1 8-wp-2339-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2339 OF 2011 Mr. Vishnu B. Kadam .. Petitioner. V/s. Bank of Maharashtra Pune City Regional Office, .. Respondent. Mr. Nitin Kulkarni, for the Petitioner. Ms. Kiran Bhagalia, for the Respondent. CORAM : K.K.TATED, J. DATE : 18th JULY, 2011. P.C.:- 1 Rule. 2 Rule made returnable forthwith. 3 By consent, matter is taken up for final hearing at the stage of admission. 2 8-wp-2339-2011.sxw 4 By this Petition, under Articles 226 and 227 of the Constitution of India, the Petitioner-Original Opponent challenges the order dated 23rd June, 2010 passed by the 2nd Labour Court, Pune in Misc. Application (IDA) No. 59 of 2010 allowing the Respondent's application dated 13th April, 2006 for restoration of Reference (IDA) No.542 of 2000 which was decided ex- parte on 17th September, 2004. 5 A few facts of the matter are as under:- The Petitioner was working with the Respondent-Bank as a Peon. Some time in the year 1998, he was charge sheeted and thereafter, as per order dated 15th November, 1998, his services were terminated. Therefore, he made an application to the Deputy Commissioner of Labour , Pune. In terms of his application, a Reference was made under Section 10 (1) and 12(5) read with Section 2-A of the Industrial Disputes Act for adjudication of the Industrial Dispute between Petitioner and Respondent with the Labour Court, Pune. Thereafter, the said Reference was registered as Reference (FDA) No. 542 of 2000. As no one appeared on behalf of the Respondent, the Labour Court passed the said award ex-parte on 17th September, 2004, holding that termination of service of Petitioner with effect from 15th November, 1989 is illegal and unjust. The Labour Court directed the Respondent to reinstate the Petitioner with continuity of service and with full back wages with effect from 15th November, 1989. 3 8-wp-2339-2011.sxw 6 Thereafter, the Petitioner approached this Court by preferring Writ Petition No.5215 of 2005 for implementation of the award passed by the Labour Court dated 17th September, 2004. In the said Writ Petition, the Respondent-Bank also appeared. After hearing both the sides, the Division Bench of this Court (Coram: F.I. Rebello and Mrs. R.S. Dalvi, JJ) held that alternate remedy was available to the Petitioner under the Industrial Disputes Act, and as such they refused to exercise extra ordinary jurisdiction, and the said Writ Petition was rejected. Thereafter, in the month of February, 2006, the Petitioner filed application before the Labour Court for execution and implemention of the award dated 17th September, 2004. The Labour Court issued notice to the Respondent-Bank and same was served on 21st February, 2006. Thereafter, the Respondent-Bank filed Misc. (IDA) No. 59 of 2006 before the Labour Court for restoration of Reference (IDA) No.542 of 2000 and for setting aside the ex-parte order dated 17th September, 2004 passed by the Labour Court. The said application was filed by the Respondent-Bank on 13th April, 2006. In that application, the Petitioner filed their reply dated 14th August, 2006. After hearing both the sides, the Labour Court passed impugned order dated 23rd June, 2010, allowing Respondent-Bank's Misc. Application (IDA) No.59 of 2010. By the said impugned order, the Labour Court set aside the ex-parte order dated 17th September, 2004 and restored the Reference (IDA) No. 542 of 2000 on its own position. 4 8-wp-2339-2011.sxw 7 Being aggrieved by the said order dated 23rd June, 2010, the Petitioner preferred the present Writ Petition. 8 The learned counsel appearing for the Petitioner submits that the impugned order dated 23rd June, 2010 passed by the learned Judge, Labour Court, Pune in Misc. Application (IDA) No.59 of 2010 allowing Respondent-Bank's application dated 13th April, 2006, setting aside ex-parte order dated 17th September, 2004 passed by the Labour Court in Reference (IDA) No. 542 of 2000 is against justice, equity and good conscience and the same is liable to be set aside. He submits that the Petitioner was working as a peon with the Respondent-Bank since 1967. Thereafter, he was charge sheeted in the year 1998 and subsequently, by order dated 15th November, 1998, his services were terminated. Therefore, the Petitioner made a representation before the Deputy Commissioner, Labour Court, Pune, made a Reference under Section 10(1) and 12(5) read with 2-A of IDA for adjudication of Industrial Disputes to the Labour Court. The said dispute was registered as the Reference (FDA) No. 542 of 2000. He submit that thereafter, the office of the Labour Court issued notice to the Respondent under Rule 16 of the Industrial Dispute Act (Bombay) Rules 1957 (herein after referred to as “the said