1. Heard learned advocate for the parties.
2. The petitioner, an incorporated Company under the provision of the Companies Act, 1956, and first party in reference being Reference (I.T.) No.9/95 in the Industrial Tribunal, Surat and applicant in Miscellaneous Application (I.T. 1/99), has approached this Court under Article 226 of the Constitution of India, challenging the order dated 29.09.2000 passed in Miscellaneous Application (I.T. 1/99) in Reference (I.T.) No.9/95 whereunder the Industrial Tribunal rejected the application of the petitioner for setting aside ex-parte award dated 31.12.1998, whereunder the Industrial Tribunal allowed the reference and issued declaration and direction to the petitioner to reinstate the workmen and pay the wages during the period of illegal lock out.
3. Facts in brief leading to filing this petition deserve to be set out as under;
(i) The petitioner had to issue suspension orders to two workmen for their misconduct, which suspension order was sought to be served on those workmen on 23.11.1992 and, therefore, those workmen were summoned in the office of the Office Manager who was desirous of serving those suspension orders. The workmen were accompanied with one Shri Vana Patil, Union Leader, and they did not accept the suspension orders on the ground that their suspension orders were illegal and on their support the fellow workmen who had gathered outside the Cabin of said Manager also started protesting, which was viewed to be unruly behaviour and act of indiscipline. Hence, the said Manager informed the Managing Director and reduced the entire thing into writing vide letter dated 23.11.1992 to the Commissioner of Labour. The workmen, thereafter left the office and on company premises shouted slogan when the demand of dropping the suspension of two workmen was not acceded to. Thereafter, workmen have never turned up to perform their duties in the company premises. The workmen contended that the lock out was illegal. The said dispute which was referred to competent Court whereunder it is numbered as Reference (I.T.) No.9/95 for deciding as to whether the lock out of 25.11.1992 was illegal and workmen were required to be paid their wages for the entire period.
(ii) The reference order was dated 07.03.1995. It is pertinent to note at this stage that after 25.11.1992 that is the date on which the workmen and company have exchanged allegations of illegal lock out and illegal strike. The company did not permit workmen from working, as per the say of the company, did not turn up for doing work.
(iii) The statement of claim filed by the workmen contain that the company is in existence since years and its employees, 120 workmen, the company had imposed illegal lock out on 25.11.1992 and the same shall be declared illegal and the workmen be paid their wages for the entire period. The company did not have any valid reason in law to prevent the workmen from working and hence it was prayed that the lock out be declared illegal and workmen be paid and workmen be permitted to discharge their duties. The petitioner-employer company filed reply, exhibit-17, however, on account of default on the part of the company the Industrial Tribunal was constrained to pass an order dated 08.08.1998 for deciding the reference ex-parte. Only after the said order was passed, the petitioner company filed its written statement controverting the statement of claim. The Tribunal after taking into consideration that reply as well as the evidences led on behalf of the workmen came to the conclusion that the lock out was illegal and the workmen be permitted to discharge their duties and be paid their wages for the entire period. This award was passed on 31.12.1998. The petitioner company, as per the say of the company, received the same in the month of June, 1999 and, therefore, filed Miscellaneous Application (I.T. 1/99) in Reference (I.T.) No.9/95, inter alia praying that the award in question be suspended and applicant be granted an opportunity to lead evidence in the interest of justice, as for the reasons stated in the application, the default occurred on the part of the company, though, there is no specific prayer to quash and set aside the ex-parte award. The tenor of the application indicate that it was essentially an application for setting aside the ex parte award and availing an opportunity of leading evidences to establish its stand before the Court. This application came to be filed on 22.06.1999. The said application was heard and ultimately, the Court recorded its finding that the applicant could not prove that he was restrained from appearing or leading his evidences before the Court from any valid or sufficient reason and rejected the said application vide order dated 29.09.2000. Being aggrieved and dissatisfied with the said order, the petitioner company preferred the present petition on 28.08.2002. The belated filing of the petition was sought to be explained by the petitioner company by way of amendment in para 9.6, wherein various litigation and financial crises was pleaded for belatedly approaching the Court for challenging the ex parte order as well as award passed in the Miscellaneous Application (I.T. 1/99).
