1. Heard learned advocate for the parties. With the consent of the learned advocates for the parties, Rule is fixed forthwith.
2. The Range Forest Officer, Extension Range, Padra, petitioner, and first party employer in Reference(L.C.V) No.843 of 1984 has preferred this petition under Article 227 of the Constitution of India challenging the order and award dated 13.5.1990 passed by the Labour Court, allowing the reference with full backwages and continuity of service and reinstatement. This award being ex-parte was sought to be set aside by filing Miscellaneous Application No.63 of 1990 instituted by the petitioner wherein the Court rejected the same vide its order dated 13.6.1991 and, therefore, petitioner has challenged the said order also. Thus, the petition is filed challenging both the orders under Article 227 of the Constitution of India.
3. The facts in brief deserve to be set out as under:-
3.1 The workmen respondents hereinabove, were constrained to raise industrial dispute as their services were terminated on 13th April,1984 without following the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947( hereinafter referred to as the I.D. Act for the sake of brevity). The competent authority referred the matter for adjudication to the competent Court wherein it was marked as Reference (L.C.V.) No.843 of 1984. As it is stated hereinabove, the exparte award came to be passed in favour of the workmen allowing the Reference (L.C.V.) No.843 of 1984 and Miscellaneous Application No.63 of 1990 filed for reopening the same was rejected on 13.6.1991. Hence, this petition.
4. Learned Assistant Government Pleader, Shri Neeraj Soni, contended that the order and award passed by the Labour Court on 13.5.1990, being without any justification ordering reinstatement and backwages, deserves to be quashed and set aside. He relied upon the decision of the Apex Court in the case of Ranip Nagar Palika vs. Babuji Gabhaji Thakore reported in (2007) 13 SCC 343 and submitted that even while passing ex-parte order, the Labour Court was required to pass the order recording its reasons and findings on the material available on record. The order impugned on the face of it, goes to show that no reasoning whatsoever have been recorded justifying the passing of the order and award. The workmen, on the strength of the material available on record, could not be said to have proved that they completed 240 days so as to attract the provisions of Section 25F of the I.D. Act. Therefore, as the main award itself was quite vulnerable and unsustainable in the eyes of law, the Miscellaneous Application No.63 of 1990 instituted by the present petitioner could have been allowed as immediately without wasting time, the same was filed but was rejected mainly on the ground that despite notice no one appeared to defend the case of the petitioner. The main order and award itself is not sustainable. However, the same should have been appreciated by the Labour Court while examining the Miscellaneous Application No.63 of 1990 for setting aside the order impugned in Reference (L.C.V.) No.843 of 1984 dated 13.5.1990, which was instituted by the employer under Rules 26A of the Gujarat Industrial Rules. The advocate for the petitioner further submitted that, therefore, both the orders and awards deserve to be quashed and set aside. He submitted that the matters be remanded back to the Labour Court concerned so as to afford opportunity to both the sides to lead their respective evidences. The learned advocates for the parties once again, invited the attention of the Court to the decision of the Apex Court and submitted that the time gap in itself would not be prejudicial so far as leading of evidence is concerned as it has come out during the course of submission on the part of the workmen's advocate also that in case the Court is inclined to accept the submission of the advocate for the petitioner that the award itself is vulnerable, then the Court may remand back the matters.
5. Shri K.M.Parikh, learned advocate for the workmen, submitted that the order impugned cannot be said to be not proper as the order itself shows that despite number of opportunities granted to the present petitioner for the reasons best known to them chose not to appear or file even written statement. In absence of any written statement, the Labour Court was left with no course but to go by the pleadings available on record as the pleadings available on record were not controverted and/or challenged in any manner. The Labour Court has rightly passed the impugned order and award dated 13.5.1990 and has also rightly rejected the Application being Miscellaneous Application No.63 of 1994 setting aside the same.
6. Shri Parikh learned advocate for the respondents opposed the petition but ultimately he submitted that in case the Court is inclined to accept the petition, then, let there be a remand as the affidavits of all the workmen which are produced on record would show that they had put up continuous service from the date of their appointment and engagement till they were terminated and he would rather invite the order of remanding the matter.
7. This Court has perused the impugned order and awards passed in Reference (L.C.V.)No.843 of 1994, which on the face of it shows that the same is passed mainly relying upon the statement of claim and as there was no appearance of first party employer, the Labour Court while deciding the matter ex-parte, was under duty to record it's own findings and satisfaction with regard to the claim made by the workmen in the statement of claim. The entire award is conspicuously silent so far as the satisfaction to be recorded on the basis of the claim of the workmen. The workmen themselves have not unequivocally stated in their statement of claim as well as the affidavits that they were continuously serving for all the period from their initial engagement till their termination and thus they had completed 240 days so as to attract provisions of Section 25F of the I.D. Act. The Court is unable to accept the submission of Shri Parikh, who relied upon the first para of the affidavit of the workmen to justify his submission that the workmen did mention that they were continuously serving. The reading of that paragraph, in my view, cannot be said to be an unequivocal statement as recorded hereinabove, which was required to be made by the workmen and proved by them. In absence of any such specific satisfaction recorded by the Court, it ought not to have passed the order and award allowing the reference with full backwages as the main award, in my view, is quite vulnerable and not tenable in the eyes of law. The order rejecting the Miscellaneous Application No.63 of 1990 would naturally not survive. The Court is of the view that it is open to the petitioner employer to assail both these orders in these proceedings as if the main order and award passed in the main proceedings itself is so perverse as to render it unsustainable in the eyes of law. The subsequent order naturally would be of no avail to the respondent workmen. The submission with regard to absence of advocate for not appearing before the Labour Court canvassed by the learned advocate for the respondent workmen, would also be of no consequence. As it is held hereinabove, it was the duty cast upon the Court in the main reference to record its satisfaction based upon the material available which would justify passing of the award in question. The decision of the Apex Court cited by the learned advocate for the petitioner would have applicability to the facts and circumstances of the present case and, therefore, this Court is of the view that the order dated 13.5.1990 is required to be quashed and set aside. The matter is required to be remanded back to the Labour Court.
8. The remand is also in respect of those who have passed away but in that case their statement on oath which is made before the Court will have to be taken into consideration apropos the documentary evidence that may be produced.
9. As the learned advocates themselves have submitted as an alternative submission that the parties are ready and willing the lead evidence. The time gap would not be prejudicial factor to either of the parties. Bearing that in mind, the order of remand is required to be made. The learned Labour Court is directed to decide the reference being Reference (L.C.V.) No.843 of 1984 on its merits affording due opportunity to the parties for leading evidence in support of their submissions. At the best, the Court would have, while considering the Miscellaneous Application No.63 of 1990, awarded cost for reopening the matter which was decided ex-parte as if there was no reason pleaded for not appearing. The cost should have been appropriate or else there ought to have been order which was passed recording clear findings and satisfaction with regard to the breach of Section 25F of the I.D. Act. In my view therefore, the matter deserves to be considered from that angle. The petitioner shall pay Rs.7,500/- to each of the workman by way of cost. Rule is made absolute to the aforesaid extent.
(S. R.
Brahmbhatt, J.) sudhir Top