@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashThe President of Pallipatti Village Panchayat, Mettur Taluk, Salem District, has challenged the Award made by the Presiding Officer, Labour Court, Salem, fourth respondent, in I.D. No. 10 of 2006, dated 28.4.2006.
2. Short facts leading to the writ petition are as follows:
Pallipatti Panchayat has appointed one P.M. Ethiraj as temporary Tank Operator on January 1, 1992. On the date of his appointment, he has given his Date of Birth as July 1, 1947 and the same was entered in service records. He was paid a sum of Rs. 60/- per month as consolidated pay, which was periodically extended. On the date of his retirement, i.e., June 30, 2005, he was paid a sum of Rs. 600/- as consolidated pay. Aggrieved by the oral termination, dated October 21, 2005, he preferred I.D. No. 10 of 2006, before the Labour Court, Salem, for reinstatement with backwages and other attendant benefits. Unfortunately, the then President of the Panchayat did not follow the Court case, which resulted in an ex parte Award, dated April 28, 2006, directing reinstatement of late P.M. Ethiraj with continuity of service and backwages from July 1, 2005 with other attendant benefits. A cost of Rs. 250/- was also awarded. The said individual died on December 3, 2006. After his demise, legal heirs, respondents 1 to 3 herein, filed C.P. No. 48 of 2007, on the file of the Labour Court, praying for backwages from July 1, 2005 to November 30, 2006 and a sum of Rs. 1,50,000/- towards family insurance. Only on receipt of the said notice in the C.P., the petitioner came to know about the dismissal of the above I.D. Therefore, he filed a petition to set aside the ex parte award and an application u/s 34(2) of the Industrial Dispute Act, to condone the delay of 470 days in filing the petition to set aside the ex parte Award. The said delay excuse petition is dismissed on the ground that the Award has already been published u/s 17 of the Industrial Disputes Act and therefore, it becomes final. Being aggrieved by the same the petitioner has preferred the writ petition.
3. Taking this Court through the ex parte Award in I.D. No. 10 of 2006, dated April 28, 2006, Mr. K. Elango, learned Counsel for the petitioner submitted that the Presiding Officer, Labour Court, Salem, fourth respondent, without any discussion of the evidence produced by the deceased employee, ordered for reinstatement of the petitioner in service and backwages.
4. Placing reliance on the decision of the Madras High Court in
5. Learned Counsel for the petitioner further submitted that the second respondent has failed to consider that due to pressure of work, the petitioner''s predecessor did not prosecute the I.D., properly and immediately after the receipt of the notice in C.P. No. 48 of 2007, filed by the legal heirs, steps were taken to set aside the ex parte Award. Had the second respondent been given an opportunity to let in evidence, the Panchayat would have proved that the deceased-employee had attained the age of superannuation on June 30, 2005 itself and therefore, there was no illegality in relieving him of his duties from October 21, 2005. According to the counsel, no prejudice would be caused in setting aside the ex parte Award made in I.D. No. 10 of 2006 and that the second respondent has failed to consider that sufficient cause has been shown in the affidavit filed for excusing the delay.
6. Referring to Section 17-A of the Industrial Disputes Act, Mr. Nazarullah, learned Counsel for the respondents 1 to 3, submitted that the Award has become enforceable on the expiry of 30 days from the date of its publication, u/s 17 of the Industrial Disputes Act and once the award has become enforceable, then in terms of Section 17-A, the Labour Court or an Industrial Tribunal, has no jurisdiction to set aside the Award. He further submitted that upon expiry of 30 days, the Award has already been published and therefore, the dismissal of the application to condone the delay of 470 days, in filing to set aside the Award, cannot be said to be illegal. In this context, he relied on a decision of the Supreme Court in
7. Learned Counsel for the respondents 1 to 3 further submitted that the writ petitioner was set ex parte on March 28, 2006 and thereafter, the deceased employee was examined. In his deposition, the deceased-employee, had categorically deposed that he joined the Panchayat as temporary tank operator on January 1, 1992 and without issuing any charge memo or conducting any enquiry, he was terminated on October 21, 2005. Termination of the deceased employee was not disputed by the writ petitioner and therefore, there was sufficient evidence before the Labour Court for passing the Award. He further submitted that when the Award was passed on April 28, 2006, the petitioner has filed an application to condone the delay, after nearly 2 1/2 years and therefore, the second respondent has rightly found that the reasons adduced were not sufficient for condonation. For the above said reasons, he prayed for dismissal of the writ petition.
Heard the learned Counsel for the parties and perused the materials available on record.
8. Material on record shows that the writ petitioner was set ex parte on March 28, 2006. No steps were taken to set aside the ex parte'' order and thereafter, the deceased employee was examined as P. W. 1 and Exhibit P-1, Failure Report, was also marked. The evidence of the deceased employee that he was terminated orally on October 29, 2005 by the Management, without issuing any charge memo and conducting any enquiry, has not been disputed by the writ petitioner and therefore, the second respondent has allowed the claim on April 28, 2006 made by the deceased employee holding that the claim was proved by evidence. The award was published in the Notice Board on August 28, 2006.
9. Section 17 of the Industrial Disputes Act deals with the publication of reports and Awards and it reads as follows:
(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.
