Back
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SUDESH BANSAL, J.
Executive Engineer, Irrigation Department, Sikar & Ors. - Petitioners
Versus
Sardar Singh, S/o. Shubhkar Singh - Respondent
S.B. Civil Writ Petition No. 2020 of 2023
Decided On : 16-02-2023.
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 17, 17-A, 20(3) - LABOUR COURT - JURISDICTION - EX PARTE AWARD - SETTING ASIDE - DELAY IN FILING APPLICATION - CONDONATION - SUFFICIENT CAUSE - LIMITATION ACT, 1963 - SECTION 5 - APPLICATION FOR CONDONATION - NECESSITY - INDUSTRIAL DISPUTES (CENTRAL) RULES, 1947 - RULE 10-B(9), 22, 24 - NATURAL JUSTICE - PRINCIPLES - AWARD PASSED WITHOUT COMPLIANCE - BINDING NATURE.
Fact of the Case:
Petitioner-Irrigation Department challenged the order of the Labour Court dismissing the application to set aside the ex parte award dated 03.07.2004 in favor of the respondent-employee for his reinstatement in service as a daily wager. The ex parte award was passed due to non-response from the petitioner-department. The petitioner-department filed an application to set aside the award on 22.12.2004, which was allowed by the Labour Court on 11.07.2017, subject to the condition of payment of cost of Rs.1500/-. However, the petitioner-department failed to make the payment and the order dated 11.07.2017 was consigned to record. The petitioner-department filed another application on 14.12.2017 seeking permission to deposit the cost and to restore the order dated 11.07.2017, which was dismissed by the Labour Court.
Finding of the Court:
1. The Labour Court does not become functus officio after the award has become enforceable, as far as the ex parte award is concerned. It is within the powers of the Labour Court/Tribunal to entertain an application as per the Scheme of the Act and in terms of the Rules of natural justice. 2. The Labour Court has the power to set aside an ex parte award before expiry of 30 days of its publication as well as after expiry of 30 days of its publication, when the party shows a sufficient cause for non-appearance and where an award does not become binding, being passed without compliance with principles of natural justice. 3. It is not mandatory to file an application in writing for seeking condonation of delay under Section 5 of the Limitation Act and the mandate of law is that there must be sufficient cause to explain the delay and the Court would appreciate the sufficiency of cause.
Issues: 1. Whether the Labour Court becomes functus officio after the award has become enforceable, as far as the ex parte award is concerned? 2. Whether the Labour Court has the power to set aside an ex parte award before expiry of 30 days of its publication as well as after expiry of 30 days of its publication? 3. Whether it is mandatory to file an application in writing for seeking condonation of delay under Section 5 of the Limitation Act?
Ratio Decidendi: 1. The Labour Court does not become functus officio after the award has become enforceable, as far as the ex parte award is concerned. It is within the powers of the Labour Court/Tribunal to entertain an application as per the Scheme of the Act and in terms of the Rules of natural justice. 2. The Labour Court has the power to set aside an ex parte award before expiry of 30 days of its publication as well as after expiry of 30 days of its publication, when the party shows a sufficient cause for non-appearance and where an award does not become binding, being passed without compliance with principles of natural justice. 3. It is not mandatory to file an application in writing for seeking condonation of delay under Section 5 of the Limitation Act and the mandate of law is that there must be sufficient cause to explain the delay and the Court would appreciate the sufficiency of cause.
Final Decision: The impugned order dated 12.09.2022 as well as the ex parte award dated 03.07.2004 stand set aside on the condition that the petitioner-department will deposit an amount of Rs.50,000/- , alongwith the cost of Rs.1500/- before the Labour Court within a period of 30 days from the first date of appearance before the Labour Court. The reply of statement of claim, filed by department on 14.09.2017 shall be taken on record, or if not found on record, an opportunity to file a fresh reply be given to department, and after giving opportunity of hearing to both parties fresh award on merits be passed by the Labour Court in accordance with law.