Rule”), for filing written statement and notice under Rule 19 (1) in form X of hearing in a Reference for adjudication. Both these notices were duly served on the Respondent- 5 8-wp-2339-2011.sxw Bank. These facts were admitted by Respondent-witness Mr. Dilip T. Jadhav in his cross examination. He submits that this witness in cross examination in paragraphs 9 and 10 stated that they received a notice in form IX and X from Labour Court. He submits that in spite of service of notice of Reference made before the Labour Court, neither the Respondent-Bank filed their Written Statement, nor they appeared when the matter was called out for final hearing. Therefore, the Labour Court passed ex-parte award dated 17th September, 2004, declaring that the Petitioner's termination of service with effect from 15th September, 1989 as illegal and unjust. The Labour Court further directed the Respondent-Bank to reinstate the Petitioner with continuity of service and with full back wages with effect from 15th September, 1998. He submits that in spite of the ex-parte order of the Labour Court, the Respondent-Bank failed and neglected to reinstate the Petitioner with full back wages and, therefore, the Petitioner preferred writ Petition No.5215 of 2005 before this Court for implementing the said award passed by the Labour Court. He submits that at the time of hearing on 7th December, 2005, the Respondent-Bank appeared through their Advocate. After hearing both the sides, the Division Bench of this Court held that appropriate remedies were available in Industrial Dispute Act for implementing the award passed by the Labour Court. Therefore, it was not possible to exercise the extra ordinary jurisdiction and, hence, the Petition was rejected. He submits that it is crystal clear from the order passed by 6 8-wp-2339-2011.sxw the Division Bench of this Court in Writ Petition No.5215 of 2005 that the Respondent-Bank were aware of the ex-parte award dated 17th September, 1989 passed by the learned Presiding Officer, 2nd Labour Court, Pune in Reference (FDA) No.542 of 2000, directing them to reinstate the Petitioner with continuity of service from 15th September, 1989 along with full back wages. In spite of having the knowledge of the order passed by the Labour Court, the Respondent-Bank neither complied the said order, nor filed any application immediately for taking appropriate steps. 9 He submits that the Respondent-Bank after four and half months from the date of order passed by the Division Bench of this Court in Writ Petition No.5215 of 2005, filed an application for restoration of Reference (IDA) No.542 of 2000/ for setting aside ex-parte order dated 17th September, 2004 passed by the Labour Court. The said application was filed by Respondent-Bank on 13th April, 2006. He submits that in that application, the Respondent-Bank in paragraph 6 stated that they received a letter dated 21st February, 2006 from the Regional Labour Commissioner, Pune for implementation of the award dated 17th September, 2004 passed by the learned Labour Court and at that time, they learnt about the award passed by the Labour Court. Thereafter, the Applicant immediately sought legal opinion in the matter and filed application for restoration. He submits that Respondent-Bank in paragraph 7 of their application for restoration 7 8-wp-2339-2011.sxw stated that as they had not received copy of statement of claim filed by the Petitioner before the Labour Court, no one appeared in that matter. On these two grounds, the Respondent-Bank sought to re-call/set aside the ex- parte order dated 17th September, 2004 passed by the Labour Court. He submits that in reply, it is specifically stated that the restoration application is barred by limitation and not maintainable in law. The Hon'ble Court had no jurisdiction to entertain and try the same and to condone the delay or grant stay to the award passed by the Hon'ble Court. It is also stated in their reply that, Respondent admitted in their application that the award in Reference (IDA) No.542 of 2000 was published on 9th December, 2004 and the present application was filed by the Respondent-Bank after expiry of 30 days from the date of publication of the award. Hence, the same is barred by limitation and not tenable in law and the Hon'ble Court has no jurisdiction to entertain and try and setting aside the said award. The learned counsel appearing for the Petitioner submits that though the learned Judge, 2nd Labour Court, Pune held in its impugned judgment dated 23rd June, 2010 that Respondent-Bank filed application for setting aside the ex-parte order dated 17th September. 