SCA/1993/2008 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1993 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAYANTKUMAR ISHWARBHAI AHIR - Petitioner(s) Versus ZAVERI POLYMERS LTD. - Respondent(s) ========================================================= Appearance : MR HARSHAL M SHAH for Petitioner(s) : 1, MR MAYUR S BAROT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 21/08/2008 ORAL JUDGMENT 1. Rule. Learned advocate Mr. Mayur S. Barot, waives service of Rule on behalf of respondent. In this petition, the petitioner, a workman of respondent No.1, has challenged an order dtd SCA/1993/2008 2/31 JUDGMENT 24.10.2007 passed by Labour Court, Bharuch in Miscellaneous Application No. 8/2007 in Ref. (LCB) No. 248/99. 2. The challenge arises in the background of the facts that the the learned Labour Court by an ex-parte order dtd. 28.11.2003 dismissed Reference being Ref. (LCB) No. 248/1999 on ground of non- prosecution in view of absence of present petitioner during the proceedings before the Labour Court. Then, the petitioner herein belatedly i.e., after prescribed period of 30 days, preferred Miscellaneous Application No. 19/2004 requesting the learned Labour Court to set aside the ex-parte order dismissing the Reference proceedings and to restore the Reference proceedings and to hear and decide the same after giving him opportunity of hearing. The Labour Court after hearing the petitioner and the respondent, passed order dated 14.10.2006 rejecting the said miscellaneous application. Thereafter, the petitioner filed Misc. Application No. 8/2007 with prayer for condonation of delay and by the impugned order dtd. 24.10.2007 the Labour Court rejected the SCA/1993/2008 3/31 JUDGMENT said application also. 3. Thus, the petitioner is actually aggrieved by the order passed in Miscellaneous Application No. 19/2004 and also by ex-parte order in Reference No. 248/1999 as well as by order in the Miscellaneous Application No. 8/2007, and though aggrieved by the aforesaid orders, the petitioner has, somehow, challenged only the order dtd. 24.10.2007. 4. The facts involved in and relevant for present petition are that the petitioner claimed that he was employed with the respondent company and after 4 years of service he was terminated, by oral order, on 9.10.1998. Aggrieved by the said order terminating his service the petitioner raised an industrial dispute which was referred by order of Reference dated 9.6.1999. In the said Reference the petitioner filed his statement of claim on or around 15.3.2000. It appears that some time after filing statement of claim, the petitioner did not remain present on certain dates when the proceedings were scheduled for hearing before the Labour Court. The Labour Court, therefore, passed order dated SCA/1993/2008 4/31 JUDGMENT 28.11.2003 due to absence of petitioner and dismissed the said Reference (LCB) No. 248 of 1999 on the ground of non-prosecution. When the petitioner came to know about the said ex-parte order he preferred a miscellaneous application under Rule 26(A) of Industrial Dispute (Gujarat) Rules, 1966 ('the Rules' for short) requesting the Labour Court to set aside the ex-parte order and to restore the Reference proceedings. The said miscellaneous application was registered as Miscellaneous Application No. 19/2004 and after hearing the parties the Labour Court rejected the said miscellaneous application on the ground that upon completion of 30 days and after the publication of the award it became functus officio. It appears that the petitioner herein subsequently preferred another Misc. Application No. 8/2007 requesting the Court to condone the delay. The said application also came to be rejected by the Labour Court by the impugned order dtd. 24.10.2007. The petitioner has challenged said order dtd. 24.10.2007. 5. Heard Mr. HM Shah, Advocate for the petitioner and Mr. Mayur Barot, Advocate for the respondent. SCA/1993/2008 5/31 JUDGMENT 6. Mr. Shah for the petitioner submitted that the petitioner had filed the statement of claim in the Reference proceedings, however, due to financial difficulties he could not engage an Advocate and though he was usually attending the proceedings on almost all dates the petitioner could not attend the hearing on some dates due to certain personal problems as well as financial constraints and on the particular date when the impugned ex-parte order came to be passed he could not atend the hearing because he had to go to hospital for treatment of his physically handicapped son and unfortunately the proceedings came to be dismissed for non-prosecution. In light of such facts and reasons, Mr. Shah submitted that there were sufficient reasons for setting aside the ex-parte award, however, Labour Court failed to appreciate the difficulties of the petitioner and the genuine and bonafide reasons urged by him in support of his request. He, on such ground, submitted that the ex-parte award in the Reference proceeding is unsustainable and the order in the miscellaneous application deserves to be set aside, and the petitioner may be granted an SCA/1993/2008 6/31 JUDGMENT opportunity to prosecute the Reference proceedings on merits. 