THE HON’BLE MR JUSTICE R. KANTHA RAO
WRIT PETITION NO. 21800 OF 2001
Date:28.10.2014
Between:
S.V.L.N.S.Devasthanam, Simhachalam Rep. by its E.O., Visakhapatnam …Petitioner And The Special Chief Secretary, Govt. of A.P.Hyderabad and two others ….Respondents HON’BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION NO. 21800 OF 2001
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to quash the Award in I.D.No.64 of 2000 dated 20.10.2000 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam/second respondent.
2. The brief facts necessary for considering the writ petition may be stated as follows:
3. There is a famous temple known as Sri Varaha Lakshmi Narasimha Swamy at Simhachalam which is situate at a distance of 16 kms. to the North o f Visakhapatnam. The presiding deity of the temple is Varaha Lakshmi Narasimha Swamy. One of the activities of the temple is maintenance of Kesakhandana sale which means tonsuring the visiting pilgrims of Lord Narasimha Swamy. According to the authorities of the temple, prior to 1987 some local barbers approached the Devasthanam and offered performing the job of tonsuring without any remuneration for which the Devasthanam agreed and according to the petitioner, the barbers used to perform the activity of tonsuring without any remuneration for some time. It is also the version of the petitioner that there were ten regular employees who were barbers in the establishment and the others were permitted at their request. It is submitted by the petitioner that in the year 1987 the local 54 barbers formed into an Association and approached the Executive Officer of the Devasthanam to fix remuneration for their livelihood. The request of the barbers was forwarded to the Commissioner and the Commissioner Endowments Department, Hyderabad by order dated 05.09.1992 fixed the remuneration of the barbers on rotation basis of engaging daily on payment of Rs.25/- per day. It is said that the barbers again approached the Devasthanm authorities and represented to the Executive Officer for enhancement of the remuneration and also increase number of daily wage barbers. Again the said representation was forwarded by the Devasthanam to the Commissioner, Endowments Department, Hyderabad and after getting approval of the Commissioner Endowments, the remuneration of the barbers was enhanced to Rs.30/- and eight barbers were engaged instead of six barbers per day.
4. The Barbers Union submitted a representation on 08.04.1997 to the Devasthanam authorities for granting consolidated pay of Rs.1375/- and also to introduce the commission system on the sale of tickets as introduced in Annavaram Devasthanam. The Executive Officer of the Devasthanam addressed a letter to the Commissioner Endowments Department, Hyderabad on 30.07.1997 informing the issues raised by the barbers’ Association. In response thereto, the Commissioner of Endowments Department issued orders dated 04.12.1999 prescribing certain conditions to increase the remuneration of the barbers.
5. It is submitted by the petitioner that in the meanwhile the barbers’ Union issued strike notice and thereafter, the Deputy Commissioner of Labour, Visakhapatnam submitted a report, dated 22,03.2000 on the issue to the Special Chief Secretary to the Government. Basing on the said report, the first respondent issued G.O.Rt.No.968, dated 08.05.2000 in exercise of its powers conferred under Section 10(1)(c) of the Industrial Disputes Act, 1947 referring the dispute for adjudication to the Industrial Tribunal. Thereafter, the second respondent passed the impugned Award in I.D.No.63 of 2000 dated 20.10.2000 directing the petitioner-management to regularize the services of the barbers (as per list) in terms of G.O.Ms.No.212, dated 24.02.1994 and G.O.Ms.No.201, dated 12.02.1982 and also introduce the eight hours work per day for the listed barbers working in the Devasthanam and to introduce the shift system for the barbers. The said Award is challenged in the present writ petition.
6. In the writ petition it is contended by the petitioner-Devasthanam that the respondents 1 and 2 failed to consider that the Simhachalam Devasthanam is not an industry within the meaning of Section 2(J) of the Industrial Disputes Act and hence, the reference under Section 10(1) (c) and the impugned Award are wholly illegal, and without jurisdiction. Nextly, it is contended that the members of the third respondent Union (Barbers) are not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act and hence, the reference and the Award are vitiated. It is further contended that the respondents 1 and 2 failed to consider that there are no vacant posts for absorbing the services of the barbers of the third respondent Union and therefore, the industrial Tribunal ought not to have passed the Award as the award is said to be void and non-est under law.
7. The third respondent filed counter-affidavit inter alia contending as follows:
The averments made in the entire writ affidavit except the reference and consequential industrial dispute are neither subject matter before the conciliation officer nor before the second respondent and thus, they are no way relevant to I.D.No.63 of 2000 and the subsequent award dated 20.10.2000 and publication of award dated 18.11.2000 vide G.O.Rt.No.2361 L&E T & F (Lab.I) Dept. According to the third respondent, the said award passed by the second respondent-Industrial Tribunal-cum-Labour Court, Visakhapatnam has attained finality by virtue of Section 17(2) of the Industrial Disputes Act and therefore, it is not open for the petitioner to call in question the said award at this length of time before this Court.