4. Learned advocate appearing for the petitioner company contended that the company did not resort to lock out at all. It was unruly behaviour on the part of the workmen which was sought to be deprecated by the company by way of informing the concerned labour authorities also that the workmen are behaving improperly. The workmen have persisted in their illegal demands of withdrawing suspension orders qua 2 to 3 employees who were sought to be suspended on 23.11.1992. Thereafter, workmen did not turn up and went on strike which was illegal strike and, therefore, the company could not have been alleged to have resorted to illegal lock out.
5. Learned advocate for the petitioner company further contended that the letter addressed to the Commissioner by the Manager of the company, copy whereof is produced at page 12, is itself eloquently clear with regard to unfair labour practice resorted by the workmen which was subject matter of letter addressed to the Commissioner of Labour. The Court, therefore, ought to have appreciated these aspects.
6. Learned advocate for the petitioner company thereafter invited this Court's attention to the affidavit filed on behalf of the petitioner produced at page 65 and read there from the breathing problem faced by the company including the liquidation proceedings at Bombay etc. All these factors were pleaded to be factors sufficient enough to draw the inference in favour of the company that company was justified in submitting that there was sufficient causes preventing company from appearing before the Court and leading evidences. These facts ought to have been appreciated by the Court, as these facts have not been appreciated by the Court, the order dated 29.09.2000 is incorrect and untenable in the eye of law and, therefore, it is required to be quashed and set aside.
7. Learned advocate for the petitioner company further contended that the documentary evidences produced in this petition from page 69 onwards would clearly go to show that the workmen or rather majority of workmen settled their dispute, collected their dues and tendered their resignation. Therefore, all these facts could have been proved, had the company been granted an opportunity of leading evidence before the Court by setting aside the ex parte award dated 31.12.1998.
8. Learned advocate for the petitioner company further contended that the Court ought to have been appreciated the fact that there was no deliberate intention on the part of the company in not appearing before the Court, as company was not likely to be benefited in any manner, therefore, the default on the part of the company could have been appropriately appreciated by the Court, as the Court has not appreciated the same. Therefore, the order dated 29.09.2000 is required to be quashed and set aside.
9. Learned advocate for the petitioner company relying upon the decision;
(i) in case of Tahil Ram Issardas Sadarangani and Others Vs. Ramchand Issardas Sadarangani and Another reported in AIR 1993 Supreme Court 1182.
(ii) in case of M/s. J.K.Synthetics Ltd. Vs. Collector of Central Excise, reported in AIR 1996 Supreme Court 3527.
(iii) in case of Tea Auction Ltd. Vs. Grace Hill Tea Industry & Anr., reported in AIR 2007 Supreme Court 67.
contended that the Court did have power to set aside ex parte award. The ex parte award are to be set aside on establishing the sufficient cause of not appearing and the Court ought to have been appreciated those facts before dismissing the restoration application.
10. Learned advocate for the petitioner company further contended that the petitioner company has also prayed for setting aside the ex parte award dated 31.12.1998, as in the said award the contentions with regard to the petitioner's stand, as reflected in the reply, has not been considered appropriately by the Court.
11. Learned advocate for the petitioner company further contended that the ex parte award could not have been passed, as even the labour authorities were informed about unruly behaviour of the workmen which led the company to take appropriate steps against the workmen concerned. In case, if, it was proved before the Court that the lock out was not illegal and/or the workmen were on illegal strike themselves, then in that eventuality company would not have been saddled with the liability which is arising out of the present award, which is ex parte and required to be quashed and set aside.
12. Learned advocate for the workmen Shri Medipally during the course of submission submitted that the documentary evidences produced in this Court are not avail to the petitioner company, as they do not form part of the record and proceeding.
13. Learned advocate for the workmen without prejudice to the aforesaid contention further submitted that the attempt on the part of the counsel for the company to indicate that the majority of the workmen have resigned and gone away is incorrect, as could be seen from the individual affidavit of the workmen, copies whereof are tended to the petitioner's advocate and they are submitted in the Court itself.
14. Learned advocate for the workmen further contended that award which is said to be an ex parte award is in fact not an ex parte award, as could be seen from the fact that though the company's right to lead evidence and deciding the matter ex parte was ordered on 08.08.1998, the reply tendered by the company in the form of written statement was considered by the Court and, therefore, those facts need to be appreciated while examining the challenge to the said award.
15. Learned advocate for the workmen thereafter contended that the company did not follow any provision of law nor did it bother to pay either retrenchment compensation or closer compensation to the workmen and is, therefore, not entitled to make submission before this Court qua company physically being closed, as the closer or retrenchment compensation are yet not even offered.
