The Management of Murali Vs the Presiding Officer

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 29.09.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE T.RAJA

¶5

and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI

¶6

W.A.No.1133 of 2011

¶7

The Management of Murali Enterprises

¶8

rep. by its Proprietor Mr.Murali,
No.643, M.K.N.Road,
Guindy, Chennai-32.... Appellant / Petitioner

¶9

-vs-

¶10

1. The Presiding Officer,
 I Additional Labour Court,
 Chennai.

¶11

2. P.Thangappan... Respondents / Respondents

¶12

Prayer: Writ Appeals filed under Clause 15 of the Letters
Patent against the Order of the learned Single Judge made in
W.P.No.31167/2003 dated 7.1.2009.

¶13

Prayer in WP.No.31167/2003: Writ Petition filed under Article 226
of the Constitution of India praying for a writ of Certiorari to
call for the records in IA.No.226/02 in ID No.414/95 dated
17.10.2003 on the file of the Ist Respondent.

¶14

For Appellant : Mr.P.Sunil @ Sunil Prakash

¶15

JUDGMENT

¶16

(Judgment of the Court was pronounced by T.RAJA.J)

¶17

This Writ Appeal has been filed challenging the
correctness of the impugned order passed in W.P.No.31167/2003

¶18

https://hcservices.ecourts.gov.in/hcservices/

¶19

dated 7.1.2009 wherein the learned Single Judge, while confirming
the order dated 17.10.2003 passed in I.A.No.226/2002 in
I.D.No.414/1995 by the 1st respondent herein, applying the ratio
laid down by the Hon'ble Apex Court in a case reported in 2004
AIR SCW 5452 in Sangham Tape Company v. Hans Raj and also relying
on a decision of the Apex Court in Grindlays Bank Limited v.
Central Government Industrial Tribunal and others reported in
1980 (Supp) SCC 420 holding that the Labour Court would become
functus officio as no other petition was filed within 30 days,
dismissed the Writ Petition. Against which, the present Writ
Appeal has been filed.

¶20

2.While challenging the correctness of the order,
learned Counsel for the appellant submitted that the order of
the learned Single Judge dismissing the writ petition on the
ground that the Labour Court has become functus officio is also
incorrect in the light of the Full Bench judgment of the Apex
Court in M/s.Haryana Suraj Malting Limited vs. Phool Chand
reported in 2018(4) W.L.N. 36 wherein the Full Bench after
referring to Grindlays Bank Limited case following Satnam Verma
v. Union of India and J.K.Synthetics Limited v. Collector of
Central Excise reported in (1996) 6 SCC 92 has finally come to
the conclusion that when an application for setting aside the ex-
parte award is made at the instance of the management, the Labour
Court/Tribunal has to balance equities because the Industrial
Disputes Act, 1947 is a welfare legislation intended to maintain
industrial peace and the Labour Court is not functus officio,
after the award has become enforceable as far as setting aside an
ex-parte award is concerned.

¶21

3.In this regard, it is pertinent to extract the
relevant portion here under:

¶22

''35. Merely because an award has become
enforceable, does not necessarily mean that it has
become binding. For an award to become binding, it
should be passed in compliance with the principles of
natural justice. An award pending denying an
opportunity of hearing when there was a sufficient cause
for non-appearance can be challenged on the ground of it
being nullity. An award which is a nullity cannot be
and shall not be a binding award. In case a party is
able to show sufficient cause within a reasonable time

¶23

https://hcservices.ecourts.gov.in/hcservices/

¶24

for its non-appearance in the Labour Court/Tribunal when
it was set ex-parte, the Labour Court/Tribunal is bound
to consider such an application and the application
cannot be rejected on the ground that it was filed after
the award has become enforceable. The Labour
Court/Tribunal is not functus officio after the award
has become enforceable as far as setting aside an ex-
parte award is concerned. It is within its powers to
entertain an application as per the scheme of the Act
and in terms of the rules of natural justice. It needs
to be restated that the Industrial Disputes Act, 1947 is
a welfare legislation intended to maintain industrial
peace. In that view of the matter, certain powers to do
justice have to be conceded to the Labour
Court/Tribunal, whether we call it ancillary, incidental
or inherent.

