whether the Tribunal becomes functous officeo after 30 days of publication of it's award and as such no power to recall the exparte award ?
Apex court held that This Court in Radhakrishna Mani Tripathi’s case (supra) has clearly held that the case of Grindlays Bank Ltd. (supra) did not say that the Industrial Courts would have nojurisdiction to entertain an application for setting aside an award made after thirty days of its publication.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8320 Of 2011
SRI MAHABIR PROSAD CHOUDHARY ...APPELLANT(S)
VERSUS
M/S. OCTAVIUS TEA AND
INDUSTRIES LTD. AND ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the Division Bench
judgment dated 23.12.2009 of Calcutta High Court in F.M.A. No.
1187 of 2009 by which the appeal filed by appellant has been
dismissed.
2. The issue involved in this appeal lies in a very narrow
compass. The necessary facts of the case to be noticed for
deciding the issue are:
2.1 The appellant was working as Accountant in the
respondent company since 1986. There had been
change of management in the year 2004 in the
2
company. The appellant was not allowed to work
w.e.f. 02.05.2005. The State of West Bengal
referred the industrial dispute between the company
and the appellant to the Fifth Industrial Tribunal.
The Tribunal framed the issue as to whether refusal
of employment to Shri Mahabir Prosad Choudhary by
the management w.e.f. 02.05.2005 is justified?
2.2 After receiving the reference, the Industrial
Tribunal on 27.08.2007 issued summons upon the
parties concerned directing them to appear on
19.09.2007. The workman appeared on 19.09.2007 but
no one appeared from the company, since the summons
were received back with the remarks “left”.
11.10.2007 was again fixed by the Tribunal. On
11.10.2007, Tribunal noted that summons sent through
Process Server has been served upon the company. The
advocate for the workman appeared and filed W/S. The
W/S was filed without serving the copy of W/S to the
company. On 05.11.2007, none of the parties had
appeared and 27.11.2007 was fixed for W/S by the
company. On 29.11.2007, no one appeared on behalf
of the company, the Tribunal fixed for exparte
hearing. 26.12.2007 was fixed for documents of the
workman. On 26.12.2007, documents were filed, which
3
were kept on record and 29.01.2008 was fixed for
exparte hearing. The Tribunal again on the request
of the workman deferred the case, which was fixed
for exparte hearing for 26.02.2008. On 26.02.2008,
none appeared for the company, workman was heard and
the award was pronounced. The Hon’ble Tribunal
disposed of the award exparte by allowing the claim
of reinstatement with full back wages. The award
was also published on 27.03.2008.
2.3 The company filed an application on 02.05.2008 to
recall the exparte award. The company stated in
its application that as per the agreement dated
10.06.2004 with its erstwhile management, the new
management has no responsibility in respect of
senior executives and managerial staff of the old
management including the appellant. The company
states that exparte award was received on
22.04.2008 and thereafter an application has been
filed for recall of the exparte award dated
26.02.2008. The Tribunal heard the parties on the
application filed by the company. The tribunal
although return the finding that the award was
passed in violation of principles of natural justice
4
and no notice under Rule 20B(5) and Rule 21 of the
West Bengal Industrial Disputes Rules, 1958
(hereinafter referred to as “1958 Rules”) were
served on the company. The Tribunal, however, took
the view that application being filed by the company
after 30 days of publication of the award, the
Tribunal has become functus officio, hence the
application is rejected.
2.4 After rejection of application, the company filed a
writ petition in the Calcutta High Court. Learned
Single Judge vide its judgment and order dated
11.02.2009 allowed the writ petition setting aside
the award and the order dated 30.09.2008 of the
Industrial Tribunal and the Tribunal was directed to
reconsider the issue between the parties as
expeditiously as possible in accordance with law
upon affording them opportunity of being heard.
Against the judgment of learned Single Judge, the
appellant filed an appeal before the Division Bench,
which has been dismissed by the impugned judgment of
the Calcutta High Court.
5
3. Shri Manoj Swarup, learned counsel for the appellant in
support of the appeal contends that notice issued by the
Industrial Tribunal in Form D2 was served on the company,
which has also been recorded by the Industrial Tribunal, there
was no cause for nonappearance of the company before the
Tribunal. The Tribunal rightly proceeded exparte due to
nonappearance of the company. He submits that the
application for recall of the exparte award was filed after
30 days from publication of award, the Tribunal having become
functus officio, The Tribunal has rightly taken the view that
application for recall cannot be entertained. He further
submits that the view of the High Court that there was
violation of Rule 20B(5) and Rule 21 of 1958 Rules is
erroneous. He submits that Rule 20B(5) contemplates that
Tribunal, in event, if the W/S had been filed, the same shall
be made available to the party concerned or its authorised
representative in the office of Industrial Tribunal/Labour
Court. He submits that Rule 20B(5) does not contemplate that
any notice has to be issued to the other party for receiving
the W/S. He submits that there is no noncompliance of Rule
20B(5). He submits that High Court committed error in taking
the view that notice was required to be served under Rule 21
to the company before hearing the case exparte. No one has
6
appeared on behalf of the respondent.
