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Judgment
K. Chandru, J.—The petitioner in both the writ petitions is the same Primary Agriculture Co-operative Bank Limited, Karathozuvu in Duala
Taluk. In W.P.No. 9162 of 2007,the challenge is to the ex-parte Award made in I.D.No. 529of 1999 dated 08.05.2002. The challenge in
W.P.No. 9163 of2007 is to the order passed by the Labour Court, Coimbatore in I.A.No. 94 of 2006 in I.D.No. 529 of 1999dated 13.04.2006
in rejecting the application for condoning the delay of 971 days in filing the application to set aside the ex-parte Award.
Aggrieved by the ex-parte Award as well as the order passed in refusing to condone the delay, the two writ petitions came to be filed. They
were admitted on13.03.2007. Pending the writ petitions, in M.P.No. 1 of2007 in W.P.No. 9162 of 2007, this Court granted an interim stay for a
period of three weeks. Despite notice, the contesting second respondent has not appeared either in person or through counsel. She was served by
this Court as early as 28.05.2007. Therefore, in the absence of the second respondent, the matters will have to be proceeded on the basis of the
records submitted.
The contesting second respondent was employed as a Shop Sales woman with effect from 21.07.1997. She had worked for more than 13
years and was paid wages on daily rated basis. It is her claim that she was stopped from work with effect from 01.04.1999. Therefore, she raised
a dispute before the Government Labor Officer at Coimbatore by a communication dated 05.05.1999. Notice was issued to the petitioner society.
As the Conciliation Officer could not bring about mediation, he gave a failure report u/s 12(4) of the Industrial Disputes Act, dated 19.08.1999.
On the strength of the failure report, she filed a claim statement before the first respondent Labour Court on 21.09.1999. The said dispute was
registered as I.D.No. 529 of 1999 and noticewas issued to the Management. Despite notice was issued to the Management, they did not appear
before the LabourCourt. Thereafter, recording the statement of the second respondent, the Labour Court held that the non-employment was
unjustified and passed an ex-parte Award dated08.05.2002. In the ex-parte Award, the Labour Court merely stated that W.W.1 was examined
and from the evidence, she proved the averments made in the claim statement. Hence, she was entitled for all the relief claimed in the claim
statement.
It is the stand of the petitioner Co-operative Society that by a communication dated 22.08.2003 she was restored to service as a daily rated
worker and she was asked to appear for work. The same was sent by registered post and acknowledged by her. After an ex�parte Award,
they filed an application under Rule 48(2)of the Tamil Nadu Industrial Dispute Rules to set aside the ex parte Award. The ground pleaded by them
was that due to administrative exigencies, they could not appear and hence, there was a delay. The Labor Court registered the application as
I.A.No. 94 of 2006 and issued notice to the second respondent. She filed a counter statement stating that the ground pleaded for condonation of
delay was not bonafide. The Labour Court after hearing bothsides by an order dated 13.04.2006 dismissed the application by holding that non-
appearance of the petitioner Society was not bonafide. It also held that after passing the Award and the publication of the Award u/s 17-A of the
I.D. Act, the Labor Court becomes functus officio and hence, it was unable to deal with the application made by the Management. Challenging the
Award and the order, the writ petitions came to be file as noted already.
The stand of the Labour Court that it has become functus officio and therefore unable to deal with the application is not inconsonance with the
judgment of absence of the second respondent, the matters will have to be proceeded on the basis of the records submitted. the Supreme Court
reported in Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, . The Supreme Court held notwithstanding the publication of the Award in the
manner prescribed u/s 17-A of the I.D. Act, if the rules provides for setting aside the exparte Award it is akin to a power of Civil Court under
Order 9 Rule 13 CPC and the Labour Court will continue to have jurisdiction. Apart from this, under Rule 43 of the said Rules, the Labour Court
has the power of a Civil Court similar to that of the rule relating to appearance of plaintiffs and defendants in the suit. Hence, the order passed by
the Labour Court in I.A.No. 94 of 2006 inI.D.No. 529 of 2006 is liable to be set aside. In any event, it is unnecessary to send the matter for
determination by the Labour Court on the application filed by the Management as the Management itself has come forward to challenge the ex
parte award in the first writ petition in W.P.No. 9162 of 2007. It must be noted that under Rule 48 of the Tamil Nadu Industrial Dispute Rules the
Labour Court is expected to pass Award on merits of the case as if the other side is present. In the present case, the Labour Court has passed an
one line order stating that the workman has proved her claim without discussing the nature of evidence and the claim made by her. The Award is
liable to be set aside on this short ground.
Notwithstanding that the application filed by the Management to set aside the ex parte Award has failed, the issue is no longer res integra. A
Division Bench of this Court in Tamil Nadu Housing Board, Madras Vs. The Presiding Officer, II Additional Labour Court, Madras and Another,
, dealt with more or less a similar case and in paragraphs 6 to8, it was observed as follows:
Thus, from the aforesaid award, it is clear that the Labour Court has not considered the evidence on record. Even though the appellant remained
absent, nevertheless, there was evidence on record. There were the statements of thecae 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 2nd 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 no 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 discontinues such a habit of disposal of cases.
As the delay is also due to the fact that the appellant has failed to avail the opportunity afforded to it, it is a case, in which exemplary costs
should be awarded. 8. We accordingly, allow the appeal, setaside the order dated February 8, 1996passed in the writ petition, and allow the writ
petition in the following terms. The award dated March 28, 1994 passed in I.D.309 of 1993 is quashed with costs ofRs. 5,000/-(Rupees Five
thousand only) to be paid by the appellant to the 2nd respondent on or before September 18, 1996 on which date the Labour Court, Madras,
shall call this case and restore the I.Dto its file.
Under the said circumstances, W.P.No. 9162 of2007 stands allowed and the impugned Award will stand set-aside. At the same time, even
though the Management is successful, it cannot be allowed to go scot-free and as ordered by the Division Bench, the writ petition disallowed but
cost is payable by the Management to the second respondent workman. The cost is quantified atRs. 5,000/-. The matter in I.D.No. 529 of 19909
will stand remitted to the Labour Court, Coimbatore for fresh determination and in accordance with law. The LabourCourt will take up the ID and
issue notice to parties only after the petitioner Management files cost memo of having paid the amount to the second respondent is filed before the
Labour Court with proof. On such memo being filed, the Labour Court will issue notice to the second respondent and to the counsel who
appeared for the second respondent before the Labour Court (Mr.K. Subramanian Advocate, Coimabtore) and proceed to deal with thedispute
in accordance with law. Since the dispute is of the year 1999, the Labour Court shall give preference to the disposal of the dispute, in any event
dispose of the same within a period of six months from the date of receipt of a copy of this order.
In the result, both the writ petitions will stand allowed with the above observations. Consequently, connected miscellaneous petition is closed.