IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.8681 of 2003 1.R.V.Nagabhoosanam 2.Adhilakshmi ... Petitioners vs. 1. M/s.M.R.F.Limited, Ichiputhur, Arakonam Taluk, Vellore District. 2. The Presiding Officer, Labour Court, Vellore. 3. The Government of Tamil Nadu, Rep. By the Secretary, Department of Labour & Employment, Fort St.George, Chennai 600 009. ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the award of the second respondent dated 22.03.1999 in I.D.No.297 of 1994 raised by deceased N.Nandan against the first respondent Management and quash the same and direct the second and third respondents to restore the said Industrial Dispute to the file of the Labour Court, Vellore and direct the second respondent to entertain the application of the petitioners for their substitution as petitioners in the said industrial dispute in the place of the deceased workman and dispose of the said Industrial Dispute on merits within the time stipulated by this Court. For Petitioner : Mr.V.Prakash For Respondents : Mr.Sanjay Mohan for R1 for M/s.S.Ramasubramanian Associates R2-Court Mr.N.Senthil Kumar for R3 Additional Govt. Pleader O R D E R The petitioners have filed this writ petition for issuance of a writ of Certiorari in calling for the records relating to the award https://hcservices.ecourts.gov.in/hcservices/ of the second respondent dated 22.03.1999 in I.D.No.297 of 1994 raised by deceased Workman N.Nandan against the first respondent/ Management and to quash the same and also to direct the second and third respondents to restore the said Industrial Dispute I.D.No.297 of 1994 to the file of the Labour Court, Vellore and to issue further direction to the second respondent to entertain the application of the petitioners for their substitution as petitioners in the said industrial dispute in the place of the deceased workman and dispose of the said Industrial Dispute on merits within a time frame to be determined by this Court. 2. The petitioners are the legal heirs of the deceased Workman N.Nandan, who was employed in the first respondent/Company. The Industrial Dispute I.D.No.297 of 1994 on the file of the second respondent was dismissed for non prosecution on 22.03.1999. The deceased Workman N.Nandan had filed a petition under Section 2(A)(2) of the Industrial Disputes Act 1947 before the second respondent/Labour Court and the same was taken on file as I.D.No.297 of 1994. In the said I.D., the deceased Workman prayed for the relief of setting aside the order of termination passed by the first respondent/Management dated 03.10.1992 and sought also the relief of continuity in service with backwages and other benefits. 3. The deceased Workman N.Nandan was not married and the petitioners are the parents, being the Legal Representatives of the deceased workman, have projected the present writ petition. 4. The learned counsel for the petitioners submits that an amendment of Section 2(A) has been brought into force by the Tamil Nadu Government by Act 5 of 1998 and Sub Section (2) has been inserted to Section 2(A) and as per the ingredients of the said Section, an aggrieved individual workman may apply in the prescribed manner, to the Labour Court for adjudication of a dispute and it shall proceed to adjudicate such dispute as if such dispute has been referred to it for adjudication and in that event all the provisions of the Industrial Disputes Act relating to adjudication of industrial disputes will apply to a Labour Court and earlier, only the Union of workers can raise a dispute on behalf of the workmen and after the amendment of Section 2(A)(2), the workman can himself individually raised such dispute and in that event, the Labour Court proceed to adjudicate to such dispute in the manner known to law and further Section 10 of the Industrial Disputes Act deals with reference of disputes to Boards, Courts or Tribunals and added further the Second Schedule to Section 7 of the Industrial Disputes Act, Serial No. (3) speaks of discharge or dismissal of workman including reinstatement of, grant of relief to, workman wrongfully dismissed and the Labour Court has to consider that the labour dispute is between the weaker sections of workmen and that of the employer and the industrial dispute adjudication is an adversarial litigation and the Labour https://hcservices.ecourts.gov.in/hcservices/ Court/Tribunal has the proactive power to gather evidence and it has got the duty to pass award on merits. 5. Expatiating his submissions, the learned counsel for the petitioners submits that there may be several reasons for a workman in not attending the particular hearing of the Labour Court including the reason of penury and whether a party is present or not, the Labour Court has the responsibility of adjudicating the matter on merits and this cannot be shrugged off by the Labour Court and in the instant case, the second respondent/Labour Court in its award has made the following observation "This petition filed by the petitioner against the respondent under Section 2A(2) of I.D. Act 1947. No representation for petitioner. This is old petition. Petitioner called absent. Petition is dismissed for want of prosecution. No cost." and in fact the second respondent inspite of the absence of the petitioner has not proceeded further in the matter in issue on merits and therefore the second respondent/Labour Court has not performed its duty, as adumbrated by the provisions of the Industrial Disputes Act and by following the Tamil Nadu Industrial Disputes Rules, 1958. 