¶25

36.We may also add that when an application
for setting aside an ex-parte award is passed at the
instance of the management, the Labour Court/Tribunal
has to balance equities. The appeals are hence disposed
of as follows: The awards are remitted to the Labour
Court for consideration as to whether there was
sufficient cause for non-appearance of the management.
Since the litigation has been pending for a long time,
we direct the appellants to pay an amount of
Rs.1,00,000/- in each case to the workmen by way of
provisional payment. However, we make it clear that the
payment is subject to the final outcome of the awards
and will be adjusted appropriately. We record our deep
appreciation for the gracious assistance rendered by
Mr.Shekhar Naphade.''

¶26

Following the aforesaid decision, in this case, since the
learned Single Judge and also the learned Labour Court/1st
respondent herein have wrongly decided the issue against the
settled legal position, we are of the view that for the mistake
on the part of the court, the litigant cannot be put to suffer.

¶27

4.At this stage, learned Counsel for the 2nd
respondent submitted that when the termination of the service of
the 2nd respondent was set aside by the I Additional Labour Court,
Chennai, the appellant being the Management is liable to pay 17-b

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

wages and now that 17-b wages also has not been paid for a long
time.

¶30

5.But the case of the appellant herein stands on a
different footing. It is the claim of the appellant Management
that the 2nd respondent has stopped coming to employment from
November, 1990 onwards and his accounts were settled on
23.2.1991. After that, he was working in Tamil Nadu Press Tools
Private Limited at Industrial Estate, Ekkattuthangal. When the
appellant Management has stated that the 2nd respondent worker was
not only working in Tamil Nadu Press Tools Private Limited but
also working in MPTC and that he has also forged a document as
though he was working under the appellant for which the appellant
has also filed a false complaint that reached only the CSR stage,
the matter needs to be examined by the I Additional Labour
Court/the 1st respondent herein as to whether the 2nd respondent
was indeed terminated from service or not.

¶31

6.Learned Counsel for the 2nd respondent further
submitted that the appellant has not questioned the correctness
of the award which argument does not carry any weightage. The
reason being that when the I.A.No.226/2002 in I.D.No.414/1995 was
dismissed by the 1strespondent herein against which
W.P.No.31167/2003 was filed that was also dismissed against which
W.A.No.1133/2011 was filed with delay, the delay application is
allowed by this Court in the light of the decision of the Apex
Court reported in (1981) 2 Supreme Court Cases 788 in Rafiq and
another vs. Munshilal and another that for the fault on the part
of the counsel, poor litigant should not be put to any prejudice.
Therefore, this argument shall not carry any weightage either
before this Court or before the Labour Court.

¶32

7.In view of the foregoing reasons, the order
passed in W.P.No.31167/2003 dated 7.1.2009 by the learned Single
Judge is set aside subject to the payment of Rs.15,000/- (Rupees
Fifteen Thousand Only) payable by the appellant herein to the 2nd
respondent worker, within two weeks from the date of receipt of a
copy of this Order and the matter is remitted back to the I
Additional Labour Court, Chennai, who shall take up the matter
and dispose of the same on merits and in accordance with law,
after giving opportunity of hearing to both sides, within a
period of eight weeks thereafter. The parties are also directed
to co-operate with the 1st respondent Labour Court.

¶33

https://hcservices.ecourts.gov.in/hcservices/

¶34

8. With the above observations and directions, the
present Writ Appeal is allowed. No costs.

¶35

 Sd/-
 Assistant Registrar

¶36

//True Copy//

¶37

 Sub Assistant Registrar

¶38

tsi

¶39

To

¶40

The Presiding Officer,
I Additional Labour Court,
Chennai.

¶41

+1cc to Mr.K.P.Shanthosh, Advocate, S.R.No.50597

¶42

W.A.No.1133/2011

¶43

MG(CO)
SB(10/11/2021)

¶44

https://hcservices.ecourts.gov.in/hcservices/

The Management of Murali v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

The Management of Murali v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pillappa Vs the Government of Tamil Nadu

S.P.Velayutham Vs Asset Reconstruction

D.Vijayalakshmi Vs State Rep.by the Chief

Imc Ltd., a Company Vs Kamarajar Port Limited

S.Veera Raghavan Vs the Commissioner and Special Commissioner of Land Administration

A.Jayaraman Vs the District Collector