JUDGMENT :
The petitioner-Irrigation Department, by way of instant writ petition, has assailed the order dated 12.09.2022 passed by the Labour Court No.2, Jaipur, dismissing Restoration Application No. No.10/2018 filed by the petitioner on 14.12.2017, and denied revival of the order dated 11.07.2017, consequently, has declined to set aside an ex parte award dated 03.07.2004 in LCR No.601/1998 passed in favour of respondent-employee for his reinstatement in service as daily wager.
2. Learned counsel for respondent-employee has appeared as Caveator.
3. Having heard learned counsel for both parties and from perusal of record, following facts have been culled out:-
(I) On Reference No.27/1997 dated 15.10.1997, respondent workman submitted a statement of claim dated 24.11.1997 before the Labour Court stating inter alia that he was appointed as daily wager employee on 02.07.1986 and since then continuously worked as labour in the Office of Assistant Engineer Irrigation Department, Sikar. He had worked with due satisfaction without any complaint and rendered his services for more than 240 days in a calendar year, preceding to his removal. However he was removed from service w.e.f. 01.11.1988 without any notice or notice pay and reason. Therefore, respondent -employee challenged his removal from service w.e.f. 01.11.1988 claiming violation of Section 25 (F) and 25 (H) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act of 1947”);
(II) Statement of claim submitted by respondent-workman came to be registered as LCR Case No.601/1998 before the Labour Court No.2, Jaipur and since no response by the petitioner-department was made, learned Labour Court proceeded to decide this case ex-parte and passed an award dated 03.07.2004 in favour of respondent-employee in following terms:-
(III) Petitioner-Department filed an application dated 22.12.2004, seeking to set aside the ex parte dated 18.03.2004 as also the order of ex parte award dated 03.07.2004. In the application, the petitioner-department admitted that only notice of statement of claim was served on department on 15.10.2003, without accompanying with the copy of statement of claim and thereafter, though the Court issued fresh notices on 15.01.2004 but the same were never received. However, the Labour Court has wrongly presumed service of department and vide order dated 18.03.2004, ex parte proceedings were commenced. Thereafter, an ex parte award dated 03.07.2004 for reinstatement of respondent-workman alongwith a fixed sum of Rs.10,000 in form of back wages and benefits has been passed.
(IV) It is not in dispute that till the date of filing of the application to set aside the award on 22.12.2004, the award dated 03.07.2004 was not published in the Official Gazette as the same was published in the Official Gazette on 15.02.2005, and was notified on notice board on 09.03.2005.
(V) respondent-workman opposed the application, however Labour Court, after hearing both parties and as per record allowed the application vide order dated 11.07.2017 and set aside the ex parte award dated 03.07.2004 subject to condition to pay/deposit cost of Rs.1500/- (Rs.300 to be deposited in legal aid and Rs.1200 to pay to the respondent-employee). It was specifically made clear in the order dated 11.07.2017 itself that in case of non-payment of the cost, the order allowing application to set aside the award, would expire automatically.
The Labour Court does not become functus officio after the award has become enforceable, as far as the ex parte award is concerned. It is within the powers of the Labour Court/Tribunal to entertain a....
The importance of timely access to justice and the consequences of inordinate delay in seeking remedies.
Labour Law - Reinstatement in services – It is trite law that when termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under ....
Point of Law : When an application is submitted by the employer for setting aside ex-parte award, the Tribunal has to balance equities.
The Labour Court retains jurisdiction to entertain applications to set aside ex-parte awards beyond thirty days when principles of natural justice are not adhered to.
A workman must demonstrate that an industrial dispute remains alive despite delays; failure to do so renders the dispute stale and unenforceable.
Illegal termination of short-term daily wager violating Section 25-F ID Act warrants lump-sum compensation, not reinstatement, considering brief service, long delay, superannuation, and no unfair pra....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
