The petitioner Management challenged the order passed by the Labour Court in I.A.No.201 of 2001 in I.D.No.224 of 1995 refusing to set aside the ex-parte award passed on 13.02.1996. The case of the petitioner is that the respondent workman was employed under the petitioner and since the workman was not regular, he was terminated from his service. Challenging the said termination order, the respondent filed I.D under Section 1A(2) of the Industrial Disputes Act, 1947. The petitioner entered appearance and took time for filing counter affidavit. The matter was finally posted on 18.01.1996 for filing counter. The matter was adjourned to 29.01.1996 for ex-parte evidence and thereafter to 13.02.1996. On that day, evidence was recorded, the ex-parte award was passed against the petitioner herein.
2. It is the contention of the petitioner that he had filed an application to set aside the ex-parte award on 28.02.1996 that is within 15 days from the date of passing of award as per Rule 48(2) of the Tamil Nadu Industrial Disputes Rule, 1958. It is further submitted that on the same date the said petition was returned by the Labour Court.
3. Since the respondent got award in his favour, he took steps to execute the award by filing claim petition under Section 33C(2)of Industrial Disputes Act 1947 in Claim Petition No.537 of 1997. In the said claim petition, notice was issued to the petitioner and the petitioner did not appear before the Labour Court. As a result, the claim petition was ordered with a direction to pay a sum of Rs.99,000/- along with Rs.500/- as cost.
4. The petitioner represented to the Government under
Section 33C for claiming certificate and the said certificate was also issued in favour of the petitioner on 20.05.1998 directing the District Collector, Kancheepuram to execute the award. When the Revenue Official, went to the petitioner's Company to recover the amount under Revenue Recovery Act, it is represented by the counsel for the respondent that the petitioner gave a cheque for Rs.99,500/- which got bounced.
5. When things stood so, O.S.No.1620 of 2000 was filed by the petitioner seeking permanent injuction against the respondent herein, and Tahsildar from interferring with the peaceful enjoyment of the business of the petitioner and thereafter only on 28.01.2001 the petitioner represented the set aside petition which was filed and returned on 28.02.1996. Notice was ordered in the said petition. The respondent herein filed an counter affidavit giving all the details as mentioned above. By an order dated 18.06.2002, the set aside petition filed by the petitioner was dismissed by the Labour Court and the said order is impugned herein.
6. Mr.Ashok Menon, learned counsel for the petitioner submitted that the ex-parte award was passed on 13.02.1996. But the petition to set aside by the award was rightly filed on 28.02.1996 within 15 days from the date of the award as per Section 48(2) of the Tamil Nadu Industrial Rules, 1958. When the petition was returned, there was no endorsement on the reverse side of the petition giving the time limit within which date the petition had to be re-presented. The petitioner re-presented the petition on 28.01.2001 and the same was taken on file as it was in order. By ordering notice in the set aside petition, even if there was a delay in representing the petition, it is deemed to have been condoned. He further submitted that once the petition was filed and it was re-presented subsequently, the date of filing is immaterial and only the subsequent date of representation should be considered.
7. Petitioner's counsel contended that as on the date of award, the petition to set aside the ex-parte award was pending before the Tribunal and there is no prohibition for the Tribunal in entertaining the application and to dispose of the same on merits. He relied upon the judgment of the Supreme Court reported in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others reported in 1980 (Supp)Supreme Court Cases 420 wherein it was held that if an application for setting aside the ex-parte award is made within 30 days from the date of publication of that award, the same could be validly entertained by the Tribunal. Moreover, he pointed out that if the application was filed within 30 days of the publication of the award, the Tribunal would not become functus officio. He also relied upon the Division Bench of the Orissa High Court in Management of Shree Durga Glass Works v. Hazari Rout and another reported in 1974 I LLJ page 215 to support the point.
8. On the other hand, Mr.Ramesh, the learned Counsel for the respondent submitted that the delay is on the side of the Management to prevent the workman from enjoying all the benefits of the award passed by the competent Court. He submitted that the matter was posted for filing counter statement on 18.01.1996 on which date no counter statement was filed. Hence, the matter was adjourned to 29.01.1996 and 13.02.1996 for ex-parte evidence. After giving two opportunities, only the ex-parte evidence was recorded on 13.02.1996. The petitioner, as stated by the counsel would have filed a petition on 28.02.1996 but did not take any steps to prosecute the said application properly. The third fact is that the petition was re-presented on 28.01.2001, after return again, it was presented on 28.02.1996.
9. The learned counsel further submitted that the petition was filed on 28.02.1996 and the same was returned on the very same day. If the returned petition does not disclose the time limit for representation, the petitioner cannot assume and take his own sweet time.
10. The learned counsel further submitted that the ex-parte award was passed on 30.02.1996 and the award was published on 30.10.1996. As per
Section 17A of the Industrial Disputes Act, the award would become enforceable on expiry of 30 days from the date of publication. Under
Section 17 since there was no petition pending on the date, the award became enforceable. He also gave the factual details leading to filing of the claim petition and further details with regard to filing of the suit by the petitioner and bouncing of cheque given by the petitioner.
11. The learned counsel contended that after initiation of the proceedings under Revenue Recovery Act was taken by the respondent, the petitioner filed the petition and invited the impugned order. He relied upon the judgment of the Honourable Supreme Court pased in Sangham Tape Company Vs. Haus Ray reported in 2004 3 LLJ page 1141 pointing out that as per Section 17 A the award becomes enforceable after a lapse of 30 days from the date of publication of award in the Gazette under
Section 17A of the Industrial Disputes Act.
