ADOR MULTIPRODUCTES LTD Vs. N B SAGADEVAN

JUDGEMENT

(1.) Though this petition is listed for orders, with the consent of the learned Counsel for the parties, is finally heard and disposed of by this order.

(2.) Petitioner-employer engaged the services of the respondent as an Electrician-cum-Mechanic in the year 1986, and promoted him as a Production Supervisor on 1.6.1994. Respondent, alleging termination of services without an enquiry on alleged misconduct, filed a petition under section 10(4A) of the Industrial Disputes Act, 1947, for short 'ID Act', numbered as Application 12/08 before the I Addl. Labour Court, Bangalore. Petitioner, arraigned as respondent, on notice, entered appearance, filed a counter statement dated 24.10.2008. There afterwards the respondent filed the affidavit in lieu of recording evidence-in-chief and marked 12 documents. Though the respondent was tendered for cross-examination, petitioner having remained absent, cross-examination was taken as nil and as the petitioner did not adduce evidence in the matter, the Labour Court, by award dt. 1/1/2010, allowed I.D. 12/08, set aside the order of termination dated 3.4.2008 and directed reinstatement with 50% back-wages and continuity of service. That award was notified on 29.1.2010 in terms of the ID Act, which became enforceable on 22.2.2010. Petitioner filed miscellaneous application No. 1/10 on 5.3.2010 to set aside the award and restore I.D. 12/ 08 to file. In that proceeding, respondent entered appearance and filed objections contending that the Labour Court was functus officio as the application filed was beyond 30 days from the date of the award becoming enforceable and therefore application deserved to be rejected. Labour Court, by order dated 3.2.2011-Annex. K, rejected Misc. Apl. 1/ 10 for lack of jurisdiction. Hence this petition.

(3.) Learned Sr. Counsel contends that the order dated 23.2.2011-Annex. K in Misc. Apl. 1/10 as well as the award dated 1.1.2010 in I.D.12/08-Annex. G, are subject-matter of challenge. As regards the order-Annex. K, learned Sr. Counsel submits that filing the Misc. Apl., 5 days after expiry of 30 days from publication of the award, is fatal in the light of the fact that the Labour Court had become functus officio by the time the application was filed. In other words, if the application is filed on or before 27/2/ 2010, the same would have been maintainable. As regards the award, learned Sr. Counsel points to paragraph 6 of the claim petition to contend that the only material averment is that the respondent was promoted from the post of Electrician-cum-Mechanic to Production Supervisor without a material averment over the allegation that the respondent continued to discharge the very same work as an Electrician-cum-Mechanic, after on promotion. In the absence of a pleading, it is submitted, the evidence of the respondent of discharging the very same duties of Electrician-cum-Mechanic, deserved rejection as being in excess of pleadings. Learned Sr. Counsel places reliance upon the decision of the larger Bench of the Supreme Court in Shankar Chakravarthi v. Britannia Biscuit Co. Ltd., 1979 2 LLJ 194, at paragraph 31. According to the learned Sr. Counsel, there being no plea that the respondent falls within the definition of the term 'workmen' under section 2(s) of the ID Act, in the wake of the admission of promotion as Production Supervisor, the Labour Court recorded a perverse findings of fact that the respondent was a 'workman'.