Partly allowed

Thomaskutty v. Aloysious Gonsalves

Kerala HC13 Jun 2016OP(LC)/6/2016

Case brief

AI extract

What is this about?

The High Court set aside a Labour Court ex-parte award in a Kerala industrial dispute. The court held that mere non-intimation of the pronouncement date under Rule 26A does not invalidate the award but facilitated a fresh adjudication to cure procedural irregularities.

What did the court decide?

Exhibits P1 and P6 set aside; petitioner directed to deposit Rs.10,000 with respondent or in Labour Court Court within three weeks for fresh adjudication.

Thomaskutty Vs Aloysious Gonsalves — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938

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OP(LC).No. 6 of 2016 (O)

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AGAINST THE AWARD IN ID NO.58/2014 OF LABOUR COURT, KOLLAM DATED 22-07-2015

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PETITIONER:

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THOMASKUTTY (PROPRIETOR, MAY FAIR PHARMA PHARMACEUTICAL DISTRIBUTORS) VALIYAVILA VEEDU, NJARAKADU MURI THALAVOOR P.O., KOLLAM.

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BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN

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RESPONDENT:

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ALOYSIOUS GONSALVES BRIGHT HOUSE, KRIPA NAGAR-35, KOTTARAKKARA.

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BY ADV. SRI.K.SUBASH CHANDRA BOSE

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THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(LC).No. 6 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1	-	COPY OF AWARD DATED 22.07.2015 IN IA NO.58/14 ON THE FILE OF THE LABOUR COURT, KOLLAM.
EXT.P2	-	COPY OF IA NO.173/15 IN ID NO.58/14 ON THE FILE OF THE LABOUR COURT, KOLLAM.
EXT.P3	-	COPY OF IA NO.174/15 IN ID NO.58/14 ON THE FILE OF THE LABOUR COURT, KOLLAM.
EXT.P4	-	COPY OF OBJECTION TO EXT.P2.
EXT.P5	-	COPY OF OBJECTION TO EXT.P3.
EXT.P6	-	COPY OF COMMON ORDER DATED 19.04.2016 IN IA NOS.173/15 & 174/15.

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RESPONDENTS' EXHIBITS:- NIL

//TRUE COPY//

P.A. TO JUDGE

K. VINOD CHANDRAN, J.

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----------------------------------

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O.P.(L.C.). No.6 of 2016-O

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---------------------------------Dated this the 13^th day of June, 2016

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JUDGMENT

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The petitioner, an employer, before the Labour Court Kollam, challenge the Award passed against the petitioner as per Ext.P1 dated 22.07.2015 and the subsequent dismissal of two applications filed by the petitioner to set aside the ex parte Award and condone the delay occasioned in filing such application; produced at Ext.P6.

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The petitioner contends that by an inadvertent omission, the Clerk of the Advocate failed to notice the posting date given by the Labour Court and hence the Counsel could not

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appear on the day, on which it was posted, which resulted in the Management being set ex-parte and then the Labour Court passing an Award.

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There is a further contention taken up

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with reference to Rule 26A of the Industrial Disputes Rules, 1957. The ground raised is that, after the Labour Court has passed the Award, there is a requirement of sending it to the Government and pronouncing the same in open Court; within 30 days of its receipt by the Government. The date of such pronouncement, as

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per the proviso to Rule 26A, had to be intimated to the management, workman and the State Government, which has not been done in the present case. The absence of such notice results in failure to comply with the mandate

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of Section 17 of the Industrial Disputes Act, 1947 [for brevity, the Act of 1947], as regulated by Rule 26A of the Rules of 1957 framed by the State Government, making the Award non est in law.

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The learned counsel for the respondent however contends that it is only on continued absence of the management that they were set ex-parte . It is also argued that the application filed was long after the 30 days as prescribed under Section 17 of the Act of 1947.

