Decided on June 28,1967

BENJAMIN M J Appellant


- (1.) THIS is a petition filed under Articles 226 and 227 of the Constitution, by a person formerly employed in Harrisons and Crosfield, Ltd. , Cochin-3, who is respondent 2 in this case, to quash an award of the Industrial tribunal, Calicut, In Industrial Dispute No. 61 of 1965. Tula award Is dated 17 January 1996, and has been published In Part I of the Kerala Gazette No. 7 dated 15 February 1966. The industrial tribunal is respondent 1, and the copy of the award la marked as Ex. P. 2 in this case. This award was passed on an application filed by the petitioner before respondent 1 on 17 August 1965 under Section 33a of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), complaining of termination of his service in contravention of Section 33 of the Act, and praying for an award for his reinstatement. The application was opposed by respondent 2 on several grounds; and hence it was posted for evidence to 18 October 1065. On the application of the petitioner's counsel, respondent 1 adjourned the case to 15 November 1865, then to 16 December 1966 and from that date to 14 January 1966. These applications were opposed by respondent 2; and on 16 December 1965, respondent 1 adjourned the case "as a last chance. " January 14, 1966, was a sectional holiday on account of" Pongal. " The High Court declared It as a full holiday for the High Court. However, the tribunal held Its Court. Sri T. C. N. Menon, a senior advocate of that Court, was appearing for the petitioner before the Industrial tribunal. On 14 January 1966 when the case was called, neither the petitioner nor Sri T. C, N. Menon was present. But his junior, advocate Sri F. Sankarankutti, represented to the tribunal that the petitioner happened to be absent on that day under a bona fide error that It was a holiday and that Sri T. C. N. Menon was responsible for this error. Sri F. Sankarankutti explained the whole circumstances, and orally moved for an adjournment of the case. The adjournment of the case for the examination of the petitioner was refused; and respondent 1 adjourned It for making the award. On the same day, Sri T. C. N. Menon appeared before respondent 1, and submitted a petition explaining the circumstances under which he was mailed to believe that the tribunal was not Bitting on that day, and his client happened to be absent, and prayed for reviewing the order, which declined to afford an opportunity to the petitioner for being examined In the case. Exhibit F. 1 is a copy of this petition. The petition was rejected; and three days later, respondent 1 passed the Impugned award. This original petition has been filed to quash Ex. F. 2, and to direct respondent 1 to dispose of the petitioner's application on the merits.
(2.) SRI T. C. N. Menon appeared for the petitioner before me; and he raised two points In support of the reliefs sought for In this case: (i) The industrial tribunal is bound to dispose of an application under Section 33a of the Act on the merits. An award passed for the non-appearance of parties or one of them or for non-prosecution Is contrary to the provisions of the Act, and hence void. (ii) The petitioner's application under Section 33a was dismissed by respondent 1 on the only ground of non-prosecution. This la an error apparent on the face of the records; and It vitiates the award.
(3.) SRI T. C. N. Menon submitted that Section 33a requires that an application made thereunder shall be adjudicated upon by the tribunal, "as if It were a dispute referred to or pending before It, in accordance with the provisions of the Act," and It shall submit the award to the appropriate Government. This requires, according to him, that a tribunal cannot pass an award, because of the absence of the parties, or for the non-prosecution of the case by any one of them. The tribunal has to pass an award on the materials available on the records, and In the absence of any materials, he has to pass an award to the effect that the claim has not been substantiated. Reliance was placed in support of the above position on a judgment of this Court in Workmen of Travancore Rayons, Ltd. v. Travancore Rayons, Ltd. , and Anr. 1967 I L. L. J. 518. In this case, the learned Judge held:. . . that a dismissal of a reference for non-prosecution cannot amount to an award within the meaning of Section 2 (6 ). The correctness of the above proposition was questioned by the learned Counsel for respondent 2. It Is unnecessary for me to examine this question, because I am of the definite view that the petitioner must succeed on the second point. However, I may observe that the passage quoted from the above decision of this Court fully supports the petitioner's learned Counsel on the first point. ;

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