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Union Of India (Uoi), Through ... vs Presiding Officer, Central ...

High Court Of Judicature at Allahabad|23 December, 2004

JUDGMENT / ORDER

JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioners-employer have prayed for the following reliefs :--
"(i) to issue a writ, order or direction in the nature of certiorari, calling for record of the case and quashing the impugned orders dated 16.1.1996 and 18.12.1996 (Annexure-'5' and '6'), both passed by respondent No. 1.
(ii) to issue a writ, order or direction in the nature of mandamus, commanding the respondents, not to enforce the impugned orders dated 16.1.1996 and 18.12.1996, passed by respondents No. 1 against the petitioners on any ground and in any manner whatsoever.
(iii) to issue ad interim mandamus, staying operation of the impugned orders dated 16.1.1996 and 18.12.1996, both passed by respondent No. 1 (Annexures-5 and 7 respectively).
(iv) to issue any other suitable writ, order or direction, as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case to meet the ends of justice.
(v) to award costs of the petition to the petitioner."
2. From the prayers made in this writ petition, it is clear that the petitioners-employer are challenging the award of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur dated 16th January, 1996, Annexure-'V' to the writ petition, in I.D. Case No. 253 of 1989, whereby the Industrial Tribunal answered the reference made to it under the provisions of Industrial Disputes Act in favour of the workmen.
3. The challenge is that the said award is an ex-parte award and further that the petitioners' application for setting aside the ex-parte award has illegally rejected by the Tribunal vide its order dated 18th December, 1996. From the assertions made in paragraph 1 of the writ petition, the following dispute was referred to the Tribunal for adjudication :--
"Whether action of the management of parcel loading at Kanpur station of Northern Railway in terminating the services of workmen at Annexure 'A' with Effect from 11.9.86 is legal and justified? If not, to what relief the concerned workmen are entitled?"
4. Brief facts of the case are that the employer have terminated the services of the workmen-employees, referred to in Annexure-'A' on 11th September, 1986 without following the principles laid down under Section 25A of the Industrial Disputes Act, 1947 (Central Act). It is further stated that all those workmen 111 in total have worked for more than 240 days continuously before termination of their services on 11th September, 1986. Earlier a case No. 41 of 1983 was also filed by the workmen for computation of amount under Section 33C(2) of the Industrial Disputes Act. It appears from the narration of the facts that the opposite party has failed to file the written statement in spite of sufficient service of notice in the matter or reference, therefore, on 28th May, 1990, the Tribunal directed the case to proceed ex-parte against the employer. It has been stated in the award that several opportunities were given to the employer to file their written statement, but they did not file the same, though several dates were fixed for the same. On 15th November, 1990, Sri B.P.S. Chauhan appeared on behalf of the employer and applied for setting aside the order directing to proceed ex-parte against the employers, which was allowed on 2nd December, 1992 and the employer were given opportunity to file written statement, but the employer have again did not file written statement and therefore, by the order dated 21st December, 1995, the Tribunal directed the matter to proceed ex-parte against the employer and fixed next date for arguments. Even on the next date fixed for arguments, no written statement was filed and only adjournment application was filed, which was rejected because the matter has already been directed to proceed ex-parte against the employer. The Tribunal while answering the reference relied upon the order passed under Section 33C(2), dated 19th June, 1986, whereby it has been held by the Tribunal that the relationship of master and servant to be there between the concerned workman and the present employer by the order dated 19th June, 1986. The Tribunal has observed that this order dated 19th June, 1986 since decides the relationship between the parties will operate as res-judicata so far as the question of relationship of master and all 111 workmen concerned. The Tribunal has found that the services of all 111 employees have been terminated with effect from 11th September, 1986 without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947. The Tribunal further observed that on 11th September, 1986 each of the workman has already completed more than 240 days of continuous service. The Tribunal, therefore, found that the action of the employer in terminating the services of these 111 employees is illegal and directed for re-instatement of the workmen but without back wages. It is submitted by learned Counsel for the workman that the application for setting aside the ex-parte award on merits also has been rejected by the Tribunal. The Tribunal found that the employer have not given any explanation, what to say, sufficient cause for setting aside the ex-parte award, therefore, the application for setting aside the award was rejected.
5. Learned Counsel for the petitioners-employer submitted before me that even if there was an order to proceed ex-parte against the employer, from the material on record it can be inferred that there was no relationship of master and servant between the petitioners-employer and the concerned workmen. The Tribunal to whom the reference was made, was under statutory obligation to answer the reference on the basis of the material on record even if the employers were debarred to participate in the proceeding. It is further submitted that the Tribunal erred in relying upon the earlier order of the Tribunal in proceedings under Section 33C(2) of the Act may be that the order is between the parties on the question of relationship of master and servant, where the Tribunal has held that the order will operate as res-judicata against the employer, therefore, the award of the Tribunal deserves to be set aside as it refuses to enter into the relevant question as to whether there was nay relationship of master and servants between the petitioners-employer and the workmen concerned.
