IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 14742 of 2009(K) -------------------------- ID.20/2008 of INDUSTRIAL TRIBUNAL, KOLLAM .................... PETITIONER(S): --------------- P.JAMES,ACCOUNTS ASSISTANT, PARVATHI MILLS LTD.,P.B.NO.1, KOLLAM-691 001. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENT(S): --------------- 1. THE CHAIRMAN-CUM-MANAGING DIRECTOR, NATIONAL TEXTILE CORPORATION, SCOPE COMPLEX,CORE IV/9, LODHI ROAD,NEW DELHI-110 003. 2. THE GENERAL MANAGER, PARVATHI MILLS LTD., P.B.NO.1,KOLLAM-691 001. ADV. SRI.V.KRISHNA MENON FOR R2 ADV.E.K.MADHAVAN, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2009 A/W. W.P.(C).No. 20660/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 14742/09. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SSLC BOOK OF THE PETITIONER. P2. COPY OF THE JUDGMENT IN W.P.(C).No. 14549/07. P3. COPY OF THE AWARD DTD.5.2.09. P4. COPY OF THE PETITION OF THE MANAGEMENT DTD.24.4.09 IN THE I.D. P5. COPY OF THE NOTICE DTD.30.4.09 OF R2. P6. COPY OF THE REPRESENTATION DTD.11.5.09 OF R2. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.14742/09 & 20660/09 ================== Dated this the 28th day of October, 2009 J U D G M E N T The petitioner in W.P.(C).No.20660/2009 is the management in I.D.No.20/2008 before the Industrial Tribunal, Kollam. The petitioner in W.P.(C).No.14742/2009 is one of the workers claiming to be directly affected by a decision in the industrial dispute. 2. The issues referred for adjudication in the industrial dispute are as follows: “(1) Whether the superannuation retirement age of staff of the Parvathi Mills on the basis of the arbitration award No.G.O(Rt). No.169/94/LBR dated 15.2.1994 is justifiable” If not, what relief that (sic) are entitled to? (2) Whether the superannuation retirement effected to Shri.N.Sadasivan Nair and J.Ayappan Pilai by the management of Parvathi Mills is justifiable? If not, what relief they are entitled to? 3. The management is challenging Ext.P3 ex parte award and Ext.P8 order dismissing the application for setting aside the ex parte award passed in that I.D. W.P.(C).No.14742/2009 is filed by the workman seeking stay of superannuation on the ground that he is entitled to continue until 60 years and the management is proposing to retire him from service on attaining 58 years. The issue involved in the industrial dispute is the retirement age of the staff of the management. Ext.P3 is an ex parte award, as I have already mentioned. The management entered appearance in the I.D. on 18.9.2008. When the matter came up on 5.12.2008 and 18.12.2008 before the Tribunal, the management was absent. Therefore, on 5.2.2009 the Tribunal has passed Ext.P3 ex parte award. 2 C.M.P.No.13/2009 filed by the management for setting aside the ex parte award was also dismissed by Ext.P8 order. The petitioner submits that non appearance of the petitioner's advocate before the Tribunal was not deliberate, but on account of circumstances beyond the control of the petitioner and the counsel as stated in paragraph 5 of the writ petition. The petitioner further submits that the Tribunal does not have jurisdiction to deal with the dispute at all in so far as the appropriate Government competent to refer the dispute for adjudication is the Central Government and not the State Government whereas in this case, the dispute has been referred by the State Government. Earlier the State Government had jurisdiction by virtue of the notification issued by the Government, which notification has subsequently been rescinded by the Central Government itself. Therefore, the State Government does not have jurisdiction to refer the dispute and consequently the Industrial Tribunal does not have jurisdiction to adjudicate the issue as well is the contention of the management. 4. I have heard both sides. 5. I am not called upon to decide the contention of want of jurisdiction of the Industrial Tribunal to adjudicate the dispute on merits in these writ petitions in so far as I need consider only the question of validity of the ex parte award and the order refusing to set aside the same. In view of the reasons stated by the management in 3 the petition for setting aside the ex parte award before the Tribunal and the writ petition herein, I am of opinion that the petitioner management should be given another opportunity to contest the dispute on merits, Accordingly, Ext.P3 ex parte award in W.P.(C).No. 20660/2009 and Ext.P8 order in C.M.P.No.13/2009 are quashed. The Tribunal is directed to readjudicate the dispute in accordance with law afresh after affording an opportunity of being heard to both parties. In view of the fact that the question of jurisdiction of the Tribunal itself is an issue which has to be decided by the Tribunal, I direct the Tribunal to decide that question as a preliminary issue within one month from the date of receipt of a copy of this judgment. Till the question of jurisdiction is finally decided by the Tribunal either way, the petitioner in W.P.(C).No.14742/2009 shall be allowed to continue in service. It would be open to the petitioner in W.P.(C).No. 14742/2009 to file application for impleading himself in the industrial dispute, which the Tribunal shall consider on merits, in accordance with law. I am not expressing any opinion on the sustainability of such a petition. The parties shall appear before the Tribunal on the first sitting day of the Tribunal at Kollam in the second week of November, 2009 for further proceedings in the I.D. as directed above. The writ petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4