Agra Electric Supply Co. Ltd. Vs. The
Labour Court, Meerut & ANR [1968] INSC 272 (8 November 1968)
08/11/1968 VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION: 1970 AIR 806 1969 SCR (2) 676 1969
SCC (1) 243
ACT:
Industrial Dispute-Non-appearance of
party-Dismissal of application by Labour Court--Second
application--Maintainability.
Uttar Pradesh Industrial Disputes Rules, 1957
R. 16( 1)--Scope of.
HEADNOTE:
The second respondent originally filed an
application for certain reliefs against its employer (the appellant- company).
The Labour Court dismissed the application as not having been prosecuted for
the default of the appearance of the applicants. The second respondent filed a
second application claiming the same reliefs. The management objected to the
maintainability of the second application contending that if the workmen were
aggrieved by the earlier order, the proper remedy that should have been adopted
by them was by taking action under r. 16(2) of the Uttar Pradesh Industrial
Disputes, Rules, 1957. The Labour Court rejected the objection, and the
appellant challenged the decision in a writ petition to the High Court. The
High Court dismissed the writ petition.
HELD: An order dismissing a case for default
or non- prosecution, does not come under sub-r. (1) of r. 16 and to such an
order sub-r. (2) has no application.
Neither the Act nor the rules empower a
Tribunal or Labour Court to dismiss an application for default of appearance of
a party. Rule 16(1) is the only provision providing for what is to be done when
a party is absent.
That provision, which clearly enjoins the
Labour Court or Tribunal in the circumstances mentioned therein "to
proceed with the case in his absence", either on the date fixed or on any
other date to which the hearing may be adjourned, coupled with the further
direction "and pass such order as it may deem fit and proper",
indicates that the Tribunal or Labour Court should take up the case and decide
it on merits and not dismiss it for default. The necessity for filing an
application for setting aside an order passed in the case in the absence of a
party, as contemplated under sub-r. (2) of r. 16 will arise only when .an order
on merits affecting the case has been passed in the absence of a party, under
sub-r. ( 1 ) of r. 16. [680 E; 681 A--B]
CIVIL APPELLATE/JURISDICTION: Civil Appeal
No. 1631 of 1967.
Appeal by special leave from the order dated
May 11, 1967 of the Allahabad High Court in Civil Misc. Writ Petition No. 1647
of 1967.
S.V. Gupte 'and D.N. Mukherjee, for the
appellant.
M.K. Ramamurthi, Shayamala Pappu and Vineet
Kumar for respondent No. 2.
The Judgment of the Court was delivered by
Vaidialingam, J. In this appeal, by special leave, the appellant challenges the
order of the Allahabad High Court dated May 676 11, 1967 dismissing Civil
Miscellaneous Writ Petition No.
1647 of 1967.
The facts leading up to the filing of the
said writ petition by the appellant under Art. 226 of the Constitution, may be
briefly stated. The appellant is an existing company under the Companies Act,
1956 and has its registered office at Calcutta. The company was and is being
managed by Martin Burn Ltd., Secretaries and Treasurers.
The company carries on the business of
generation, distribution and supply of electricity within its licensed area in
the city of Agra and its environs in the State of Uttar Pradesh On a reference
made by the Government of Uttar Pradesh regarding a dispute that had arisen
between the electricity undertakings managed by Martin Burn Ltd., of which the
appellant was one, and their workmen about the demand of the workmen for supply
of uniforms, free of charge, the Chairman, Martin Electricity Supply Company
Adjudication Board made an award on February 20, 1947 in and by which certain
types of workmen were directed to be supplied with uniforms. The said award
remained operative till April 15, 1950 on which date it was terminated. Though
the award had been terminated, the appellant continued the practice of
supplying uniforms to its workmen. Subsequently, again, a dispute was raised by
the employees of the electricity undertakings managed by Martin Burn Ltd.,
regarding the supply of uniforms to some categories of workers. The said
dispute was referred by the Government of Uttar Pradesh, by order dated March
15, 1951, for adjudication to the State Industrial Tribunal, Uttar Pradesh,
Allahabad. The said Industrial Tribunal passed an award dated November 29, 1952
holding that the same categories of workmen to whom uniforms had to be supplied
as per the award dated February 20, 1947 were entitled to be supplied with
uniforms. Though this award remained in operation only for a period of one
year, the appellant continued to supply uniforms till 1953 after which year the
supply of uniforms was discontinued. Nevertheless, the appellant again resumed
supplying uniforms from May 1961.
On December 31, 1961 twenty-three employees
of the appellant, including the second respondent herein, filed a joint
petition before the Labour Court, Meerut,. under s. 6- 1-1(2) of the Uttar
Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the Act)
claiming that they were entitled to recover the money equivalent to the cost of
uniforms which had not been supplied to them during the period 1954 to 1960.