6. Coming first to the order whereby the Tribunal has refused to set aside the ex-parte award is concerned, learned Counsel for the workmen relief upon a decision of the Apex Court reported in AIR 1981 Supreme Court 606 : 1981 Lab.I.C., 155, Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors., wherein the Apex Court in paragraph 14 has held :--
"14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex-parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17A. Under Section 17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. The proceedings with regard to a reference under Section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17A. In the instant case, the Tribunal made the ex-parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex-parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977 i.e. before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decide it on merits. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed, the Tribunal had in any even become functus officio, we cannot accede to this argument. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. There is no finality attached to an ex-parte award because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power to deal with an application properly made before it for setting aside the ex-parte award and pass suitable orders."
7. Learned Counsel for the workmen relied upon the decision reported in 2003 (96) FLR 642, Triveni Structural Ltd., Allahabad v. State of U.P. and Ors., wherein this Court relying upon the law laid down by Apex Court in the case reported in JT 2002 (7) SC 631, observed as under :--
"This Court should reverse or interfere in exercise of supervisory power under Article 226 of the Constitution of India, unless this Court comes to the conclusion that any important piece of evidence has not been considered or that the order impugned in the proceedings suffers from the patent error of law."
8. The patent error of law has been explained by the Apex Court in the case reported in (2003) 6 SCC 675, Surya Dev Rai v. Ram Chander Rai and Ors.. In this view of the matter since in view of the law laid down in Grindlays Bank (supra), the Tribunal has become functus officio, as the award has also published under Section 17A of the Act. The order passed by the Tribunal do not warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India so far as the application for setting aside the ex-parte award is concerned. I found force in the aforesaid submission and the Tribunal has also dealt with even on merits of the application for setting aside the ex-parte award and found that the employer have not been able to demonstrate that there was sufficient cause for their absence on which date which the ex-parte award was passed, therefore, this writ petition so far as it challenges the order dated 18th December, 1996 refusing to set aside the ex-parte award is concerned, deserves to be dismissed.
9. Now coming to the challenge of the award on the ground that the concerned workmen have not agitated the matter on the basis of the evidence on record, even though it had proceeded ex-parte against the employer and farther that the Tribunal has committed error in holding that the question of relationship of master and servants have already been adjudicated upon in proceedings under Section 33C(2) of the Act, the same will operate as res-judicata, so far as the petitioners-employer are concerned. It is submitted by learned Counsel for the petitioners-employer that the award deserve to be quashed as the Tribunal has not answered the reference on the basis of the material on record, whereas the Tribunal was under the statutory duty to the question as to whether there exists the relationship of the master and servants or not and it should not have taken it as conclusive only by the order under Section 33C(2) of the Act. Learned Counsel appearing on behalf of the workmen submitted even for argument sake it is accepted, though he submitted vehemently that view of the Tribunal not be said be incorrect, as the Tribunal observed without taking account the order in the proceedings under Section 33C(2) of the Act the same was on the record, therefore, can be considered as a piece of evidence of the workmen concerned. Since the matter was proceeded ex-parte against the employer and the statement of the workman has not been controverted, the view taken by the Tribunal cannot be said to have suffered from illegality so as to warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India.
10. Learned Counsel for the workmen relied upon a decision reported in (2003) 6 Supreme Court Cases 675, Surya Dev Rai v. Ram Chander Rai and Ors. Apart from above, since the matter was proceeded against the employer ex-parte, in this view of the matter, in my opinion no interference is required in the award impugned in the present writ petition.
11. I have gone through the award. This has not been denied that those workmen whose services were terminated on 11th September, 1986 did work with the employers continuously for more than 240 days before the date of termination of the employees. It is also not been disputed while terminating their services that the provisions of Section 25F of the Industrial Tribunal Act has not been complied with. In this view of the matter, in view of the law laid down in the case reported in JT 2003 (Suppl. 1) SC 383, MA. U.P, Drugs and Pharmaceutical Company Limited v. Ramanuj Yadav and Ors., the view taken by the Tribunal does not warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India.
12. In view of what has been stated above, this writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, there will be no order as to costs.
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Title

Union Of India (Uoi), Through ... vs Presiding Officer, Central ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
23 December, 2004
Judges
  • A Kumar