4. We have considered the submissions of the learned counsel
for the appellant and have perused the records.
5. Before the Division Bench of the Calcutta High Court,
main submission, which was pressed by the appellant was that
application filed by the company for recall of the exparte
order was after 30 days of publication, hence, could not have
been entertained. The Division Bench of the High court has
elaborately dealt with the said issue and repelled the
contention. There is no dispute regarding dates and events,
which took place in the present case. The date of exparte
award is 26.02.2008, the publication of the award was made on
27.03.2008 and the case of the company was that it came to
know about the award on 22.04.2008. The date of filing of
application for recall of exparte award is 02.05.2008, the
application was clearly beyond 30 days from publication of the
award.
6. Before we proceed to consider the submissions raised by
learned counsel for the appellant, it is relevant to notice
certain Rules of 1958 Rules. Rule 20B deals with Statement of
case or written statement. Rule 20B is as follows:
20B. Statement of case or written statement. (1)
7
The Industrial Tribunal/Labour Court shall, on the
date fixed in the summons for the appearance of the
parties direct the party which appears to the
Tribunal/Labour Court to be the party at whose
instance the reference has been initiated or where no
such party can be ascertained, the party, which, in
the opinion of the Industrial Tribunal/Labour Court,
ought to be required to state its case first
(hereinafter referred to as the first party) to state
its case, together with the grounds upon which the
claim for relief is founded, and a list of relevant
documents which are in their possession and upon
which they want to rely, in writing on a date fixed
by the Industrial Tribunal/Labour Court which shall
ordinarily be within two weeks from the date of the
order.
(2) After the first party has complied with the order
passed under sub rule (1), the other party
(hereinafter referred to as the second party) shall
be asked to file its written statement and a list of
relevant documents which are in their possession and
upon which they want to rely on a date fixed by the
Industrial Tribunal/Labour Court, which shall
ordinarily be within two weeks from the date of the
order.
(3) Every statement of case and every written
statement shall be signed and verified in the manner
prescribed by rule 69 or rule 70, as the case may be.
(4) Each party shall file along with its statement of
case or the written statement, as the case may be, as
many copies thereof as may be directed by the
Industrial Tribunal/Labour Court.
(5) A copy of the statement of case or the written
statement shall be served on the first party or the
second party, as the case may be, by the Industrial
Tribunal/Labour Court within seven days from the date
on which copies of the statement of case or the
written statement, as the case may be, are filed by
making it over to the party concerned or to its
authorised representative in the Office of the
Industrial Tribunal/Labour Court on a date and time
fixed for the purpose and intimated to the party
concerned by the Industrial Tribunal/Labour Court.
8
7. Rule 21, which empowers the Tribunal to proceed exparte
is as follows:
“21. Board, Court, Labour Court, Tribunal, or
Arbitrator may proceed exparte. If without
sufficient cause being shown, any party to a
proceeding before a Board, Court, Labour Court,
Tribunal or Arbitrator fails to attend or to be
represented, the Board, Court, Labour Court, Tribunal
or Arbitrator may proceed as if such party had duly
attended or had been represented.
8. Rule 27 deals with the correction of errors and review of
an award, which is to the following effect:
“27. Correction of errors and review of an award.
The Labour Court, Industrial Tribunal or Arbitrator
may
(i) correct any clerical or arithmetical mistake
arising from an accidental slip or omission in any
award made by it or him, and
(ii) review an award on the ground of some mistake or
error apparent on the face of the record, either of
its/his own motion or on the application of any of
the parties ;
(iii) for sufficient cause set aside after notice to
the opposite party or parties as the case may be, the
exparte award or an award on the footing that the
industrial dispute under reference is no longer in
existence either of its/his own motion or on the
application of any of the parties :
Provided that no correction shall be made without
previous notices to the parties or opposite party, as
9
the case may be.
Provided further that no application for review
under clause (iii) shall be entertained on the expiry
of the 15th day from the date of the award.”
9. This Court in Grindlays Bank Ltd. Vs. Central Government
Industrial Tribunal and Others, (1980) Supp. SCC 420, had
occasion to consider Rule 22 of Industrial Disputes (Central)
Rules, 1957 as well as Industrial Disputes (Bombay) Rules,
1957. Rule 22 of Industrial Disputes (Bombay) Rules, are pari
materia with Rule 21 of the West Bengal Industrial Disputes
Rules, 1958. This Court in the case of Grindlays Bank Ltd.
