IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.8718 of 2003 The Management, Pennagar Primary Agricultural Co-operative Bank, Pennagar Post, Gingee Taluk. ... Petitioner vs. 1.Kandeepan 2.The Presiding Officer, Labour Court, Cuddalore. ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorari to call for the records of the second respondent in his proceedings in I.A.No.561 of 2000 in I.D.No.120 of 1995 and quash his order dated 7.6.2002. For Petitioner : Mr.S.Balasubramanian For Respondents : Mr.R.Sankara Subbu for R1 R2-Court O R D E R The petitioner/Co-operative Bank has filed this writ of Certiorari in calling for the records of the second respondent/Labour Court Cuddalore in I.A.No.561 of 2001 in I.D.No.120 of 1995 dated 07.06.2002 and quash the same. 2. The petitioner/Bank has filed an I.A.No.561 of 2001 before the second respondent as per Rule 48(2) of the Tamil Nadu Industrial Disputes Rules 1958 praying to condone the delay of 99 days in filing an application to set aside the exparte award passed by the second respondent in I.D.No.120 of 1995 dated 14.11.2000. 3. The second respondent while passing orders in I.A.No.561 of 2001 on 07.06.2002 has inter alia observed that ' when the matter was taken up for enquiry, the petitioner was not ready. https://hcservices.ecourts.gov.in/hcservices/ Only a clerk of the petitioner respondent is present. Though sufficient time was granted, the petitioner has not taken any steps to go with the enquiry on this petition. The award has been passed 1 ½ years ago. The petitioner has not shown any progress and has been dragging on the matter, till date. The reasons given in the affidavit are based on assumptions and not justified. There is no sufficient and reasonable cause to condone the delay' and ultimately dismissed the application. 4. Being dissatisfied with the order dated 07.06.2002 in I.A.No.561 of 2001 passed by the second respondent, the petitioner/Bank has filed this writ of Certiorari to set aside the order dated 07.06.2002 passed in I.A.No.561 of 2001 in I.D.No.120 of 1995 by the second respondent. 5. The learned counsel for the petitioner/Bank urges before this Court that the first respondent/Employee raised an Industrial Dispute No.120 of 1995 on the file of the second respondent praying for his reinstatement along with backwages on the footing that he was removed from service by the petitioner on 30.04.1993 and the fact remains that the first respondent/Employee submitted his resignation on 31.07.1993 before the Special Officer of the Bank and that an Exparte Award was passed in I.D.No.120 of 1995 on 14.11.2000 by the second respondent and the petitioner/Bank came to know of the Exparte Award on 14.02.2001 when the same was published in the office of the Labour Officer and the then President of the petitioner/Bank made arrangements to verify the records and came to know that the case was transferred from Tindivanam to Cuddalore which fact was not known to him and he took steps to set aside the award and in that process there had occasioned a delay of 99 days in preferring the application to set aside the exparte award and the same was dismissed by the second respondent/Labour Court on 07.06.2002 and the observation of the second respondent in mentioning that the reasons ascribed in the affidavit of the petitioner/Bank praying to excuse the delay in filing the application to set aside the Exparte Award were passed on assumptions without any basis and therefore committed an error in arriving at a conclusion that there was no sufficient and reasonable cause to excuse the delay ignoring the averments made in the application and indeed the second respondent/Labour Court had not appreciated a vital fact that the first respondent/Employee had not specifically denied the averments made in I.A.No.561 of 2001 in I.D.No.120 of 1995 and as a matter of fact, the first respondent/Employee was endeavouring to claim the relief of reinstatement and also the backwages in pursuant to the exparte award and in short, the first respondent/Employee had submitted his resignation through a letter dated 31.07.1993 stating that he was working as a driver and also requested the petitioner/Bank to send his Medical Leave Salary through Money Order and therefore prays https://hcservices.ecourts.gov.in/hcservices/ for allowing the writ petition in furtherance of substantial cause of justice. 6. Per contra, the learned counsel for the first respondent/Employee contends that the second respondent/Labour Court in its order dated 07.06.2002 in I.A.No.561 of 2001 had categorically observed that only the clerk of the petitioner/Bank was present and though sufficient time was granted the petitioner/Bank had not taken steps to go with the enquiry in the Interlocutory Application and that the award was passed 1 ½ years ago and that the petitioner had not shown any progress and was dragging on the matter till date and that the reasons assigned in the affidavit were based on assumptions and not a justifiable one and therefore rightly had dismissed the application and as such the writ petition filed by the petitioner/Bank has to be dismissed by this Court in the interest of justice. 