7. Mr. Shah also submitted that if the proceedings are restored and the ex parte order is set aside the petitioner would not insist for backwages for intervening period,i.e., for the period from the date of ex parte order in the Reference proceedings until the order setting aside the ex- parte order, i.e., till restoration of Reference proceedings. 8. On the other hand, Mr. Barot submitted that the petitioner herein remained completely negligent towards the proceedings and it is settled legal position that law would not help an indolent litigant. Mr. Barot also submitted that the Reference proceedings were initiated in 1999 and Labour Court waited until 2003 and it was after almost 4 years that the proceedings came to be dismissed for non-prosecution in view of petitioner's absence and that therefore the order passed by the Labour Court is justified and does not call for any SCA/1993/2008 7/31 JUDGMENT intervention. He further submitted that the miscellaneous application was also delayed and the petitioner failed to make out any cause for condonation of delay and/or for restoration of the Reference proceedings. Mr. Barot further submitted that the award is to be treated as an award passed on merits. In his submission, the order passed in miscellaneous application is also passed on merits. Mr. Barot submitted that as per Rule 26A such miscellaneous application is required to be filed within 30 days, whereas the petitioner filed the Miscellaneous Application No. 19/2004 after the limitation expired and that therefore the Labour Court rightly rejected the miscellaneous application. In his submission, there were sufficient reasons to pass ex-parte order disposing the Reference on ground of non-prosecution and to reject miscellaneous application, and the Labour Court has not committed any error in rejecting the same. Mr. Barot, during his submissions, placed heavy reliance on the judgment in the case of M. Jagdamba Dyeing & Printing and Anr. Vs. Ramkumar Ramchal Mishra, C/o. Surat Silk Labour Union, reported in 2006 (1) G.L.H. 545; and SCA/1993/2008 8/31 JUDGMENT the judgment in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others, reported in AIR 1981 S.C. 606; and the judgment in the case of M/s. Sangham Tape Company vs. Hans Raj, reported in 2004 LAB.I.C. 4039. 9. It is pertinent that the petitioner herein had submitted in the miscellaneous application that usually the petitioner was remaining present during the proceedings and it was due to unavoidable circumstances and personal difficulties that he could not remain present on 8.11.2003 and on certain dates before 8.11.2003. The petitioner appears to have also given the reason for not remaining present in the Labour Court on 8.11.2003 and explained that he had to take his physically handicapped son for treatment to hospital and that is why he was not present when the matter was taken up for hearing on 8.11.2003. 10. The legal position is settled by judgment of this Court in the case between Prathansinh K. Patel vs. Chairman, Vochhaved Dudh Utpadak Sahkari Mandali Ltd. In the said judgment, this Court (Coram: N.N. Mathur, J., as His Lordship then was) relying on the SCA/1993/2008 9/31 JUDGMENT judgment reported in 1968 Lab.I.C. 139 and 1969 Lab.I.C. 729, held that:- 5. The definition clearly stipulates determination of the industrial dispute or any question relating thereto referred to the Labour Court or the Industrial Tribunal. There can be no determination of a dispute much less the industrial dispute unless there is an adjudication on merit. The determination may be interim or final but mere dismissal of a reference for non-prosecution by no stretch of imagination can be said to be determination of a dispute. It is of course true that when a matter is withdrawn, there remains no dispute which requires any adjudication and the Labour Court and the Tribunal may permit withdrawal. That would be entirely a different situation. Thus, in any view, a reference made under Section 10 of the Industrial Disputes Act cannot be rejected for want of prosecution. I am fortified in my view by the two decisions referred by the learned advocate for the petitioner.....” Accordingly, the SCA/1993/2008 10/31 JUDGMENT said Special Civil Application was allowed and the order of the Labour Court rejecting the Reference therein was quashed and set aside and the Reference therein was restored to the file of the Labour Court.” Thus, the Labour Court could not have, in light of the legal position, passed an order dismissing Reference proceedings on ground of non-prosecution. This Court has held that once an Order of Reference is made, the Labour Court is bound to decide the same on merits. Hence, the order dtd. 28.11.2003 in Ref. (LCB) 248/1999 does not deserve to be maintained. As the discussion hereinafter would show, the other submissions on behalf of the respondent are without merits. 