Learned Tribunal relying upon the case of Sangham Tape Co v. Hans Raj, reported in
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3347 of 2016 (An application under Articles 226 and 227 of the Constitution of India) ***** Management of ExØcutive Engineer and others …… Petitioners -Versus- Braja Kishore Bhoi and others .…… Opp. Parties Advocates appeared: For Petitioner : Mr. Ajodhya Ranjan Dash, Additional Government Advocate For Opp. Parties : Mr. Bamadev Baral, Advocate CORAM :
Legal Reasoning
MR. JUSTICE K.R. MOHAPATRA MR. JUSTICE R.K. PATTANAIK ------------------------------------------
Decision
Heard & Disposed of on : 03.10.2023 ----------------------------------------- JUDGMENT This matter is taken up through hybrid mode. Petitioners-Management, in this writ petition, seeks to 1. 2. assail the Award dated 3rd January, 2014 (Annexure-5) passed by learned Presiding Officer, Industrial Tribunal, Bhubaneswar (for short, ‘Tribunal’) in I.D. Case No.31 of 2013. It also assails the order dated 11th August, 2015 (Annexure-7) passed by learned Tribunal in Restoration Misc. Case No.2 of 2015, whereby an W.P. (C) NO. 3347 of 2016 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 // 2 // application filed for setting aside the ex-parte award was dismissed. 3. Mr. Dash, learned AGA appearing for the Petitioners- Management submits that pursuant to an application filed under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short, ‘ID Act’) by the Opposite Parties-Workmen, ID Case No.31 of 2013 was initiated on the file of learned Tribunal. Although the Management, who was the 1st Party therein filed written statement, but could not contest the case by adducing evidence and taking part in the hearing. However, learned Tribunal without discussing the evidence on record, passed an award on 3rd January, 2014 (Annexure-5) directing to reinstate the Opposite Parties-Workmen in their respective posts forthwith without any back wages. Since the award was passed ex-parte, an application under Section 11 of the ID Act was filed to set aside the said ex-parte award in Restoration Misc. Case No.2 of 2015. Learned Tribunal relying upon the case of Sangham Tape Co. Vs. Hans Raj, reported in 2004 (103) FLR 699 held that after publication of the award in the official gazette, the Tribunal becomes functus officio to entertain any application including application to set aside an ex-parte award. 3.1 It is his submission that in view of the ratio decided in the case of Haryana Suraj Malting Ltd. Vs. Phool Chand, reported in (2018) 16 SCC 567, learned Tribunal has ample power to entertain an application to set aside an ex-parte award. It is further submitted that the impugned Award under Annexure-5 is cryptic one. Hence, W. P. (C) NO. 3347 OF 2016 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 // 3 // this writ petition has been filed to set aside the impugned order under Annexure-7 and to provide an opportunity to the Petitioners- Management to adduce evidence and contest the Industrial Dispute. 4. Mr. Baral, learned counsel for Opposite Parties submits that the Petitioners-Management filed their written statement in the Industrial Dispute. They had also participated in the proceeding throughout. Although they had ample opportunity to adduce evidence, but for the reasons best known, they didn’t. There is nothing on record to show that the Petitioners- Management were set ex-parte in the Industrial Dispute. Thus, learned Tribunal has committed no error in dismissing the petition filed under Section 11 of the ID Act refusing to set aside the award. He, therefore, submits that the writ petition being devoid of any merit should be dismissed. 5. Heard learned counsel for the parties and perused the case laws cited. 