6. Also that the steps to make statutory provisions enabling the workman to approach a Labour Court/Industrial Tribunal directly without requirement of reference by the Government in case of dispute governed by Section 2(A) of the Industrial Disputes Act is held to be appropriate as per the decision of the Honourable Supreme Court HOSPITAL EMPLOYEES UNION VS. UNION OF INDIA, 2003 1 LLJ SC 1127. 7. It is to be noted that Industrial Democracy is the bedrock of the Industrial Disputes Act 1947. 8. At this stage, it is apt for this Court to extract the ingredients of Rule 48 of Tamil Nadu Industrial Disputes Rules 1958 which speaks of exparte proceedings and the same runs as follows: "48.Ex-parte proceedings:- (1) If, without showing sufficient cause 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 the Arbitrator may proceed as if the party had duly attended or had been represented. (2) The Board, Court, Labour Court or Tribunal or an Arbitrator may, for sufficient cause, set aside, after notice to the opposite party, the ex- parte decision either wholly or in part,, on an application made within 15 days of the ex-parte decision: https://hcservices.ecourts.gov.in/hcservices/ Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Board, Court, Labour Court or Tribunal or Arbitrator as the case may be, that he had sufficient cause for not preferring the application within that period. (3) An application under sub-rule (2) shall be supported by an affidavit." 9. The substance of the argument of the learned counsel for the petitioners is that the second respondent/Labour Court has passed the impugned Exparte Award on 22.03.1999. As per Rule 48 of Tamil Nadu Industrial Disputes 1958 , even if a party has failed to attend or to be represented the second respondent/Labour Court might have proceeded and gone into the merits of the matter in dispute, as if the party has duly attended or has been represented and in the present case, the Tribunal has not followed the tenor and spirit of Rule 48(1) of Tamil Nadu Industrial Disputes Rules 1958 and therefore the impugned award passed by the second respondent cannot stand for a scrutiny, for a moment in the eye of law. 10. Continuing further, the learned counsel for the petitioners takes a plea that the petitioners have not projected any application to set aside the impugned award in I.D.No.297 of 1994 dated 22.03.1999 passed by the second respondent and the present writ petition has been filed by the parents of the deceased Workman praying for the relief of setting aside the award passed by the second respondent in I.D.No.297 of 1994 and to quash the same and also for the relief of directing the second respondent to restore the I.D.No.297 of 1994 to its file and also to direct the Labour Court to entertain the application of the petitioners for their substitution as petitioners in the place of the deceased Workman N.Nandan (as Legal Representatives) and to continue the proceedings before the second respondent. 11. It is not in dispute that the deceased Workman expired on 23.09.1994 but the present writ petition has been filed by the parents of the deceased workman on 27.02.2003 before this Court. 12. It is not out of place for this Court to make a significant reference that the petitioners in paragraph No.7 of the affidavit in support of this writ petition filed by them have stated in candid terms that the Award dated 22.03.1999 passed in I.D.No.297 of 1994 was communicated to them in the month of November 1999 and even though the said award has since been communicated in November 1999, the present writ petition has been filed only on 27.02.2003 before this Court, after a lapse of 8 years 5 months from the date of death of the person and after a gap of 3 years and 3 months from the date of passing of the impugned award in question. https://hcservices.ecourts.gov.in/hcservices/ 13. Also, the learned counsel for the petitioners takes a plea that the petitioners have not filed an application to set aside the impugned award and therefore the decision SANGHAM TAPE COMPANY V. HANS RAJ, (2005) 9 SCC 331, may not apply to the facts and circumstances of the case. 14. That apart, the learned counsel for the petitioners draws the attention of this Court to Rule 34 of the Tamil Nadu Industrial Disputes 1958 which speaks of the proceedings before the Labour Court or Tribunal and the same enjoins as follows:- "34. PROCEEDING BEFORE THE LABOUR COURT OR TRIBUNAL :- [1]While referring an Industrial dispute for adjudication to a Labour Court or Tribunal, the State Government shall direct the party raising the dispute to file a statement of claim complete with relevant documents and list of witnesses, with the Labour court or Tribunal within fifteen days of the receipt of the order of reference and also to forward a copy of such statement of claim to each one of the opposite parties involved in the dispute. [2]The Labour Court or Tribunal after ascertaining that copies of statement of