11. As mentioned earlier, Mr. Barot for the respondent relied on the judgments of the Hon'ble Apex Court and of the Hon'ble Division Bench of this Court. So far as the judgment of the Hon'ble Division Bench in the case of Jagdamba Dyeing & Printing and Anr.(supra)on which the respondent has placed reliance is concerned, the issue before the SCA/1993/2008 11/31 JUDGMENT Hon'ble Division Bench was not about an ex parte award given by the Labour Court dismissing the Reference for non-prosecution but the issue before the Hon'ble Division Bench was about the case where Labour Court had ex-parte allowed the reference in favour of workman and the applicant had approached for setting aside of ex-parte order after delay of 2 years. In present case, by the ex parte order dated 28.11.2003 the Labour Court has rejected/dismissed the Reference on ground of non-prosecution, (unlike the case before the Hon'ble Division Bench wherein the Reference was allowed) and thereafter the petitioner-workman approached the Court with miscellaneous application on 2nd June 2004. Thus, in the facts of present case, the said judgment does not help the respondent. 12. In view of the facts of present case, the judgment of the Hon'ble Apex Court in the case of Grindlays Bank Ltd [supra] also would not help the respondent inasmuch as the Hon'ble Apex Court has, in the said judgment, held that “where a party is prevented from appearing at the hearing due to a SCA/1993/2008 12/31 JUDGMENT sufficient cause and is faced with an ex parte award it is as if the party is visited with an award without a notice of the proceeding. An award without a notice to a party is nothing but a nullity. In such circumstance, the Tribunal has not only the power but also duty to set aside the ex parte award and to direct the matter to be heard afresh.” In the said judgment, the Hon'ble Apex Court has also held that, “Further, on passing of award the Tribunal does not become functus officio in view of the provisions of Section 17-A and 20 the proceedings with regard to a reference under Section 10 not deemed to be concluded until expiry of 30 days from the publication of the award. Till then the Tribunal retains the jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute....” In the said case also, the issue before the Hon'ble Supreme Court was not pertaining to the rejection of Reference for non-prosecution but the Tribunal, in the said case, had passed order on merits, inasmuch as it was on the basis of statement recorded by the Manager, the Tribunal held that the SCA/1993/2008 13/31 JUDGMENT respondents No. 5 to 7 were not employees of the Bank but were the employees of the officers of the Bank and therefore were not entitled to the benefits enjoyed by the drivers of the bank, though ex-parte, and thereby declined to grant the relief. This exactly is the distinguishing point on factual aspects in the matter since in present case the Labour Court avoided to pass order on merits and instead dismissed the Reference of the workman for default and in absence of petitioner i.e., on ground of non-prosecution. The Labour Court, in this case, could have, even in absence of the workman (if he was consistently remaining absent) recorded the evidence of the other side like in case of Grindlays Bank and examined the case on merits and then passed order either allowing or disallowing the Reference on merits. 13. In the judgment between M/s. Sangham Tape Company vs. Hans Raj (supra), the Hon'ble Supreme Court has, upon considering Section 11 & 17-A held that the Labour Court can exercise jurisdiction to set aside an ex-parte award within 30 days from the SCA/1993/2008 14/31 JUDGMENT date of publication of the award and after expiry of 30 days from the date of publication of award, the Court becomes functus officio. In present case, from perusal of the order passed in Miscellaneous Application No. 19/20004, it comes out that the ex- parte order dated 28.11.2003 was published on 12th January 2004. As per the judgment of the Hon'ble Supreme Court, the Labour Court would become functus officio in respect of an “award”, on expiry of 30 days after its publication. Thus, in present case, the Court would have become functus officio after 11.2.2004, if what was passed and what was published was an “Award”, as defined u/s. 2 (b) of the Act. In view of the judgment of the Hon'ble Apex Court, the Labour Court would have been justified in disallowing or in not entertaining the miscellaneous application after expiry of 30 days from the alleged date of publication, provided what was published was “award”. 