(supra) has held that Rule 22 and Rule 24B were sufficiently
the source of power for the Industrial Courts to recall the
exparte award. Following was laid down in Paragraph 11:
“11. The language of Rule 22 unequivocally makes the
jurisdiction of the Tribunal to render an ex parte
award conditional upon the fulfilment of its
requirements. If there is no sufficient cause for the
absence of a party, the Tribunal undoubtedly has
jurisdiction to proceed ex parte. But if there was
sufficient cause shown which prevented a party from
appearing, then under the terms of Rule 22, the
Tribunal will have had no jurisdiction to proceed and
consequently, it must necessarily have power to set
aside the ex parte award. In other words, there is
power to proceed ex parte, but such power is subject
to the fulfilment of the condition laid down in Rule
22. The power to proceed ex parte under Rule 22
carries with it the power to enquire whether or not
there was sufficient cause for the absence of a party
at the hearing.”
10. The submission which was pressed before the High Court in
10
the present case that application having been filed to recall
after expiry of 30 days from publication of the award as per
the judgment of this Court in Grindlays Bank Ltd. (supra), the
Tribunal has become functus officio and could not have been
entertained the application. This Court had occasion to
consider this very aspect in Radhakrishna Mani Tripathi Vs.
L.H. Patel and Another, (2009) 2 SCC 81. This Court noticed
the observation made by this Court in the case of Grindlays
Bank Ltd. (supra) in Paragraph No.14 as well as judgment of
this Court in Anil Sood Vs. Presiding Officer, Labour Court
II, (2001) 10 SCC 534 in Paragraph Nos. 16, 17 and 18, this
Court laid down following:
“14. In Grindlays Bank this Court held that Rules 22
and 24(b) were sufficiently the source of power for
the Industrial Courts to recall an ex parte award. It
was pointed out that in terms of Rule 22 the
Industrial Courts could proceed ex parte in the
matter only in case a party to the proceeding failed
to attend or be represented without showing
sufficient cause. The Court held that power to
proceed ex parte under Rule 22 carried with it the
power to inquire whether or not there was sufficient
cause for the absence of the party at the hearing and
in case the party was able to show sufficient cause
for its nonappearance on the date the court had
proceeded ex parte against it, to recall the award.
(Vide para 11 of the decision.)
16. Coming now to the submission based on Section
17A of the Act the Court in para 14 of the decision
held and observed as follows: (Grindlays Bank case,
SCC pp. 42526)
“14. The contention that the Tribunal had
11
become functus officio and, therefore, had no
jurisdiction to set aside the ex parte award
and that the Central Government alone could
set it aside, does not commend to us.
Subsection (3) of Section 20 of the Act
provides that the proceedings before the
Tribunal would be deemed to continue till the
date on which the award becomes enforceable
under Section 17A. Under Section 17A of the
Act, an award becomes enforceable on the
expiry of 30 days from the date of its
publication under Section 17. The proceedings
with regard to a reference under Section 10
of the Act are, therefore, not deemed to be
concluded until the expiry of 30 days from
the publication of the award. Till then the
Tribunal retains jurisdiction over the
dispute referred to it for adjudication and
up to that date it has the power to entertain
an application in connection with such
dispute. That stage is not reached till the
award becomes enforceable under Section 17A.
In the instant case, the Tribunal made the ex
parte award on 9121976. That award was
published by the Central Government in the
Gazette of India dated 25121976. The
application for setting aside the ex parte
award was filed by Respondent 3, acting on
behalf of Respondents 5 to 17 on 1911977
i.e. before the expiry of 30 days of its
publication and was, therefore, rightly
entertained by the Tribunal. It had
jurisdiction to entertain it and decide it on
merits.”
(emphasis added)
From the above quotation it would appear that in
Grindlays Bank the recall application was filed
within thirty days from the date of publication of
the award and hence, the objection raised on the
basis of Section 17A did not arise in this case. In
Grindlays Bank this Court did not say that the
Industrial Courts would have no jurisdiction to
entertain an application for setting aside an award
made after thirty days of its publication.
12
Nevertheless, on the basis of the passage marked in
italics in the above quotation Ms Issar strongly
contended that that is the true import of the
judgment.
17. We are unable to accept. The position is made
clear in the later decision in Anil Sood v. Labour
Court. In Anil Sood interestingly the Labour Court
had rejected the recall application on the very same
ground that after making the award it became functus
officio in the matter. The order of the Labour Court
was challenged before the High Court but the High
Court also took the same view. In appeal this Court
noted that the award was made on 1191995 and the
application for its recall was filed on 6111995.
