Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 27.09.2007 CoramThe Honourable Mr. Justice M. CHOCKALINGAMW.P. No.10882 of 2007andW.P.M.P. No.12343 of 2006 andW.V.M.P. No.37 of 2007 The ManagementSalem District Public Servants Co-operativeThrift and Credit Society Limited... Petitioner..vs..

The Presiding Officer, Labour Court, Salem.

C. Raja... RespondentsPetition under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus, to call for therecords in I.D. No.110 of 1999 on the file of the first respondentherein to quash the award dated 9.5.2002 passed therein to direct thefirst respondent to restore I.D. No.110 of 1999 and dispose of the samein accordance with law. For Petitioner : Mr. M.R. RaghavanFor Respondents : Mr. N.G.R. Prasad for M/s. Row and ReddyO R D E RThe petitioner-Management challenges the award dated 9.5.2002passed by the first respondent-Labour Court in I.D. No.110 of 1999.2. Affidavit filed in support of the writ petition is perused. https://hcservices.ecourts.gov.in/hcservices/ The Court heard the learned counsel appearing on either side.

Concedely, pursuant to the order of termination of thesecond respondent, who was functioning as Secretary in the petitioner-Society following a domestic enquiry on the charges of certain mis-conduct including that of misappropriation, at the instance of thesecond respondent, I.D. No.110 of 1999 was taken on file by the firstrespondent-Labour Court. After entering appearance, the writpetitioner-Management filed its counter and the matter was posted forenquiry. On the date scheduled for enquiry, the Management did notappear. Hence, an ex parte award came to be passed on 9.5.2002.

An application was filed to set aside the ex parte awardalong with an application to condone the delay, which occasioned inmaking such application. The application for condoning the delay wasallowed . But, when the application to set aside the ex parte award wasfiled, the Labour Court took the view that after the award was passed, the Labour Court becomes functus officio and therefore, it could notentertain the said application and dismissed the same. The aggrievedManagement filed W.P. No.10884 of 2006 and the instant writ petitionviz. W.P. No.10882 of 2006.

On an earlier occasion, W.P. No.10884 of 2006 was taken upfor consideration by this Court and this Court, affirmed the order ofthe Labour Court, observing that the Labour Court has become functusofficio and hence the order of the Labour Court, rejecting the requestof the petitioner-Management to set aside the ex parte award wasperfectly correct. Now the instant writ petition was taken up forenquiry.

Advancing arguments on behalf of the petitioner, learnedcounsel would submit that a reading of the award under challenge wouldclearly reveal that it is an ex parte award. The only witness who wasexamined before the Labour Court on that day was P.W.1, the secondrespondent herein and thus opportunity was not available for thepetitioner-Management to put forth his case. Nowhere the Labour Courtrefers to the order of termination, which was challenged before that Court. A reading of the entire order would reveal that the contentionsput forth by the petitioner-s side were not considered to arrive at adecision. Once the Labour Court has not passed the order on merits, itis a fit case where an opportunity should be given to the Management toput forth its case. For that purpose, an ex parte award has got to beset aside.

Learned counsel would further add that after the ex parteaward was passed, an application to set aside the ex parte award wasfiled before the Labour Court along with an application to condone thedelay in filing an application to set aside the ex parte award. Aftercondoning the delay, the Labour Court took the view that an application https://hcservices.ecourts.gov.in/hcservices/ to set aside the ex parte award could not be entertained since itbecomes functus officio. The delay is neither wanton nor inordinate. Since there is no laches on the part of the Management, the applicationto set aside the ex parte award has got to be ordered.