7. It is not in dispute that an Exparte Award dated 14.11.2000 was passed in I.D.No.120 of 1995 by the second respondent /Labour Court, Cuddalore. The second respondent while passing an Exparte Award on 14.11.2000 in I.D.No.120 of 1995, was pleased to observe among other things that the first respondent/Employee filed the proof and conciliation failure report Ex.W.1 and it perused the proof affidavit and Ex.W.1 and as the respondent was called absent and set Exparte, the claim of the first respondent/Employee was accepted and he was entitled for reinstatement of service along with backwages and resultantly passed the award accordingly. 8. It is to be borne in mind that Section 17 of the Industrial Disputes Act speaks of publication of reports and awards which enjoins as follows:- "17.Publication of reports and awards:- (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. (2) Subject to the provisions of Section 17- A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever." 9. Also Section 17(A) of the Act refers to the Commencement of the award which refers as follows:- https://hcservices.ecourts.gov.in/hcservices/ "17-A.Commencement of the award:- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17: (a) If the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an Industrial dispute to which it is a party; or (b) If the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or that it will be inexpedient on public grounds affect national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days. (2) Where any declaration has been made in relation to an award under the proviso to sub- section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government. (3) Where any award as rejected or modified by an order made under sub section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2). (4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date https://hcservices.ecourts.gov.in/hcservices/ when the award becomes enforceable under sub- section (1) or sub-section (3), as the case may be." 10. The word 'shall' employed in Section 17 of the Act points out that they are mandatory. A close reading of Section17 and 17-A in a combined fashion unerringly indicates that the Government is to publish the award within thirty days of its receipt and the object behind is that a litigant ought to know the reasons which the Labourt Court/Tribunal might have recorded in resolving the dispute referred to it. As a matter of fact, the time limit prescribed in Section 17 shows that the publication of an award must not be held up. However, the publication made beyond the prescribed time limit will not make the award a nugatory and invalid one. Further, as per sub section (1) of Section 17-A, an award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication. 11. At this juncture, this Court pertinently points out that an order or Award passed by a Labour Court/Industrial Tribunal under the Industrial Disputes Act 1947 is amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. Even when the law confers a final power on a quasi judicial Tribunal to decide a matter, Certiorari shall lie as per Article 226 of the Constitution to quash the decision of the Tribunal as per the decision of the Honourable Supreme Court PARRY & COMPANY Vs. COMMERCIAL EMPLOYEES' ASSOCIATION, 1952 (1) LLJ pg.13. Also, this Court points out the decision BILASPUR VIKAS PRADHKARAN Vs. RADHELAL UPADHYAYA AND ANOTHER, 1995 (VOL.71) INDIAN FACTORIES AND LABOUR REPORTS, wherein at paragraph No.4 it is among other things held as follows:- "....4. After hearing the counsel for the parties, X of the opinion that the order dismissing the application under Order 9, rule 13, CPC cannot be sustained. When the petitioner came to know of the ex-parte award after its pronouncement, the petitioner move the Court for setting aside the ex- parte award stating that the Chief Executive Officer was on leave and, hence, could not appear before the Court. In fact, it is the Chief Executive Officer who is only authorised to sue and defend the case on behalf of the petitioner. It is not disputed that that the Chief Executive Officer was not in the town and was on leave, hence, the clerk of the petitioner could not have engaged the counsel, or could not have filed the written statement. Hence, the clerk of the petitioner made prayer to grant time, that prayer was not accepted. https://hcservices.ecourts.gov.in/hcservices/ Therefore, it cannot be said that the petitioner was not represented, hence the Labour Court could not have ordered to proceed Ex-parte, though the Court could have will within its jurisdiction proceed the appropriate orders in accordance with law while refusing the prayer for grant of time. Therefore, the order of proceeding Ex-parte is illegal." 12. It is apt for this Court to cite the decision OBEDUR REHAMAN SHAIKH Vs. SURESH J.KHADE, 2001 (VOL.90) INDIAN FACTORIES & LABOUR REPORTS 456, wherein it is held that 'in the matter of exparte awards, specially Courts functioning under legislation meant for the benefit of weaker sections and which are called social welfare legislation the Courts must see that justice is done and not proceed on technical grounds. Sufficient cause in such matter should be given a wider meaning so as to ensure justice between the parties." 13. Moreover, this Court recalls the decision of the Honourable Supreme Court M/S. SANGHAM TAPE COMPANY Vs. HANS RAJ, AIR 2004 SUPREME COURT 4776, whereby and whereunder it is held that 'the jurisdiction of Labour Court/Industrial Tribunal to set aside an award could be exercised within 30 days from the date of publication of award and upon expiry of 30 days the award becomes enforceable and the Labour Court becomes functus officio." 