Decided on March 21,1973



- (1.) An industrial dispute between the Management of the Dhenkanal Municipality (hereinafter to be called as 'the Management') (Petitioner), and its workmen, represented through their Union (Sangha) (O. P. No. 3). was referred by the State of Orissa through the Secretary. Labour, Employment and Housing Department on 11-1-1963 to the Industrial Tribunal (O. P. No. 1) for adjudication. The terms of Reference were as follows: "Whether the refusal of employment from 20-4-1967 to Sarbasri Somabaria Jena. Golak Jena. Brundaban Jena, and Musa Jena. all sweepers, by the management of the Dhenkanal Municipality is legal and justified If not. what relief they are entitled to - The Reference was registered as Industrial Dispute Case No. 5/68. The Management's written statement (Annexure-1) was filed on 21-5-1968 while the workmen's written statement (annexure-2) was filed on 1-1-1969 after several adjournments. The case of opposite party No. 3 was that the action of the Management in refusing employment to the four workmen was arbitrary, mala fide and amounted to victimisation. Opposite Party No. 3 prayed for reinstatement of the concerned workmen and compensation. The Management took the stand that the Municipality was not an 'industry' and the dispute was not within the jurisdiction of the Industrial Tribunal. On merits, its stand was that the termination of employment of the concerned workmen was purely a contractual termination. Those workmen had been employed for a stipulated period of three months on the expiry of which their services: stood automatically terminated. The workmen did not appear before the selection committee as directed by the Management. After some further adjournments on 16-6-1969 the case was posted to 25-6-1969 and 27-6-1969 for hearing at the Circuit House. Dhenkanal. On 24-7-1969. the Management filed an application to adjourn the case on grounds which need not be stated. Opposite party No. 3 had no objection. The case was adjourned without fixing any particular date of hearing. On 15th of November. 1969. the case was fixed to 1-12-1969 for hearing at Bhubaneswar. and on that day it was taken up at Bhubaneswar. The following order was passed by the Tribunal. "Sri Biswanath Pandit. President of the Union is present. Sri Dukhabandhu Swain. L. D. C. Dhenkanal Municipality files an application for time on behalf f the Chairman. Dhenkanal Municipality on the ground that the notice of hearing was received only on 28-11-1969. and it was not possible to get ready within a short time. The Union opposes this petition. On the last day. i. e.. 24-7-1969. the Chairman, Dhenkanal Municipality, asked for time till September 1969. Even so. the case has been posted to this date. i. a, 1-12-1969. The Municipality had enough time to get ready. The fact that the notice was received only two days before the date of hearing is not a ground for further adjournment. Hence the applicati on for time is rejected. Parties are directed to get ready at once. Sd,- B. R. Rao Presiding Officer. Industrial Tribunal." By order No. 21 cm the same day a further order was passed to the following effect: "The Union is ready to proceed with the case. Sri Dukhabandhu Swain. L. D.C. of the Dhenkanal Municipality submits that he is unable to proceed with the case. Case taken up. U. W. 1 Sri Jogendra Nath Tripathy is examined. Arguments heard. Put up later for award." The award (annexure-7) was made on 18-12-1969. An order was passed by the Tribunal on that date to send it to the State Government. On 31-12-1969, the Chairman of the Dhenkanal Municipality filed a petition (Annexure-8) praying to set aside the exparte award. This was directed by the Tribunal to be put up on 27-1-1970 for hearing. On 6th of January. 1970. the award was published. On 10th of January. 1970. the petitioner filed an application (Annexure-9) asking the Tribunal to decide the question whether the Municipality was an 'industry'. Opposite party No 3 filed a counter (Annexure-10) on 24-1-1970 opposing this application. On 21-2-1970 arguments were heard on the two petitions filed bv the Management. On 11th of March. 1970. the Tribunal passed an order (Annexure-11) rejecting the petition dated 31-12-1969 for setting aside the ex parte award. It is to quash Annexure-11. the writ application has been filed.
(2.) In Annexure-11 the Tribunal recorded the following conclusion: "I am therefore of the opinion that the application filed by the Management to set aside the ex Parte order is not maintainable and that this Tribunal has no jurisdiction to restore the case." On this view it did not go into the merits of the application for restoration.
(3.) Mr. Nanda for the petitioner contended that the Tribunal had jurisdiction and power to set aside the ex parte award and having had such jurisdiction it failed to exercise the same and accordingly a writ of certiorari should be issued to quash the ex parte award and a writ of mandamus should be issued to the Tribunal to go into the merits of the application for restoration. Mr. Misra for the workmen contends that after the passing of the award under Section 17 of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act) the Tribunal is functus officio to set aside the ex parte award and that the Tribunal has no implied powers to set aside an ex parte award.;

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