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Judgment
R.L. Narasimham, C.J.—This is an application under Atricles 226 and 227 of the Constitution of India against the order of the Central Government Industrial Tribunal, Dhanbad, dated 13 July 1962, dismissing for non-prosecution an application filed by the petitioner-employer under the proviso to Sub-section (2) of Section 33 of the Industrial Disputes Act (hereinafter referred to as the Act), 1947, for approval of the action taken by the employer in dismissing one of its workmen, namely, opposite party 2.
The admitted facts are these. Opposite party 2 was charged with having marked as present two female labourers (Kamins) on certain dates, though they were alleged to be absent from duty on those days. An enquiry was held by one Sri N.P. Sinha, welfare officer, and the only evidence against opposite party 2 was that of the two Kamins, namely, Futi and Chunia (amiexures B and B. 1), who stated that they did not attend to their duty on certain dates on which they were marked as present by opposite party 2. Opposite party 2''s defence was that these female labourers were present on duty. The enquiring officer observed that the aforesaid two female labourers never made a protest when they were given full wages for the days for which they were said to have been absent: nevertheless he reported as follows:
In my opinion, the charges levelled against the accused is established but on (at ?) the same time much weight cannot be given to the statements of these Kamins, on the basis of which we are arriving at certain conclusions.
The employer, however, decided to dismiss opposite party 2 from service holding that the charge was established, but as at that time other labour disputes were pending before the tribunal, an application was made u/s 33(2)(b) of the Act on 26 October 1961 for approval of the action taken by the employer. The case was fixed for hearing on 23 May 1962. On that date at the request of the employer the hearing was adjourned to 10 July 1962. But on that date the tribunal was busy with other work and hence the case was adjourned to 11 July 1962. On that date the petitioner''s welfare officer again asked for adjournment. The tribunal adjourned the case to 12 July 1962 and made it absolutely clear on that date that further adjournment will not be granted and that the case would be peremptorily heard on 13 instant. On 13 instant also the petitioner''s agent asked for further adjournment, but the tribunal stated that as a last chance it would take up the case at 3-30 p.m. on that day provided the petitioner''s agent could get ready. But the petitioner''s agent, namely, Sri Lal Behari Mahto, stated that he was not in a position to go on with the case as he had not brought any papers. Then the tribunal dismissed the application for default with costs.
The main questions for consideration are:
(1) Has the tribunal jurisdiction to dismiss an application of the employer u/s 33(2)(b) of the Act for non-prosecution if the employer is not ready on the date on which the case is fixed for hearing ?
(2) And assuming that the tribunal has such jurisdiction, can it be said that there was any irregularity in the exercise of its jurisdiction on the facts of the present case so as to justify interference by this Court in exercise of its extraordinary jurisdiction under Atricles 226 and 227 of the Constitution ?
The Act does not lay down detailed rules of procedure to be followed by the tribunal, but Sub-section (1) of Section 11 says that it shall follow such procedure as it may think fit, subject to the rules made under the Act. In the Industrial Disputes (Central) Rules, 1957, there are certain provisions regulating the procedure to be followed by the tribunal in all proceedings under the Act. Thus, Rule 22 says:
If without sufficient cause being shown any party to proceedings before a board, court, labour court, tribunal, national tribunal or arbitrator fails to attend or to be represented, the board, court, labour court, tribunal, national tribunal, or arbitrator may proceed as if the party bad duly attended or had been represented.
This rule thus confers discretion on the tribunal to proceed with the enquiry if a party is absent on a particular date without sufficient cause and when such enquiry is held, it may be deemed that the party which was really absent was in the eye of law duly represented. But this power seems to be discretionary with the tribunal. Rule 24 is as follows:
In addition to the power conferred by the Act, boards, courts, labour courts, tribunals and national tribunals shall have the same powers as are vested in civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely :-
(a) discovery and inspection;
(b) granting adjournment;
(c) reception of evidence taken on affidavit;
and the board, court, labour court, tribunal, or national tribunal may summon and examine any person whose evidence appears to it to be material and shall be deemed to be a civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898.
This rule thus expressly confers on the tribunal the powers of a civil Court under the CPC in respect of granting adjournments. Order XVII of the CPC deals with the powers of the civil Court regarding adjournments, and hence the provisions of this order would apply mutatis mutandis in respect of proceedings before the tribunal. Rule 2 of order XVII of the CPC says that if a party does not appear on the date fixed, the Court may proceed with the suit in accordance with, the provisions of order IX. Thus, though, order IX may not by its own force apply to proceedings before the tribunal, nevertheless, by virtue of order XVII, Rule 2, of the Code of Civil Procedure, read with Rule 24 of the Industrial Disputes (Central) Rules, 1957, the provisions of order IX may also reasonably be construed to apply to proceedings before the tribunal as far as applicable. Order IX, Rule 8, of the CPC enables the Court to dismiss an application for default due to the absence of the petitioner when the opposite party was present. Hence, I do not find any lack of jurisdiction on the part of the tribunal in dismissing the application of the petitioner for non-prosecution.
