IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.2705 of 2010 & M.P.Nos.1 and 2 of 2010 THE MANAGEMENT OF RAJAN UNIVERSAL EXPORTS (MFRS) PVT LTD. REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR DR.A.R. PINHEIRO 8/E-115, 16TH CROSS STREET BESANT NAGAR, CHENNAI-90 [PETITIONER] Vs 1 THE PRESIDING OFFICER 1ST ADDITIONAL LABOUR COURT CHENNAI 2 X.VERGIL 3 STATE OF TAMILNADU REP.BY ITS SECRETARY LABOUR AND EMPLOYMENT DEPARTMENT FORT ST. GEORGE CHENNAI-9 [RESPONDENTS] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the exparte award passed by the 1st respondent made in I.D.No.423 of 2004 dated 9.1.2010 and quash the same and consequently direct the 1st respondent to restore the I.D.No.423 of 2004 and proceed as per law by giving an opportunity to the petitioner to defend the case. For Petitioner :: Mr.G.Ananda Kumar For Respondents :: Mr.Hasan Fazil,GA O R D E R The petitioner is a management. They have come forward to set aside the exparte award passed by the 1st respondent Labour Court in I.D.No.423 of 2004 dated 9.1.2010. 2. It is the case of the petitioner that the 2nd respondent raised a dispute before the Labour Officer and finally took up the https://hcservices.ecourts.gov.in/hcservices/ matter before the Labour Court. The Labour Court took up the dispute as I.D.No.423 of 2004. Notice was issued to the petitioner. 3. The contention of the petitioner was the 2nd respondent workman had resigned his post and the present attempt to gain reemployment is not permissible. 4. While the 2nd respondent examined himself as W.W.1 and marked 4 documents, the petitioner management did not examine any one and they were set ex-parte and finally on the basis of the ex-parte position, the Award came to be passed on 9.1.2010. 5. The petitioner thereafter, invoking the power of the Labour Court under section 48(2) of the Tamil Nadu Industrial Dispute Rules filed two applications and they are unnumbered I.As. The first application is to condone the delay and the second application is to set aside the ex-parte order. The Labour Court received the application on 8.10.2009 and returned it on 14.10.2009 for compliance. 6. It is not clear whether the petitioner had complied with the office return made by the Labour Court office. In the mean while, the 2nd respondent made a complaint before the Government Labour Officer asking them to prosecute the management under section 29 of the Industrial Disputes Act. On the basis of the complaint made by the 2nd respondent, the Labour Officer, Chennai 108 issued a notice asking the petitioner as to why further action should not be pursued under section 29 of the Act and the petitioner was directed to give reply within 14 days. With this development, the petitioner has now come forward to challenge the ex-parte award directly before this Court under Article 226 of the Constitution of India. 7. Such an attempt made by the management cannot be allowed for the simple reason that the Labour Court itself has ample power for setting aside the ex-parte award. The petitioner has also moved the Labour Court. Though the petitioner raised an apprehension that after 30 days of publication, there is no scope for the Labour Court to set aside its own award. The said submission does not take into account the legal pronouncement made at this stage. 8. The Supreme Court vide its judgment in Radhakrishna Mani Tripathi vs. L.H.Patel and others reported in (2009) 2 SCC 81 has held that ex-parte award can be set aside and the provisions of the Order 9 Rule 13 of the Code of Civil Procedure will apply to the https://hcservices.ecourts.gov.in/hcservices/ proceedings of the Labour Court. In that case, the Supreme Court explained the earlier judgment in Grindlays Bank Ltd., vs. Central Government Industrial Tribunal and others reported in 1980 Supp. SCC 420 and also clarified Anil Sood's case reported in (2001) 10 SCC 531. 9. The petitioner knowingly fully well has also invoked the jurisdiction of the Labour Court. It is for him to take further steps. The apprehension that they may be prosecuted pending the said proceedings is also without any basis. First of all, the Labour Officer cannot prosecute any employer or any workman for violation of Section 29 of the Industrial Disputes Act. If at all any prosecution is to be launched, it has to be done only with the prior approval of the State Government under section 34 of the Industrial Disputes Act. Presently, the Labour Officer before finalising the request of the workman merely asked for the petitioner's explanation. It is open to the petitioner to explain the Labour Officer that they are taking steps to set aside the ex- parte award. But, that cannot give a cause of action to challenge the ex-parte award. The present attempt made by the petitioner to challenge the ex-parte award is misconceived and lacks merit. Accordingly, the writ petition stands dismissed. No costs. The connected Miscellaneous Petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 THE PRESIDING OFFICER 1ST ADDITIONAL LABOUR COURT CHENNAI 2 THE SECRETARY LABOUR AND EMPLOYMENT DEPARTMENT FORT ST. GEORGE CHENNAI-9 1 CC to the Government Pleader SR NO 9754 1 cc To Mr.G.Ananthakumar, Advocate, SR.9485 W.P.No.2705 of 2010 MRD(CO) sra 19.02.2010 https://hcservices.ecourts.gov.in/hcservices/