The said petition was numbered as Case No. 1 of 1962. According to these
employees, the employer had failed to supply them uniforms which they were
entitled to get and in consequence of such failure the workmen had been put to
expense by purchase of clothes to be used while rendering service in the
company. They claimed that the benefits 677 which they were entitled to get
should be computed in terms of money to enable them to recover the cost of
uniforms from the appellant. The appellant filed a written statement on January
27, 1962 disputing the claim of the workmen and denying its ii, ability to
either supply uniforms or pay the money value of the On February 22, 1964 the
application filed by the workmen was taken up by the Labour Court for heating,
but as none appeared on behalf of the workmen who were the applicants when the
case was called on for hearing the Labour Court Meerut dismissed the
application for non- prosecution. The actual order passed by the Labour Court
was as follows:
"Case called on for hearing. No one is
present on behalf of the applicant, nor 'any request for adjournment has been
received.
The application is dismissed as not having
been prosecuted. No order as to costs." On or about January 1, 1965 seven
employees of the appellant, including the second respondent herein, filed seven
separate applications before the Labour Court, Meerut, again under s. 6-H(2) of
the Act. The seven applications had been numbered as Case Nos. 217 to 223 of
1965. The application filed by the second respondent was Case No. 217 of 1965.
The second respontdent, in particular claimed that he was a mains coyly from
April 13, 1950 to September 15, 1959 'and that he was entitled to be supplied
uniform by the appellant. As the uniform had not been so supplied he pleaded
that he was entitled to recover a sum of Rs. 390/- as cost of the uniforms
which the management should have supplied during those years. All the
applicants, including the second respondent, had also stated in their
respective applications that they had moved before the Labour Court a similar
application, under s. 6-H(2) of the Act, but, unfortunately that had been
dismissed for default on February 21, 1964 and hence the fresh applications
were being filed.
The appellant flied on or about April 7, 1965
separate objections denying the claim made by the applicants. We are not, at
this stage, concerned with the various pleas taken either by the employees, in
support of their claim, or by the appellant, in denial thereof. It is only
necessary to state that the appellant pleaded that the fresh applications,
filed by the workmen, were not maintainable in view of the fact that identical
applications, claiming the same reliefs, had been dismissed on February 21,
1964 by the Labour Court. If the workmen were aggrieved by that said order, the
proper remedy that should have been adopted by them was by taking action under
r. 16(2) of the Uttar Pradesh Industrial Disputes Rules, 1957 (hereinafter
referred to as the rules). Not 678 having adopted the procedure indicated
therein, the management pleaded that it was no longer open to the workmen to
file a second application and the Labour Court had no jurisdiction to entertain
the same.
The Labour Court had, by its order dated
August 27, 1965 consolidated all the seven applications. On the basis of the
objection raised by the appellant to the maintainability of the applications
filed, issue no. 5 was framed in the following terms:
"Whether the present applications of the
workmen under s. 6-H(2) are not maintainable for the reasons given in para 5 of
the written statement of the employers ?" and this issue was treated as a
preliminary issue 'and arguments heard on the same By order dated February 10,
1967 the Labour Court held that the applications filed by the seven workmen,
including the second respondent were maintainable. The Labour Court has
expressed the view that the order passed on February 21, 1964 was one
dismissing the applications, filed by the workmen, for default and such an
order was not contemplated by sub-r. (1 ) of r. 16 of the rules, and hence the
workmen were not bound to take 'action under sub-r. (2) of r. 16. In
consequence the Labour Court held that the applications filed by the workmen
were competent and directed the applications to be posted for further hearing.
Though the order had been passed in Case No. 217 of 1965, the Labour Court
directed that the finding given on issue no. 5 would govern Cases Nos. 218 to
223 of 1965 also. The 'appellant challenged this finding of the Labour Court
before the High Court of Allahabad in Civil Writ No. 1647 of 1967. A Division
Bench of the High Court, by its order dated May 11, 1967 summarily dismissed
the writ petition.
Mr. Gupte, learned counsel for the appellant
and Mr. Ramamurthy, learned counsel for the second respondent, urged the same
contentions that were urged on behalf of their clients before the Labour Court.
Therefore the question that arises for consideration is whether the view of the
Labour Court that the second application filed by the second respondent herein
is maintainable, is correct.
Section 6-H of the Act deals with recovery of
money due from an employer. Section 6-H more or less corresponds to s. 33-C of
the Industrial Disputes Act, 1947. Sub-s. (2) of s. 6-H, with which we are
concerned, is as ,follows:
"(2) Where any workman is entitled to
receive from the employer any benefit which is capable of being computed in
terms of money, the amount at which such benefit should be computed may,
subject to any rules 679 that may be made under this Act, be determined by such
Labour Court as may be specified in this behalf by the State Government, and the
amount so determined may be recovered as provided for in sub-section (1
)." As we have already mentioned, the second respondent, along with
certain others, had filed an application on December 31, 1961 claiming
identical relief that is now claimed in Case No. 217 of 1965. That application
was dismissed as not having been prosecuted, on February 22, 1964. The second
application was filed on January 1, 1965.
We shall now refer to the relevant rules.
