Radhey Sham and Others vs The Presiding Officer, Labour Court, Haryana, Rohtak and Another

M.R. Sharma, J.—This a petition under Articles 226 and 227 of the Constitution of India by the workmen of M/s Bharat Procelain, Sonerat, an industrial concern, challenging the award of the Presiding Officer, Labour Court, Haryana, Rohtak dated September 30, 1974 whereby the applications dated February 27, 1973 filed by the workmen had been dismissed on the ground that these were not maintainable. The controversy arises out of the following facts.

There was some dispute about the termination of services of some workman which was referred to the arbitration of one Shri S.N. Vats, u/s 10-A of the Industrial Disputes Act (hereinafter referred to as the Act). The Arbitrator gave his award on March 1, 1971 in favour of the workmen and declared that their services had been wrongly terminated and they were entitled to be reinstated with continuity of service and back wages. This award was published in Haryana Government Gazette on March 19, 1971.

On behalf of the respondent management, it is claimed that it served notices on April, 19, 1971 on the retrenched workers to come and join their duty, but they failed to do so.

On October 22, 1971 an application purporting to have been drafted on August 18, 1971 was filed on behalf of 23 workmen u/s 33-C(2) of the Act, wherein the workmen claimed wages unto July 31, 1971. After about six months that is April 24, 1972 the workman were allowed to amend their application so as to enable them to claim wages upto the date of their superannuation. When this amended application came up for thearing on February 26, 1973 Shri M.S. Rathee, Advocate, authorised representative of the workmen made a statement before the Labour Court that he had no instructions to our-sue the application. On this basis the learned Labour Court dismissed the application for want of prosecution.

However, on February 27, 1973, 37 workmen including the workmen whose joint application had earlier been dismissed filed almost similarly worded applications for getting some reliefs, including back wages. Copy of one of these applications has been attached as Annexure P-3 to the petition.

The management challenged the maintainability of these applications and the grounds challenging the same prevailed with the Labour Court which dismissed the applications on September 30, 1974. The copy of the order passed by the Labour Court in one of these applications is marked as Annexure P-4.

In this petition, the grounds of challenge in substance are that under Rule 22 of the Industrial Disputes (Punjab) Rules 1958 the Labour Court was under an obligation to proceed with the application and to decide the same on merits even if the workmen had not appeared before it. It has also been averred therein that since the workers had been allowed to join duty, they did not think it proper to give instructions to their counsel. However, when they felt that no relief was being given to them, they filed separate applications before the Labour Court which have been wrongly dismissed. In the written statement filed on behalf of the management, very strong exception has been taken against the conduct of Mr. Rathee, Advocate, the authorised representative of the workmen. It has been averred that he had on an earlier occasion filed frivolous applications against the management on behalf of some of the workmen, who had died before the date of filing of the applications. The submission made is that the instant petition has also been filed on behalf of some unidenfiable person at the instance of Mr. Rathee. The learned counsel for the management has made a strong plea that I should not interfere under Article 226 of the Constitution in view of the afore-mentioned conduct of Mr. Rathee. He has also submitted that the earlier application would deem to have been dismissed on merits and the management could not be vexed twice over the same cause.

In order to appreciate the controversy raised by the parties it becomes necessary to notice statutory Rule 22 of the Industrial Disputes (Punjab) Rules 1958.

Rule 22. If without good cause shown, any party to proceedings before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed, as if he had duly attended or had been represented."