8. Nextly, it is submitted that the Government of Andhra Pradesh issued G.O.Ms.No.201 Revenue (Endowments-II) Department, dated 12.02.1982 whereby all the employees of the petitioner establishment were extended the status of State Government employees including extension of Fundamental Rules of Service. Basing on the said G.O. all the government employees have been extended the government pay scales with effect from November, 1981. The Government have also further directed the Commissioner Endowments Department under whose administrative control the petitioner’s establishment is placed to absorb the surplus staff in the regular posts without resorting to retrenchment. Thus, according to the third respondent in the year 1981 and subsequently the N.M.R. barbers ought to have been regularized, but the authorities of the petitioner Devasthanam have not chosen to regularize the services of the third respondent Union by resorting to selective discrimination.
9. It is under these circumstances, the N.M.R. barbers being frustrated with the indifferent attitude of the petitioner joined the third respondent union which is meant to safeguard their service conditions. The third respondent union expoused their cause before the appropriate government under the provisions of the Industrial Disputes Act. The incumbent Executive Officer Sri V.Shankar Reddy officially participated in those conciliation proceedings where number of meetings took place in a period of one year. Thereafter, conciliation failed and failure report was submitted to the Government vide Rc.No.C/1433/99, dated 22.03.2000. Thereafter, the appropriate Government made a reference vide G.O.Rt.No.968, L.E.T&F (Lab.I) Department, dated 08.05.2001 to the second respondent. The Authorities of the petitioner also received the said G.O. and the subject of the reference in the said G.O. is whether the demands of the Simhachalam Devasthanam staff or workers union for regularization of NMR (as per list) and introduction of eight hours work to all barbers working in Devasthanam and shift system are justified? In the I.D. the labour Court issued notice dated 09.06.2000 to the petitioner fixing the date of hearing on 26.06.2000 by registering the reference as I.D.No.63 of 2000. Even though the authorities of the petitioner participated throughout in the earlier conciliation proceedings and received notice from the second respondent had chosen to keep themselves away throughout the adjudication process. Therefore, the petitioner’s temple relinquished their rights voluntarily.
10. Nextly, it is submitted that the second respondent by following due process of adjudication passed Award upholding the claim in terms of the G.O.Ms.No.212 dated 22.04.1994 with effect from 24.02.1994 and the said award has been published by the appropriate government vide G.O.Rt.No.2361, dated 08.11.2000 and thus, the Award had attained the finality. It is further submitted that soon-after the publication of the award, the third respondent union made representation to the petitioner’s establishment calling upon to enforce the Award in January, 2001, but the petitioner’s establishment failed to implement the Award.
11. Thus, according to the third respondent, the entire proceedings of adjudication by the Industrial Tribunal have been in accordance with the statutory provisions of the Industrial Disputes Act and further the Award has attained its finality under Section 17(2) of the said Act and it is enforceable on the petitioner by virtue of Section 17-A and that the petitioner cannot file a writ petition bypassing all the procedure which has been available to it and therefore, the writ petition is not maintainable. Raising all these contentions, the third respondent sought to dismiss the writ petition contending that it is not maintainable in law.
12. According to the petitioner, there are 64 barbers working in the respondents’ Devasthanam, out of them ten are permanent employees and 54 are temporary and that they have been serving Devasthanam on hereditary basis and they sought for their regularization. The learned Industrial Tribunal took into consideration the G.O.Ms.No.201, Revenue Department (Endowments.II) dated 12.02.1982 whereunder the benefits enjoyed by the government employees are extended to the employees of the petitioner Devasthanam passed an award directing the respondents to consider the regularization of the NMR barbers (as per list) and also to fix their working hours as demanded by them. The Industrial Tribunal accordingly answered the reference in favour of the workmen and against the management.
13. Sri B.Adinarayana Raju, learned counsel appearing for the petitioner Devasthanam would submit that the Devasthanam-petitioner is not an industry within the meaning of Section 2(J) of the Industrial Disputes Act and hence the reference under Section 10(1) ( c ) and the impugned Award are wholly illegal, and without jurisdiction and the members of the 3rd respondent Union are not workmen within the meaning of Industrial Disputes Act and thus the award is not sustainable in law and is liable to be set aside. In support of his contention, the learned counsel relied on
A. KESAVA BHATT AND SREE RAM AMBALAM TRUST AND [1] ANOTHER wherein it is held that Archaka or priest in the temple is not doing manual or clerical service and hence they are not workmen.
14. In MISS A. SUNDARAMBAL v. GOVERNMENT OF GOA, DAMAN
[2]
AND DIU AND OTHERS it is held that teachers are not workmen though educational institution they serve is industry.
15. I n BHARAT BHAVAN TRUST v. BHARAT BHAWAN
[3]
ARTISTS’ASSOCIATION AND ANOTHER it is held that a trust for promotion of art and culture is not an industry and an artist engaged in an institute for promotion of art and culture cannot be considered as a workman.