14. That apart, this Court cites the decision NELLORE DISTRICT CO-OPERATIVE CENTRAL BANK LTD, Vs. PRESIDENT, THE NELLORE DISTRICT CO-OP CENTRAL BANK EMPLOYEES ASSOCIATION AND ANOTHER, 2001 (89) INDIAN FACTORIES AND LABOUR REPORTS 1065, whereby it is held thus:- "..........The learned Single Judge ought not to have usurped the jurisdiction of the Labour Court in considering the matter on merits. Whether there has been a sufficient cause for not approaching the Labour Court in time or not was not a matter which was required to be gone into in the writ proceedings for the first time. In a case of this nature disputed questions of fact may arise which may be determined only upon adduction of oral and documentary evidence. In that view of the matter, in the opinion of this Court, the learned Single Judge ought to have remitted the matter back to the Labour Court." 15. In the decision V.P.SHARMA Vs. P.O., LABOUR COURT X & OTHERS, 2000 (VOL.III SUPPL.) at page 1284, it is held that 'an award published under Section 17 of the Industrial Disputes Act https://hcservices.ecourts.gov.in/hcservices/ 1947 become enforceable under Section 17-A after 30 days of its publication. However an Exparte Award thus published by Tribunal even after 30 days of its publication if sufficient cause for absence of party in Court or Tribunal is shown.' 16. Added further, in the aforesaid decision at paragraph Nos.15 to 18, in page No.1289 the following observations are made:- ".....15.I may point out at this stage that not long after the Judgment of Grindlays Bank [supra], the Supreme Court had occasion to consider and interpret the ratio of the said case in the judgment delivered in Satnam Venna Vs. Union of India, AIR 1985 SC 294 : 1985-I-LLJ-79. In that case also the Labour Court as well as the High Court had rejected the application of the appellant refusing to set aside the ex-parte award and accordingly appellant had appealed to Supreme Court. The Supreme Court while allowing the appeal of the appellant and holding that Labour Court had the power to consider the application of the appellant to set aside ex-parte award, explained the Grindlays Bank case in the following manner:- "In the case of Grindlays Bank Ltd., the specific contention canvassed was whether where an ex parte award is made and published in the Official Gazette, the Industrial Tirbunal has the jurisdiction to entertain the application for setting it aside if sufficient cause is shown for absence of appearance on the date on which an ex parte award was made and it was answered in the affirmative. This Court referred to Rule 22 and Rule 24[b] of the Industrial Disputes [Central] Rules, 1957 and held that the Industrial Tribunal had the power to pass an order setting aside the ex parte order. In reaching this conclusion, the court observed that if the Tribunal has the power to proceed ex parte as provided by Rule 22, it should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The court then proceeded to examine the scheme of the relevant rules and observed that Rule 22 unequivocally confers jurisdiction on the Tribunal to proceed ex parte. The Tribunal can proceed ex parte if no sufficient cause for absence of a party is shown. This power was interpreted to comprehend that if sufficient cause was shown which prevented a party from appearing, then in the terms of Rule https://hcservices.ecourts.gov.in/hcservices/ 22, the Tribunal will have had no jurisdiction to proceed ex parte and consequently, it must necessarily have power to set aside the ex parte award. The court in terms observed that the power to proceed ex parte is subject to the fulfilment of the condition laid down in Rule 22 and therefore, it carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. The Court then referred to Rule 24[b] and held that where the Tribunal or other body makes an ex parte award, the provisions of Order IX, Rule 13 of the Code of Civil Procedure are dearly attracted and it logically follows that the Tirbunal was competent to entertain an application to set aside an ex parte award. The court then proceeded to examine the contention that once an award is published in the Official Gazatte, be it an ex parte one, does the Tribunal become functus Officio and therefore, will have no jurisdiction to set aside the ex parte award and that as contended before us the appropriate Government along could set is aside and rejected in holding that no finality is attached to an ex parte award because it is always subject to its being setting aside on sufficient cause being shown. The court held that the Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders. We have extensively referred to this decision because it effectively answers all the limbs of the contention canvassed before us and which unfortunately, found favour with the Labour Court and the High Court." 16.After explaining the ratio of the Grindlays Bank case in the aforesaid manner, Supreme Court went on to observe as under:- "It must follow as a necessary corollary that the Labour Court as well the High Court denied to itself the jurisdiction vested in it to entertain an application for setting aside an ex parte award and reached an erroneous conclusion." 17.Perhaps Satnam Verma [supra] clarifeis what Grindlays Bank [supra] decides. It is established Principle of Law tht interpretation given by Supreme Court about an earlier case in a later case is also binding precedent. https://hcservices.ecourts.gov.in/hcservices/ 18.Single Bench of Madras High Court in the case of Special Officer, Salem Co-operative Printing Ltd., V. Labour Court Salem, and another, 1998-III-LLJ [Suppl.]