M/s. Tech. Mahindra Limited vs Mr. Ajay Bhagat

H. Billappa, J.—In this writ petition under Article 226 of the Constitution of India; the petitioner has called in question, the order dated 12-10-2012, passed by the II Additional, Labour Court, Bangalore, in I.D. No. 28/12 vide Annexure-B and the order dated 5-8-2013 passed in M.A. No. 2/13 vide Annexure-E. By the impugned order at Annexure-B, the II Additional Labour Court, Bangalore; has allowed the claim u/s 10(4A) of the Industrial Disputes Act and set aside the termination of the respondent without back-wages and the petitioner has been directed to pay a sum of Rs. 8 lakhs by way of compensation.

The award was ex-parte. Therefore, the petitioner has filed application in M.A. No. 2/13 to set aside the ex-parte award and permit the petitioner to participate in the proceedings. The Labour Court by its order dated 5-8-2013 has dismissed M.A. No. 2/13. Therefore, this writ petition.

Briefly stated the facts are:

The respondent was asked to attend the interview on 14-10-2010. One Mr. Arum Gangam offered employment to the respondent under ''Band S'' vide email on 19-10-10. The respondent on receiving the email addressed a detailed reply vide email dated 20-10-10 to Mr. Arum Gangam and Ms. Uma Mangavalli stating that he was previously employed by Satyam Computers during November 2005 and January 2006 and his services were terminated as his papers were found to be wrong and inaccurate. He has expressed his apologies for having submitted incorrect documents and suffered consequences of his actions. It is stated, on 21-10-2010, the respondent received an email from Ms. Uma Mangavalli requesting him to complete pre-joining formalities and he completed all the formalities required. Despite that, the respondent did not receive the appointment letter. On 18-11-2010, the respondent addressed email to Ms. Uma, Mr. Arun and Ms. Roopa reiterating his past employment and termination with Satyam Computers. He requested the petitioner to intimate regarding his appointment and he would require two weeks if the petitioner was interested in employing him as he has to intimate his employer Mobily Infotech Pvt. Ltd., The respondent was informed through phone by Ms. Uma that he should report for work with the second party on 7-12-2010. The respondent acting on the confirmation provided by the second party proceeded to initiate exit formalities with Mobily Infotech Pvt. Ltd., on 26-11-2010 and joined the second party on 29-11-2010, thereafter, the services of the respondent was terminated on 1-6-2012. The respondent approached the Labour Court in I.D. No. 28/12. The petitioner was placed ex-parte. The Labour Court passed the award dated 12-10-2012 allowing the claim of the respondent in part. The termination was set aside. However, the back-wages were denied. The petitioner was directed to pay compensation of Rs. 8 lakhs.

The petitioner filed Miscellaneous Application in M.A. No. 2/13 to set aside the ex-parte award. The Labour Court by its order dated 5-8-2013 has dismissed the miscellaneous application. Therefore, this writ petition challenging the award as well as the order passed in M.A. No. 2/13.

The learned counsel for the petitioner contended that the impugned award and also the order passed in M.A. No. 2/13 cannot be sustained in law. He also submitted that though the notice was received it was not communicated to the petitioner and therefore, the petitioner did not participate in the proceedings. He also submitted that the Labour Court was not justified in rejecting the application. He also submitted that the loss caused to the respondent, if any, can be compensated by awarding reasonable costs. Therefore, an opportunity may be given to the petitioner to contest the matter. He placed reliance on the decision of the Hon''ble Supreme Court reported in Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, .

As against this, the learned counsel for the respondent supported the impugned award and also the order passed in M.A. No. 2/13: Further, he submitted that the petitioner was served with notice and in spite of that, the petitioner has not participated in the proceedings. He also submitted that even after the award was passed, the petitioner has not approached the court within a reasonable time. Further he submitted that the Labour Court considering the material on record has passed the impugned award and therefore, the impugned award does not call for interference. Placing reliance on the decision of this Court reported in K.V. Rajashekaraiah Vs. The Divisional Controller K.S.R.T.C., , and the decision of the Hon''ble Supreme Court reported in Sangham Tape Company Vs. Hans Raj, , the learned counsel for the respondent submitted that after the award is published, the Labour Court becomes functus officio and therefore, it cannot exercise its jurisdiction.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is, Whether the impugned award and the order passed in M.A. No. 2/13 call for interference?

The respondent has filed application u/s 10(4A) of the Industrial Disputes Act challenging the termination dated 1-6-2012. Notice has been issued to the petitioner. The petitioner has not participated in the proceedings. An ex-parte award has been passed setting aside the termination and directing the petitioner to pay compensation of Rs. 8 lakhs. On coming to know about the ex-parte award, the petitioner has filed application in M.A. No. 2/13 to set aside the ex-parts award and permit him to participate in the proceedings. The Labour Court has rejected the application without condoning the delay.

In K.V. Rajashekaraiah Vs. The Divisional Controller K.S.R.T.C., , this Court has held that the Labour Court becomes functus Officio after 30 days from the date of publication of the award. Therefore, it cannot exercise its jurisdiction to set aside the ex-parte award. Similar view has been taken by the Hon''ble Supreme Court in Sangham Tape Company Vs. Hans Raj, . However, in the subsequent decision in Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, , the Hon''ble Supreme Court has held the Labour Court has power to set aside the ex-parte award. The learned counsel for the parties submit that the matter has been referred to a larger bench. It is appropriate to follow the subsequent decision reported in Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, . No doubt there is delay in filing the application to set aside the ex-parte award and the petitioner has not participated in the proceedings though notice was served. The loss, if any, caused to the respondent on account of the delay can be compensated by awarding reasonable costs. Therefore, in the interest of substantial justice, it is appropriate to give an opportunity to the petitioner to participate in the proceedings. Accordingly, the writ petition is allowed and the impugned award dated 12-10-2012 passed by the Labour Court in I.D. No. 28/12 vide Annexure-B and the order dated 5-8-2013 passed in M.A. No. 2/13 vide Annexure-E are hereby set aside. The petitioner shall pay cost of Rs. 15,000 to the respondent. The matter is remitted to the Labour Court with a direction to reconsider the same in accordance with law, by giving opportunity to the petitioner to file his objections and lead evidence. In the circumstances of the case, the Labour Court is directed to dispose of the matter within six months from the date of receipt of a copy of this order.

The cost shall be paid to the respondent before proceeding further.