors. the scope of Order 17, Rule 2 vis-a-vis Order 17, Rule 3, C.P.C. was considered and their Lordships were of the opinion that a case in which the defendant obtains adjournment on the date of final hearing of the suit and fails to appear on the adjourned date it is covered by Order 17, Rule 2, C.P.C. and an application under Order 9, Rule 13, C.P.C. will lie even if the court proceeds to act under 17, Rule 3, C.P.C.
In (AIR) 1982 Orissa 212 Orissa Supply Agency and Ors. v. Mirza Jaliludin and Ors., it has been laid down as follows:
"...As would appear from the Objects and Reasons for the Explanation in Rule 2 of Order XVII, the Explanation was incorporated to avoid the varied interpretations by different High Courts of the phrase "make such other order as it thinks fit". With the Explanation - in the statute book, it must follow that unless the situation contemplated in the Explanation was available, the position would be as had been interpreted by the two Full Bench decisions. Order IX. Rule 13 of Civil. PC. therefore, would be applicable and the application made thereunder was, therefore, maintainable."
In (AIR)1982 S.C.42 Prakash Chandra Manchanda and Anr. v. "Smt. Janki Manchanda, their Lordships have observed as follows:
".. .The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only to cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9, Civil, P.C. It is therefore, clear that after this amendment in Order 17 Rules 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy..."
There is no dispute that the provisions of Order 9, Rule 13, C.P.C. will be applicable to an award passed ex parte. This position of law has been authoritatively laid down in (1974-I-LLJ-44) The Management of the Dhenkanal Municipality, Dhenkanal v. The Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar and Ors. and in (1981-I-LLJ-327) Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors.
9. After considering the facts of this case, we are of the opinion that the Court had the option either to proceed under Order 17, Rule 2 or Order 17, Rule 3, C.P.C. and in the absence of any mention in the award as to under which provision the order is being passed, the fact that an application under Order 9, Rule 13, C.P.C. was entertained makes it clear that the order was one under Order 17, Rule 2 C.P.C. Consequently the order dated 23rd April, 1980 setting aside the award dated 15th January, 1980 cannot be said to be without jurisdiction. Further the said order dated 20th April, 1980 not having been assailed and the management thereafter having participated in the proceedings, cannot now assail the award.
10. The next finding of the labour Court that the notice, Ext. 1 is non est for non-complaince of the provisions of Section 25FFA of the Industrial Disputes Act cannot be sustained. As it appears, Section 25FFA of the Industrial Disputes Act does not purport to take away the right of any employer to carry on or not to carry on of his business, as it does not seek to prohibit closure. It only calls for a notice to the Government and failure of such notice is made punishable under Section 30A of the Industrial Disputes Act. The object of Section 25FFA is to prevent sudden closure. Statute requires notice to the Government, so that Government may take any measure in respect of intended closure. Where closure raises an industrial dispute, the Government may initiate conciliation proceeding and then make a reference for determining whether closure was genuine or camouflage to retrench, so that appropriate relief can be given on the findings of the Tribunal. In our opinion, failure to comply with the provisions of Section 25FFA of the Industrial Disputes Act does not make the closure illegal or non est. This view of ours finds support from (1978-II-LLJ-110) Walford Transport Ltd. v. State of W.Bengal and Ors.
11. Section 25FFA of the Industrial Disputes Act also comes into operation only when there are 50 or more workmen working in the industrial establishment. In this case the specific stand of the management is the Bidi Rolling Unit under which the workmen were working was a separate establishment from Town Bidi Factory and the said Town Bidi Rolling Unit was closed and in the Town Bidi Rolling Unit only 39 workers were working. The specific stand of the workmen was that the Town Bidi Factory and Town Bidi Rolling Unit are one Unit and in the total industrial concern more than 50 workers were working. The learned Labour Court has nowhere given the finding that the Bidi Rolling Unit under which the workmen were working was an intergral part of Town Bidi Factory. In absence of such finding, the so called admission of the M.W.I cannot form the basis for a conclusion that Section 25FFA of the Industrial Disputes Act applies and there has been non-compliance of the same. The finding of the Tribunal on this aspect therefore cannot be sustained.
12. Even if the finding of the Tribunal regarding applicability of Section 25FFA of the Industrial Disputes Act and its non-compliance is not sustained, yet the next point for our consideration is whether finding of the Tribunal, that there was in fact no closure, can at all be interfered with by this Court. On an analysis of the evidence before him, the Tribunal found "so for all practical purposes, the first party management has miserably failed to establish that there was any ground for closure, and in fact there was any closure". This conclusion of the Tribunal being based upon consideration of evidence and there being no error of law, the same cannot be interfered with by this Court in exercise of writ jurisdiction. Neither there is any lack of jurisdiction nor can it be said to be in excess of jurisdiction. On scrutiny of the award, we fail to locate any error of law, much less any such error apparent on the face of the award. Consequently the said conclusion remains unassailable. Since the finding regarding closure is unassailable, the ultimate decision and the award cannot be interfered with.
13. In the result, the writ application has no merit and is dismissed, but in the circumstances of the case, there shall be no order as to cost.
14. G.B. Patnaik, J.:-- I agree.