A plain reading of this Rule shows that the Labour Court while adjudicating upon a dispute between workmen and the management is not bound by the strict rules of the procedure and has been empowered to give a decision on merits, even if, one party or the other after having appeared once before it, declines to appear on a subsequent date Since Shri Rathee made a statement on February 26, 1973 that he had no further instructions from the workmen, the Labour Court could at the most have treated the workmen as absent from the Court. The Rule 22 extracted above did not debar it from giving decision on the merits. In Agra Electric Supply Company Ltd. v. Labour Court Meerut (1970)1 L.L.J. 1, a similar matter came up for consideration before the Supreme Court of India. In that case, the management was an Electricity Undertaking, who under an Industrial Award had been obligated to supply uniforms free of charge to certain categories of employees. After the termination of that award, the workers raised another dispute regarding the supply of uniforms which was referred for the adjudication to the State Industrial Tribunal. The Tribunal ordered the management to supply uniforms to the same categories of employees to whom uniforms had been directed to be supplied under the earlier award. Inspite of these directions, the management failed to supply uniforms to the cencerned workers Workers filed a joint petition, claiming that they were entitled to the benefit of the supply of uniforms for a particular period in terms of money. This application was dismissed by the Labour Court for non-prosecution. Subsequently, 7 out of these workmen filed fresh individual applications before the Labour Court for computation of the benefits as costs of the uniforms which the management had failed to supply. The management raised a preliminary objection against the maintainability of these petitions on the ground that the same were barred in view of the fact that an identical joint petition made by the 7 workmen along with others had been earlier dismissed. This argument was negatived by the Supreme Court with these observations:

Neither the Act nor the rules empower a tribunal or labour Court to dismiss an application for default of appearance of a party. Rule 16(1) is the only provision providing for what is to be done when a party is absent. That provision, which clearly enjoins the labour Court or tribunal in the circumstances mentioned therein "to proceed with the case in his absence" either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction" and pass such order as it may deem fit and proper", clearly indicates that the tribunal or labour Court should take up the case and decide it on merits and not dismiss it for default. Without attempting to be exhaustive, we shall just give an example. Where a workmen, after leading some evidence in support of his claim, absents himself on the next adjourned date with the result that he does not lead further evidence, the tribunal is bound to proceed with the case on such evidence as has been placed before it. It cannot dismiss the application on the ground of default of appearance of workman. This will be an instance of "proceeding with the case in the absence of a party" and giving a decision on merits. If such an order is passed by the Tribunal in the absence of one or other of the parties before it, right is given to such party to apply, under sub-rule (2) for setting aside the order that has been passed in his absence in the case in terms of sub-rule (1). The application must be filed within the period mentioned in sub-rule (2) and the party will have also to satisfy the tribunal or labour Court that he had sufficient cause for his absence. The necessity for filing an application for setting aside an order passed in the case in the absence of a party, as contemplated under sub-rule (2) of rule 16 will only arise when an order on merits affecting the case has been passed in the absence of a party, under sub-rule (1) of rule 16. An order dismissing a case for default for non-prosecution, does not come under sub-rule (1) of rule 16 and to such an order, sub-rule (2) has no application.

In the face of this authoritative pronouncement of the law made by the highest Court of the land, the learned Labour Court should not have held that the individual applications by the workman did not lie because joint application filed on behalf of some of them along with some others had earlier been dismissed. The view taken by the Labour Court is clearly erroneous and deserves to be set aside.

However, Mr. Gupta, the learned counsel for the management has submitted that under rule 24 of the Industrial Disputes (Pb.) Rules, the Labour Courts have been invested with powers of a Civil Court regarding discovery and inspections, granting of adjournments and reception of evidence taken on affidavits. The precise argument raised is that the granting of adjournments is governed by Order 17 of the Code of Civil Procedure; which in turn enables the Court to take action under order 9 of the CPC and that once an application had been dismissed for non prosecution, the workmen should have applied for its restoration which should have been made only after they had shown good cause for their absence, further, so long as the earlier order of dismissal held the field, the individual applications filed by the workmen were barred under the general provisions of order 0 of the CPC which applied to these proceedings. The learned counsel has placed reliance on three judgments Sarbjit Singh and Another Vs. Nankana Sahib Transport Company (P.) Ltd. and Others, was decided by B.R. Tuli, J. a learned Judge of this Court. Thereinl the finding given is that an Industrial Tribunal had the powers to entertain the application for setting aside the ex parte order. There cannot possibly be any quarrel with this proposition of law. If a Tribunal exercising judicial function had the powers to dismiss an application it also had the implied powers to restore the same. For this purpose even if there be no provision like Order 9 of the Code of Civil Procedure, the Tribunal could draw strength from its inherent powers.