2004 was barred by limitation and in spite of that, the Labour Court allowed the same on equity ground only. He further submits that the Labour Court erred in coming to the conclusion that the Respondent-Bank proved sufficient and reasonable ground to set aside the ex-parte award dated 17th September, 2004 by condoning the 8 8-wp-2339-2011.sxw delay. He submits that the Labour Court without considering their reply dated 14th August, 2006 allowed Respondent's application for setting aside the ex-parte order which is against well settled principle of law and, therefore, same is liable to be set aside. 10 The learned counsel appearing for the Petitioner further submits that our High Court in the matter of Vasant Govind Shirsekar v/s. Mhatre Pen and Plastics Pvt. Ltd. & Others, reported in 2005 II CLR 969 held that under Section 17 of the Industrial Disputes Act, 1947, once the award become enforceable, the Labour Court becomes functus officio upon which it is bereft of jurisdiction to entertain and try the application for setting aside the ex-parte award. He relied on paragraphs 4-A, 5 and 6 which reads thus:- “Para 4-A:- This judgment came up for consideration in a recent judgment of a Bench of two learned judges of the Supreme Court Sangham Tape Company v. Hans Raj [2004 III CLR 776]. In this case an ex parte award was passed by the Labour Court on February 5, 1996. An application for setting aside the award was moved after the expiry of a period of one month of the publication of the award. The Labour Court set aside the ex-parte award. In a writ petition filed by the workmen, the High Court had set aside the order of the Labour Court. The Supreme Court held thus while adverting to the decision in Grindlays Bank : " The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award but having regard to the provision contained in Section 17A of 9 8-wp-2339-2011.sxw the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto that date, it has the power to entertain an application in connection with such dispute." “Para-5:- The Supreme Court then held that in view of the decision in Grindlays Bank, such jurisdiction may be exercised by the Labour Court within a limited time frame, within a period of 30 days from the date of the publication of the award. Once the award becomes enforceable under Section 17A, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside the award passed by it. The Supreme Court held that 'upon the expiry of 30 days from the date of publication of the award in the gazette the award having become enforceable, the Labour Court would become functus officio. The judgment of the High Court was, therefore, confirmed. “Para-6:- In the present case it is thus abundantly clear that upon the publication of the award on March 6, 1997 the award become enforceable on April 6, 1997. On that date the Tribunal became functus officio. The application to set aside the award was filed on July 16, 1998 on which date the Tribunal had no jurisdiction to entertain the application. The proceedings before the Tribunal were, therefore, without jurisdiction and both the order condoning the delay and the order setting aside the ex-parte award would have to be quashed and set aside. 11 On the basis of this submission, the learned counsel appearing for the Petitioner submits that the impugned order dated 23rd June, 2010 is liable to be set aside and the application filed by the Respondent-Bank dated 13rd April, 2006 needs to be dismissed. 10 8-wp-2339-2011.sxw 12 Per contra, the learned counsel appearing for the Respondent- Bank vehemently opposed the present Petition. She submits that the Labour Court after considering the facts on the record, allowed their application for setting aside the ex-parte award dated 17th September, 2004. She specifically stated in their application that for want of copy of statement of claim, no one appeared on their behalf in the said reference. She submits that their concerned Officer was under impression that as there is no statement of claim submitted by the Petitioner, there was no reason to file Written Statement and thus, there was no question of further hearing. He submits that when they received a letter dated 21st February, 2006 from the Regional Commissioner, Pune for implementation of the said ex-parte award, they immediately sought a legal opinion in the matter and came to know that remedy of restoration can be taken for setting aside the ex-parte award. In that process, they lost some time and, therefore, there was delay in preferring the said application. She submits that the Petitioner did not furnish a copy of the claim to the Respondent-Bank before or after the same was filed in the Labour Court, and the same has not been supplied to the Respondent-Bank even till today. Since, the Petitioner had not taken any steps against termination of his