Judgment:
Rajiv Sharma, J.
1. A challenge has been laid by the petitioner to the award made by the Presiding Judge, Labour Court, Shimla in Reference No. 135/2004 dated May 22, 2007 read with order dated October 1, 2007.
2. The brief facts necessary for the adjudication of this petition which emerge from the pleadings of the parties are that the petitioner (hereinafter referred to as 'the workman') had approached the appropriate authority under the Industrial Disputes Act, 1947 for the redressal of his grievances. The State Government has made reference to the Labour Court, as a sequel to the reference made to the Labour Court the workman has filed statement of claim. The respondent (hereinafter referred to as 'the employer') filed a detailed reply to the statement of claim. The workman had also filed detailed rejoinder to the reply filed by the employer. The Labour Court on May 22, 2007 has passed the following award:
Today the case is fixed for the petitioner evidence but neither the petitioner nor his counsel is present. As per record, the issues were framed on January 10, 2006 and the case was listed for petitioner evidence on June 16, 2006, January 16, 2007 and May 22, 2007. Onus to prove issue No. 1 and 2 was on the petitioner and he has failed to prove that his services sere illegally terminated by the respondent without complying with the provisions of Industrial Disputes Act, 1947. As the petitioner has failed to appear before this Court to prove his case. Hence, both the issues are decided against the petitioner.
In view of my findings on issue No. 1 and 2, the present reference is replied against the petitioner. Let a copy of this order be sent to the appropriate Government for publication in the official gazette.
3. The workman feeling aggrieved by the award dated May 22, 2007 preferred an application under Order 9 Rule 9 of the Code of Civil Procedure for setting aside the award dated May 22, 2007. The same was rejected by the learned Presiding Judge on October 1, 2007.
4. Mr. Bimal Gupta has strenuously argued that the Award made by the learned Presiding Judge, Labour Court and order dated October 1, 2007 are not sustainable in the eyes of law. He further argued that it was incumbent upon the Presiding Judge, Labour Court to go into the merits of the case on the basis of the existing evidence led by the parties.
5. Ms. Ritta Goswami has supported the Award made on May 22, 2007 and subsequent order dated October 1, 2007.
6. We have heard learned Counsel for the parties carefully. What emerges from the facts enumerated hereinabove is that the reference was made by the State Government to the Labour Court. The Labour Court framed issues. The workman had primarily contended through the statement of claim that there was a violation of Section 25-F of the Industrial Disputes Act, 1947 by the employer at the time he was retrenched. In the reply filed by the employer it is specifically admitted that the workman has completed 240 days upto 1994 and thereafter he worked for more than 1 1/2 years. The plea of abandonment was also taken by the employer.
7. A detailed rejoinder to the reply was filed by the workman reiterating the stand taken in the statement of claim.
8. It is evident from the contents of the award dated May 22, 2007 that the Labour Court had also framed issues. We are of the considered opinion that even though the workman was not present on May 22, 2007 may be for the reasons assigned in the application under Order 9 Rule 9 of the Code of Civil Procedure, it was necessary for the Labour Court to decide the matter on its merits. The Labour Court had not undertaken this exercise at all. Thus, the award dated May 22, 2007 cannot be considered as an award on merits. The underline principle of the Industrial Disputes Act, 1947 is to maintain the industrial peace. If neither the workman had appeared nor his counsel for the reasons shown in the application under Order 9 Rule 9 of the Code of Civil Procedure, the Labour Court should have adjourned the case instead of passing the non-speaking Award. Therefore, the award dated May 22, 2007 is a nullity in the eyes of law. If the award dated May 22, 2007 is nullity the order passed on October 1, 2007 is bound to meet the same fate. This is a case where the Presiding Judge, Labour Court has failed to exercise jurisdiction vested in him. He had answered the Reference against the workman only on the ground that the workman had to prove Issues No. 1 and 2 and he was not present on the date of hearing to prove these Issues. The Presiding Judge, Labour Court, as noticed above, was bound to decide the lis between the parties on its merits.
