IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4112 of 2000 with CIVIL APPLICATION No 8177 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MOHITOSH DASS, C/O GUJARAT RAJYA KAMDAR UNION Versus MG MEMON OR HIS SUCCESSOR IN OFFICE, PRESIDING OFFICER, -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4112 of 2000 MR MS MANSURI for Petitioner No. 1 RULE SERVED for Respondent No. 1 NANAVATI ASSOCIATES for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 18/11/2003 ORAL JUDGEMENT #. Heard learned advocate Mr.M.S.Mansuri on behalf of the applicant in civil application and for petitioner in main petition and learned advocate Mr.Krunal Nanavati for respondent - employer. The present civil application is filed with prayer to fix the matter for final hearing. Both the learned advocates are ready to make their submissions finally in the main matter today and request is made by both the learned advocates accordingly. Therefore, this Court has accepted the request of both the learned advocates and main matter is taken up for final hearing today. In above view of the matter, civil application No.8177 / 2003 stands disposed of accordingly. Heard learned advocate Mr.M.S.Mansuri for petitioner and learned advocate Mr.Krunal Nanavati for respondent No.2 - employer, so also, learned AGP Mr.Siraj Gori for respondent No.1 in the main matter. #. The brief facts giving rise to the present petition are as under :- The petitioner was working with the respondent No.2 with effect from 1st April, 1983 and made permanent in service by written order dated 30th September, 1983. According to the petitioner, the respondent has served a false chargesheet in violation of principles of natural justice and accordingly, service of the petitioner came to be terminated without holding legal and proper inquiry with effect from 1st April, 1984. The said order of termination was challenged by the petitioner by way of raising industrial dispute which came to be referred for adjudication in Reference No.631 / 1984. Before the labour court, statement of claim was filed by the petitioner on 10th April, 1985. The petitioner has filed Special Civil Application No.1002 / 1990 challenging the award passed by the labour court in terms of the settlement. This Court, after hearing the parties, was pleased to quash and set aside the compromise award. Thereafter, one application is filed by the respondent to engage Advocate in the Reference proceedings on 12th February, 1993. The respondent No.2 have filed Vakalatnama of the Advocate which is exhibited at Sr.No.25 on 22nd February, 1993. The respondent employer has submitted another application Exh.28 in which amendment to their original written statement was sought. The labour court vide Exh.29 passed the order upon Exh.28 and the application was not entertained. Thereafter, the petitioner has submitted application requesting the labour court to permit to lead evidence but the matter was kept for hearing before the labour court who was posted on deputation from Civil Court. The Union representative of the petitioner who was present and informed the Court that the petitioner workman could not remain present due to unavoidable circumstances and requested for adjournment but the labour court has dismissed the Reference in default and thereafter, application for restoration is made for restoring the Reference. The award has been published on 6th August, 1999. The application submitted by the petitioner under Section 26-A along with the affidavit, has been dismissed by the labour court and therefore, present petition is filed. #. Learned advocate Mr.Mansuri submitted that before the labour court, hearing was taken place between 13th April, 1985 to 25th November, 1998 and considering absence of the petitioner, the labour court has dismissed the matter in default by order dated 16th December, 1998 and that award is published on 22nd July, 1999. Thereafter, the Misc. Application No.15 / 1999 was filed in Reference No.631 / 1984 by the petitioner. The labour court has also dismissed the said application on the ground that the petitioner is not able to satisfy to the labour court about sufficient reasons to remain absent and therefore, on 1st April, 2000, misc. application is also dismissed, against that, present petition is filed. On behalf of the respondent No.2, detailed affidavit-in-reply is filed. #. Learned advocate Mr.Mansuri also submitted that the labour court has committed gross error in passing the order in absence of the petitioner workman dismissing the reference in default. He also submitted that there is no provisions under the Industrial Disputes [ Gujarat ] Rules, 1966 to dismiss the matter in default. He also submitted that it is burden upon the labour court if the workman has remained absent and not proceeded with the Reference, then, the labour court should have to decide or adjudicate the Reference on the material which has been placed before him by the respective parties. But the labour court having no powers and jurisdiction to dismiss the matter in default. This view has been taken by this Court in case of DIVISIONAL RAILWAY MANAGER VS. SECRETARY reported in 2002 [1] CLR 957. This Court has specifically held that Reference must have to be decided on merits and should not have been dismissed in default. Therefore, according to him, the labour court has committed gross error in dismissing the Reference in default in absence of the petitioner workman. He also submitted that the labour court has also