12. A perusal of the records would reveal that the ex-parte award was passed on 13.02.1996. After the matter was posted for filing counter statement on 18.01.1996, on which date the petitioner was set aside the ex-parte and the matter was adjourned to 29.01.1996 and thereafter 13.02.1996 on which date the ex-parte award was passed. No doubt, the petitioner filed the petition to set aside the ex-parte award on 28.02.1996 within 15 days as contemplated under Section 48(2) of the Industrial Dispute Rules 1958. On the same date it was returned. This fact was not brought to the notice of the respondent workman. The respondent workman diligently took steps to execute the award and the award was published on 30.10.1996. As per
Section 17 of the Act, subsequently the respondent filed claim petition before the Tribunal under Section 33C(2) of the Industrial Dispute Act. In the said proceedings also notice was ordered to the petitioner and the petitioner did not respond to the said petition, resulting in passing of the order directing the petitioner to pay a sum of Rs.99,500/-.
13. Subsequently under Section 33 C (1) of the Industrial Disputes Act, the respondent applied to the Government to issue certificate in his favour and the Government also issued certificates by order dated 20.05.1998 directing the District Collector, Kancheepuram, to execute the certificate. As the District Collector neglected to take any steps, the respondent was compelled to file writ petition No.18973/00 and obtained an order. Pursuant to the order in the writ petition, the Tahsildar took steps to recover the dues from the petitioner under Revenue Recovery Act. In pursuance of the said action the petitioner gave a cheque for Rs.99,500/- which also got bounced and thereafter, only the petitioner approached the Labour Court by re-presenting set aside petition after a lapse of 5 years.
14. The above facts would only go to show that the tactis adopted by the petitioner is only dialatory one. The petitioner should have filed counter statement on the last date namely 18.01.1996, which he failed to do and subsequently also he could have filed it along with set aside petition on 29.01.1996 and on 13.02.1996 on which date ex-parte award was passed. Even thereafter the petitioner did not file the set aside petition immediately and he waited and filed on the last day of limitation. On the same day the petition was returned and he deliberately allowed the respondent to take steps as per Industrial Disputes Act which went for 5 years and represented the papers only on 28.01.2001 when he was constrained to make a payment through cheque. These facts only establish malafide motive in the part of the petitioner.
15. Merely because the Labour Court returned set aside petition without giving any time limit for re-presentation, the petitioner cannot take his own sweet time and re-present it after 5 years delay. If no time limit is given in the petition, it should be deemed that reasonable time has been given.
16. The learned counsel for the respondent submitted that since the set aside petition was entertained and notice was ordered, it is deemed that the delay is condoned. The said contention is not acceptable as the petitioner himself is aware that it is after lapse of 5 years, the petitioner was re-presented and he should have diligently filed it along with a petition to condone the delay. On representation, the office numbered the petition. The office clerk is not empowered or authorised to condone the delay. It is to be done only by a judicial officer. Hence in the absence of a petition to condone the delay in re-presentation, the set aside petition is not maintainable. The writ petition is liable to be dismissed as along as the delay is not condoned by a Judicial order.
17. The petitioner did not approach the Court with clean hands. He failed to appear before the Labour Court and contest the matter. Secondly, even after filing petition to set aside the award, he did not re-present it and prosecut the matter properly and it was done deliberately after 5 years when the notice came from the Tahsildar. Thirdly, to execute the award a claim petition was filed and numbered 537/97 in which notice was ordered and the same was not responded by the petitioner for the reasons best known to him. At least that petition could have entered appearance and contested the matter. No explanation came from the side of the petitioner to justify his action in not contesting the claim petition. All these only show that the petitioner was aware of all the proceedings, still allowed it to happen and came in the last minute though the proceedings to stall the respondent from getting the benefits of the award. Hence, there is absolutely no bonafide on the part of the petitioner in approaching this Court with soiled hands.
18. The learned counsel for the petitioner submitted that on the date of the award there was a petition to set aside the award and hence it is deemed that the petition was filed within 15 days. If that contention is to be accepted, no award could be executed by the workers and the management would choose to file set aside petition in the next day and keep quite without prosecuting the petition. If this is allowed, it would only lead to frustration of intention of the Industrial Disputes Act which is enacted for the benefit of the workers.
19. The judgment relied upon by the counsel for the petitioner does not support him for the very reason that in the said case the award was published on 25.12.1966 and the set aside petition was filed on 19.01.1997 before the expiry of 30 days from the date of publication and the order was passed on 12th April 1997. The facts of that case would show that the Management diligently followed the matter by filing the application and getting disposal of the application on 12.04.1997 within 3 months. Hence the above case is distinguishable. The judgment reported in 2004(3)LLJ 1141 referred by the counsel for the respondent speaks about the enforcement of the award after expiry of 30 days from the date of its publication and that the Labour Court would become functus officio. Admittedly, in this case the award was published on 30.12.1996 and 30 days thereafter ended on 30.11.1996 and thereafter the Tribunal became functus officio. Hence set aside application should not have been entertained by the Tribunal.
20. The findings regarding the delay in re-presentation, given by the Tribunal is contrary to law. Without an application for condoning the delay on 05.04.2006, the application is not maintainable. The petitioner has to give details as to under what circumstance the application could not be re-presented in time. Hence, the findings given by the Tribunal in this regard is set aside. As stated above, the Tribunal rightly dismissed the petition since there was unexplained inordinate delay in prosecuting the matter. The Labour Court is directed to disburse the balance amount within 10 days from the date of receipt of a copy of this order. There shall be no orders as to the costs. Consequently, the connected W.P.M.P.No.9522 of 2003 is closed.
02.12.2009 Index: Yes/No Internet: Yes/No ssj To The Presiding Officer, II Additional Labour Court, Chennai-600 104.
N. KIRUBAKARAN, J ssj W.P.No.7385 of 2003 2.12.2009