9. A Division Bench of Mysore High Court in Management of the Pandavapura Sahakara Sakkare Karkhane Ltd. v. State of Mysore and Ors. (1969) LIC 729, has held that even if the workman is proceeded ex parte, the Tribunal was not absolved of its duty to make its determination. Their Lordships of Mysore High Court have held as under:
When the workmen of the sugar factory were placed ex parte on August 8, 1967, the Tribunal as not absolved of its duty to make its determination on the industrial dispute which it was called upon to decide. It made no such determination. The determination, of which Section 2(b) of the Act speaks, is not a termination of the proceedings before the Tribunal by some method or other. There is a determination within the meaning of that definition only when there is an adjudication on the merits, and there was none in the present case. Rule 10-B of the Rules made under Section 38 of the Act prescribes the procedure to be adopted by the Tribunal when a reference is made to it and the scheme of that rules makes it clear that the Tribunal must make a pronouncement on the validity of the claim made by one party and repudiated by the other. Although Rule 23 empowers the Tribunal and the other authorities enumerated therein, to proceed ex parte when one of the parties to the proceedings before it fails to appear, the scheme of the Act and the Rules makes it obvious even though a part is placed ex parte, the Tribunal must pronounce on the dispute and record its findings with respect to that matter. But the tribal made no such pronouncement in the first reference. All that it did was to say that since the workmen had exhibited the utmost indifference to the proceedings although it was their duty to substantiate the claims made by them, there was nothing that could be done by the Tribunal in the proceedings before it. We do not accede to the argument made by Mr. Tilak Hegde that the Tribunal negatived the demands sponsored on behalf of the workmen. It is plain that there was no application of the Tribunal's mind to the sustainability of these demands. On the contrary, the Tribunal thought that it was not necessary for it to proceed further with the matter and to investigate on the validity of the claims. That is the clear inference to be drawn from the concluding part of the order made by the Tribunal which reads:
I, therefore, find that the first party has failed to substantiate the reference. For the above said reasons the reference fails and the same is rejected.
The Tribunal, it is clear, did not have the power to reject the reference. Its observation that the workmen had to 'substantiate the reference' does not mean that the workmen had failed to substantiate their demands.
10. Similarly, the learned single Judge of Kerala High Court in F.A.C.T. Employees' Association, Cochin v. F.A.C.T. Limited and Ors. : (1977)ILLJ182Ker has gone into the entire gamut of expression 'ex parte.' The learned single Judge has considered when the adjudication proceed? I when it concludes. The learned single Judge has held as under at p. 185 of LLJ:
7. A reference made to a Tribunal by the Government under Section 10 confers upon the Tribunal jurisdiction to adjudicate on the issues referred. Section 20(3) of the says that the proceedings before a Tribunal commence on the date of the reference of the dispute and end on the date on which the award becomes enforceable under Section 17-A. A reference under Section 10 thus sets in motion adjudication proceedings and they cannot stop except by the passing of an award. A reference once made cannot be cancelled or withdrawn by the Government: State of Bihar v. Ganguli : (1958)IILLJ634SC . The Tribunal cannot refuse to adjudicate on the dispute and it cannot dismiss the dispute for non-prosecution. It has of necessity to make an award and forward the same to the Government. An award once published, and after 30 days have expired from the date of its publication, is final and enforceable; and it shall not be called in question by any Court in any manner whatsoever (Section 17 read with 17-A). Consequently Exhibit P-1 award is beyond challenge except in proceedings before this Court under Articles 226 and 227, or in appeal before the Supreme Court. It may be mentioned at this stage that the petitioner in O.P. No. 5321/1975 did attempt to challenge the award before the Supreme Court by seeking special leave under Article 136 of the Constitution, albeit without success. This is an aspect of the latter which has to be borne in mind, but it does not as such affect the jurisdiction of this Court under Articles 226 and 227 Haridas Malakar and Ors. v. Jay Engineering Works : (1975)IILLJ26Cal ; Board of Trustees of the Cochin Port Trust v. Workmen of the Cochin Port Trust and Anr. : (1973)ILLJ199Ker ; L.S. Emmatty v. C. Venkitaswami : AIR1959Ker291 ; and Management of Western India Match Co. Ltd. Madras (WIMCO) v. Industrial Tribunal Madras, and Anr. : (1958)IILLJ315Mad . Exhibit R-2 is the order sheet of the Tribunal. It is a long chronicle of adjournments caused by the absence of the unions. It shows that the management was represented by counsel on July 6, 1972 when the case stood posted. But the unions were absent, although notices had been issued to them on June 20, 1972. The case was, therefore, adjourned to July 20, 1972, after issuing registered notices to the unions. On July 20, 1972 there was no sitting and the case was consequently adjourned to August 19, 1972. On that day the unions, despite the registered notices, were absent and were, therefore, declared ex parte. The Tribunal issued disposal notices to the unions and the case was posted to September 6, 1972. The case was