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Judgment
D. Murugesan, J.—The petitioner in both writ petitions is Dena Bank. W.P.No.12997 of 1998 has been filed by the petitioner, challenging
the award dated 10.01.1997 made in I.D.No.34 of 1995 on the file of the Presiding Officer, Industrial Tribunal, Madras. W.P.No.12998 of 1998
has also been filed by the same petitioner as against the order dated 29.01.1998 made in Miscellaneous Application No.123 of 1997 in I.D.No.34
of 1995 on the file of the Presiding Officer, Industrial Tribunal, Madras.
The second respondent / Union filed claim statement before the Industrial Tribunal, which was adjudicated upon on the following reference :
Whether the demand of the Dena Bank Employees'' Union, Madras on the Management of Dena Bank, Madras for payment of Canteen subsidy
to the workmen of Madras Region is justified; If so, what relief are the workmen concerned entitled to"".
In the said claim statement, the second respondent / Union finally prayed the Tribunal to hold that the demand of the petitioners for grant of canteen
subsidy in Madras Region is valid and justified and for a direction to the respondent / Bank to extend the same facility to the petitioners on par with
those employed at Bombay, Calcutta, Baroda and Ahmedabad with effect from 25.01.1994.
The dispute was taken up as I.D.No.34 of 1995 by the first respondent. The claim statement was filed on 19.10.1995 and the industrial dispute
was posted on 30.11.1995. Since 30.11.1995 was declared as holiday, it was called on 01.12.1995. On the said date, the Presiding Officer of
the Industrial Tribunal was on leave and therefore, the case was reposted to 05.01.1996. On 05.01.1996, there was no representation for writ
petitioner / Bank, therefore, the matter was adjourned to 15.02.1996 for filing counter. Since there was no sitting on 15.02.1996, the matter was
directed to be posted on 28.03.1996. On 28.03.1996 also no counter affidavit was filed and therefore, the matter was further adjourned to
03.05.1996 for filing counter. There was no sitting on 03.05.1996 and therefore, the matter was reposted on 06.06.1996, on which date also, the
writ petitioner / Bank did not file counter affidavit. Time for filing counter was extended to 12.07.1996, 23.08.1996, 20.09.1996, 18.10.1996,
21.11.1996 and finally to 16.12.1996. Even then, the Bank did not file counter. When the case was called at 10.45 a.m. on 16.12.1996, no
counter affidavit was filed and there was again no representation on behalf of the writ petitioner / Bank. Hence, the matter was passed over and
even when the matter was called after lunch, there was no representation on behalf of the Bank and finally the Industrial Tribunal set the writ
petitioner / Bank ex-parte and adjourned the matter for ex-parte evidence to 30.12.1996. Even on 30.12.1996, there was no representation on
behalf of the writ petitioner / Bank and ex-parte evidence was taken on 10.01.1997. W.W.1 was examined and Exs.W.1 to 4 were marked. After
considering the evidence of W.W.1 and Exs.W.1 to 4, the Tribunal passed the impugned award as prayed for.
The Government received the award on 30.04.1997 and published in the Government Gazette on 24.05.1997. After the award became
enforceable from 24.06.1997, the petitioner filed an application in M.A.No.123 of 1997 to condone the delay of 229 days in filing the petition to
set aside the ex-parte award dated 10.01.1997. In support of the said application, the writ petitioner / Bank filed an affidavit of one R. Sridaran,
Assistant General Manager, Regional Office, Nungambakkam, Chennai - 34, stating that the petitioner came to know about the ex-parte award
only after receiving a copy of the award of the Tribunal dated 10.01.1997. There was no sufficient explanation offered by the writ petitioner / Dena
Bank for condonation of delay of 229 days.
The first respondent / Tribunal, by an order dated 29.01.1998 dismissed the said application by placing reliance upon the judgment of this Court
reported in G. RAMALINGAM VS. THE PRESIDING OFFICER, ADDTIONAL LABOUR COURT, MADRAS 1995 T.L.N.J. 235. As
against the said order, the petitioner has filed W.P.No.12998 of 1998.
