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1979 Supreme(Cal) 273
HIGH COURT OF CALCUTTA
S.C. Ghose & R.N. Pyne, JJ.
Grindlays Bank Ltd.
Versus
Central Government Industrial Tribunal & other
Mandamus Appeal No. 3 of 1978 & Matter No. 496 of 1977
Decided On: July 25, 1979
Dipankar Gupta for the appellant.
P.S. Sen Gupta for the respondents.
A National Tribunal has the jurisdiction to set aside an ex parte award made by it, provided that the application for setting aside the award is filed before the award becomes final.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 11(1) - EX PARTE AWARD - SETTING ASIDE - JURISDICTION OF TRIBUNAL - INDUSTRIAL DISPUTES (CENTRAL) RULES, 1957 - RULE 22 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 9, RULE 13 - APPLICABILITY - INDUSTRIAL TRIBUNAL - INCIDENTAL AND ANCILLARY POWERS - JUDICIAL FUNCTION - POWER TO SET ASIDE EX PARTE AWARD - FINALITY OF AWARD - SECTION 17(2) - SECTION 20(3) - INDUSTRIAL DISPUTES ACT, 1947.
Fact of the Case:
The appellant, Grindlays Bank, challenged the order of the National Tribunal setting aside an ex parte award made in favor of the appellant. The respondents, drivers employed by the officers of the appellant, had filed a charter of demands with the appellant, which was not acceded to. The matter was referred to the Regional Labour Commissioner (Central) for conciliation, and subsequently, the Government of India referred the dispute to the National Tribunal for adjudication. The Tribunal passed an ex parte award in favor of the appellant on December 9, 1976, which was published in the Gazette of India on December 25, 1976. On January 19, 1977, the respondents applied to the Tribunal to set aside the ex parte award, which was allowed on April 12, 1977.
Finding of the Court:
The court held that the National Tribunal had jurisdiction to set aside the ex parte award. The court observed that the Industrial Disputes Act, 1947 (the Act) was enacted to provide machinery for the settlement of industrial disputes and to do social justice. The court held that the Tribunal had all the incidental and ancillary powers apart from that with which it was expressly invested by the Act creating it in order to be able to do justice to the parties. The court further held that Rule 22 of the Industrial Disputes (Central) Rules, 1957, empowered the Tribunal to proceed ex parte and make an ex parte award if any party to the proceeding failed to attend or to be represented without sufficient cause being shown. The court also held that Rule 24(b) of the Central Rules attracted the provision of Order 17 of the Civil Procedure Code to a proceeding before a National Tribunal and Order 17 in turn made the provision of Order 9 applicable to such a proceeding before a National Tribunal. The court held that an ex parte award may be set aside provided such award does not become final in accordance with the provisions of the Act.
Issues: 1. Whether the National Tribunal had jurisdiction to set aside the ex parte award? 2. Whether the expiry of 30 days from the date of publication of the award in the Gazette affected the jurisdiction of the Tribunal to entertain the application for setting aside the award?
Ratio Decidendi: 1. The court held that the National Tribunal had jurisdiction to set aside the ex parte award. The court observed that the Industrial Disputes Act, 1947 (the Act) was enacted to provide machinery for the settlement of industrial disputes and to do social justice. The court held that the Tribunal had all the incidental and ancillary powers apart from that with which it was expressly invested by the Act creating it in order to be able to do justice to the parties. The court further held that Rule 22 of the Industrial Disputes (Central) Rules, 1957, empowered the Tribunal to proceed ex parte and make an ex parte award if any party to the proceeding failed to attend or to be represented without sufficient cause being shown. The court also held that Rule 24(b) of the Central Rules attracted the provision of Order 17 of the Civil Procedure Code to a proceeding before a National Tribunal and Order 17 in turn made the provision of Order 9 applicable to such a proceeding before a National Tribunal. The court held that an ex parte award may be set aside provided such award does not become final in accordance with the provisions of the Act. 2. The court held that the expiry of 30 days from the date of publication of the award in the Gazette did not affect the jurisdiction of the Tribunal to entertain the application for setting aside the award. The court observed that the application for setting aside the ex parte award was filed before the expiry of 30 days from the date of publication of the award in the Gazette and the Tribunal had jurisdiction to allow the application and set aside the ex parte award. The court held that the fact that the application was heard on 12th April, 1977 did not, in its opinion, take away the jurisdiction of the respondent Tribunal to hear and set aside the ex part award.