services for nine long years, the bank formed an impression that he had not pursued the matter before the Labour Court. Even after the award was passed ex-parte on 17th September, 2004 and the same appears to have been published on 9th December, 2004, no 11 8-wp-2339-2011.sxw notice was served on the Respondent-Bank about the award and the Respondent-Bank was not aware that an ex-parte award was passed in favour of Petitioner. She further submits that though the Petitioner had filed a Writ Petition in the High Court, the same was rejected on 7th December, 2005. Thereafter, the Petitioner applied to the Labour Commissioner for implementation of the award and the Respondent-Bank received notice of the same on 21st February, 2006. As per the procedure in the Respondent-Bank, the matter was then referred to a legal opinion and after receiving the legal opinion, the Bank immediately filed restoration application on 13th April, 2006. Thus, they explained that there was sufficient cause for the delay. The learned Judge of the Labour Court rightly held that the Respondent-Bank made out sufficient cause for condonation of delay. She further submits that even the Apex Court in several authorities held that Court should take liberal view at the time of condoning the delay. She relied on following authorities on the point of condonation of delay.:- (i) N. Balakrishnan v/s. M. Krishnamurthy, reported in 1998 -7 SCC-123. (ii) Bhagmal v/s. M. P. Cooperative Marketing & Consumer Federation Ltd. & Others, reported in 2003-11 SCC-727. (iii) Shangrila Food Products Ltd. v/s. Life Insurance Corporation of India & Others, reported in 1996-5 SCC-54. 12 8-wp-2339-2011.sxw 13 She further submits that an application for setting aside ex- parte order passed by the Labour Court is maintainable. She submits that the said issue is fully covered by Apex Court Judgment in the matter of Radhakrishnan Mani Tripathi v/s. L. H. Patel & Another, reported in 2009-2 SCC-81. Head note A of the said judgment reads thus:- “A:- Labour Law – Industrial Disputes Act, 1947 – Ss. 11, 17, 17-A, 22, 24(b) and 38 – Industrial Disputes (Bombay) Rules, 1957 – R. 26 – Vires of – Labour Court or Tribunal – Powers of – Ex – parte award – Setting aside of – On expiry of 30 days of publication of award whether court rendered functus officio – Jurisdiction to entertain recall application beyond such period - Conflict between R. 26 and S.17-A – Whether arising – Labour Court passing ex parte award in favour of workman directing reinstatement and full back wages, published on 5-8-1998 – Respondent filing application for recall of award on 29-1-1999, to days after receipt of notice of award – Tribunal setting aside award as no notice of proceedings served on Respondent 1 – Held, order of the Labour Court recalling the ex parte award was completely in accord with Rs. 26(2) of the Bombay Rules – Petition for recall was filed within two days of the receipt of a copy of the award and Respondent 1 was able to fully satisfy the Labour Court that there was sufficient causes for his non- appearance – In Grindlays Bank Ltd. case, 1980 Supp SCC 420 Supreme Court did not say that the Industrial Courts would have no jurisdiction to entertain and application for setting aside an award made after thirty days of its publication – Position further clarified in Anil Sood case, (2001) 10 SCC 534 – Therefore no question of any conflict between R.26(2) of the Bombay Rules and S. 17-A of the Act.” 14 I have perused the impugned order dated 23rd June, 2010 passed by the Labour Court, application filed by Respondent-Bank for setting aside ex-pare order, reply filed by Petitioner and the authorities cited 13 8-wp-2339-2011.sxw by both the Counsel. It is to be noted that the Labour Court framed two issues for consideration on the basis of the pleadings. These two issues are as under: ISSUES FINDINGS 1. Does the opponent prove that application Is not maintainable by limitation? .. Redundant. 2. Does the applicant prove that sufficient and reasonable grounds are made out to set aside award in Ref.(IDA) no.542/2000 dt. 17.09.2004 by condoning delay? .. Proved. 3. What order? .. See final order. 