# [1969] 2 S.C.R. 675

- **Citation:** [1969] 2 S.C.R. 675
- **Court:** Supreme Court of India
- **Decided:** 1967-05-11
- **Case number:** Civil Misc. Writ Petition No. 1647 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-2-s-c-r-675-4581
- **Pages:** 7

## Headnote

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·AGRA ELECTRIC SUPPLY CO. LTD •
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THE LABOUR COURT, MEERUT & ANR.
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, N_ovember 8, 1968· __ _
[J. 11. SHELAT, v; BliARaAvA AND c. A. VAmiALrnaAM, 11.f ·.
. Industrial Dispute-Non-appearance of party-.;-Dismissal of applica-·
tion by Labour Court-Second applica!ion-Maintainability.
. -
. -
. Uttar Pradesh. In~ustrialDisputes Rules, 1957 R. 16(1)-Scope of.
The second. respondent originally filed an application for certain reli~fs . against its •!"Pl?yer (the appellant-company).
The Labour Court
dismissed the apphcation as not having been prosecuted for the default of
the ~pp_earanc~ ~f the applicants._ The second respondent filed a second
api;hca:ion. ~laimmg the same reh~fs .. The · management objected to the
ma1nta1nab1hty of the second ·application· contending that if the -workmen
were agg:reived by the earlier order, the proper remedy that should have
been· adopted by the!" was by takiag action under r. -16(2) of the Uttar
. Pr~de~h Industrial Disputes, Rules, 1957. The Labour Court rejected the
obiect!on, and the appellant challanged ·the decision in a writ petition to
the High Court. The High Court dismissed the writ petition.
-
HELD : An order dismissing a ca;e 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 1'rovision providing for what is to be done when a
E
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 bearing 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 Of a party, as
F
contemplated under sub-r. (2) of r. 16 will arise only when· an order on
merits affecting the case has been passed in -the absence_ of a party._ under
sub-r. (I) of r. 16. [680 E; 681 A-Bl
y;G
CML APPELLATE JURISDICTIOS: 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.
H
S. V. Gupte 'and D. N. Mukherjee, for the appellant.
M. K. Ramamurthi, Shaymnala Pappu and Vineet Kumar for ·
respondent No. 2.
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The Judgment of the Court was _delivered by
Vaidialingam, J. In this ·appeal, by soeaal leave, the appellant challenges the order Qf the AUahaoad High Court ~ated May~ -
-- - - -
676
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 co~11pany 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 Pradesr
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, 194 7 in and by which certain types of workmen were
directed to be supplied with uniforms. The said award remained
operative till April

## Text

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675'
·AGRA ELECTRIC SUPPLY CO. LTD •
. v. \
THE LABOUR COURT, MEERUT & ANR.
~ .
-
.
.
, N_ovember 8, 1968· __ _
[J. 11. SHELAT, v; BliARaAvA AND c. A. VAmiALrnaAM, 11.f ·.
. Industrial Dispute-Non-appearance of party-.;-Dismissal of applica-·
tion by Labour Court-Second applica!ion-Maintainability.
. -
. -
. Uttar Pradesh. In~ustrialDisputes Rules, 1957 R. 16(1)-Scope of.
The second. respondent originally filed an application for certain reli~fs . against its •!"Pl?yer (the appellant-company).
The Labour Court
dismissed the apphcation as not having been prosecuted for the default of
the ~pp_earanc~ ~f the applicants._ The second respondent filed a second
api;hca:ion. ~laimmg the same reh~fs .. The · management objected to the
ma1nta1nab1hty of the second ·application· contending that if the -workmen
were agg:reived by the earlier order, the proper remedy that should have
been· adopted by the!" was by takiag action under r. -16(2) of the Uttar
. Pr~de~h Industrial Disputes, Rules, 1957. The Labour Court rejected the
obiect!on, and the appellant challanged ·the decision in a writ petition to
the High Court. The High Court dismissed the writ petition.
-
HELD : An order dismissing a ca;e 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 1'rovision providing for what is to be done when a
E
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 bearing 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 Of a party, as
F
contemplated under sub-r. (2) of r. 16 will arise only when· an order on
merits affecting the case has been passed in -the absence_ of a party._ under
sub-r. (I) of r. 16. [680 E; 681 A-Bl
y;G
CML APPELLATE JURISDICTIOS: 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.
H
S. V. Gupte 'and D. N. Mukherjee, for the appellant.
M. K. Ramamurthi, Shaymnala Pappu and Vineet Kumar for ·
respondent No. 2.
-
-
·
The Judgment of the Court was _delivered by
Vaidialingam, J. In this ·appeal, by soeaal leave, the appellant challenges the order Qf the AUahaoad High Court ~ated May~ -
-- - - -
676
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 co~11pany 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 Pradesr
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, 194 7 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 l 953 after which year the supply of unifofllls was discontinued.
Nevertheless, the appellant again resumed supplying
unifofllls from May 1961.
.
On December 31, 1961 twenty-three employees of the appel-
,ant, including the second respondent herein, filed a joint petition
before the Labour Court, Meerut, under s. 6-H(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 unifofllls 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 had failed to supply them unifofllls 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 renderin~ service in the company. · They claimed that the benefits.
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AGRA ELECTRIC SUPPLY v. LABOUR COURT (Vaidia/ingam, J.) 677
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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
liability to either supply uniforms or pay the money value of the
same.
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On February 22, 1964 the application filed by the workmen
was taken up by the Labour Court for hearing, but a·s none appeared on beha.Jf 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 :
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"Case called on for hearing. No one is present on
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bdlalf 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 be.fore 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 respondent, in particular claimed that he was a mains cooly 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
il'ence the fresh applications were being filed .
The appellant filed 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 pl~as 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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 of the applications filed, issue no. 5 was framed in the following terms :
"Whether the present applications o,f 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 ruJes, 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 yie
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 rnay, subject to any 1'!les
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AGRA ELECTRIC SUPPLY v. LABOilll COUit! (VaidiaUngam, J.) 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 l, 1965.
We shal! now refer to the relevant rules. Rule 9 empowers
a Tribunal or Labour Court to accept, admit or cal! 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. Cour!,
Tribunal or Arbitrator feels necessary for the purpose of mvest1gation 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 Arbitrator proceeding ex parte,
as follows:
"(I) 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 ( l) 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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Labour Court, Tribunal or Arbitrator, as the case may be "may
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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,
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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 inclitned 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, 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. M 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 O"der that
has been nassed in his absence in the case in terms of sub-r. ( 1).
The application must be filed within the period meintioned in
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AGRA ELECTRIC SUPPLY v. LABOUR COURT (Vaidialingam, J.) 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 ·