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Malik Dairy Farms Vs. Its Workers' Union (13.01.1968 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 923 of 1967
Judge
Reported in[1968(17)FLR436]; (1968)IILLJ523Bom
ActsIndustrial Disputes Act ; Constitution of India - Articles 225 to 227
AppellantMalik Dairy Farms
Respondentits Workers' Union
Excerpt:
- .....the reference ex parte that his absence is for sufficient cause. if the labour court passed on ex parte award and the aggrieved party approaches us under arts. 225 to 227 of the constitution, we are unable to interfere with the award unless the labour court is found to be wrong in law in proceeding ex parte and it is virtually impossible for the aggrieved party to show on the basis of record of the labour court that the court erred in law in proceeding ex parte. we understand that a rule enabling an aggrieved party to apply to the labour court (or other tribunal under the act) for setting aside an ex parte award is found in the rules framed under the industrial disputes act, 1947, by the state government of madras, uttar pradesh and kerala. it appears to us desirable that such a rule.....
Judgment:

Per Tarkunde, J.

1. This petition has been filed to challenge under Art. 227 of the Constitution of India the legality of an ex parte order made by the first labour court at Bombay. The petitioners are a partnership firm doing business of selling milk. One Rambali Subkaran was an employee of the petitioners. He is represented by a trade union which is respondent 1 to this petition. Rambali Subkaran claimed that he was wrongfully dismissed from service by the petitioners and his claim was taken up by respondent 1 union. The State Government referred the dispute under the Industrial Disputes Act to the labour court. On 19 September, 1965, the union filed before the labour court its statement of claim. It was alleged in the statement of claim that while the employee Rambali Subkaran was doing his work on 11 March, 1965, a sharp wire pierced the middle finger of his right hand, that he intimated the petitioners about the accident, that he was under medical treatment for a number of days as the wound had become septic, that when he applied on 7 April, 1965 for permission to resume duty the manager of the petitioners refused to accept his application unless he gave in writing that he was not injured in the course of his employment and that he was removed from service because he refused to give such a writing. The union prayed that the employee should be reinstated to his post with full back-wages.

2. The petitioners filed their written statement to the statement of claim on 7 October, 1965. It was averred therein that the employee's injury was not received during the course of his duty; that he had asked leave and leave was granted to him, that he did not report for work at the end of the period of leave and that after waiting for some days, his name was struck off the muster-roll.

3. It appears that the reference was fixed for hearing before the labour court on different dates but was not heard for one reason or other. It was fixed for hearing on 9 February, 1967, when both the parties ware absent. On that day the hearing of the reference was adjourned to 15 March, 1967. On 15 March, 1967, the union was present but not the petitioners. The labour court heard the reference ex parte, entertained an affidavit filed by the employee and adjourned the reference for making an award. The award was signed on 17 March, 1967 and a copy thereof was received by the petitioners on 20 April, 1967. The validity of the award has been challenged in the present petition.

4. There is unfortunately no rule in the Industrial Disputes (Bombay) Rules, 1957, which enables a party to a references made under the Industrial Disputes Act, 1947, to apply to a labour court for setting aside an award passed ex parte. Rule 26 of these rules lays down that if without sufficient cause being shown, any party to a proceeding before a board, court, labour court, tribunal or an arbitrator fails to attend or to be represented, the board, court, labour court, tribunal or arbitrator may precede ex parte. A party, however, who is absent even for sufficient cause on a date fixed for hearing of a reference, has usually no opportunity to show to the labour court before the Court proceeds to hear the reference ex parte that his absence is for sufficient cause. If the labour court passed on ex parte award and the aggrieved party approaches us under Arts. 225 to 227 of the Constitution, we are unable to interfere with the award unless the labour court is found to be wrong in law in proceeding ex parte and it is virtually impossible for the aggrieved party to show on the basis of record of the labour court that the Court erred in law in proceeding ex parte. We understand that a rule enabling an aggrieved party to apply to the labour court (or other tribunal under the Act) for setting aside an ex parte award is found in the rules framed under the Industrial Disputes Act, 1947, by the State Government of Madras, Uttar Pradesh and Kerala. It appears to us desirable that such a rule should find place in the Industrial Disputes (Bombay) Rules, 1957.

5. Since he was not able to show that the labour court in the present case erred in law in passing an ex parte award, Sri Shetye for the petitioners confined his arguments to only one ground. Sri Shetye argued that on the material before is the labour court was not justified in awarding full back-wages to the employees. Sri Shetye pointed out that the only material produced by the union before the labour court was an affidavit of the employee, and although the employee in that affidavit described the circumstances which led to his removal from service, he did not say that he remained unemployed in spite of his efforts to minimize his loss during the period from April 1965 when he was dismissed and March 1967 when he filed his affidavit. In support of his argument Sri Shetye referred to a decision of a single Judge of the Allahabad High Court in Rakeshwar Dayal v. Labour Court, Kanpur : (1962)ILLJ5All . A labour court in that case had made an award reinstating an employee but had allowed only 50 per cent of his back-wages. The employee challenged the validity of the award under Art. 226 of the Constitution on the ground that the labour court ought to have allowed full back-wages. One of the grounds why the labour court had granted only 50 per cent of the back-wages was that the employee had led no evidence to show what he was doing during the period of his dismissal, so that the possibility of the employee having been gainfully employed during the period was not excluded. The High Court approved this reasoning of the labour court and observed :

'A servant who sues his employer for wrongful dismissal must show that he made efforts to minimize his loss. The petitioner has not stated that he made any effort to minimize his loss during his period of enforced idleness.'

6. On the authority of this decision Sri Shetye argued that it was not stated by the employee in his affidavit in the present case that he did not find it possible to secure any employment during the period of his dismissal and that therefore the labour court, according to Sri Shetye, was not therefore justified in granting full back-wages to the employee.

7. The respondent-union has not appeared before us and hence we are unable to examine the above argument with reference to other decided cases. As at present advised, we are inclined to agree with the view expressed by the Allahabad High Court in the case mentioned above. We are, however, of the view that a further opportunity should be given to the respondent-union to show that the employee made necessary efforts to find gainful employment during the period of dismissal and was unable to get it. It appears desirable that the labour court should allow both the parties to lead such further evidence as they desire on the question of the quantum of back-wages which should be allowed to the employee and the labour court should decide in the light of such evidence the amount of back-wages to be allowed to the employee.

8. In the result, while not interfering with the order of the labour court with regard to the reinstatement of the employee; we set aside that part of the award which allows back-wages to the employee, and we direct that the reference before the labour court should be revived and that, after giving an opportunity to both sides to lead further evidence as aforesaid, the labour court should decide the extent to which back-wages should be allowed to the employee.

9. There will be no order to costs of this petition.


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