claim have been furnished to the other side by the party raising the dispute shall fix the first hearing on a date not beyond one month from the date of receipt of the order of reference and the opposite party or parties shall file their written statements, together with documents and list of witnesses within a period of fifteen days from the date of first hearing and simultaneously forward a copy thereof to the other party. [3]Where the Labour Court or Tribunal, as the case may be, finds that the party raising the dispute though directed by the State Government did not forward the copy of the statement of claim to the opposite party or parties, it shall give direction to the concerned party to furnish the copy of the statement to the opposite party or parties and for the said purpose or for any other sufficient cause, extend the time limit for filing the statement under sub-rule [1] or written statement under sub-rule [2] for a further period not exceeding fifteen days. https://hcservices.ecourts.gov.in/hcservices/ [4]The party raising a dispute may submit a rejoinder if it chooses to do so, to the written statement [s] filed by the opposite party or parties within a period of fifteen days from the date of filing of the written statement[s]. [5]The Labour Court or Tribunal, as the case may be, may allow at any stage of the proceedings, amendment to such statement or rejoinder to the extent necessary for the purpose of determining the real issues included in the order of reference. [6]The Labour Court or Tribunal, as the case may be, shall fix a date for taking evidence within one month from the date of receipt of the statements, documents and list of witnesses, which shall be ordinarily within sixty days from the date on which the dispute has been referred for adjudication. [7]Evidence shall be recorded either orally or through an affidavit but in the case of an affidavit, the opposite party shall have the right to cross examine each of the deponents filing the affidavit. As the oral examination of each witness proceeds, the Labour Court or Tribunal shall make a memorandum of the substance of what is being deposed. While recording the evidence, the Labour Court or Tribunal shall follow the procedure laid down in Order XVIII of Rule 5 of the First Schedule to the Code of Civil Procedure, 1908. [8]After the evidence is recorded, either arguments shall be heard immediately or a date shall be fixed for arguments/oral hearing which shall not be beyond a period of fifteen days from the date of closing of the evidence. [9]The Labour Court or Tribunal, as the case may be, shall not grant more than three adjournments in any case and such adjournments shall not exceed a period of seven days at a time. Provided that where the Labour Court or the Tribunal, as the case may be, is of opinion that the adjournment granted for a period of seven days at any one time is not sufficient such Labour Court or Tribunal, may, for reasons to be recorded in writing grant adjournment for a period exceeding seven days. https://hcservices.ecourts.gov.in/hcservices/ [10]In case, any party defaults or fails to appear at any stage, the Labour Court or Tribunal as the case may be, proceed ex-parte and decide the reference application in the absence of the defaulting party. [11]Not withstanding anything contained in Sub- rule [10], the Labour Court or Tribunal, as the case may be, before submitting the Award to the State Government, revoke the ex-parte proceedings on the application of the party made within fifteen days of the ex-parte proceedings if it is satisfied that the party has been prevented from attending the proceedings for valid reasons: Provided that an application may be admitted after the said period of fifteen days, if the applicant satisfies the Labour Court or Tribunal, as the case may be, that he had sufficient cause for not preferring the application within that period. [12]The Labour Court or Tribunal, as the case may be, shall submit its Award to the State Government within one month from the date of oral hearing/arguments or within the period mentioned in the order of reference whichever is earlier. [13]In respect of reference under section 2-A, the Labour Court or Tribunal, as the case may be, shall ordinarily submit its Award within a period of three months or within such period the Labour Court or Tribunal, as the case may be, may extend, for reasons to be recorded in writing." 15. The learned counsel for the petitioner submits that inasmuch as the Industrial Disputes Act 1947 is a welfare legislation and since the Workman has expired on 23.09.1994 and also taking note of another fact that the award passed by the second respondent which has since been notified, the second respondent does not have the power to re-open the Industrial Disputes and re-hear the matter on merits and therefore the petitioners have no other option but to approach this Court under Article 226 of the Constitution of India. 