committed error in rejecting the miscellaneous application submitted by the petitioner on the ground that if the workman has remained absent on 13th December, 1998 but the workman has not explained absence prior to 25th November, 1998 and therefore, when sufficient reason is not disclosed to the satisfaction of the labour court, the labour court has dismissed the miscellaneous application. He also submitted that there is no provision made in the Industrial Disputes [ Gujarat ] Rules to file such application for restoration the Reference. Unless the provision is available under Rule 26-A of the Gujarat Rules which relating to filing application for setting aside exparte award but there is no provisions made in Gujarat Rules which gives right to the workman to file application to restore the Reference. Therefore, the labour court has committed gross error in rejecting the miscellaneous application as well as dismissing the main Reference. #. Learned advocate Mr.Krunal Nanavati for the respondent has submitted that the conduct of the workman itself is sufficient to dismiss the matter in default because he remained absent for the period from 1985 to 1998 without any justification. That after filing of the statement of claim, the workman remained inactive and not participated in the hearing and therefore, in such situation, the labour court having no other option except to dismiss the matter in default. He also submitted that once the workman who has raised industrial dispute has remained absent and inactive then, only course which is open for the labour court to dismiss the Reference in default. Therefore, the labour court has rightly passed the award. He also submitted that even in miscellaneous application, the workman has not satisfactorily explained his absence for a period of 13 years and therefore, the labour court has rightly dismissed the application and for that, the labour court has not committed any error which requires any interference by this Court while exercising the powers under Article 227 of the Constitution of India. #. I have considered submissions made by both the learned advocates. The contention which has been raised by the learned advocate Mr.Mansuri that the labour court has no jurisdiction to dismiss the matter in default once the Reference is made by the appropriate Government under Section 10 of the Industrial Disputes Act, 1947. He also relied upon one decision of this Court as referred to above [ Coram : Justice P.B.Majmudar, J.]. His submission is that appropriate Government has referred the matter for adjudication to the labour court, then, the labour court should not have dismissed the matter in default of the workman if the workman has remained absent during the course of pendency of the Reference. Similarly, in facts of this case also, Reference was referred by the appropriate Government on 1st December, 1984 and Reference was adjourned on various occasions between the period from 13th March, 1985 to 20th November, 1998 but during the hearing, the workman had remained absent and therefore, the labour court has come to the conclusion that the workman is not interested in prosecuting with the Reference and therefore, in his absence, Reference has been dismissed in default. #. The law on this point, at least, almost settled based upon the decisions of the various High Courts. The Karnataka High in case of N.M.NAIK V. THE PRESIDING OFFICER, LABOUR COURT, HUBLI reported in 1997 [77] FLR 914, wherein the Karnataka High Court has also examined the same issue. The Karnataka High Court has come to the conclusion that Reference which referred for adjudication under Section 10 of the Industrial Disputes Act, 1947, the labour court cannot dismiss the Reference for default but shall go into merits of the Reference and adjudicate upon the dispute and to finally determine the dispute or the question relating thereto as to make the concerned order an award within the meaning of Section 2[b] of the Act. The Karnataka High Court has considered various decisions of the High Court on this issue. The relevant observations made by the Karnataka High Court at page.915 and 918 are referred to as under : " The only question that arises in this case is whether the award passed earlier in Reference No.173 of 1987 could be called an "award" within the meaning of Section 2[b] of the Act. If it could be called an award, then, Section 17 requires that the same should be published. The said award becomes enforceable under Section 17-A on expiry of 30 days, from its publication under Section 17. Under Section 18[3] of the Act, such an award would be binding on both the parties to the dispute, and the petitioner workman cannot subsequently be heard to say that he is not bound by the said award and that the dispute that he had earlier raised should again be adjudicated upon. In my opinion, the rejection of 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 pre-requisite 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 no 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, 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 be called an "award" within the meaning of Section 2[b] of the Act, since, as required under the said Section 2[b], there would be no determination of any industrial dispute at all but would merely be a disposal of reference. The inevitable conclusion to be reached, therefore, is that, though, in view of Rule 22 of the Rules as earlier referred to, even where the workman remains absent, the Labour Court / Tribunal can proceed to deal with reference, such dealing with the reference shall have to be for the purpose of determination of reference on merits so that the order that it eventually passes could be termed as "award" within the meaning of Section 2[b] of the Act. The labour court / Industrial Tribunal cannot and shall not dispose of the proceedings for default of either of the parties. Where such rejection of reference is made without consideration of merits and without adjudicating upon the dispute referred, in my opinion, such an order cannot be called an "award" within the meaning of Section 2[b] of the Act. If it is not an "award" within the meaning of Section 2[b], then merely because it is published under Section 17, it does not become an award enforceable under Section 17-A and binding on the parties under Section 18[3]. The order in the earlier reference dated 17.3.1987, therefore, was not an "award" within the meaning of Section 2[b] of the Act. The application under Section 10[4A] of the Act having been filed by the petitioner workman in exercise of the right given to him by the Amendment Act referred to above within the time prescribed therein, petitioner workman had a right to have the dispute concerned adjudicated upon. The labour Court, therefore, acted arbitrarily in disposing of the said application as not maintainable." .... xxxx .... xxxx .... xxxx .... "In the result, it must be repeated that the Labour Court / Industrial Tribunal cannot dismiss the reference for default, but shall go into the merits and adjudicate upon the dispute and to finally determine the dispute or the question relating thereto, as to make the concerned order an "award" within the meaning of Section 2[b] of the Act." #. Similar aspect has been examined by the Division Bench of the Calcutta High Court in case of HINDUSTAN MOTORS LIMITED V. JANARDAN SINGH AND OTHERS reported in 2001 [3] CLR 538. Before the Division Bench of the Calcutta High Court, the question was that workman who was dismissed from service and he raised industrial dispute which referred for adjudication to the Industrial Tribunal but as the parties did not appear, Industrial Tribunal making "NO DISPUTE" award, Government making a second reference afresh on identical issues, the question is whether the second reference is maintainable. In this decision, it is held by the the High Cout of Calcutta that a "No Dispute" award passed for non appearance of the parties cannot be said to be an award within the meaning of Section 2[b] or Section 17-AA of the Act, as there has been no award within the meaning of Section 2[b] of the Act, the dispute still subsists and awaits adjudication, notwithstanding the "No Dispute" award, therefore, the State Government's second reference of the self same dispute to the Industrial Tribunal for adjudication cannot be said to be bad. #. Again, the Calcutta High Court has considered the same issue that no dispute award in case of MADHUSUDAN KONAR V. STATE OF WEST BENGAL AND OTHERS reported in 2001 LAB.I.C. 3197. The view taken by the Calcutta High Court that award passed owing to absence of both parties without interim or final industrial dispute is "no dispute award", cannot have existence in eye of law. ##. Recently also, our High Court has also considered this question in case of DIVISIONAL RAILWAY MANAGER V. SECRETARY reported in 2001 [3] GLH 513, this Court has come to the conclusion that Reference of the workman dismissed for default - as there is no determination of the industrial dispute, the Tribunal does not become functus officio, in absence of any intimation of hearing the court ought to restore such Award, dismissal for non prosecution is not akin to deciding a Reference ex-parte. In dismissing the Reference for default the Tribunal does not decide the dispute at all, which it cannot do, tribunal has no power to dismiss the Reference for default. The relevant observations made by this Court in para-16 are quoted as under : "16. I am of the opinion, therefore, that once the dispute is referred to the Competent Court by the appropriate Government, the Court has to adjudicate upon the same. However, if the parties do not assist the Court by leading evidence and by remaining present, then, naturally, the Court can pass appropriate order either by rejecting the reference on the ground that no sufficient material is placed on record, by which the Court can accept the demand of the workman. Under these circumstances, it will be a decision on the merits of the case, which cannot be treated at par with dismissing the reference for non prosecution. Therefore, considering the scheme of the Act, it seems that such powers are no available to the Court, and the Court has to adjudicate the Reference on the basis of the reference made to it by the appropriate Government and once the reference is made, it has to be answered on its own merits, instead of dismissing the same for non prosecution. It is always open, therefore, for the appropriate Court to pass appropriate order, as stated earlier, if no sufficient evidence is placed by the party prosecuting his case. Even in that view of the matter, the original reference could not have been dismissed for default by the Court. In any case, subsequently, having found that there was sufficient ground for restoring the matter on record, ultimately, the Court restored the same. Under these circumstances, therefore, it cannot be said that the Tribunal has committed any error of law or of jurisdiction