Final Decision: The appeal was dismissed.
S.C. Ghose, J.
1. This appeal arises out of a judgment and order dated December 6, 1977 passed by Sabyasachi Mukharji, J. By and under the said order Sabyasachi Mukharji. J, discharged the Rule Nisi obtained by the appellant under Article 226 of the Constitution and vacated all interim orders that were paned in the said proceedings. The facts giving rise to the moving of the said application under Article 226 of the Constitution by the appellant are set out hereunder.
2. The appellant carries on business of banking at various places in India including at no. 19, Netaji Subhas Road, Calcutta.
3. Approximately, 1750 workmen are employed in the different branches of the appellant in Calcutta. Almost all of the said workmen are the members of the recognised union of the workmen of the appellant "National & Grindlays Bank Employee Union." The respondents nos. 5 to 17, were at all material times employed by the officers of the appellant as their Drivers. The respondent no. 3 the Commercial Establishment Employees Association (hereinafter referred to as the said Association) although never had anything to do with the appellant and none of the workmen of the appellant, was a member of the said Association, the said Association under cover of a letter dated September 21, 1974 forwarded a Charter of Demands for the above mentioned Drivers who had been working as the employees of the officers of the appellant. The said Charter of Demands was with regard to the pay scale, dearness allowances, privilege leave, casual leave, sick leave, festival holidays, working hours, overtime remuneration, medical facilities and various other demands. The said Charter of Demands appears at page 25 of the Paper Book. The appellant did not accede to the said Charter of Demands on inter alia the ground that the Drivers were not the employee of the appellant.
4. The Respondent Association thereupon referred the said matter to the Regional Labour Commissioner (Central) for conciliation. The appellant represented before the Regional Labour Commissioner (Central) that the respondent Association did not represent any of the workmen of the appellant nor were the respondents nos. 5 to 17 employees of the appellant.
5. Thereafter, the Government of India, Ministry of Labour by its order no. L 12011/15/75/D-II/A dated 26th July, 1975 referred the following dispute as Industrial disputes existing between the appellant and its alleged workmen to the Respondent No. 1 (Respondent Tribunal) for adjudication. The said disputes are set out hereunder: –
"Whether the following 13 drivers employed by the management of Grindlays Bank Ltd., Calcutta, are entitled to the same wages, allowances and other facilities, enjoyed by the other drivers of the said Bank? If so, from what date and to what extent?
1. Maksood Ahmed
2. Md. Yakub
3. Kazi Mullah Khan
4. Md. Suleman
5. Lawrence
6. Md. Ansan
7. Md. Nizamuddin
8. Joseph Francis
9. Chandeshwar Kumar
10. Ali Mohammad
11. S.M. Rahman
12. Kayat Mohammad."
6. The said reference was numbered as no. 52 of 1975. The parties filed their respective statements in the said Reference. On or about 6th March, 1976, the respondent Tribunal fixed the hearing of the Reference at the office of the Tribunal on 28th February, 1976 at 10:30 A.M. On that date the hearing was adjourned at the instance of the appellant. The hearing of the Reference was fixed on 24th June, 1976 at the office of the Respondent Tribunal at 10:30 A.M. No hearing took place on that date. But the reference was adjourned to 19th August, 1976 on the ground that the President Officer of the Respondent Tribunal would not be in Calcutta. Intimation of the said adjournment was given to the appellant as well as the respondent Association by the notice dated 28th June, 1976.
7. On 19th August, 1976 when the said Reference was called on for hearing on behalf of the respondent Association an adjournment was prayed for on the ground that the Secretary of the respondent Association had gone away w
