WP/8682/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8682 OF 2009 Rajman Shrikrishna Morya .. Petitioner V/s. Marshal Security Pvt. Ltd. .. Respondent Mr. B.V. Bukhari i/b. Ms. Anita R. Manjalkar for the Petitioner. Smt. Navneet Chahal for the Respondent. CORAM: SMT. NISHITA MHATRE, J. DATE : 6 TH SEPTEMBER, 2010. P.C. : 1. The petitioner has approached this Court against the decision of the Labour Court, Thane dated 10th November, 2008 in Miscellaneous Application (IDA) No.67 of 2006. This application was filed under the rules framed under the Industrial Disputes Act for setting aside the Award passed in Reference (IDA) No.300 of 1999. The said Reference (IDA) No.300 of 1999 was disposed of on 18th January, 2006 by passing the following order : “Second party workman absent. No steps taken. The case is dismissed and disposed off.” WP/8682/2009 2 2. Mr. Bukhari, the learned Advocate for the petitioner, submits that the order passed on 18th January, 2006 cannot be termed as an “Award”, as defined in Section 2(b) of the Industrial Disputes Act. He submits that the petitioner-workman used to remain present consistently before the Labour Court; however on one day when he was absent, the Labour Court dismissed the Reference (IDA) No.300 of 1999. He further submits that the Labour Court ought to have passed an Award considering the pleadings on record as both the petitioner as well as the respondent had filed their statements of claim and written statements respectively. According to him, the matter was adjourned for leading evidence, but it was dismissed on 18th January, 2006. He points out that although the statement of claim was filed in the year 2000, the written statement was filed only in 2005. He, therefore, submits that the Labour Court ought not to have passed the order in such haste. He then submits that the petitioner became aware of the so called Award. He filed an application for restoring the Reference in November, 2006. There was a delay in filing the application which, according to the learned WP/8682/2009 3 Advocate, has been explained sufficiently by the petitioner. Mr. Bukhari further points out the judgment of the Supreme Court in the case of Cox and Kings (Agents) Limited v/s. Workmen, reported in 1977 L.L.J. SC 471, in support of his contentions. 3. Evidence was led in this regard before the Labour Court. The Labour Court has dismissed the application for condoning the delay by holding that an application for setting aside an ex-parte award must be filed within a period of 30 days from the publication of the award. Since this was not done, the application was rejected. 4. In my opinion, the order dated 18th January, 2006 passed by the Labour Court, Thane in Reference (IDA) No. 300 of 1999 cannot be termed as an “Award”. The term has been defined thus u/s. 2(b) of the Industrial Disputes Act. The Labour Court’s determination dated 18th January, 2006 could not by any stretch of imagination be termed as an “Award”. There is no determination of an industrial dispute. The reference has been dismissed because the petitioner was not present which can be WP/8682/2009 4 termed as either an interim or final determination of an industrial dispute. 5. In the Cox & King’s case, the Supreme Court has observed thus : “21. The controversy with regard to the first point, therefore, narrows down into the issue whether the determination dated 2-9-1972 of the Labour Court was an award as defined in S. 2(b) of the Act.? 22. The definition of “award” in S.2(b) falls in two parts. The first part covers a determination, final or interim, of any industrial dispute. The second part takes in a determination of any question relating to an industrial dispute. But the basic postulate common to both the parts of the definition, in the existence of an industrial dispute, actual or apprehended. The “determination” contemplated by the definition is of the industrial dispute or a question relating thereto, on merits. It is to be noted further that S. 2 itself, expressly makes the definition subject to “anything repugnant in the subject or context”. We have, therefore, to consider this definition in the context of S. 19 and other related provisions of the Act.” 6. In my opinion, since there was no Award, as defined under Section 2(b) of the Industrial Disputes Act, the Labour Court ought to have set aside the order passed on WP/8682/2009 5 18th January, 2006 and restored the Reference (IDA) No. 300 of 1999 to file. In any event in my opinion the petitioner has sufficiently explained the reasons for not filing the application within the stipulated time. 7. Accordingly, the Writ Petition is allowed by passing the following order : “O R D E R” (i). The impugned order 10th November, 2008 passed by the Labour Court, Thane in Miscellaneous Application (IDA) No.67 of 2006 is set aside and the Reference (IDA) No.300 of 1999 is restored to the file of the Labour Court, Thane for a fresh hearing. (ii).The parties shall appear before the Labour Court, Thane on 27th September, 2010 at 11:00 A.M. for further directions in the matter.