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2007 Supreme(Ori) 686
2007 (Supp.-II) OLR — 794
THE CHIEF JUSTICE AND I. MAHANTY, J.
M/s. Nilachal Service Station,Grand Road, Puri...Appellant
Versus
The Presiding Officer, Labour Court, Goutam Nagar, Bhubaneswar and another...Respondents
W.A. No.95 of 2005
(Date of Judgment : 10.9.2007)
For Appellant:M/s. N. K. Mishra, D. Mishra, P. K. Sahoo, D. K. Pani & A. K. Ray
For Respondents:M/s. Satyabadi Das, S. Mohanty & S. K. Das (for respondent No.2)
Headnote:1. INDUSTRIAL DISPUTES ACT, 1947 - Sec. 17-A - Orissa Industrial Disputes Rules, 1959 - Rule 10-B - Applications before the Labour Court for setting aside the ex parte award after a gap of seven years - Dismissed - Second application for restoration after a gap of about 8 years from such dismissal of the first restoration - As per Section 17-A(1) the award becomes enforceable on the expiry of thirty days from the date of its publication under Section 17 - It is enforceable immediately on expiry of 30 days from that date - As per Rule 10-B(9) in case any party defaults or fails to appear at any stage, the Labour Court or Tribunal may proceed with the reference ex parte and decide the reference, provided that the Labour Court or Tribunal may on the application of either party filed before the submission of the award, revoke the award, if it is satisfied that the absence of the party was on justifiable grounds - In the present case held, the first application for setting aside the award was made at a very belated period, the same was rightly rejected - Order attained finality and cannot be reversed by the same Tribunal on a basis of a subsequent petition for the self-same relief and between the parties - The bar of Res judicata, which is based on grounds of sound public policy, will apply and prevent such a reconsideration.(Paras - 13, 26 and 28)
2. RES JUDICATA - Industrial disputes - Principles of res judicata are also applicable in matters of industrial disputes. (Para - 18)
3. INDUSTRIAL DISPUTES RULES, 1959 - Once an application for restoration to set aside the award is dismissed, the second restoration application does not lie. (Para - 22)
4. ORISSA INDUSTRIAL DISPUTE RULES, 1959 - Rule 29 - Power of review cannot be exercised by a Tribunal in the name of exercising power to correct clerical errors. (Para - 25)
JUDGMENT
A. K. GANGULY, C.J. : The management of M/s. Nilachal Serv¬ice Station, (Indian Oil Petrol Pump), Grand Road, Puri has filed this writ appeal challenging the judgment dated 20.6.2005 passed by a learned Judge of the writ Court in OJC No.14546 of 2001 wherein the learned Judge was pleased to dismiss the writ peti¬tion by a reasoned judgment. The present appellant was the peti¬tioner before the writ Court and the writ petition was filed challenging dismissal of a restoration application which was registered as Misc.Case No.12 of 2000 by the Labour Court, Bhuba¬neswar in respect of an ex parte award passed against the peti¬tioner.
2. The material facts are that an industrial dispute was raised by respondent No.2- workman challenging the legality of his termination from service by the management of M/s. Nilachal Service Station. The dispute was referred to the Labour Court by the State Government in exercise of powers conferred on it under the Industrial Disputes Act. The said reference runs as follows :
“Whether the termination of service of Shri Bhramarbar Das by the Management of M/s. Nilachal Service Station (Indian Oil Petrol Pump), Grand Road, Puri is legal and/or justified ? If not to what relief Shri Das is entitled ?
On consideration of the materials placed before it, the Labour Court came to the conclusion that the termination of service of the workman by the Management of M/s. Nilachal Service Station was illegal and unjustified and the workman was entitled to reinstatement with full back wages. The case of the workman-respondent No.2 is that after the award of the Labour Court was passed on 19.8.1985, he submitted the joining report which was accepted, but no wages were paid as per the award. Thereafter on 16.10.1985 the workman submitted an application for payment of wages. Since no action was taken on his application for payment of wages he filed an application under Section 33-C(2) of the Industrial Disputes Act for computation of his entitlements under the award. The said application was registered as Industrial Dispute Misc. Case No.104 of 1987. Another application was also filed by the workman for computation of service which was regis¬tered as Industrial Dispute Misc. Case No.179 of 1991. dated 25.1.1989 along with an application for condonation of delay. As both the applications for condonation of delay and setting aside the ex parte order dated 25.11.1989 were rejected, the writ petitioner filed OJC No.2685 of 1991 and the said writ petition was dismissed by a Division Bench of this Court by order dated 11.12.1991. The said order passed by the Division Bench is to the following effect :
“Though notice of admission has been issued in this case, after hearing Mr. Kar for the petitioner and Mr. Das for opposite party No.2 and on perusal of the LCR, we do not find any justification for our interference in the impugned order dated 16.3.1991. The Presiding Officer, Labour Court, has found that in the proceeding under Section 33-C(2), the petitioner refused to receive notice and avoided to attend the Court. This statement of the Labour Court is borne out by the service returns of the postal authorities. In that view of the matter, the peti¬tioner cannot be permitted to invoke our extraordinary jurisdic¬tion under Article 226 of the Constitution for interference with the order dated 16.3.1991.
This application is accordingly dismissed. No costs.”
3. At that juncture, the writ petitioner - appellant filed a misc. case before the Presiding Officer, Labour Court, Bhuba¬neswar praying for setting aside the ex parte award which was passed in 1985. The Labour Court after looking into the records of the proceeding did not accept the plea of the writ petitioner that it did not receive the notice in that case. As such the application filed for condonation of delay was rejected as also the prayer for setting aside the ex parte award was also reject¬ed. The Labour Court after looking into the records of the pro¬ceedi
