IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.28024/2019 (L-RES) BETWEEN M/S INDUS TOWERS LTD., NO. 12, TOWER-D, 7TH FLOOR, SUBRAMANYA ARCADE, BANNERGHATTA ROAD, BANGALORE 29.
REPRESENTED BY ITS AUTHORIZED SIGNATORY, MAHESH B ... PETITIONER (BY SRI C.K.KASTHURI, SR. ADV. FOR SRI ROHITH B J, ADV.) AND SRI SHASHIKUMAR T.S FATHER KNOWN TO PETITIONER, MAJOR IN AGE, R/O. THANGALAGERE VILLAGE, HALLIGERE POST, BASARALU HOBLI, MANDYA TALUK, MANDYA DISTRICT-571446.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF REFERENCE ISSUED BY THE DEPARTMENT OF LABOUR GOVERNMENT OF KARNATAKA INVOKING REFERENCE AND REFERRING THE MATTER AS DISPUTE TO THE LABOUR COURT AS PER ITS ORDER OF REFERENCE DTD:7.1..2019 WHICH IS PRODUCED AS ANNEXURE-F ETC.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri.C.K.Kasthuri, learned Senior counsel appearing on behalf of the petitioner.
2. Learned Senior counsel places reliance on the ruling rendered by the Hon’ble Apex Court rendered in the case of ‘Haryana Suraj Malting Ltd. Vs. Phool Chand’ reported in ‘2018 LLR 815’ and he would submit that in the light of the law laid down by the Hon’ble Apex Court, the petitioner is entitled to move an application for recalling the ex-parte award. He invites the attention of the Court to Paragraph Nos.32 and 35, which reads as under:
“32. In case a party is in a position to show sufficient cause for its absence before the Labour Court/ Tribunal when it was (1996) 6 SCC 92 set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal.
35. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.”
3. Learned counsel would submit that in the light of the above, the petitioner be permitted to withdraw the writ petition with liberty to approach the Labour Court with an application for setting aside the ex-parte award. Submission of the learned Senior counsel is placed on record.
Accordingly, the writ petition is dismissed as withdrawn with liberty to approach the Labour Court in the light of the law laid down by the Hon’ble Apex Court.
No costs.
VM CT:HR Sd/- JUDGE