The next case relied upon is between Tata Iron and Steel Company Ltd. and Central Government Industrial Tribunal Dhanbad (1966)1 L.L.J. 759, Therein a Division Bench of the Patna High Court declined to interfere under Articles 2 6 and 227 of the Constitution with the order passed by an Industrial Tribunal on the ground that the Tribunal had the jurisdiction not to dispose of the application on merits under Rule 22 of the Central Rules In other words the authority concerns the discretion of the High Court for interference in an order passed by the Labour Tribunal dismissing an application for default of hearing. With utmost, respect I would like to add. that in such a matter no hard and fast rules can be laid down. Whereas in one case the High Court may decline to interfere and in an other case if the justice of the cause so ad nits the High Court may and is under obligation to interfere. As I look at the instant case, an award had been given in favour of the workmen as early as in 1971 and it is not being implemented even though ten years have passed by now. In this situation if I were to decline to interfere under Article 226 of the Constitution, I would indeed be perpetrating injustice instead of doing justice between the parties which I am bound to do. I am, therefore, of the opinion that the learned counsel for the respondents cannot draw any strength from this authority.

The third case relied upon is betwen the Management of the Dhenkanal Municipality, Dhenkanal and The Presiding Officer, Industrial Tribunal, Orissa Bhubaneswar (1974)1 L.L.J. 44. Therein an ex-parte award had been passed by the Tribunal. The management filed an application for setting aside the ex-parte award. On behalf of the workmen an argument was raised that the Tribunal had no power to set aside the ex-parte award. That argument was rejected and in that connection the learned Judges of the Orissa High Court made reference to order 17 Rule 2 and Order 9 of the Code of Civil Procedure. In other words the dictum laid down in this judgment also shows that a Labour Court or a Labour Tribunal had the powers to set aside an ex-parte award.

Mr. Gupta, the learned counsel for the respondent has vehemently urged that atleast one principle can be cutted out of these authorities that Order 9 C.P.C. applies to these proceedings. I am, however, of the view that even if Order a C.P.C. did have some application its rigorous provisions could not be held to have sway over the clear language of Rule 22 framed under a special statute. I would further like to observe that even if the technicalities of Rule 9 are applicable the learned Labour Court should have treated these applications as applications for restoration of the earlier application on behalf of those workers who were parties to the same. After having done so, the learned Labour Court could have proceeded to decide the old application and the remaining individual applications in accordance with law after consolidating all of them. The Act has been brought on the statute book in order to enable the Special Courts to put an end to the labour disputes in a speedy manner. The Court and Tribunals exercising jurisdiction under the Act are expected to shed technicalities as far as possible for giving just decisions in the disputes which are brought before them. Even otherwise if I were to accept the arguments raised by Mr. Gupta that would imply that I should give a go bye to the pronouncement of the Supreme Court authority in Agra Electric Supply Company''s case (supra).

Mr. Gupta argued on the basis of Manjit Kaur Vs. Gurdial Singh Gangawala, and Ram Patra Partap v. Indian Electric Works Ltd. 1965 P.L.R. (Supp) 225 that the dismissal of the earlier application would be deemed to be dismissal on merits because no evidence by that time was led by the workmen and in that matter the management should not be vexed twice over the same cause. This argument also stands squarely met by the observations made by their Lordships of the Supreme Court in Agra Electric Supply Company''s case (supra). n

For the reasons aforementioned I allow this petition, set aside the order dated September 30, 1974, (Annexure P-4) passed by the Labour Court and direct it to decide the applications filed by the workmen in accordance with law. Since the dispute has been pending for over considerable period, I order that the Labour Court dispose it of within six months from today. The parties through their counsel are directed to appear there on February 16, 1981. The petitioners shall have costs of these proceedings which are assessed at Rs. 300/-. C.M. No. 2204 of 1080 is allowed.

The learned counsel for the parties agree that the name of the petitioner No. 21 Hari Singh s/o Gori Singh be struck of from the array of the petitioners. I order accordingly.