Sri Balbhadra Prasad Singh quite fairly conceded that he would not put forward the extreme contention that there was total want of jurisdiction on the part of the tribunal in dismissing an application for non-prosecution, but he urged that there was material Irregularity in the exercise of the jurisdiction inasmuch as even though the petitioner wa3 not ready on 13 July 1962, the tribunal should have, on the papers available before it, passed an order on merits. He relied very much on the provisions of Rule 22 already quoted which enables the tribunal to proceed with an enquiry even in the absence of a party. Rule 3 of order XVII of the CPC is substantially on the same lines as Rule 22 of the Industrial Disputes (Central) Rules, 1957. Hence, when the petitioner was not present on 13 July 1962, it was open to the tribunal to dispose of the application on merits on the materials available before it, or to dismiss it for default. The question is one of exercise of discretion by the tribunal, and ordinarily this Court, in exercise of its extraordinary jurisdiction under Atricles 226 and 227, does not interfere with the exercise of discretion by lower Courts and tribunals. Doubtless, if there was no evidence to be adduced and no paper to be produced by the petitioner before the tribunal, there may be some justification for the contention of Sri Balbhadra Prasad Singh that the tribunal should have disposed of the application on merits. But here, as admitted by the petitioner''s agent, Sri Lal Behari Mahato, on 13 July 1962 all the necessary papers were not with him and he could not conduct the case.
The principles to be observed by the Court in granting, or refusing to grant, approval on an application u/s 33(2)(b) of the Act has been repeatedly laid down by their lordships of the Supreme Court. I need only refer to The Lord Krishna Textile Mills Vs. Its Workmen, where their lordships observed that the approving authority has to consider
(1) whether the standing orders justify the order of dismissal,
(2) whether the enquiry has been held as provided by the standing orders, and
(3) whether the other conditions required by the proviso to Sub-section (2) of Section 33 of the Act have been complied with.
In P.H. Kalyani v. Air France, Calcutta 1963 I L.L.J. 079, it was further observed that the tribunal has Jurisdiction to examine whether the enquiry was conducted in accordance with the principles of natural justice and whether there has bean victimization or unfair labour contracts, This principle has been reiterated in State Bank of Bikaner v. Balai Chander Sen 1983 II L.L.J. 657 .
Unfortunately, neither party has disclosed before us the nature of the defence taken by opposite party 2 before the tribunal while resisting the application of his employer for approval of the order of dismissal. But in the affidavit filed before this Court on 7 October 1963 it was stated that the materials on record did not prove the misconduct as required by Clause 19(2) of the standing orders and that consequently the dismissal was illegal and unjustified.
From the nature of the defence taken by opposite party 2 it is thus clear that the employer was required to satisfy the tribunal that the act complained of against opposite party 2 was "misconduct" within the meaning of Clause 19(2) of the standing orders. But when the agent of the employer, Sri Lal Behari Mahato, frankly admitted before the tribunal that he was not in a position to conduct the case as he had no papers with him, it was obvious that the tribunal could not decide this important question. The standing orders of the company were not produced before it and this was clearly the duty of the petitioner-employer. Thus, where from the nature of the controversy between the parties it appears that a party must produce certain papers or adduce evidence to substantiate his allegations and that party is absent on the date fixed, the Court would be justified in dismissing the application for non-prosecution. I do not find any irregularity in the exercise of jurisdiction by the tribunal.
It must obviously be left to the discretion of the tribunal to decide in such circumstances whether applying the principles of Rule 22 of the Industrial Disputes (Central) Rules, 1957, the case can be disposed of even in the absence of a party on merits. Hence, I do not wish to lay down a general rule that in all proceedings under the Industrial Disputes Act before the appropriate tribunal, that tribunal would be justified in dismissing the proceedings due to non-prosecution by a party. Thus, where an industrial dispute is referred to the tribunal by Government u/s 10 of the Act, the mere absence of an employer or a workman on the date fixed may not suffice for dismissal of the application for default and the tribunal may have to proceed under Rule 22 of the Industrial Disputes (Central) Rules, 1957. But where the employer had made an application for approval of his action u/s 33(2)(b) of the Act and fails to appear on the date fixed and to produce the necessary papers on the basis of which alone the Court can grant approval to his action, the tribunal would be justified in dismissing the application for non-prosecution.
For these reasons, the application la dismissed with costs. Hearing fee Rs. 100.
S.N.P. Singh, J.
I agree.