Rule 9 empowers a Tribunal or Labour Court to accept, admit or call for
evidence at any stage of the proceedings before it and in such manner as it may
think fit Rule 10 relates to the issue of summons for production of any books,
papers or other documents as the Labour Court, Tribunal or Arbitrator feels
necessary for the purpose of investigation or adjudication. Rule 12 relates to
procedure at the first hearing. It states that 'at the first sitting of a
Labour Court or Tribunal, the Presiding Officer shall call upon the parties in
such order as he may think fit to state their case. Rule 16 provides for the
Labour Court or Tribunal or Arbitrator proceeding ex parte, as follows:
"( 1 ) If, on the date fixed or on ,any
other date to which the hearing may be adjourned, any party to the proceedings
before the Labour Court or Tribunal or an Arbitrator is absent, though duly
served with summons or having the notice of the date of hearing, the Labour
Court or Tribunal or the Arbitrator, as the case may be, may proceed with the
case in his absence and such order as it may deem fit and proper.
(2) The Labour Court, Tribunal or an
Arbitrator may set aside the order passed against the party in his absence, if
within ten days of such order, the party applies in writing for setting aside
such order and shows sufficient cause for his absence. The Labour Court,
Tribunal or an Arbitrator may require the party to file an affidavit, stating
the cause of his absence. As many copies of the application and affidavit, if
any, shall be filed by the party concerned as there are persons on the opposite
side. Notice of the application shall be given to the opposite parties before
setting aside the order." Sub-rule (1 ) deals with the absence of a party
on the date fixed, or on any other date to which the hearing may be adjourned,
though he has been served with summons or he has notice of the date of hearing.
Under the circumstances it provides that the 680 Labour Court, Tribunal or
Arbitrator, as the case may be "may proceed with the case in his absence
and pass such order as it may deem fit and proper". It is to the setting
aside of such an order that may have been passed under sub- r. (1 ), that the
procedure is indicated in sub-r. (2).
According to Mr. Gupte, learned counsel for
the appellant, the order passed on February 22, 1964, by the Labour Court is
one contemplated by sub-r. (1) of r. 16, in which case the provisions of sub-r.
(2) are attracted and the second respondent, if he felt aggrieved by that
order, should have filed an application under sub-r. (2), within time, to set
aside that order.
We are not inclined to 'accept this
contention of Mr. Gupte. As pointed out earlier by us, the order passed on
February 22, 1964, is one dismissing the application as not having been
prosecuted, for default of appearance of the second respondent. We will
presently show that the order of February 22, 1964 cannot be considered to be
one contemplated to have been passed under sub-r. ( 1 ) of r. 16. Sub-r. ( 1 )
refers to a party being absent on the date fixed, or on any other date to which
the hearing has been adjourned, and such party having been duly served or
having notice of the date of hearing. The said sub-r. (1 ) indicates as to what
is to be done .under such circumstances. We have referred to r. 12 which
provides for what the Labour Court or Tribunal should do at the first hearing.
Neither the Act nor the rules empower a Tribunal or Labour Court to dismiss an
application for default of appearance of a party. Rule 16 (1 ) is the only
provision for what is to be done when a party is absent. That provision, which
clearly enjoins the Labour Court or Tribunal in the circumstances mentioned
therein "to proceed with the case in his absence" either on the date
fixed or on any other date to which the hearing may be adjourned, coupled with
the further direction "and pass such order as it may deem fit and
proper", clearly indicates that the Tribunal or Labour Court should take
up the case and decide it on merits 'and not dismiss it for default. Without
attempting to be exhaustive, we shall just give an example.
Where a workman, after leading some evidence
in support of his claim, absents himself on the next adjourned date with the
result that he does not lead further evidence, the Tribunal is bound to proceed
with the case on such evidence as has been placed before it. It cannot dismiss
the application on the ground of default of appearance of the workman. This
will be an instance of "proceeding with the case in the absence of a
party" and giving a decision on merits. If such an order is passed by the
Tribunal in the absence of one or other of the parties before it, a right is
given to such party to apply under sub-r. (2) for setting aside the order that
has been passed in his absence in the case in terms of sub-r. (1). The
application must be filed within the period mentioned in 681 sub-r. (2) and the
party will have also to satisfy the Tribunal or Labour Court that he had
sufficient cause for his absence. The necessity for filing an application for
setting aside an order passed in the case in the absence of 'a party, as
contemplated under sub-r. (2) of r. 16 will only arise when an order on merits
affecting the case has been passed in the absence of a party, under sub-r. (1 )
of r. 16. An order dismissing a case for default or non- prosecution, does not
come under sub-r. ( 1 ) of r. 16 and to such an order sub-r. (2) has no
'application.
We have already indicated that the order
passed on February 22, 1964 by the Labour Court cannot be considered to be an
order contemplated under sub-r. (1 ) of r. 16. If that is so, the second
respondent was not bound to file an application within the time mentioned in
sub-r. (2) for setting 'aside the order dated February 22, 1964.
Therefore the fact that a previous
application, filed by the second respondent, was dismissed for non-prosecution
on February 22, 1964 is no bar under r. 16(2) to the filing of the present
application, Case No. 217 of 1965. It follows that the objections raised by the
appellant to the maintainability of the application filed by the second respondent
have been rightly rejected by the Labour Court and the High Court.
The appeal fails and is dismissed. The
appellant will pay the costs of the second respondent.
Back
