Tamil Nadu Khadi and Village Industries Board v. P. Subramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 27..08..2008C O R A MThe Honourable Mr. A.K. Ganguly, Chief JusticeandThe Honourable Mr. Justice F.M. Ibrahim KalifullaWrit Appeal No.913 of 2008The Management,Tamil Nadu Khadi and Village Industries Board,Rep. by its Chief Executive Officer,Kuralagam, Chennai-108. .. Appellant/Petitioner versus1.P. Subramaniam2.The Labour Court, Salem. .. Respondents/RespondentsPrayer : Writ Appeal under Clause 15 of the Letters Patentagainst the order of a learned single Judge of this Courtdated 21.1.2008 made in W.P. No.9626 of 2007. Writ Petitionfiled under Article 226 of Constitution of India, to issuea Writ of Certiorari to call for the records inI.D.No.56/2003 dated 16.12.2003 on the file of the 2ndrespondent and quash the same as illegal. For Appellant : Mr. S. PackiarajJ U D G M E N T( Delivered by The Honourable the Chief Justice )Heard the counsel for the appellant at the stage of admission ofthis writ appeal arising from a judgment and order dated 21.1.2008passed by a learned Judge of the writ court. By the said order, thelearned Judge dismissed the writ petition by a speaking order. 2. The facts of the case are that the Labour Judge, Salem, as thepresiding officer, passed an award on 16.12.2003 in a dispute betweenthe appellant and its workman which was referred to the Labour Court.While passing the award, the Presiding Officer, Labour Court, Salemhas recorded that despite repeated summons being issued to the https://hcservices.ecourts.gov.in/hcservices/ respondent before the Labour Court, the appellant before us, theManagement never chose to appear before the Labour Court. Thereupon,paper publication was ordered. Even then, the Management did notappear and as such, the award was passed ex parte. After the awardwas passed ex parte, a petition was filed before the Labour Court bythe Management for setting aside the award. The award is dated16.12.2003 and the petition which was affirmed and filed before theLabour Court appears to have been filed on 5.7.2004, without anyapplication for condonation of delay. Thereafter, an application ofcondonation of delay was filed in November, 2004. In the applicationwhich was filed for setting aside the ex parte award, there is noexplanation why the Management did not appear in the proceedingsdespite service of summons. It has also not been explained when theaward was received by the Management. 3. It is well known that under Section 17-A of the IndustrialDisputes Act, 1947, an award is to be published within 30 days fromthe date of its receipt by the appropriate Government and an awardbecomes enforceable on the expiry of 30 days from the date of itspublication under Section 17, this is provided under Section 17-A ofthe Act. Under Section 17(2), it is provided that subject to theprovision of Section 17-A, an award published under sub-section (1)shall be final and shall not be called in question by any Court inany manner whatsoever. Therefore, in the context of this provision,it is very important for the appellant to disclose when he receivethe award after it was published. Without disclosing these facts,the application was made for setting aside the ex parte award beforethe Labour Court. 4. It is well settled that the Labour Court becomes functusofficio after 30 days from the date of publication of the award.Reference in this connection can be made to the decision of theSupreme Court in Sangham Tape Co. vs. Hans Raj reported in (2005) 9S.C.C. 331. Paragraphs 8 and 10 of the said judgment, which arerelevant in this context, are set out below :-"8. The said decision is, therefore, an authority forthe proposition that while an Industrial Court will havejurisdiction to set aside an ex parte award, but havingregard to the provision contained in Section 17-A of theAct, an application therefor must be filed before theexpiry of 30 days from the publication thereof. Till thenthe Tribunal retains jurisdiction over the dispute referredto it for adjudication, and only up to that date, it hasthe power to entertain an application in connection withsuch dispute....10. In view of this Court’s decision in Grindlays Bank2 https://hcservices.ecourts.gov.in/hcservices/ such jurisdiction could be exercised by the Labour Courtwithin a limited time frame, namely, within thirty daysfrom the date of publication of the award. Once an awardbecomes enforceable in terms of Section 17-A of the Act,the Labour Court or the Tribunal, as the case may be, doesnot retain any jurisdiction in relation to setting aside ofan award passed by it. In other words, upon the expiry of30 days from the date of publication of the award in thegazette, the same having become enforceable, the LabourCourt would become functus officio."In the application which has been filed subsequently for condonationof delay also, no explanation is offered for condoning the delay of147 days in filing the application to set aside the ex parte award.Considering all these facts, the Labour Court, by an order dated1.11.2006 dismissed the application filed by the appellant to setaside the ex parte award. In paragraph 7 of the order, the LabourCourt has recorded that the ex parte award was sent to the appellantby R.P.A.D. dated 25.5.2004 and the same was acknowledged by theappellant under Exs.R.1 to R.3. On 24.3.2004, the Labour andEmployment Department directed the Labour Officer to display theaward passed by the Labour Court in the Notice Board. On thosefacts, the Labour Court came to the conclusion that the appellantfailed to file its application to set aside the ex parte award within30 days from the date of publication of the award by the Labour andEmployment Department. Therefore, the Labour Court held that thesaid petition is not maintainable in view of the decision in SanghamTape Co. (supra).5. We are of the view that the learned Judge of the Labour Court,while dismissing the application filed by the appellant for settingaside the ex parte award, has proceeded on a correct legal positionand the learned Judge of the writ court rightly refused to interferewith the same. We do not find any reason to take a different view.The order of the Labour Court refusing to set aside the ex parteaward is affirmed and the order of the learned Judge of the writcourt is confirmed. The writ appeal is accordingly dismissed. Nocosts. Consequently, M.P. No.1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarab https://hcservices.ecourts.gov.in/hcservices/ ToThe Labour Court, Salem.1 CC To Mr.S. Packiaraj, Advocate, SR NO.48121 Writ Appeal No.913 of 2008vm(co)pmk/6.9.2008.