-1168 [Mad] has considered the ratio of Satnam Verman case and quoted para-7 of the said Judgment to pint out that no finality is attached to an ex parte award because it was always subject to its being set aside on sufficient cause being shown and Tribunal had power to deal with the application properly made before it for setting aside of ex parte award and pass suitable orders." 17. The power to proceed exparte is available as per Rule 22 of the Central Rules of the Industrial Disputes Act which also includes the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. Indeed, the ingredients of Section 11 of the Industrial Disputes Act indicate clearly that a Labour Court or Tribunal has the discretion to follow such procedure as it may think fit and whenever the matter is referred to a Labour Court or Industrial Tribunal the same has to be determined objectively and the said discretion has to be exercised in a judicial manner without arbitrariness by adhering to the general principles of law as well as the Rules of Natural Justice, in the considered opinion of this Court. 18. It cannot be gain said that while passing even an Exparte Award against an Employer or Employee, the Labour Court/Industrial Tribunal is duty bound to consider the material facts and available oral and documentary evidence on record if any by applying its Judicial mind. 19. Generally speaking, an Exparte Order/Award cannot be set aside if there is gross negligence of an employer in regard to non appearance. However the existence of sufficient cause is an important element in setting aside an Exparte Award, as opined by this Court. The term 'Sufficient Cause' is a pure question of fact. However a Court of Law may not be unduly lenient in setting aside an Exparte Award. 20. It is not out of place for this Court to make a relevant mention that the first respondent/Employee filed I.D.No.120 of 1995 under Section 2(A)2 of the Industrial Disputes Act, 1947 on the file of the second respondent/Labour Court on 05.10.1995 praying for the relief of reinstatement with continuity of service, backwages and other attendant benefits. 21. The petitioner/Bank filed a counter in I.D.no.120 of 1995 inter alia mentioning that the first respondent/Employee in his reply dated 31.07.1993 had stated that since he was working as https://hcservices.ecourts.gov.in/hcservices/ a Lorry Driver he resigned his job and he had left the service of the petitioner/Bank and as such it was contrary to fact to state that he was removed from service from 30.04.1993 and that the petitioner /Management had not removed the first respondent/Employee at any time. Subsequently, the first respondent/Employee projected I.A.No.19 of 1996 before the second respondent/Labour Court on 28.12.1995 stating that on 06.12.1995, the Court passed an order disentitling one S.Ragothama Rao to appear on behalf of the Special Officer of the Bank and therefore his continued appearance may be annulled and to permit the Special Officer of the Bank to appear before the Court for the purpose of representation. It transpires from record that the said I.A.No.19 of 1996 filed by the first respondent/Employee was dismissed for default by the second respondent/Labour Court on 31.07.1996 assigning the reason that the first respondent/Employee was called absent and there was no representation. In regard to main I.D.No.120 of 1995, the first respondent/Employee was examined as W.W.1 and his evidence was recorded in the form of proof affidavit, etc., and later on 05.10.2000, when the matter was posted for cross-examination of W.W.1, the writ petitioner/Bank was called absent and set exparte and lastly, on 14.11.2000, an Exparte Award was passed holding that the petitioner was entitled to the relief of reinstatement of service along with backwages as claimed and accordingly the industrial dispute was answered. 22. While this being the fact situation on 08.03.2001, the writ petitioner/Bank filed I.A.No.561 of 2001 before the second respondent/Labour Court praying to condone the delay of 99 days in setting aside the exparte award dated 14.11.2000 against the Bank. The petitioner/Bank filed a counter to the said I.A.No.561 of 2001 stating that on their behalf S.Ragothama Rao appeared in the case and the orders passed thereon would not amount to an exparte award because of the fact that the petitioner/Management appointed a representative and conducted the case and as such prayed for setting aside the exparte award. However I.A.No.561 of 2001 was dismissed by the second respondent on 07.06.2002 inter alia observing that when the matter was taken up for enquiry , the writ petitioner/Bank was not ready and only the Clerk of the Bank was present and though sufficient time was granted the petitioner/Bank had not taken any steps to go on with the enquiry in the application and further the award was passed 1 ½ years ago and the Bank had not shown any progress and was dragging on the matter till date, etc., and the reasons assigned in the affidavit were based on assumptions and not justified and there was no sufficient and reasonable cause to condone the delay and resultantly dismissed the same. Interestingly, I.A.No.562 of 2001 filed by the first respondent/Employee to set aside the