Following decisions of the Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10632 of 2022 (Through Hybrid mode) The Management of M/s. Steel Authority of India Limited, Rourkela …. Petitioner Mr. Durga Prasad Nanda, Advocate Mr. Bibhu Prasad Panda, Advocate -versus- Presiding Officer, Industrial Tribunal, Rourkela and another …. Opposite Parties
Legal Reasoning
Mr. A. K. Sharma, Advocate (Addl. Government Advocate) CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 08.12.2023 Order No. 08 1. Petitioner is the management. Prayer made in the writ petition is for quashing order dated 27th January, 2022 made by the Industrial Tribunal. 2. Mr. Panda, learned advocate appears on behalf of petitioner (management) and submits, the workman was dismissed. His client applied Page 1 of 6 // 2 // for approval under section 33(2)(b) in Industrial Disputes Act, 1947. During pendency the workman died. In the tribunal the widow and a son had appeared. There was direction for filing death and legal heir certificates. It was not done. 3. In this Court also the widow and sons were added as parties and consolidated writ petition filed. Postal articles addressed to the widow and sons were returned un-served. He submits, it is clear that the legal representatives of the deceased workman have chosen to stay away, both from the tribunal as well as this Court. 4. He files memo of date disclosing provident fund nomination form, where the nominees are the three sons of the deceased (workman). He submits, the postal articles were all addressed per address given in the nomination form. They have all been returned un-served with endorsement ‘no such person at the address’. 5. Following decisions of the Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in (2007) 6 SCC 555, paragraph 14, State of M.P. v. Hiralal, reported in (1996) 7 SCC 523, paragraph 1 and M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630, paragraph 6, we accept the position to be of good service on the legal Page 2 of 6 // 3 // representatives of the deceased workman. Mr. Sharma, learned advocate, Additional Government Advocate appears for opposite party no.1. 6. Mr. Panda points out from order-sheet in the tribunal, on 5th November, 2013 the son was present and filed a petition praying for time on ground that his father had died. There was direction upon him for filing death and legal heir certificates, if any. Several attempts were thereafter made to serve the widow because none of the sons had appeared on subsequent dates. On 21st January, 2015 postal articles were returned to the tribunal with endorsement ‘addressee not available’. On 2nd February, 2015 there was again direction for issuance of notice by registered post with A.D. at cost of the management. We reproduce below order no.52 dated 3rd July, 2015 of the tribunal. “The applicant management is present. Perused the record. It is found that the notice issued to the workman by R.P. with A.D. Though S.R. has not returned from the workman but it will be presumed that the notice has been served on him as more than one month has been elapsed from the date of dispatch of notice. So service of notice on the workman is held to be sufficient. Put up on 14.07.2015 for filing counter by the O/.P. workman.” Page 3 of 6 // 4 // The case before the tribunal remained pending and on 10th August, 2017 the widow appeared. Reproduced below are order nos.68 and 69 respectively dated 10th August, 2017 and 11th September, 2017. “68. None appears from the side of the management. As per notice issued, the wife of deceased workman is present and filed petition for time and petition for engagement of advocate. The same is kept in the record. P.O. is in her head quarter at Bhubaneswar. Put up on 11.09.2017 for filing of counter by the workman and for further order. 69. Parties are absent and have taken no steps. P.O. is in her head quarter at Bhubaneswar. Put up on 27.10.2017 for filing of counter by the workman and for further order before the P.O. The wife of the deceased workman is present and filed a petition for time to file counter, she is informed about the date fixed.” 7. Subsequently, on 10th February, 2020 the case against legal representatives of the deceased workman was set ex-parte. Reproduced below is order no.102 dated 10th February, 2020. “The representative of the applicant management is present. None appears for the OP. Workman on call stand has taken no steps. Earlier the notice was sent the workman by R.P. Page 4 of 6 // 5 // with A/D. Thereafter the son of the workman appeared and filed a petition stated that the workman is dead and the case was posted to file legal heir certificate. Again the son of the deceased workman remained absent on several dates. Thereafter notice was issued to the wife of the deceased workman and her son to attend the court. Thereafter the wife of the deceased workman and son did not appear on several date. Hence, the wife of the deceased workman is set ex-parte. Put up on 19.02.2020 for ex-parte hearing.” 8. We find from impugned order dated 27th January, 2022 the tribunal refused to grant the approval on reason given in paragraph 9 therein. The paragraph is reproduced below. “9. In view of the above discussion, this tribunal is of the humble opinion that for non-taking of step by the applicant- management to substitute the legal representative in place of deceased opposite party-workmen, the Misc. Case fail and is hereby dismissed (as abated). Consequently, the action of removal of Sadar Soren (Pl. No. 941897), Operator, Coke Ovens (Opn.) department from the service with effect from 24.08.2007 by the Management as a disciplinary measure is not approved.” 9. There could not arise question of abatement when the legal representatives of the deceased workman had appeared in the tribunal but (emphasis supplied) Page 5 of 6 // 6 // thereafter did not. The tribunal itself had set the case ex-parte against them. In the circumstances, impugned order is clearly illegal. It is set aside and quashed. The application of the management for approval is restored. The tribunal is directed to consider the application and decide it on merits, as expeditiously as possible. 10. The writ petition is disposed of. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 08-Dec-2023 18:09:40 Page 6 of 6