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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 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

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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 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

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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               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

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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