while restoring the aforesaid reference on file. As stated earlier, deciding the Reference ex parte in absence of other side stands on an entirely difference footing than to dismiss the Reference for default. There are powers available with the Tribunal under Rule 22 to decide the matter ex parte in absence of other side, but, nonetheless, it will be an adjudication of the dispute on merits. Such is not the case when the Reference is dismissed for non prosecution and therefore, though the Tribunal or the Court is competent to decide ex parte such Reference, it has no power to dismiss it for default as it would amount to not deciding the reference at all in any manner." ##. This Court has come to the conclusion and held that the labour court or the industrial tribunal has no powers to dismiss the Reference in default as it would amount to not deciding the Reference at all in any manner. ##. Therefore, in view of above decisions, the order passed by the labour court, Surat dismissing the Reference in default by order dated 16th December, 1998 is not award within the meaning of Section 2[b] of the I.D.Act, 1947 and for that, the labour court having no jurisdiction to pass such award in absence of the workman without determination on merits. Therefore, the award passed by the labour court, Surat on 16th December, 1998 in Reference No.631 / 1984 is required to be quashed and set aside. ##. The workman present petitioner had filed misc. application No.15 / 1999 under Rule 26-A of the Industrial Disputes [ Gujarat ] Rules, 1966. The petitioner has filed miscellaneous application along with exparte award and affidavit of the petitioner. It has come on record that no reply was filed by the respondent but it was only mentioned by the respondent at the time of argument that application is required to be rejected as no proper and sufficient cause has been shown by the petitioner to set aside the order dated 16th December, 1998. The labour court has considered the application for setting aside the exparte award and in the said application, the petitioner has given sufficient reason that on 16th December, 1998, he was not able to remain personally present but he remained personally present on various occasions during the period from 13th March, 1985 to 23rd November, 1998 but the matter got adjourned for one or the another reasons. The labour court has come to the conclusion that the petitioner had not shown sufficient cause to remain absent for the entire period and therefore, application has been rejected. I have perused the order passed by the labour court. When no reply was filed by the respondent company against application under Rule 26-A filed by the petitioner with a prayer to set aside exparte order, then, the labour court should have believed averments made in the application by the petitioner. Therefore, the stand which has been taken by the labour court is too technical which requires a sufficient cause to be proved for remaining for absent on each and every occasion between the period for all thirteen years. Obviously, it is very difficult task for the workman to recollect memory of all thirteen years and to explain circumstances of such absent on various dates of hearing. Therefore, the approach of the labour court seems to be too technical and unreasonable which requires sufficient cause to be proved from the petitioner for period of 13 years which is not possible to give justification of various absence on date of hearing during 13 years period. Therefore, when the respondent had not seriously opposed the application by filing reply, then the labour court should not have passed such order of rejecting the application submitted by the petitioner. Therefore, according to my opinion, the view taken by the labour court is totally unreasonable and attitude of the labour court to reject the application of the petitioner for setting aside the exparte award is contrary to the law. It is not the case before the labour court that during this 13 years period, the workman had not remained present on a single occasion. But on some occasions, the workman had remained absent and that cannot be presumed that the workman is not having any interest to prosecute with the Reference. Therefore, whole approach of the labour court is contrary to the law and also contrary to the principles of natural justice and equity. Therefore, the order passed by the labour court in miscellaneous application No.15 / 1999 dated 1st April, 2000 is also required to be quashed and set aside. ##. But while considering the decision of this Court, Karnataka High Court and the High Court of Calcutta, an important question which arises for consideration of this Court that once reference has been made by the appropriate Government under Section 10 of the Industrial Disputes Act, 1947 for adjudication, then, the labour court or industrial tribunal should have to adjudicate the dispute on merits. The question is that after Reference has been made according to the procedure, the labour court received the Reference and issued notice to the workman and the employer mentioning the date of filing of the statement of claim as well as written statement and also indicating the date of hearing but in case if the workman has not remained present on the date of hearing though notice has been received by the workman and as such, no statement of claim is filed by the workman upto the date of hearing, and though notice has been received by the employer and no written statement is filed by