14. However, the question which is lost sight of by the Labour Court is about the ex parte order in the Reference (LCB) No. 248/1999 and the Labour Court failed to consider whether the said ex-parte order SCA/1993/2008 15/31 JUDGMENT was and can be said to be an “award” u/s. 2(b) of the Act. The said legal position i.e., the Labour Court being rendered “functus officio” would arise and become applicable only where the order passed by the Court is an “award”. 15. As per the definition of the said term in Section 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 under Section 10-A. 16. In view of the said definition, an order which does not determine, as an interim or final determination, the lis/dispute between the contesting parties on merits would not be an “award”. 16.1. When the Labour Court adjudicates and determines the rights and takes decision on merits and pronounces its decision, after adjudication on merits about rights and obligations of the contesting SCA/1993/2008 16/31 JUDGMENT parties, then such decision and its pronouncement becomes an “award” as defined u/s. 2(b) and contemplated u/s. 17 r/w. 17-A of the Act. 16.2. It is the publication of such “determination” of lis/dispute on merits which is contemplated u/s. 17. The said Section 17 requires publication of “award” and not of the orders which do not adjudicate and determine, on merits, the rights & obligations of contesting parties. From conjoint reading of Sections 2(b), 17 & 17-A, it transpires that even if any order which does not determine, on merits, the rights & obligations of the parties and does not “determine” the lis/dispute, is published, then also it would not be publication of “award” as contemplated u/s. 17 and publication of an “order” would not lend its force and support so as to make it an “award”. It is only a duly published “award” which is enforceable u/s. 29 of the Act. 16.3. It is necessary and appropriate, to have in focus the meaning of the term “determination” used in the definition of “award” in Sec. 2(b) so as to appreciate the scope and effect of the term “award” SCA/1993/2008 17/31 JUDGMENT defined u/s. 2(b) of the Act and also to appreciate the difference between “order” which does not determine the lis/dispute and the rights and obligations; as against or in contra-distinction to “award”, which does. 16.4. As per West's Legal Thesaurus, “determination” means:- “(1). A decision (the agency made an unwise determination), Judgment, conclusion, resolution, adjudication, opinion, appraisal, solution, finding, decree, arbitration, settlement, diagnosis, verdict, resolve, confirmation, verification, discovery, pronouncement, recommendation, declaration....and the term “determine” means “(1) adjudge, decide, define (2) settle; determination”. As per Shorter Oxford English Dictionary (5th Edition), the terms “determination” means; 1. The settlement of a suit or controversy by the authoritative decision of a judge or arbiter; a settlement or decision so made, an SCA/1993/2008 18/31 JUDGMENT authoritative opinion. The settlement of a question by reasoning or argument. The discussion and resolving of a question or the upholding of a thesis in a scholastic disputation; (performance in) a university exercise consisting of a series of disputations, qualifying a bachelor of arts to proceed to a master's degree,. 2....... 3....... 4. The action of definitely locating, identifying, or establishing the nature of something; exact ascertainment of a fact established, a conclusion or solution reached. 5. ....... 6. ....... 7. ....... 8. ....... As per P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edition), the expression “determination” means; “The expression, “determination” signifies an effective expression of opinion which ends a controversy or a SCA/1993/2008 19/31 JUDGMENT dispute by some authority to whom it is submitted under a valid law for disposal.” As per the abovesaid Dictionary, the term “determine” means; 1. Put an end to; come to an end. 2. ....... 3. ....... 4. ....... 5. Come to a judicial decision; make or give a decision about something. 6. Lay down authoritatively; pronounce; declare. 7. ........ 8. ........ 9. ........ 10. ........ 11. ........ 12. Bring oneself to a decision or resolve. 13. Come to a decision that; resolve to do; on doing; on a course of action. SCA/1993/2008 20/31 JUDGMENT 14. ........ 