Mr. Sanjay Mohan, learned counsel appearing for the writ petitioners would contend that by an award dated 10.01.1997, the tribunal awarded
the claim as prayed for. However, in the claim statement, the second respondent / Union have claimed that the canteen subsidy benefits granted to
the employees at Bombay, Baroda, Ahamadabad and Calcutta should be extended to them. It is the specific claim of the workmen that the
canteen subsidy granted to the workmen at Bombay is Rs.40/- per month per head while the subsidy is Rs.35/- per month per head in other three
places. In view of the award passed by the Tribunal, the writ petitioner / Bank is not in a position to extend which of the canteen subsidy to the
second respondent / workmen, more particularly, either the canteen subsidy extended to the employees at Bombay namely Rs.40/- or at
Ahamadabad, Baroda and Calcutta namely Rs.35/-. Therefore, learned counsel for the petitioner submitted that the impugned award has to be set
aside and the matter to be remanded to the Industrial Tribunal for fresh disposal. Learned counsel further submitted that if the award is set aside for
fresh consideration, no prejudice would be caused to the workmen.
Mr. S. Vaidayanathan, learned counsel appearing for the second respondent would on the other hand contend that even though sufficient
opportunities were granted, the writ petitioner / Bank did not choose to represent before the Industrial Tribunal. In fact, the ex-parte award dated
10.01.1997 was published by the Government as early as on 24.05.1997. By virtue of Section 17A of the Industrial Disputes Act, the award
became enforceable from 24.06.1997. After the said date, the Industrial Tribunal becomes functus officio and it cannot even consider the
application to condone the delay in representating the application to set aside the ex-parte award. The Tribunal has very rightly, based upon the
judgment of this Court in 1995 T.L.N.J. 235 has rejected the request of the petitioner to condone the delay in setting aside the ex-parte award.
Learned counsel fairly submitted that if the writ petitioner / bank has any doubt as to which of the amount to be extended to the workmen
towards canteen subsidy as applicable to the workmen either at Bombay or Ahamadabad, Baroda, Calcutta, the workmen are prepared to
receive lesser amount of subsidy namely Rs.35/- and the same could be clarified by this Court, instead of remanding the matter for the said
purpose to the Industrial Tribunal for fresh consideration. Learned counsel submitted that the ex-parte award cannot be set aside at the instance of
the petitioner, who was not deligent in defending the case and that too after the ex-parte award was published and became enforceable.
I have given my due consideration to the submissions of the learned counsel for the petitioner and also the respondent.
From the dates narrated in the earlier portion of the order, it is abundantly clear that the writ petitioner / bank was given sufficient opportunities
to put forth its claim before the Industrial Tribunal to defend the case. The writ petitioner was given atleast nine adjournments to file counter
affidavit and the writ petitioner has not availed those opportunities and failed to file the counter affidavit. Even when the matter was called on
16.12.1996 at 10.45 a.m., there was no representation on behalf of the petitioner. Therefore, the matter was passed over and even after lunch
when the matter was called, there was no representation on behalf of the writ petitioner. Only under the said circumstances, the Tribunal had
proceeded to set the petitioner as ex-parte with a direction to take ex-parte evidence on 30.12.1996. On 30.12.1996 also, the writ petitioner /
bank did not appear and therefore, the Industrial Tribunal had no other option except to take the evidence ex-parte. On the basis of evidence of
W.W.1 and Exs.W.1 to 4 marked on behalf of the workmen, the Tribunal passed the impugned award. The said ex-parte award has been
published in Government Gazette on 24.05.1997 and the same became enforceable from 24.06.1997.
While considering a similar question, this Court in the reported judgment in G. RAMALINGAM ..VS.. THE PRESIDING OFFICER,
ADDTIONAL LABOUR COURT, MADRAS (1995 T.N.L.J. 235) held as follows:-
In view of Section 17(2), subject to the provisions of Section 17A, the award published under sub-Section (1) becomes final and shall not be
called in question by any Court in any manner whatsoever. Further, as per Section 17A, the award becomes enforceable on the expiry of 30 days
from the date of its publication u/s 17 of the Act subject to certain conditions. As already stated above, none of the conditions are attracted to the
facts of this case. In the instant case, the award became enforceable on 02.04.1983 as it was published u/s 17(1) of the Act on 02.03.1983"".
