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S.K. Dubey
Expo Machinery Ltd.
vs
Presiding Officer, Labour Court ...
Decided on : 8 May, 1995
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(S), 10, 12, RULE 28 - WORKMAN - REINSTATEMENT - BACK WAGES - MODIFICATION OF AWARD - REVIEW - JURISDICTION - SUFFICIENCY OF CAUSE - EX PARTE AWARD - SETTING ASIDE.
Fact of the Case:
Petitioner challenged the ex parte award of the Labour Court directing reinstatement and back wages, the order modifying the award, and the dismissal of the application to set aside the ex parte award. The petitioner contended that the Labour Court erred in not setting aside the ex parte award, that it lacked the power to modify the award, and that the respondent was not a 'workman' under the Industrial Disputes Act, 1947.
Finding of the Court:
The court held that the Labour Court did not err in refusing to set aside the ex parte award as the petitioner failed to establish sufficient cause for its absence. The court also held that the Labour Court lacked the power to modify the award as it was not a clerical or accidental error. The court further held that the finding that the respondent was a 'workman' was a finding of fact and could not be interfered with in supervisory jurisdiction.
Issues: 1. Whether the Labour Court erred in refusing to set aside the ex parte award? 2. Whether the Labour Court had the power to modify the award? 3. Whether the respondent was a 'workman' under the Industrial Disputes Act, 1947?
Ratio Decidendi: 1. The court held that the Labour Court did not err in refusing to set aside the ex parte award as the petitioner failed to establish sufficient cause for its absence. The court relied on the decision of the Supreme Court in Mohammad Yunus, AIR 1984 SC 38, which held that the finding of the Labour Court on the issue of sufficient cause is a finding of fact and cannot be interfered with in supervisory jurisdiction. 2. The court held that the Labour Court lacked the power to modify the award as it was not a clerical or accidental error. The court relied on Rule 28 of the M.P. Industrial Disputes Rules, 1957, which only allows the Labour Court to correct clerical mistakes or errors arising from an accidental slip or omission. 3. The court held that the finding that the respondent was a 'workman' was a finding of fact and could not be interfered with in supervisory jurisdiction.
Final Decision: The petition was partly allowed. The court quashed the order modifying the award insofar as it related to the award of back wages till the date of the award. The petitioner was directed to reinstate the respondent and to pay the amount of pay of the period from the date of the award till the date of reinstatement after adjusting the amount already paid of the period in which the petitioner was found to be gainfully employed.
S.K. Dubey, J.
1. The petitioner employer, by this petition under Article 226/227 of the Constitution of India has challenged the ex parte award of the Labour Court (Annexure P-2) dated 15-7-1987 directing reinstatement and the order dated 10-8-1987, modifying the award of reinstatement with back wages and the order dated 20-2-1991 dismissing the application of the petitioner for setting aside the ex parte award.
2. Facts are not in much dispute. Respondent No. 4 was employed on 1-12-1981 in the establishment of the petitioner whose services were terminated vide order dated 27-4-1983. The Respondent No. 4 raised an industrial dispute which was referred under Sections 10 and 12 of the Industrial Disputes Act, 1947 (for short the Act') for adjudication of the Labour Court at Bhopal. The Labour Court issued the notice to the parties. The respondent No. 4 filed its statement of claim so as also the petitioner filed the written statement taking plea that the respondent No. 4 was employed as Sales Officer therefore, does not fall within the definition of 'Workman' as defined in Section 2(s) of the Act. On the date fixed for recording of the evidence i.e. 3-7-1986, the petitioner did not appear, therefore, the Labour Court ordered to proceed ex parte against the petitioner. Ultimately ex parte award was passed on 15-7-1987, wherein the Labour Court after appreciating the evidence and materials adduced on record directed reinstatement without back wages. Thereafter, the respondent No. 4 filed an application for review/modification of the award for awarding back wages. The Labour Court holding that it was a clerical error modified the award without notice to the petitioner and awarded back wages. This modified award was also sent for publication to Labour Commissioner, Indore, which then was published and pronounced. The petitioner having come to know that the ex parte award has been passed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside ex parte award was filed, on the ground that the petitioner engaged the counsel, but, as the lawyers were abstaining from the work therefore, counsel wrote to the petitioner that the date of hearing will be intimated to the petitioner, till then petitioner need not come, the petitioner did not appear. This application was opposed. The petitioner examined his manager and exhibited three letters of the Advocate which are at pages 37, 38 and 39 of the paper book. The Labour Court after appreciating the evidence on record dismissed the application holding that no sufficient cause has been established as the letters exhibited are afterthought and made up documents.
3. Shri R. K. Gupta and Shri C. M. Lal, counsel for the petitioner and Shri L. P. Bhargawa, Sr. Advocate with Shri H. C. Kohli and Shri Naindiratta counsel for respondent No. 4 heard.
4. It was contended by the petitioner that the Labour Court acted illegally in not setting aside the ex parte award as there was a sufficient cause, as for the inaction on the part of the counsel, a party who has engaged a counsel for the proper conduction of the case cannot be made to suffer, reliance was placed on a decision of Supreme Court in case of Rafiq and Anr. v. Munshilal, AIR 1981 SC 1400. Next it was contended that the Labour Court when once pronounced the award which was published could not have modified the award by exercising power of review as the law is settled that a right of review does not exist unless conferred by statute or by necessary implication, reliance was placed on decisions in the case of P. N. Thakershi v. Pradyumansinghji, AIR 1970 SC 1273 and Manoharlal v. State of M. P., 1970 MPLJ 282. In any case before modifying the award the Labour Court ought to have issued the notice of the application to the petitioner. On merits it was submitted that when there was a specific stand that the respondent No. 4 was discharging the duties of a sales officer and was not a workman the Labour Court ought to hav
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