Countering the above contention, learned counsel for thesecond respondent would submit that an order of termination was passedin the year 1998 and the same was taken up before the Labour Court asI.D. No.110 of 1999. The matter was pending for few years. For fewoccasions, the matter was adjourned, but the Management did not appear. Under the circumstances, an award came to be passed on 9.5.2002 by thefirst respondent-Labour Court. A reading of the award would clearlyindicate that all the materials available were taken into consideration; that there was no sufficient opportunity given to the second respondentat the time of enquiry and that no subsistence allowance was paid duringthe suspension period. After the award was passed on 9.5.2002, delayhas been caused for about four or five years to file this writ petitionbefore this Court. When all lacunas or lapses are noticed on the sideof the Management, there is no question of ordering the writ petitionwould arise.

Learned counsel added further that even if it is an exparte award, as contended by the petitioner-Management, the Managementhas to show as to how it suffers either factual or legal. In theabsence of the same, the ex parte award passed by the Labour Court hasgot to be sustained and the writ petition has got to be dismissed.

This Court paid its anxious consideration on thesubmissions made by either side. It is not in controversy that pursuantto the order of termination of the second respondent, who was working as Secretary in the petitioner-Society, he took it before the Labour Courtand the same was taken on file as I.D. No.110 of 1999. It is not incontroversy that the Management appeared before the said Court and filedits counter. Thereafter, though few adjournments were given, thepetitioner-Management did not appear. Hence, an award came to be passedfinally on 9.5.2002. As against the same, the petitioner filed two writpetitions viz. W.P. Nos.10882 and 10884 of 2006 before this Court. W.P.No.10884 of 2006 was dismissed by this Court. The instant writ petitionviz. W.P. No.10882 of 2006 was taken up for enquiry by this Court.

In the instant case, the second respondent, who wasworking as Secretary in the petitioner-Management, was served with anorder of termination. Pursuant to the same, the second respondent filedan industrial dispute and the same was taken on file by the Labour Courtas I.D. No.110 of 1999. When it was taken up for enquiry, thepetitioner-Management did not appear. Under the circumstances, an exparte award came to be passed on 9.5.2002 i.e. after a period of threeyears. https://hcservices.ecourts.gov.in/hcservices/

It is to be made clear at this juncture that merelybecause it happened to be an ex parte award, it cannot be set aside. The Court has to look into the facts and circumstances of the case whenthe award came to be passed, whether it happens to be an ex parte awardor any reasons have been mentioned for passing the award. A perusal ofthe award in question would clearly reveal that it has not only reliedon the evidence of P.W.1 but also pointed out that from the time ofissuance of show-cause notice till the enquiry, subsistence allowancewas never paid and sufficient opportunity was not given, which, in theopinion of the Court, is sufficient to quash the charge levelled againstthe second respondent.

The contention put forth by the learned counsel for thepetitioner that it is an ex parte award and hence it has got to be setaside and an opportunity to be given to the petitioner-Management to putforth its defence cannot be accepted for the simple reason that onceall the materials, which were available before the Labour Court at thetime of passing of award, had been gone into, no question of settingaside the award would arise, unless the petitioner-Management is able toshow that it suffers either factual or legal. After the terminationorder passed on 27.10.1998, the second respondent filed I.D. No.110 of1999, pursuant to which an award came to be passed on 9.5.2002, but thewrit petition was filed only in the year 2006. All would indicate thelaches on the part of the petitioner-Management.

Once award was passed though ex parte on 9.5.2002, makingan application to set aside the same was filed in the year 2006 i.e.after a period of four years, which, in the opinion of the Court, couldnot be condoned. It would quite indicate the fact of laches on the partof the petitioner-Management. It is well settled principle of law thatin the writ jurisdiction, when the Court noticed laches, it would besufficient to reject the writ petition.

Under these circumstances, the writ petition fails and thesame is dismissed. Consequently, the connected W.P.M.P. And W.V.M.P.are also dismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. ToThe Presiding Officer, Labour Court, Salem.+1cc to Mr.Row & Reddy, Advocate Sr 60381SSK (CO)km/10.10.W.P. No.10882 of 2006 andconnected W.P.M.P.& W.V.M.P.