While considering the scope of the ex-parte award, a Division Bench of this Court in Tamil Nadu Housing Board, Madras Vs. The Presiding
Officer, II Additional Labour Court, Madras and Another, , has observed as follows:
Thus, from the aforesaid award, it is clear that the Labour Court has been considered the evidence on record. Even though the appellant remained
absent, nevertheless, there was evidence on record. There were the statements of the case pleaded by the petitioner and the respondent. The
Labour Court was required to consider and give reasons for passing the award in favour of the second respondent workman. As no such reason is
given, not even the facts of the case are stated, the award cannot at all be considered to be a speaking order, as such it cannot be sustained. The
Presiding Officer, is an Officer of the District Judge grade. He should not have decided the dispute in such a manner. There is non-judicial
application of mind of the Presiding Officer of the Labour Court. Such exercise of jurisdiction causes great and incalculable damage to the parties
and also to the administration of justice. The Presiding Officer would do better, if he discontinuous such a habit of disposal of cases"".
By following the above said decision, K.GOVINDARAJAN, J., dismissed the writ petition in W.P.No.7489 of 1997 (THE
MANAGEMENT OF NAMAKKAL MUNICIPALITY ..VS.. THE PRESIDING OFFICER) challenging the ex-parte award. The said
judgment of K.GOVINDARAJAN, J., was also taken up on appeal in W.A.No. 486 of 1999 at the instance of the Management, and the same
was dismissed, by order dated 23.09.1999.
P.SATHASIVAM, J., had also an occasion to consider the power of the Industrial Tribunal to set-aside the ex-parte award in the judgment
reported in P. VIYAPURI ..VS.. THE PRESIDING OFFICER AND ANOTHER 1998 (3) L.L.N. 349 and held that once the award became
enforceable u/s 17A of the Industrial Disputes Act, the Tribunal becomes functus officio.
In view of the above said judgments, when the award is published as early as on 24.05.1997, the Industrial Tribunal had become functus
officio from the said date and it has no power even to consider the application of the petitioner / Bank to condone the delay in representing the
petition to set aside the ex-parte award. Moreover, in the application filed by the petitioner, no satisfactory reason has been given, except stating
that the petitioner was not aware of the award passed till such time the notice was received from the workmen in regard to the implementation of
the said award. In fact, in the counter affidavit filed by the workmen, it is stated that after the award was passed, the Union filed a complaint u/s 29
of the Industrial Disputes Act, 1947 as early as on 16.09.1997 and the notice on the said application was also served on the writ petitioner /
Management. The Regional Labour Commissioner, Sastri Bhavan, Madras sent letter dated 19.09.1997, directing the writ petitioner / Bank to
implement the award dated 10.01.1997. Even after this letter and the complaint, the petitioner did not take steps to comply with the award, but
resorted to file this application to condone the delay in representing the petition to set aside the ex-parte award on 30.09.1997 only. The delay in
filing the petition has also not been explained to the satisfaction of this Court.
Hence, I do not find any justification to interfere either ex-parte award of the Tribunal dated 10.01.1997 or the order of the Tribunal in
M.A.No. 123 of 1997 dated 29.01.1998 in I.A.No. 34 of 1995.
The submission of the learned counsel for the petitioner / Bank that they are not in a position to extend which of the amount of canteen subsidy
to the workmen namely whether on the basis of Rs.40/- per head per month or Rs.35/- per head per month cannot be a ground to set aside the
ex-parte award, which has become final and enforceable and for the said purpose, in my view, this matter need not be remanded to the Industrial
Tribunal for fresh consideration. Learned counsel for the second respondent fairly submitted that the workmen are prepared to accept even the
lesser amount of canteen subsidy viz., Rs.35/- per head per month as paid to the workmen in Ahamadabad, Baroda and Calcutta.
Therefore, I do not find any force in the submissions of the learned counsel for the petitioner for setting aside the ex-parte award of the
Tribunal dated 10.01.1997 and remanding the matter to the Industrial Tribunal for fresh consideration.
Accordingly, both the writ petitions are dismissed. No costs. In view of the submissions of the learned counsel for the second respondent, the
ex-parte award dated 10.01.1997 shall be in reference to the payment of canteen subsidy at the rate of Rs.35/- per head per month to the second
respondent / workmen.