Kiran Machine Tools Vs. D.D. Hinge and anr.

Kiran Machine Tools vs D.D. Hinge and anr.

Disposition Petition dismissed Court Mumbai Decided Aug 18, 2005

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Citation: sooperkanoon.com/366575
Court: Mumbai High Court
Judge: B.H. Marlapalle, J.
Decided On: Aug 18, 2005
Case Number: W.P. No. 5192 of 1996
Subject: Labour and Industrial
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for...

Key legal issue: Labour and Industrial
Outcome / disposition: Petition dismissed
Acts & sections: Industrial Disputes Act, 1947 - Sections 10, 17, 17A, 20 and 20(3); Bombay Industrial Disputes Rules, 1957 - Rule 26(1) and 26(2); Constitution of India - Article 227

Parties & Advocates

Appellant / Petitioner

Kiran Machine Tools

Advocate Indrayani Koparkar, Adv., i/b., N.P. Deshpande, Adv.

Respondent

D.D. Hinge and anr.

Advocate A.S. Perreira, Adv. For respondent No. 1

Legal References

Acts: Industrial Disputes Act, 1947 - Sections 10, 17, 17A, 20 and 20(3); Bombay Industrial Disputes Rules, 1957 - Rule 26(1) and 26(2); Constitution of India - Article 227
Reported In: 2006(2)ALLMR237; 2006(3)BomCR369; [2006(109)FLR253]; (2006)ILLJ410Bom; 2006(1)MhLj286

Excerpt

.....reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in..........was filed for the first time on 8th april, 1996. the learned presiding officer held that the applicant could not make out a case of sufficient cause to entertain the application filed beyond 30 days and dismissed the application by the impugned order.3. rule 26(1) of the industrial disputes (bombay) rules, 1957 states that if without sufficient cause being shown, any party to a proceeding before the labour court fails to attend, it may proceed ex parte and sub-rule (2) thereunder reads as under:where any award, order or decision is made ex parte under sub-rule (1), the aggrieved party may within thirty days of the receipt of a copy thereof, make an application to the board, court, labour court, tribunal or an arbitrator, as the case may be to set aside such award, order of decision. if the board, labour court, tribunal or arbitrator is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter. providing that, no award, order or decision shall be set aside on any application as aforesaid notice thereof has been served on the opposite party.' 4. section 17 of the industrial disputes act, 1947 (for short 'the i.d. act') states that every award passed by the labour court shall be published within a period of 30 days from the date of its receipt by the appropriate government and subject to the provisions of section 17-a, the award that was published shall be final and shall not be called in question by any court in any manner whatsoever. as per section 17-a of the i.d act, an award passed by the labour court shall become enforceable on the expiry of 30 days from the date of its publication under section 17. as per section 20(3) of the i.d. act, proceedings before a labour court shall be deemed to have commenced on the date of the reference of the dispute for adjudication and such proceedings shall be deemed to have concluded.....

Full Judgment

B.H. Marlapalle, J.

1. The petitioner is aggrieved by the order dated 14th May, 1996 passed by the learned Presiding Officer of IInd Labour Court at Pune in Miscellaneous Application (IDA) No. 52 of 1995. The said application was submitted for setting aside the ex parte award dated 12th July, 1995 passed in Reference (IDA) No. 476/94 and it came to be dismissed by the Labour Court.

2. The petitioner is a proprietory concern and the respondent was its workman whose services were terminated purportedly on 25th February, 1994. Therefore, he had made a demand for reinstatement in service with backwages and consequential benefits. In spite of the service of notice in the same reference, the petitioner did not cause its appearance before the Labour Court and oppose the reference. The workman therefore filed an affidavit by way of his evidence and adopted the contentions raised in the statement of claim on the basis of which the learned Presiding Officer proceeded to pass the ex parte award directing reinstatement of the workman with full backwages from the date of termination. Though the application for restoration was filed on 20th November, 1995, an application for condonation of delay was filed for the first time on 8th April, 1996. The learned Presiding Officer held that the applicant could not make out a case of sufficient cause to entertain the application filed beyond 30 days and dismissed the application by the impugned order.

3. Rule 26(1) of the Industrial Disputes (Bombay) Rules, 1957 states that if without sufficient cause being shown, any party to a proceeding before the Labour Court fails to attend, it may proceed ex parte and Sub-rule (2) thereunder reads as under:

Where any award, order or decision is made ex parte under Sub-rule (1), the aggrieved party may within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or an Arbitrator, as the case may be to set aside such award, order of decision. If the Board, Labour Court, Tribunal or Arbitrator is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter. Providing that, no award, order or decision shall be set aside on any application as aforesaid notice thereof has been served on the opposite party.'

4. Section 17 of the Industrial Disputes Act, 1947 (for short 'the I.D. Act') states that every award passed by the Labour Court shall be published within a period of 30 days from the date of its receipt by the appropriate Government and subject to the provisions of Section 17-A, the award that was published shall be final and shall not be called in question by any Court in any manner whatsoever. As per Section 17-A of the I.D Act, an award passed by the labour court shall become enforceable on the expiry of 30 days from the date of its publication under Section 17. As per Section 20(3) of the I.D. Act, proceedings before a Labour Court shall be deemed to have commenced on the date of the reference of the dispute for adjudication and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 17-A.

5. The interpretations of Rule 26(2) of the Rules fell for considerations in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal reported in : (1981)ILLJ327SC and after considering the scheme of Sections 17, 17-A and 20 of the I.D. Act, their Lordships in paragraph 14 observed as under :

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.

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 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry 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 up to 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 17-A.

6. These observations imply that an application submitted under Rule 26(2) of the Rules beyond 30 days from the date of publication of award cannot be entertained as the Labour Court would become functus officio after expiry of the period of 30 days from the date of publication.

7. In the instant case, though the award passed ex parte was dated 1st July, 1995, it was published on 5th October, 1995 and the petitioner claims to have received copy of the same on 11-10-1995. The petitioner failed to apply to the Labour Court under Rule 26(2) of the Rules within a period of 30 days with reference to 5-10-1995 or 11th October, 1995. Under such circumstances, as per the law laid down in the case of Grindlays Bank Ltd. (supra), the Labour Court had become functus officio and it could not have entertained the application. The order passed by the Labour Court rejecting the application for restoration therefore cannot be termed as manifestly erroneous or patently illegal so as to call for interference under Article 227 of the Constitution.

8. In the result, this petition fails and the same is hereby dismissed. Rule discharged. No costs.

Same Court & Year Mumbai · 2005 Same Parties Kiran Machine Tools vs D.D. Hinge and anr. Same Subject Labour and Industrial Same Judge B.H. Marlapalle, J. Acts & Sections Industrial Disputes Act, 1947 - Sections 10, 17, 17A, 20 and ...

Labour and Industrial