16. The aforesaid judgments are not applicable to the facts of the present case as the barbers cannot be equated with the individuals in the aforesaid cases who sought to treat them as workmen. However, the crucial question in this writ petition is whether the petitioner Devasthanam against whom an ex parte award was passed and published can ask this Court to adjudicate the issue as to whether the petitioner Devasthanam is an industry and the barbers working therein are workmen in exercise of powers under Article 226 of the Constitution of India.
17. The learned counsel appearing for the respondents would submit that the Industrial Tribunal has jurisdiction to set aside the ex parte award by virtue of Section 17-A of the Industrial Disputes Act on an application being filed before the expiry of 30 days from the date of publication of the award, no such application having been filed by the petitioner Devasthanam, it cannot urge before this Court to adjudicate the dispute on merits. According to the learned counsel, the enquiry in the writ petition is only limited to the question as to whether the ex parte award can be set aside or not but not to decide the dispute on merits. In support, the learned counsel relied on SANGHAM TAPE CO. v. HANS RAJ[4] wherein it is held as under:
“An Industrial Court will have jurisdiction to set aside said award, having regard to the provision contained in Section 17-A, application therefor must be filed before expiry of 30 days from publication of said award. After the expiry of the said period, the Industrial Court becomes functus officio and the award becomes enforceable.”
[5]
18. In ANIL SOOD v. PRESIDIG OFFICER, LABOUR COURT II held as under:
it is “The power to proceed ex parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.”
19. In GRINDLAYS BANK LTD. V. CENTRAL GOVERNMENT
[6]
INDUSTRIAL TRIBUNAL AND OTHERS it is held as under:
“A Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Although there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to set aside its ex parte award, the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.”
20. In the instant case, the petitioner Devasthanam did not file any application to set aside the award passed against it ex parte. The petitioner directly approached this Court to set aside the award by adjudicating the dispute on merits. There is not even a prayer in the writ petition to set aside the ex parte award. On an application made by the party against whom an award has been passed, the Industrial Tribunal or Labour Court would examine the issue as to whether it has sufficient cause in approaching the Labour Court in time. The petitioner failed to avail the remedy available to it under the Industrial Disputes Act. Therefore, this Court would not for the first time go into the question whether there has been any sufficient cause for setting aside the award or not. In this case, prior to the reference, the Executive Officer of the petitioner Devasthanam participated in the conciliation proceedings, thereafter, the reference was made but none on behalf of the temple appeared before the Industrial Tribunal. Thereupon, the Industrial Tribunal passed the award. No application has been filed to set aside the ex parte award before the Industrial Tribunal. The award was passed on 20.10.2000 and it was published on 18 .11 .2000 by G.O.Ms.No.201, dated 12.02.1982. The petitioner approached this Court by invoking the jurisdiction under Article 226 of the Constitution of India after long lapse of time. It is well settled that this Court would not exercise jurisdiction under Article 226 of the Constitution of India in favour of a party on whose part there are laches in approaching this Court.
21. As already said, there is not even a prayer in the writ petition to set aside the ex parte award. The writ petition is filed only to set aside the award on merits by taking the plea that the petitioner Devasthanam is not an industry within the meaning of Section 2(J) of the Industrial Disputes Act. Having regard to the facts and circumstances of the case, this Court would not examine the dispute on merits for the first time in the present writ petition since there has already been adjudication by the Industrial Tribunal and the petitioner has not availed the statutory remedy available to it under the Industrial Disputes Act to make an application for setting aside the ex parte award. The scope of the enquiry in the present writ petition is very limited to the extent as to whether there are any reasonable grounds to set aside the ex parte award by the Industrial Tribunal in exercise of powers under Article 226 of the Constitution of India. On account of non-availing of statutory remedy by the petitioner, in spite of ample opportunity available to it and on account of the latches on its part in approaching this Court invoking jurisdiction under Article 226 of the Constitution of India, this Court is of the view that there are no valid reasons to set aside the award which has been passed by the Industrial Tribunal and published long ago. The Executive Officer of the petitioner having participated in the conciliation proceedings and who is very well aware of the proceedings before the Industrial Tribunal cannot plead ignorance of passing of the award. Therefore, in the considered opinion of this Court there are no valid grounds to set aside the ex parte award passed by the Industrial Tribunal in exercise of the jurisdiction under Article 226 of the Constitution of India.
22. Consequently, the writ petition is dismissed without any order as to costs. Miscellaneous petitions, if any, filed in this writ petition shall stand closed.
R. KANTHA RAO, J Date:28.10.2014 ccm THE HON’BLE MR JUSTICE R. KANTHA RAO
WRIT PETITION NO. 21800 OF 2001
Date:28.10.2014
[1] ILLJ – 1990 page 192
[2] (1988) 4 SCC 42
[3] (2001) 7 SCC 630
[4] (2005) 9 SCC 331
[5] (2001) 10 SCC 534 –
[6] 1980 (Supp) SCC 420 –