Full Judgment Text
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PETITIONER:
AGRA ELECTRIC SUPPLY CO. LTD.
Vs.
RESPONDENT:
THE LABOUR COURT, MEERUT & ANR.
DATE OF JUDGMENT:
08/11/1968
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
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 off a party, as contemplated under
sub-r. (2) of r. 16 will arise only when .an order on merits
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affecting the case has been passed in the absence of a
party, under sub-r. ( 1 ) of r. 16. [680 E; 681 A--B]
JUDGMENT:
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
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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
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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
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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
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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
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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
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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,
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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.
Y.P. Appeal dismiss
682