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Judgment
S.S. Sandhawalia, J.—The correctness of the ration deci dendi in Shree Gopal Paper Mills Ltd. v. The State of Punjab 1959 (1) L.L.J. 639, is indeed the sole issue that has been agitated in this writ petition before us on a reference to a larger Bench.
The relevant facts are not in dispute and fall within a narrow compass. Consequent upon enquiry proceedings before a domestic Tribunal, Jagdish Parkash, Respondent No. 3, an employee of the Petitioner-company was dismissed from service by its order dated the 28th of August, 1968. Aggrieved by the same he filed a complaint before the Industrial Tribunal, Punjab, Chandigarh, u/s 33-A of the Industrial Disputes Act on the 30th November, 1968. The Petitioner-company filed a written statement thereto but the Respondent failed to put in appearance on the fixed date of 10th of March, 1969, and the complaint was dismissed in default on the 8th of April, 1969. The order of dismissal being in the nature of an award was published in the Government Gazette dated the 9th of May, 1969 (annexure C to the petition).
After the expiry of nearly a year thereafter the State Labour Commissioner exercising the powers of the State Government u/s 2 of the Industrial Disputes Act made a reference to the Labour Court at Jullundur on the 12th of June, 1970, at the instance of Respondent No. 3. The issue referred therein was whether the termination of the Respondent''s services was justified and if not to what relief/exact amount of compensation was he entitled. After notice to the Petitioner-company they filed a written statement (annexure ''D'' to the writ petition) before the Labour Court in which a preliminary objection was taken that a second reference was not competent on the principles of res judicata because the earlier complaint of Jagdish Parkash, Respondent No. 3. u/s 33-A of the Act had been dismissed in default. On the pleadings of the parties the Presiding Officer of the Labour Court struck the following two issues:
Whether the instant reference is without jurisdiction as alleged?
Whether the reference is barred by the principle of res judicata?
The first issue was not seriously pressed and therefore decided against the Petitioner-company. On merits issue No. 2 was also held against the management. The relevant order of the Labour Court dated the 28th of December, 1971. is annexure ''E'' to this petition
Aggrieved by the afore-mentioned order, the petitioning-company has challenged the same by way of the present petition The learned Single Judge before whom the matter was first placed noticed that the real issue falling for adjudication was whether a reference u/s 10 of the Industrial Disputes Act was competent with regard to a dispute which had been earlier raised by a workman in an application u/s 33-A of the Act before the Labour Court which had been dismissed in default. He opined that the second reference was not barred but since this view ran counter to a Single Bench decision of this Court in Shree Gopal Paper Mills Ltd. v. The State of Punjab (supra) a reference to the larger Bench became inevitable and that is how the matter is before us.
It is evident that the matter here is primarily legal. It is, therefore, best to first clear the factual background for a correct appraisal of the same. There is no dispute that reference No. 56 of 1968 was as yet pending when Respondent No. 3 made his complaint, annexure ''B'', on 30th November, 1968, before the Industrial Tribunal. This was preferred under, and had to be disposed of according to the provisions of Section 33-A of the Act which is in the following terms:
33-A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings. Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunl'' or National Tribunal; and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly.
From the penultimate part of the afore-quoted provision, it is evident that a complaint made under this section is for all intents and purposes to be disposed of like a reference under any other provision of the Act. Not only that the language of the statute suggests that the adjudication of such a complaint under this section is to be treated as an award which has to be forwarded to Government for appropriate action. The crucial words of the section in this context, however, appear to be "shall adjudicate upon the complaint". In the present case, there is no manner of doubts that the complaint of the Respondent was dismissed for mere non-appearance and obviously there was no adjudication thereof merits.
The substantial issue that, therefore, arises is whether the dismissal of the complaint u/s 33-A in default of appearance alone is an award within the meaning of the Act? If it is so then necessarily the principles of res judicata may be attracted if a second reference on a similar or identical issue is claimed. On the other hand if such a dismissal does not amount to an award then there would be no impedient to a second reference u/s 10 of the Act or any other such provision. To determine the issue reference must inevitably be made to the statutory definition contained in Section 2(b) of the Act.
2(b) ''award'' means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made u/s 10-A.