16. Learned advocate for the workmen, therefore, contended that the liquidation of the company or liquidation proceedings wherein the liquidator is yet to be appointed cannot be held against the workmen's claim arising out of the award which is in no way illegal and/or unsustainable. The award is just and proper and, therefore, under this petition the Court may not interfere with this.
17. The Court has perused the documents in record and heard learned advocates appearing for the parties. Before adverting to the rival contentions of the learned advocates appearing for the parties, it is most appropriate to set out as under the indisputable aspects emerging there from, namely;
(i) The company is alleged to have employed 120 workmen at the relevant time, as could be seen from the written statement.
(ii) The factum of summoning 2 or 3 workmen in the chamber of the Manager of the company on 23.11.1992 is borne out from the narration made in the letter dated 23.11.1992 addressed to the Commissioner of Labour.
(iii) There appears to be no documentary evidence indicating that the letter either was sent by registered post A.D. or was sent under Certificate of Posting or the same was delivered in person. In other words, there exists no documentary evidence, which would indicate that the letter was in fact received by the concerned authority.
(iv) The fact remains to be noted is, after 23.11.1992 there appears to be no written communication in any manner to anyone indicating that the workmen are on illegal strike.
(v) The petitioner company has not indicated any where including in the form of notice on the notice board that the company's workmen are on strike, which is termed to be illegal strike by the workmen and their strike will be disentitled them from receiving their wages or claiming their wages. In other words nothing on record has been brought by the petitioner company either before the Industrial Tribunal or before this Court to indicate that they did not lock workmen out and the company was ready and willing to permit the workmen, those who are interested in performing their duties nor did the company send any letter or invited workmen or worked the workmen that company is not locking out and company is ready and willing to permit the workmen to perform their duties and workmen are not performing their duties.
(vi) The workmen had to raise demand which was subject matter of conciliation proceeding also. Nothing was brought on record by the company either before the Industrial Tribunal or before this Court that what was the stand of the company during the conciliation proceeding. Rather silence on the part of the company or lack of any documentary evidences on the part of the company goes to support the inference that the company did not open up itself so that the workmen can work therein.
(vii) The company did not request the Court to frame an issue with regard to the illegal strike nor did the company challenge the terms of the reference which otherwise would have been that whether there was a lock out or the workmen were on illegal strike. In fact the wordings of reference, as could be culled out from the order sufficiently indicate that the workmen were aggrieved on account of illegal lock out and financial crises claiming their wages for the same period.
(viii) The petitioner company did not take sufficient care to have its representation before the Court and, therefore, as recorded by the Industrial Tribunal in its award dated 31.12.1998 that the company's right was required to be closed on 08.08.1998. No application whatsoever qua setting aside that order appears to have been made on behalf of the petitioner company.
(ix) The Court has observed in that very paragraph that after the said order was passed the company presented written statement containing denial to the statement of claim filed by the workmen. This written statement was in fact taken into consideration by the Industrial Tribunal while deciding the reference pending before it.
(x) The Court has examined the evidence laid by the workmen and Court has relied upon the testimony of Government Labour Officer who has clearly deposed to the fact that the workmen were present, but company did not permit them to work. This and other evidences led by the workmen remain uncontroverted, as the petitioner company did not show sufficient vigilance to have its representation and/or controvert those evidences in any manner after elaborate discussion of evidences on record. The Industrial Tribunal passed an order and award on 31.12.1998 allowing the reference.
(xi) The application being Miscellaneous Application (I.T. 1/99) was filed only in the month of June i.e. 22.06.1990 and it is also averred in that application that the company had received award only in the month of June.
(xii) In the said application no specific averments with exact names, dates or details have been mentioned which would have inspired some confidence in the say of the company or contrary to the application, as could be seen from page nos. 28 to 30, that application was bereft of any merit which would show that those details could have persuaded the Court to hold in favour of the company. The advocate's name is not mentioned in the application. The financial crises is mentioned, but what type of financial crises it occurred, in whose account, at what stage it occurred nothing is mentioned in the application. In short the application appears to be bereft of any details which would have inspired any confidence with respect to his truthfulness before the Court. The Court, therefore, in detailed order rejected the same vide order dated 29.09.2000, which is also subject matter of challenge before this Court.