16. Per contra, the learned counsel for the first respondent contends that in the instant case, the Workman Nandan expired on 23.09.1994 and the second respondent/Labour Court passed an exparte award on 22.03.1999 in I.D.No.297 of 1994 and inasmuch as the workman expired on 23.09.1994, the proceedings got abated by the time, when the award was passed on 22.03.1999 and since the workman/employee's vakalat came to an end on the date of his death and in the Industrial https://hcservices.ecourts.gov.in/hcservices/ Disputes Act, 1947 and Rules made thereunder, there is no provision for substitution of legal proceedings and since the Industrial Disputes Act is a special one it is not like a Civil Procedure Code where the abatement of a party is applicable and in short, in the absence of a relevant provision to bring the legal representatives on record the petitioners cannot step in and all the more, when their son, the deceased worker who raised the dispute expired on 23.09.1994, then Rule 48 of the Tamil Nadu Industrial Disputes Rules, 1958 will not come into operative play at all and since the existence of a party is very much necessary as per Rule 48 of the Tamil Nadu Industrial Disputes Rules and in the instant case, since the workman expired, the presence of party is not possible and if Rule 48 is to be complied then all the procedure will have to be complied with like filing of the application, etc., and admittedly no application has been projected by the petitioners and as such, Rule 48 cannot be pressed into service and this Court cannot shower something more to the petitioners than what has been provided under the Industrial Disputes Act and Rules. 17. Also, the learned counsel for the first respondent by referring to the Award passed by the second respondent in I.D.No.297 of 1994 on 22.3.1999 contends that the second respondent/Labour Court in its Award inter alia has mentioned that 'No representation for petitioner. This is old petition. Petitioner called absent. Petition is dismissed for want of prosecution. No cost." and when Rule 48 of Tamil Nadu Industrial Disputes Act is not attracted then the second respondent has power to pass an award not on merits also and therefore this Court need not interfere with the award passed by the second respondent/Labour Court in the interest of justice. 18. At this stage, the learned counsel for the first respondent refers to Rule 54 of the Tamil Nadu Industrial Disputes Rules 1958, which runs as follows:- 54. Mode of computation of cash value under section 33-C(2) of the Act:- (1) Where any workman is entitled to receive from the employer any money or any benefit, the workman himself or any other person authorised by the workman or in the case of death of the workman, his assignee or heirs as the case may be, may make an application under sub-section (2) of Section 33-C to the Labour Court. The application by the workman shall be made in Form 'M' and the application by the assignee or heirs or any person authorised by the workman shall be made in Form 'M-1'. The average retail prices at the nearest market for the period of three months immediately preceding the month for which the wages are to be computed shall be taken into account in computing the cash https://hcservices.ecourts.gov.in/hcservices/ value of wages paid in kind and of concession in respect of essential commodities supplied at concessional rates. (The Labour Court shall communicate to the parties, by registered post, a gist of the order passed on such application as soon as practicable, after conclusion of the hearing.) [(3) The Labour Court shall also communicate a copy of the order passed on such application to the Secretary to Government of Tamil Nadu in-charge of Labour along with a copy of the earlier order, if any, issued by it in respect of the same matter.] and contends that there is no provision for bringing the legal representative and also refers to Section 33(C) of the Industrial Disputes Act, which refers to as follows:- 33C. Recovery of money due from an employer:- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of (Chapter VA or Chapter VB), the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months): (Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so https://hcservices.ecourts.gov.in/hcservices/ to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.) (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section(1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. and contends that 33(C)(1) may not apply in the instant case because there has been no award or there has been a settlement, etc.,. Further more, the legal representatives can be roped in as per Section 33 (C)(2) of the Industrial Disputes Act and not under Section 2(A) of the Industrial Disputes Act. 19.The learned counsel for the first respondent cites the decision of the Honourable Supreme Court in SANGHAM TAPE COMPANY V. HANS RAJ, (2005) 9 SCC 331, wherein the Honourable Supreme Court has among other things observed that '....An award made by an Industrial Court becomes enforceable under Section 17A of the Act on the expiry of 30 days from the date of its publication and once the award becomes enforceable, the Industrial Tribunal and/or labour Court becomes functus officio and while an Industrial Court has jurisdiction to set aside an exparte award but having regard to provision contained in Section 17A, an application thereof must be filed before expiry of 30 days from publication thereof and till then the 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