(2) Subject to the provisions of Section 17-A of the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.
10. As per Section 17-A, an Award (including an Arbitration Award) shall become enforceable on the expiry of thirty days from the date of its publication u/s 17 of the Industrial Disputes Act.
11. In Sangham Tape Company v. Hans Raj (supra), the respondent-workman, who was not provided with the duties, sought for reinstatement with full backwages and continuity of service. An ex parte award was passed. On the application moved by the appellant-Management, the ex parte award was set aside. Contending inter alia that the Labour Court has no jurisdiction to set aside the award, after the lapse of 30 days from the date of its publication, the respondent-employee filed a Writ Petition before the Punjab and Haryana High Court. The High Court set aside the order of the Labour Court. Being aggrieved by the same, the Management moved the Supreme Court. While adjudicating the correctness of the order of the High Court, in setting aside the order of the Labour Court, which set aside the ex parte award, after the lapse of 30 days from the date of publication of the award, the Supreme Court, after considering the provisions u/s 17-A of the Industrial Disputes Act and Rules 22 and 24 of the Industrial Disputes (Central) Rules, 1957, and the decisions in
10. In view of this Court''s decision in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the Gazette, the same having become enforceable, the Labour Court would become functus officio.
12. It is also useful to extract the law laid down in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra), as follows at p. 331:
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 use Sub-section (3) of Section 20 of the Act provided that the proceedings before the Tribunals would be deemed to continue till the date on which the award becomes enforceable u/s 17-A. u/s 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication u/s 17 The proceedings with regard to a reference u/s 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 u/s 17-A. 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 the respondent 3, acting on behalf of respondents 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.
13. In exercise of the powers conferred u/s 38 of the Industrial Disputes Act, 1947, the Central Government have framed Industrial Disputes (Central) Rules, 1957. Rule 10-B of the said Rules deals with proceedings before the Labour Court, Tribunal or National Tribunal. Sub-Rule 9 of Rule 10-B reads as follows:
(9) In case any party defaults or fails to appear at any stage the Labour Court, Tribunal or National Tribunal, as the case may be, may proceed with the reference ex parte, and decide the reference/application in the absence of the defaulting party.
Provided that the Labour Court, Tribunal or National Tribunal, as the case may be, may on the application of either party filed before the submission of the award revoke the order that the case shall proceed ex parte, if it is satisfied that the absence of the party was on justifiable grounds.
14. Rule 22 deals with the power of the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator to proceed ex parte and it is extracted hereunder:
If without sufficient cause being shown, any party to proceedings, before a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed as if the party had duly attended or had been represented.
15. Similar Rules have been framed by the State Government and Rule 34 of the Tamil Nadu Industrial Disputes Rules, 1958, deals with the proceedings before the Labour Court or Tribunal. Sub-Rules 10 and 11 of the said rule read as follows:
(10) In case, any party defaults or fails to appear at any stage, the Labour Court or Tribunal as the case may be, may proceed ex parte decide the reference application in the absence of the defaulting party.
(11) Notwithstanding anything contained in Sub-rule (10), the Labour Court or the Tribunal, as the case may be, may, before submitting the award to the State Government, revoke the ex parte proceedings on the application of the party made within 15 days of the ex parte proceedings if it is satisfied that the party has been prevented from attending the proceedings for valid reasons:
Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Labour Court or Tribunal, as the case may be, that he had sufficient cause for not preferring the application within the period.
16. Rule 48 of the Tamil Nadu Industrial Disputes Rules, 1958, deals with ex parte proceedings and the same is extracted hereunder:
(I) If, without showing sufficient cause 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 the Arbitrator may proceed as if the party had duly attended or had been represented.
(2) The Board, Court, Labour Court, or Tribunal or an 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 15 days of the ex parte decision:
Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Board, Court,'' Labour Court or Tribunal or Arbitrator, as the case may be, that he had sufficient cause for not preferring the application within that period.
(3) An application under Sub-rule (2) shall be supported by an affidavit.
17. Reading of the statutory provisions makes it clear that the Labour Court or Tribunal, may for sufficient cause, set aside, after notice to the opposite party, an ex parte decision, either wholly or in part, on an application made within 15 days of the ex parte decision. Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Labour Court or Tribunal, as the case may be, that he had sufficient cause for not preferring an application within that period.
18. As stated supra, the award was passed on April 28, 2006 and it was published in the Notice Board on August 28, 2006. After 470 days, an application has been taken out by the writ petitioner to condone the delay in seeking to set aside the ex parte award. In the light of the decision in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) case, the fourth respondent has held that as the grounds stated in Section 17-A are not applicable to the case of the writ petitioner and dismissed the condonation petition. Perusal of the order impugned in this Writ Petition shows that the Tribunal has also considered the application on merits and held that sufficient cause has not been shown for condonation.
19. In the light of the decision in Sangham Tape Company v. Hans Raj (supra), this Court is of the considered view that the order dismissing the condonation petition is in accordance with the legal principles and in conformity with the provisions of the Industrial Disputes Act and the Rules framed thereunder. Hence, I do not find any manifest illegality in the impugned order. The Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