then successively adjourned to various dates, on none of which was the petitioner present. Ultimately the management filed its affidavit on May 8, 1975. The case was then adjourned to June 11, 1975 for hearing. Even on that date the unions were absent and the case was again posted to June 23, 1975 for award. On that day the Tribunal, instead of passing an award, adjourned the case to July 9, 1975 after declaring the unions ex parte once again and after again issuing notices of disposal by registered post. These notices were duly acknowledged, but none of the unions was present on July 9, 1975. The unions being absent on that day also, the petitioner union and unions 1 and 4 to 7 were again declared ex parte. Unions 2 and 8 were declared ex parte on July 22,1975. The case was at long last posted for hearing to July 26, 1975. The management was heard on that day and the case was posted for award. As stated earlier, the award was made, was sent to the Government, was published, and became enforceable in terms of Section 17-A. The long list of postings in Exhibit R-2 indicates that the petitioner had persistently and deliberately kept away from the proceedings of the Tribunal. Not even once did the petitioner appear before the Tribunal. Not even once did the petitioner file an application before the Tribunal to be allowed to adduce evidence and argue its case. It is contended by counsel for the petitioner that the Tribunal acted without or in excess of jurisdiction in making an ex parte award. The meaning of the expression 'ex parte' has been considered by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 . Referring to a judgment of Wallace, J. in A.I.R. 1925 Mad 1274, the Supreme Court stated that 'ex parte' only means in the absence of the other party. The Court was considering the scope of Order 9 of the C.P.C. and the relevant rules under that order. This is what the Court says:
Of course the fact that it is proceeding 'ex parte' will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an 'ex parte' decree or other 'ex parte' order which the Court is authorized to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties.
The declaration of ex parte made by the Tribunal on August 9,1972, June 23, 1975 and July 9, 1975 are thus mere adjournments of the case to be heard in the absence of the petitioner, and not orders or decisions. The Tribunal is, however, clothed with the necessary powers to decide a case ex parte, if any of the parties is absent without sufficient cause. Section 11 says:
(1) Subject to any rules that may be made in this behalf, an Arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the Arbitrator or other authority concerned may think fit. '(italics supplied)' Sub-section (3) of this Section says that the Tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely: '(a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for examination of witnesses; (d) in respect of such other matters as may he prescribed.' (italics supplied). The Section thus confers upon the Tribunal sufficient authority to regulate its proceedings as it may think fit, subject to the rules made in this behalf. In such matters, the Tribunal has the powers of a civil Court, including its inherent powers, in so far as they are applicable and not inconsistent with the Act or the Rules. See the decision of this Court in O.P. No. 4024/1975. See also Dhenkanal Municipality v. Industrial Tribunal 1974-I-LLJ-44 at 49 (Orissa). Rules 22 and 23 which are made in this behalf may now be read:
Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex parte: It without good cause shown, any party to proceedings, before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed as if he had duly attended or had been represented.
Setting aside ex parte decision: (I) The Board, Court, Labour Court, Tribunal or Arbitrator or Arbitrator may for sufficient cause set aside after notice to the opposite party the ex parte decision either wholly or in part on an application made within fifteen days of the ex parte decision. The Board, Court, Labour Court, Tribunal or Arbitrator may extend the time on sufficient cause being shown.
Rule 22, as the heading (see Craies on Statute Law, 7th Edn., P. 207, on 'heading' as a guide to interpretation), indicates, empowers the Tribunal to proceed ex parte If a party, without good cause, fails to attend the proceedings. The absence of such a party shall not hinder or affect the progress of the proceedings. Rule 23, as the heading again indicates, enables the Tribunal to set aside an ex parte decision if sufficient cause is shown by the party for its absence. A decision includes an award which, as defined under Section 2(b), 'means an interim or a final determination of any industrial dispute or of any question relating thereto.' If power to proceed ex parte, i.e., in the absence of a party, as if the party was present, was not specifically conferred by Rule 22, the Tribunal would be incompetent to make an award on merits without hearing all the parties. Rule 22 not only authorises the parties to proceed in the absence of party, but it also creates a fiction which enables the Tribunal to presume that all the parties are present before it, although in fact it is not true, and thus make an ex parte award. Rule 22 is a deeming provision which enables the Tribunal to imagine a state of affairs which is untrue. Referring to the object of a deeming provision, Viscount Dunedin in Commissioner of Income tax, Bombay v. Bombay Trust Corporation Ltd. . See also Queen v. County Council of Norfolk (1891) 60 L.J. Q.B.D. 379, 380 states:
Now when a person is deemed to be something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.