15 Reading of these two issues shows that, both the parties argued before the Labour Court only on the point of limitation and whether Respondent-Bank proved reasonable ground for setting aside ex-parte award. Therefore, though both the parties made submission on maintainability of the application for setting aside ex-parte order beyond the period of limitation and interpretation of Rule 22 of Central Rules and Rule 26 of State Rules, it is not necessary to go into that dispute. Therefore, the point for my consideration is whether Respondent-Bank made out sufficient cause for setting aside ex-parte order dated 17th September, 2004 and delay in preferring the said application. It is to be noted that in the present case, the Petitioner filed statement of claim in Reference (FDA) No. 542 of 2000 for setting aside his termination order dated 15th September, 14 8-wp-2339-2011.sxw 1989 and for full back wages. In the said Reference, the Labour Court issued notices in form No. IX and X to the Respondent-Bank for filing their Written Statement and for hearing of Reference. Both the notices were received by Respondent-Bank. Receipt of both the notices accepted by the Respondent-Bank and the same is accepted by the witness in cross examination. Witness No.1 Mr. Dilip T. Jadhav specifically stated in paragraphs 9, 10, and 11 about these two notices in form no. IX and X. Paragraphs 9, 10 and 11 reads thus:- “Para-9:- I was in zonal office towards applicant bank. I am B.Sc.LL.B. It is not true to say that I used to attend the labour court for applicant bank regularly. I am having knowledge of court working. Shri Vipradas attached attention of the witness towards notice in Form IX issued by the court in Ref. IDA No.542/2000 asking witness whether address mentioned therein is correct, witness states yes. The witness states notice bear seal of applicant bank and signature about receipt of notice. “Para-10:- Shir Vipradas attracted attention of the witness towards notice Form X from this Court in Ref. IDA No. 542/2000 asking whether the said notice bears seal of applicant and signature of applicant bank as received witness states Yes. The witness says that Form X bears the signature. It is true that vide notice Form X the applicant was directed to remain present in the court on 12.01.2001. Para No.1 of notice Form X is correct. It is true that on 12.01.2001, I had not attend the court. I cannot say whether applicant bank directed an advocate to remain present on 12.01.2001. Para no.1 of notice Form X is correct it is true that on 12.01.2001, I had not attends the court. I cannot say whether applicant bank directed an advocate to remain present on 12.01.2001. I was transferred before 12.01.2001. I cannot say after my transfer, who was looking my charge for applicant bank. It is true that on 12.01.2001 law department of the applicant bank was there. 15 8-wp-2339-2011.sxw “Para-11:- It is true that in Reference (IDA) No.542/2000 statements of claim on behalf of the Second party is there at Exh. 8 and its copy for the bank is also there in the proceeding. The statement of claim, Exh. 8 from Ref. IDA 542/2000 is dtd. 17/08/2001. It is true to say that since 17.8.2001 till this date, statements of claim in Ref. 542/2000 is not obtained by the bank. It is true that the statement of claim was not obtained from Ref. 542/2000. It is true that the notice Form X in Ref. 542/2000 nowhere say that statement of claim has to be furnished giving due notice. It is not true to say that I falsely stated that applicant bank had not received statement of claim in Ref. 542/2000.” 16 Therefore, bare reading of these paragraphs shows that the Respondent-Bank were duly served in Reference (FDA) No.542 of 2000 and in-spite of that, neither they appeared before the Labour Court nor they filed their Written Statement. 17 When the Petitioner filed Writ Petition No.5215 of 2005 in this Court for enforcement of ex-parte award dated 17th September, 2004, the Respondent-Bank appeared through their Advocate. That means, they learnt about the ex-parte order passed by the Labour Court on 17th September, 2004. In spite of that, they failed to take appropriate steps immediately for setting aside ex-parte order. The Respondent-Bank in their application for setting aside the ex-parte order in paragraph 6 stated that, after the order passed by High Court on 7th December, 2005 in Writ Petition No.5215 of 2005, they received a letter dated 21st February, 2006 from the Regional Labour Commissioner, Pune for implementation of the said ex-parte award. 16 8-wp-2339-2011.sxw Thereafter, they immediately sought a legal opinion in the matter. Nowhere it is stated that to whom they approached and when received the legal opinion. It is to be noted that for condonation of delay, party must disclose each and every fact in their application. Bare reading of paragraphs 6 and 7 of Respondent-Bank's application for setting aside the ex-parte order and for condonation of delay shows that they filed application in the casual manner. It is the duty of the Applicant to give date wise explanation for condonation of delay. Though it is not necessary to explain day to day delay, but at least they must disclose the steps taken by them for taking appropriate steps immediately. In the present case, ex-parte order was