Full Judgment
W.P.No.1694/2007 (s) 19-7-2012 Shri Rajesh Tiwari , learned Govt.
Adv.for the petitioner- State.
Shri Ashok Shrivastava, learned counsel for the respondent.
Challenging an ex-parte award passed by the Labour Court, Betul on 26.5.2005 under the Industrial Disputes Act, 1947 and an order dated 10.1.2006 rejecting an application filed under Order 9 Rule 13 CPC for setting aside the ex-parte award, this petition has been filed by the competent authority of the State Government.
Respondent Narendra Kumar was engaged as a muster roll employee in a Watch and Ward Section.
He had worked in the same capacity between 16.12.1993 to 29.2.2000.
As he was alleged to have committed some misconduct, it is the case of the petitioner that an enquiry was conducted and based on the guilt recorded in the enquiry report, a show cause notice was issued to him and thereafter his services terminated.
On an industrial dispute raised by the employee, matter was referred to Labour Court on 25.7.2002 and in the said reference, workman respondent came out with a case that he has worked continuously for more than one year in a calendar year, therefore, the requirements of Section 25(B) of the Industrial Dispute are fulfilled and as termination amounts to retrenchment it is in violation of Section 25(F) of Industrial Disputes Act is illegal and he should be reinstated.
Petitioner herein filed a reply, refuted it and pointed out that termination was for the reason that he has committed misconduct and termination does not amount to retrenchment.
After filing of written statement when the departmental representative and their counsel did not appear, Labour Court proceeded ex-parte and in the absence of any evidence rebuttal the ex-parte award was passed.
Immediately after the award was published, the petitioner herein filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte Award and on the same being rejected, this writ petition has been filed.
Shri Rajesh Tiwari, learned Government Advocate for the petitioner invites my attention to the reasons indicated by the petitioners in the application filed under Order 9 Rule 13 CPC and points out that in the application filed, it was clearly indicated that the Officer-in-Charge of the case was transferred, the constitution of the department and set up of the department was changed and in this process the new officer was not aware of the case.
He was made aware of the case only when a copy of the award was served on him and immediately thereafter application has been filed under Order 9 Rule 13 CPC for recalling of an ex-parte award.
It is argued that this application has been rejected only on the ground that Labour Court does not have any power to review its order and recall the award.
Inter alia contending that the judgment relied upon by the Labour Court in this regard is not tenable, Shri Rajesh Tiwari, learned Government Advocate for the petitioner prays for interference into the matter .
Reliance is made to the law laid down by the Supreme Court in the case of Grindlays Bank LTD.versus Central Government Industrial Tribunal & Others - 1980 SCC Page 420, Anil Sood versus Presiding Officer, Labour Court II -2001(10) SCC 53.and Radhakrishna Mani Tripathi Vs.L.H.
Patel - 2009(2) SCC Page 81 to submit that it has been the consistent view in all these cases that if the Labour Court has power to pass an award ex-parte, then it has a consequential power to recall and set aside the ex- parte award also, therefore, the reason given by the Labour Court for rejecting the application is contrary to principles laid down by the Supreme Court and on that count interference be made.
He also points out that if the merits of the reasons given by the department for not appearing before the Labour Court are considered, it may be seen that there is reasonable justification for the same and a case is made out for recall of an ex-parte award in absence of the department respondent, it was for reasons beyond their control due to certain administrative changes made in the department.
Even though learned counsel for the respondent tried to emphasize that for a long period of time none appeared for the respondents department and therefore, the Labour Court was right to proceed in view of law discussed by the Labour Court in its award and order therefore, no interference be made.
Having heard learned counsel for the parties and on perusal of the record, it is clear that the award in question was passed ex-parte.
The order Annexure P/2 dismissing the application under Order 9 Rule 13 indicates that labour Court has rejected this application after placing reliance on certain judgments in the case of K.P.Madhur Ekta Union versus Management of M/s Birla Cotton Spinning and Weaving Mills LTD.reported in 2005 LLR 76.and it is held that the Labour Court does not have power to review or recall an award already passed ex- parte.
This finding of the Labour Court is clearly erroneous.
In the case of Grindlays Bank LTD.(supra) after taking note of provisions of Rule 22 and 24(b) of the Industrial Disputes (Central) Rules, 1957 it has been held by the Supreme Court that if the Labour Court has the power to proceed ex-parte, it consequently has a power to recall an order of ex-parte.
The judgment was thereafter explained in the case of Anil Sood (supra) and has been followed in the case of Radhakrishna Mani Tripathi (supra) and it has been held by the Supreme Court in the aforesaid cases that where the Industrial Court or a Labur Court can pass an ex-parte award, then the provisions of Order 9 Rule 13 are clearly affected and the Labour Court has a power to entertain such an application to set aside an ex-parte award.
In view of the aforesaid enunciation of law as laid down by the Supreme Court, I am of the considered view that Labour Court has committed an error in rejecting an application under Order 9 Rule 13 on the ground that it was not maintainable.
To that effect, the order passed by the Labour Court is unsustainable.
Having held so, the question would be as to whether the application under Order 9 Rule 13 should be considered and decided on merit or it should be remitted back to the Labour Court for consideration.
Matter is pending since 2002 and it is not appropriate not to remand the matter to proceed to decide the application under Order 9 Rule 13 CPC.
Instead interest of justice requires that this question be also decided not in this writ petition.
Whenever an exparte proceedings are held and a application for setting aside an ex-parte order is filed, the justification or reason given in the application under Order 9 Rule 13 has to be considered on its merit and decision taken.
In the present case the respondent employee was working on muster roll.
An ex- parte award has been passed by the Labour Court to reinstate him with all consequential benefits.
Petitioner- employer has come out with a case that the officer-in- charge was attending the matter with his counsel but he was transferred and in the meanwhile, administrative set up of the department itself was changed and therefore, due to this administrative difficulty the subsequent officer was not aware of the case.
This statement given by the petitioner on affidavit is not rebutted and there is no material to show that this is a false or incorrect statement.
Under such circumstances, grounds given for not appearance before the Labour Court seems to be reasonable and justifiable and is good enough for allowing the application under Order 9 Rule 13 CPC.
Accordingly application under Order 9 Rule 13 CPC itself is allowed.
Ex-parte award passed by the Labour Court Annexure P/2 is set aside and the matter is remanded back to the Labour Court to proceed from the stage of recording of evidence of the respondent employee and thereafter to decide the reference afresh in accordance to law within a period of two months from the date of appearance of the parties.
Parties shall appear before the Labour Court along with certified copy on 6.8.2012 and Labour Court shall conclude on or before 30.9.2012.
With the aforesaid, this petition stands allowed and disposed of.
(Rajendra Menon) Judge mrs.Mishra