18. Against the aforesaid backdrop, the question arises as to whether this Court would interfere in the order passed by the Industrial Tribunal in the matter preferred under Article 226 of the Constitution of India.
19. Learned counsel Shri Japee at this stage requested to join Industrial Tribunal as party so as to over come the technical aspect, as now it is decided by the full bench that if the petition is under Article 226 of the Constitution of India, then the concerned Tribunal, whose order is under challenge, is required to be joined as a party.
20. The request, at this stage, even if it is accepted, would not serve any purpose, but the Court is not inclined to take that ground to be a ground for dismissing the petition, as the request is already made and, therefore, this ground would not be available to workmen to urge at any stage that the petition technically was not maintainable on account of non joining the Tribunal as a party respondent. The oral request is of now not to be granted, as even otherwise also, as submitted by Shri Medipally, learned advocate for the workmen that he has no objection, if the Tribunal is joined or not joined.
21. Learned advocate for the petitioner company could not indicate as to how the matter could have been maintained under Article 226 of the Constitution of India, when there was no ground made out for seeking exercise of extraordinary jurisdiction on account of any illegality or breach of any right or performance of any duty on the part of the respondents. In short, though the petitioner company has styled this petition to have been petition under Article 226 of the Constitution of India, essentially this is a petition under Article 227 of the Constitution of India, as there is no prayer which would justify it to be a petition under Article 226 of the Constitution of India, nor was there any submission which would justify maintaining of the petition under Article 226 of the Constitution of India. Therefore, now this lead the Court to consider the petition, as if, it is filed under Article 226 of the Constitution of India and, therefore, bearing those jurisdictional aspects available under Article 226 of the Constitution of India, now Court is examining the challenge to the two orders impugned in this petition.
22. The order dated 29.09.2000 and the ex parte award dated 31.12.1998, in my view cannot be said to be resulted into any miscarriage of justice or illegal in any manner for the following reasons namely;
(i) The petitioner company admittedly has not even admitted to pay any retrenchment compensation or have the unit legally closed as per the provision of Industrial Disputes Act, therefore, on account of non availability of these grounds, the counsel for the petitioner company was not justified in submitting that the petitioner company is closed so as to avoid saddling company with the liability. The petitioner company has not even indicated anywhere as to what was its stand before the conciliation authority and as stated hereinabove there was no notice or warning to the workmen that they are on strike and company has not lock out them out and they will have to suffer the consequences of their so called illegal strike. The non functioning of the company after 25.11.1992 and the testimony of the witnesses go to show that the company's stand has rightly not been accepted by the Industrial Tribunal.
(ii) The award which is passed ex parte cannot be said to be passed without application of mind. On the contrary, the detailed discussion with regard to the company's lack of interest in the litigation and company's apathy to the existing litigation where the workmen involved was noted expressly by the Industrial Tribunal. In that view of the matter, the Court was left with no choice, but to proceed ex parte which it did ex parte, as it cannot keep it waiting for the company to appear and define itself.
(iii) While proceeding ex parte, the written statement filed by the company after the order of 08.08.1998, is also taken into consideration, but that written statement did not contain any material which would out weigh the evidence in the form of testimony of Government Labour Officer and representation of the workmen who were examined before the Court. Therefore, in my view, the ex parte award which is based upon the testimony of the Government Labour Officer cannot be said to have resulted into miscarriage of justice in any manner.
(iv) This brings the Court to consider the orders passed on 29.09.2000, rejecting the application seeking opportunity of leading evidence by setting aside the ex parte award. This application, as it is elaborately discussed hereinabove, also did not contain any details with regard to the genuine impediment in the way of the company in defining its case before the Court, which was ultimately concerned to pass ex parte award.
(v) The entire application appears to have been filed in a general terms and those general terms and counsel's narration with regard to the financial crises, advocate's difficulty in appearing etc. without naming even the advocate or without adducing any evidence to substantiate the same have rightly not been considered worth accepting. Therefore, on this count also, the Court is of the considered view that order rejecting the application cannot be said to have been passed without proper consideration.
23. The award and order, in my view, have not resulted into miscarriage of justice in any manner so as to call for any interference under Article 226 of the Constitution of India. The petition being bereft of merits, deserve rejection and is accordingly rejected. Rule is discharged. Interim relief, if any, stands vacated. No costs.
Pankaj (S.R.BRAHMBHATT, J.)