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A reading of the Award produced at Ext.P1 would clearly indicate that it was not on one solitary absence that the management was set ex-parte and the Award passed. The Labour Court in page No.4 has clearly recorded that though the management was represented through a

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Counsel, they have not filed any written statement to the claim petition and had persistently absented. On 29.06.2015, on the continued absence of the management, they were set ex-parte and the worker was directed to file Proof Affidavit as ex-parte evidence. It was based on such affidavit and the documentary evidence proved by the workman, that the Award was passed. The Award is seen passed on 22.07.2015, as is revealed from Ext.P1. The contention raised of a solitary instance of the posting date having not been noticed properly, cannot hence be countenanced.

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The next argument is based on Rule 26A of the Rules of 1957, which is extracted herein below:

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“26A. Publication of report or award -Every report of a Board

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or award of a Labour Court or Tribunal required to be submitted to the Government under Section 15 shall be sent to the Government. The report/award so sent shall, within 30 days from the date of its receipt by the Government, be pronounced in the open Court by the Board, Labour Court or Tribunal concerned and be published in the notice board of the Labour Court or Tribunal and the same shall be deemed to be sufficient publication for the purpose of Section 17.

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Provided that the Board, Labour Court or Tribunal, as the case may be, shall inform the State Government and the parties concerned of the date of such pronouncement in open Court.”

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As per Section 17, every Award made by

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the Labour Court has to be published in such manner as the appropriate Government thinks fit. The delay caused in bringing out the notification and publishing the Award in the Gazette has necessitated introduction of Rule 26A. Hence, every Award, for complying with

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Section 15 of the Act of 1947 has to be sent to the Government. In the State of Kerala, the Award is deemed to be published under Section 17 of the Act of 1947, when the Labour Court pronounces the same in open Court within a period of 30 days from the receipt of the Award by the Government, and displayed in its notice board. The endorsement made in Ext.P1 Award indicates that the Award was pronounced in open Court on 12.08.2015 as provided in Rule 26A.

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The reliance placed on the proviso to

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Rule 26A cannot be accepted. The petitioner, on the strength of the proviso contend that there is a prior notice contemplated before pronouncement of the Award in open Court. This

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Court is unable to countenance such a contention. Rule 26A itself indicates that when

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the Award is pronounced in open Court as contemplated in Rule 26A, the publication for the purpose of Section 17 of the Act of 1947 would be satisfied if it is published in the notice board. The proviso indicates only intimation of pronouncement to the parties; post pronouncement. This is only to enable the parties to take up their remedies against the Award, which also can be enforced after a period of 30 days from such pronouncement. This Court is unable to countenance the argument of the petitioner that the proviso intends a prior notice especially since the pronouncement is a procedural requirement and there can be no hearing or fresh adjudication, before pronouncement.

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The further argument that no notice after

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the publication was issued, need not be

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considered in the nature of the orders be passed. Considering the fact that the Award passed is an ex-parte Award and the petitioner management having serious objections to the status of the respondent itself, it is only proper that a proper adjudication be carried out.

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To facilitate fresh consideration, Exts.P1 and P6 would stand set aside; if the petitioner pays an amount of Rs.10,000/- [Rupees Ten thousand only] to the respondent workman or deposit it before the Labour Court within a period of three weeks from the date of receipt of the certified copy of this judgment. If such deposit is made, the Labour Court shall endeavour to conclude the matter within three

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weeks thereafter. The petitioner-management would also be entitled to file an objection within one week of the date of deposit. The petitioner and the respondent; respectively the management and workman, shall appear before the Labour Court on 05.07.2016.

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The original petition is disposed of with

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the above directions.

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Sd/-

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K. VINOD CHANDRAN,

JUDGE.

//True Copy//

P.A. to Judge.

sp/13/06/16

Thomaskutty v. Aloysious Gonsalves

Case brief

What is this about?

What did the court decide?

Thomaskutty v. Aloysious Gonsalves

Case brief

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What did the court decide?

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