Reading this provision along with the relevant portion of Section 33-A, it is patent that the Tribunal did not even remotely adjudicate upon the merits of the complaint. Applying the definition it is patent that the same cannot be deemed to be a final determination of the dispute raised by the complainant. Can it in the alternative be interpreted as an interim determination of the same to fall within the definition? The answer here again has to be in the negative. Obviously, the determination "of any Industrial Dispute" within the meaning of Section 2(b) quoted above implies an adjudication of the same by the tribunal on a consideration of the merits of the case of either party. It necessarily imports an application of the mind. Can it possibly be said that a mere dismissal for default amounts to either a judicial determination of the dispute or an adjudication thereof? Indeed a distinction must be drawn between a determination of a dispute and its mere termination owing to the fortuitous circumstance of the absence of the complainant. Merely because the proceedings came to an end owing to the absence of the complainant on the relevant date would not, to my mind, amount to either an adjudication thereof as required u/s 33-A or a determination of the dispute or the question before the tribunal as postulated by Section 2(b) of the Act. Consequently on the language of the relevant provisions, the conclusion seems inescapable that a mere dismissal for default would not be an award within the meaning of the Industrial Disputes Act.
It is also instructive to construe the matter against the larger background of the intent of the legislature. Undoubtedly the Industrial Disputes Act was conceived to establish industrial peace and harmony between the employer and the employees. Can this object be achieved by a mere technical termination of a contentious industrial dispute before tribunal on the ground of non-appearance by one of the parties. Far from doing so such a mechanical termination of the proceedings of this nature would rather tend to embitter, the relations between the management and the labour and create a more difficult situation for either. If a second reference of the Industrial Dispute for determination on merits, were to be barred after such a technical dismissal, the real purpose of the Act would, be rather frustrated than advanced. Consequently an interpretation which is likely to lead to such an anamolous situation has to be avoided because it would) tend to defeat the real intention of the legislature.
Viewing the matter, therefore, in the light of the statutory provisions, the true intentions of the legislature and also in consonance with the salutary rules of construction of statutes it appears to me that a technical dismissal of a complaint u/s 33-A for default of appearance cannot fall within the ambit of the definition of an award under the Act.
The view I am inclined to take is well supported by precedent. A learned Judge of the Andhra Pradesh High Court in Andhra Handloom Weavers Co-operative Society Vs. State of Andhra Pradesh and Others, , has after an exhaustive discussion on principle and auhority arrived at a similar conclusion. The Allahabad view is also in the same terms as reported in British India Corporation Ltd. v. Labour Court Kanpur 1964 I L.L.J. 601. A learned Single Judge of the Kerala High Court in Workmen of Travancore Rayons Ltd. Vs. Manager, Travancore Rayons Ltd. and Another, , after referring to some of the afore-mentioned decisions has concurred with the same. It is thus evident that the weight of authority of different High Courts leans heavily towards this view.
It remains now to advert to the decision of the learned Single Judge expressing a contrary view in Shree Gopal Paper Mills ease. It may be fairly conceded'' that the facts therein were identical as in the present case. A reference to the judgment, however, would indicate that the matter was not adequately canvased before the learned Judge. Consequently there does not appear to be any discussion in depth of the real issue involved. No precedent bearing on the point appears to have been either cited or considered nor has the matter been examined in the light of first principle. It appears to me that the essential issue whether a dismissal, for default fell squarely within the definition of an award u/s 2(b) seems to have altogether missed from consideration. The learned Judge s attention was diverted more towards procedural provisions of Sections 17-A and 19 which pertained to the publication of the award from the date of commencement and the period for which the same would remain in operation. These provisions would come into play only if the essential question whether a dismissal in default amounts to an award is first answered in the affirmative and once it is held to the contrary these provisions cannot be of any aid for determining the essential issue.
With the greatest respect to the learned Judge, I am unable to subscribe to the view expressed by him in Shree Gopal Paper Mills'' case, and both on authority and principle it appears to me that the same does not lay down the law correctly. I would accordingly overrule the aforesaid decision.
The only point raised in support of the petition having been decided against the Petitioner, it is hereby dismissed. The parties, however, would be left to bear their own costs.