In State of Bombay v. Panduranga Vinayak : 1953CriLJ1049 , this is what the Supreme Court says:
When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
The Court then refers the well-known passes of Lord Asquith in East End Dwellings Co. Ltd. v Finsbury Borough Council (1952) AC 109 at 132-133 (B) which reads:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
The Tribunal may imagine that the absentee is present and having done so, it may give full effect to its imagination and carry it to its logical conclusion. The Tribunal has to bear in mind the purposes for which the fiction is created and has to give effect to them. Obviously the intention of Rule 22 is to enable the Tribunal to imagine that a person is present, although he is in fact absent; and to further imagine that, although present, he is unwilling to adduce evidence or argue his case. The Tribunal then has of necessity to pass an award on the basis of the evidence placed before it by the party that in fact participated in the proceedings. This is the object of the fiction expressed by the words 'as if he had duly attended.'
In the present case the Tribunal had no alternative but to pass an award on the basis of the evidence and arguments of the management. Of course, this does not mean that the Tribunal could have shut its eyes to be intrinsic character of such evidence and blindly put its imprimature to it. It had to apply its mind like any other judicial officer who examines evidence and hears arguments before forming conclusions. The Tribunal had to focus its judicial mind on the merits of the points in dispute, impartially, dispassionately and objectively.
In Dawood Khan v. Labour Court, Hyderabad : (1969)IILLJ611AP , the Andhra Pradesh High Court had occasion to consider this aspect of the question. This is what the Court says at p. 612:
The absence of a party does not entail the consequence that an award will straightaway be made against him. It is still the duty of the presiding officer of the Labour Court to go into the merits of the: dispute and give such findings as he can on the material placed before him.
In Har Prasad Engineering Workshop v. State of U.P. : (1964)ILLJ607All , the Allahabad High Court says at p. 608:
In my opinion, this rule merely permits the Labour Court to proceed ex parte against party who fails to file a written statement, but it does not empower it to decide the matter without going into the merits of the case.
A rule which is similar, though not identical, to Rule 22 was considered by the Supreme Court in Agra Electric Supply Co. v. Labour Court, Meerut : (1970)ILLJ1SC Referring to Rule 16(1) of the Uttar Pradesh Industrial Disputes Rules, the Court says at p. 5
That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein 'to proceed with the case in his absence,' either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction 'and pass such order as it may deem fit and proper,' clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default.
11. Now the Court has to consider whether the Labour Court had become functus-officio after the award was passed or not. This question is no more res-integra in view of law laid down in Anil Sood v. Presiding Officer, Labour Court II : (2001)ILLJ1113SC . Their Lordships have held as under at p. 1114 of LLJ:
4. Learned Counsel for the respondents submitted that in fact a finding had been recorded by the Labour Court in the award that the appellant had been served with notice and in spite of which he did not appear. Therefore in the proceedings he had been set ex parte. He submitted that material is sufficient to hold that there was service of notice upon the appellant and hence there is no cause for the appellant to come before this Court against rejection of the application made by the Labour Court which has been affirmed by the High Court in the writ proceedings. This Court in Grindlays Bank Ltd. case examined the scheme of the provisions under the Industrial Disputes Act and enunciated that Section 11 of the Industrial Disputes Act conferred ample powers upon the Tribunal to devise its own procedure in the interest of justice which includes powers which bring out the adjudication of an existing industrial dispute. Sub-section (1) and (3) of Section 11 of the Act thereby indicate the difference between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the extent of powers of the civil Court are clearly set out. The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the Tribunal or Court they have to be decided objectively and the Tribunals/Courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice. 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. If this be the position in law, both the High Court and the Tribunal (sic Labour Court) fell into an error in stating that the Labour Court had become functus officio after making the award though ex parte. We set aside the order made and the award passed by the Labour Court and affirmed by the High Court in this regard, in view of the fact that the learned Counsel for the respondent conceded that application filed by the appellant be allowed, set aside the ex parte award and restore the reference. To decide the matter afresh, the parties shall appear before the Labour Court on December 11, 2000 to take further directions as regards the proceedings. As the matter is very old, it would be appropriate for the Labour Court to dispose or this reference as expeditiously as possible but not later than six months from today.
12. It is thus held that the application filed by the petitioner under Order 9 Rule 9 of the Code of Civil Procedure was also maintainable before the Labour Court and the findings accorded by the Labour Court that since it has answered the Reference on its merits, the application was not maintainable, are erroneous.
13. Consequently, the writ petition is allowed and award dated May 22, 2007 alongwith order dated October 1, 2007 are quasned and set aside. Now, the learned Presiding Judge, Labour Court, Shimla is directed to hear the reference afresh on its merits and to conclude the same within a period of three months from today. The parties are directed to appear before the Labour Court on June 16, 2008.
With these observations, this writ petition is disposed of. There shall be no order as to costs.