5.1 In Haryana Suraj Malting Ltd. (supra), Hon’ble Supreme Court held as follows:- “37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour W. P. (C) NO. 3347 OF 2016 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 // 4 // Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.” Since there were divergent views to entertain an application for setting aside an ex-parte award after thirty days of its pronouncement and publication in the official gazette, Haryana Suraj Malting Ltd. (supra) was referred to larger Bench to answer the following and it was answered as above: - “2. In view of the conflict between two decisions of this Court — Sangham Tape Co. v. Hans Raj [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331 : 2005 SCC (L&S) 65] and Radhakrishna Mani Tripathi v. L.H. Patel [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 : (2009) 1 SCC (L&S) 358] , by order dated 21-1-2011 in Haryana Suraj Malting Ltd. v. Phool Chand [Haryana Suraj Malting Ltd. v. Phool Chand, (2012) 8 SCC 579 : (2012) 2 SCC (L&S) 710] , a reference to a larger Bench was made in the following terms : (Phool Chand case [Haryana Suraj Malting Ltd. v. Phool Chand, (2012) 8 SCC 579 : (2012) 2 SCC (L&S) 710] , SCC pp. 579-80, paras 1-4) 1. Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases. 2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. v. Hans Raj [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331: 2005 SCC (L&S) 65] a two-Judge Bench held and observed that an application for recall of an ex parte award may be entertained by the Industrial Tribunal/Labour Court only in case it is filed before the expiry of 30 days from the W. P. (C) NO. 3347 OF 2016 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 // 5 // date of pronouncement/publication of the award. A contrary view was taken in Radhakrishna Mani Tripathi v. L.H. Patel [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 : (2009) 1 SCC (L&S) 358] to which one of us (Aftab Alam, J.) was a party. 3. In both cases, that is to say, Sangham Tape Co. [Sangham Tape Co. v. Hans Raj, (2005) 9 SCC 331 : 2005 SCC (L&S) 65] and Radhakrishna Mani Tripathi [Radhakrishna Mani Tripathi v. L.H. Patel, (2009) 2 SCC 81 : (2009) 1 SCC (L&S) 358] , the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 : 1981 SCC (L&S) 309] and Anil Sood v. Labour Court [Anil Sood v. Labour Court, (2001) 10 SCC 534 : (2009) 1 SCC (L&S) 494] but read and interpreted those two decisions completely differently. 4. The conflict which has arisen as a result of the two decisions can only be resolved by a larger Bench. Let these cases be, therefore, listed before a three-Judge Bench.” 6. Although the impugned award under Annexure-5 does not disclose that it was passed ex-parte, but it appears that Petitioners- Management did not adduce any evidence in the matter. In their absence, the impugned award was passed. While entertaining an application under Section 11 of the ID Act in RMC No.2 of 2015, learned Tribunal, in its order dated 11th August, 2015, did not also make any observation as to whether the impugned award was passed ex-parte or not. On the other hand, it proceeded with the matter as if an ex-parte award was passed. 7. Relying upon the ratio in Sangham Tape Co. (supra), learned Tribunal rejected the petition holding that it has no jurisdiction to entertain the application after thirty days of pronouncement of the award. In Haryana Suraj Malting Ltd. (supra), Hon’ble Supreme Court held that even after expiry of thirty days and publication of the award in the official gazette, an Industrial W. P. (C) NO. 3347 OF 2016 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Oct-2023 10:47:03 // 6 // Adjudicator has jurisdiction to entertain application to set aside an ex-parte award. It appears that the case law in Haryana Suraj Malting Ltd. (supra) came after the impugned order under Annexure-7 was passed. As such, learned Tribunal had no occasion to take the same into consideration. As such, the petition in RMC No.2 of 2015 requires fresh consideration in view of the ratio in Haryana Suraj Malting Ltd. (supra). 8. Accordingly, the impugned order under Annexure-7 is set aside and the matter is remitted to the Industrial Tribunal, Bhubaneswar for fresh adjudication of RMC No.2 of 2015 in accordance with law giving opportunity of hearing to the parties concerned. In order to avoid delay, the parties are directed to appear before learned Tribunal on 6th November, 2023 to receive further instruction in the matter. 9. The writ petition is allowed to the aforesaid extent. But in the circumstances, there shall be no order as to cost. 10. Interim order dated 15th March, 2016 passed in Misc. Case No.3155 of 2016 stands vacated. Urgent certified copy of this judgment be granted on proper application. ……………………… (K.R. Mohapatra) Judge ……………………… (R.K. Pattanaik) Judge s.s.satapathy W. P. (C) NO. 3347 OF 2016 Page 6 of 6