16.5. Thus, making of an award, as per the definition in S. 2(b), requires an “authoritative decision by reasoning” and/or “resolving a question” and/or “a judicial decision” or “giving a decision about the question”. When considered in light of the definition and meaning of the term determination/determine, in the term “award”, the order dtd. 28.11.2003 in Ref. No. 248/99 does not qualify as an “award” as from even a cursory glance it comes out that the Reference has been dismissed by the Labour Court only because of the absence of the petitioner-workman and the Court has not given any decision on merits of the case and has not adjudicated and determined the lis/dispute between the parties and/or has not decided the rights and obligations of the parties nor has pronounced any authoritative decision but has avoided to do so and has merely dismissed the Reference for default i.e. on ground of non-prosecution. 16.6. It cannot be said that in in making of said SCA/1993/2008 21/31 JUDGMENT order dtd. 28.11.2003 there was any adjudication at all on merits and/or any determination of “industrial dispute” or “question relating thereto”. When the Court dismisses the case for default/non-prosecution, the Court is not deciding the “matter at issue” or “facts-in-issue” on merits. Under the circumstances, even if such order is published purportedly provision under Section 17, then also such an order would not qualify as an “award” and merely on publication it will not get the status or characteristics of award. 16.7. When an industrial dispute is referred by appropriate Government, the Labour Court or the Tribunal has to, as per Section 15 of the Act, “submit its award” to the appropriate Government, hence, it has to pass/make an “award” as defined & contemplated u/s. 2(b). Thus, the Labour Court has to adjudicate the lis/dispute. If one of the parties is ignoring the proceedings, then the Labour Court may proceed in the matter by taking into account, in accordance with law and upon intimation to the absentee, the evidence of the other side and on that basis decide the lis/dispute. In such circumstances SCA/1993/2008 22/31 JUDGMENT the matter would be decided, though in absence of one side, on merits after considering the available material and submissions and though it would be ex parte, it would be a determination of lis and decision on merits and therefore an “award” and such decision would stand on different platform than the order rejecting reference for default/non- prosecution. 16.8. In view of the object and scheme of the Act the Labour Court does not have power to pass such orders, i.e., ex-parte order dismissing Reference on ground of non-prosecution. The Labour Court cannot abdicate its duty of “determination” by simply passing an order dismissing reference for non- prosecution, else it would amount to serious lapse and jurisdictional error or failure in properly exercising jurisdiction. At this stage, it is appropriate to make reference of the judgment of Hon'ble Karnataka High Court in the case between N.M. Naik Vs. P.O. Labour Court, Hubli, [1997 (77) FLR 914] wherein the Hon'ble Court has held:- “In my opinion, the rejection of SCA/1993/2008 23/31 JUDGMENT reference for default of the workman cannot be called an 'award' within the meaning of Section 2(b) of the Act. This is the view taken in other decisions also, to be presently referred to. Section 2(b) inter alia defines award as meaning an interim or a final determination of any industrial dispute or any question relating thereto by any Labour Court. Such determination of an industrial dispute or question relating thereto is undertaken by the Labour Court on reference being made under Section 10 of the Act, or by an application under Section 10(4A) of the Act, where the said section is applicable. In both the events, what is prerequisite is that there was a dispute that needed to be adjudicated upon. Where a dispute is felt so important as to necessarily need an adjudication by the concerned forum, and not a frivolous one in respect of which reference could be refused by the appropriate Government, it is expected that such a dispute has to be determined on merits. The Labour Court/Industrial Tribunal, therefore, SCA/1993/2008 24/31 JUDGMENT cannot treat such reference as just a dispute between two individuals in a civil proceeding so that it could be dismissed for default of the workman who would be in the position of plaintiff in a suit. The essence of the entire scheme of reference of the dispute for adjudication to a Labour Court/Industrial Tribunal under the Act being one of determination of the dispute on merits, just because the Labour Court/Industrial Tribunal disposes of the reference for the absence of the workman, such an order cannot