The Court referred to the earlier decision in
Grindlays Bank and the provisions of subsections (1)
and (3) of Section 11 of the Act and in paras 6, 7
and 8 of the decision observed and held as follows:
(Anil Sood case, SCC p. 536)
“6. The aspect that the party against whom
award is to be made due opportunity to defend
has to be given is a matter of procedure and
not that of power in the sense in which the
language is adopted in Section 11. When
matters are referred to the tribunal or court
they have to be decided objectively and the
tribunals/courts have to exercise their
discretion in a judicial manner without
arbitrariness by following the general
principles of law and rules of natural
justice.
7. The power to proceed ex parte is available
under Rule 22 of the Central Rules which also
includes the power to inquire whether or not
there was sufficient cause for the absence of
a party at the hearing, and if there is
sufficient cause shown which prevented a party
from appearing, then if the party is visited
with an award without a notice which is a
nullity and therefore the Tribunal will have
no jurisdiction to proceed and consequently,
it must necessarily have power to set aside
13
the ex parte award.
8. If this be the position in law, both the
High Court and the Tribunal (sic Labour Court)
fell into an error in stating that the Labour
Court had become functus officio after making
the award though ex parte. We set aside the
order made and the award passed by the Labour
Court and affirmed by the High Court in this
regard, in view of the fact that the learned
counsel for the respondent conceded that
application filed by the appellant be allowed,
set aside the ex parte award and restore the
reference.”
18. In light of the decision in Anil Sood we find no
substance in the appellant’s submission based on
Section 17A of the Act. There being no substance in
the first limb of the submission there is no question
of any conflict between Rule 26(2) of the Bombay
Rules and Section 17A of the Act.”
11. This Court in Radhakrishna Mani Tripathi’s case (supra)
has clearly held that the case of Grindlays Bank Ltd. (supra)
did not say that the Industrial Courts would have no
jurisdiction to entertain an application for setting aside an
award made after thirty days of its publication. This Court’s
judgment in Radhakrishna Mani Tripathi (supra) is clearly
applicable in the present case. Furthermore, in the present
case, the Tribunal, which rejected the application of the
company to recall the exparte award had itself returned the
finding that there was violation of principles of natural
justice since a copy of W/S was not sent to the company. The
14
High Court after considering the submission of the parties had
made following observations:
“On a perusal of the order dated 30.09.2008 it is
difficult for this Court to accept the contention
raised on behalf of the workman. It appears from the
said order that the Tribunal had accepted the
position that notice under Rule 21 of the said Rules
had not been served upon the company before placing
the case for exparte hearing. It has also accepted
that Written Statement filed the workman had not been
served upon them in accordance with provisions
contained in Rules 20B(5) of the said Rules. On the
face of such finding recorded by the Tribunal, it is
absolutely clear that proceedings were conducted
before it, leading to the impugned award, in clear
violation of principles of natural as well as
mandatory provisions of law. The award passed on
26.2.2008 is liable to be set aside only on this
ground.”
12. Shri Manoj Swarup, learned counsel for the appellant has
strenuously contended that present is not a case of any breach
of Rule 20B(5) as held by the High Court. The relevant order
of the Industrial Tribunal has been brought on the record by
the appellant, i.e., of 11.10.2007, where workman had appeared
and filed Written Statement. It has been noted in the order
that copy of the W/S cannot be served upon the another party
as none appeared on behalf of the company. Subrule (5) of
Rule 20B, which is relevant for present case is reproduced for
ready reference:
20B. Statement of case or written statement. –
XXXXXXXXXXXXXXXXXXXXXXXX
15
(5) A copy of the statement of case or the written
statement shall be served on the first party or the
second party, as the case may be, by the Industrial
Tribunal/Labour Court within seven days from the date
on which copies of the statement of case or the
written statement, as the case may be, are filed by
making it over to the party concerned or to its
authorised representative in the Office of the
Industrial Tribunal/Labour Court on a date and time
fixed for the purpose and intimated to the party
concerned by the Industrial Tribunal/Labour Court.
13. A perusal of subrule(5) of Rule 20B indicates that the
copy of the statement of the case or the W/S is to be served
on the first party or the second party, as the case may be, by
the Industrial Tribunal/Labour Court within seven days from
the date on which copies of the statement of case or the
written statement, as the case may be, are filed, by making it
over to the party concerned or to its authorised
representative in the Office of the Industrial Tribunal/Labour
Court on a date and time fixed for the purpose and intimated
to the party concerned by the Industrial Tribunal/Labour
Court. The duty, thus, has been cast on the Tribunal to serve
a copy of W/S or statement of case on either side. The use of
word “shall be served” in subclause (5) of Rule 20B has to be
given some meaning and purpose. The provision obviously cast a
duty on Industrial Tribunal and the Court to ensure that
service should be completed within seven days. Another aspect,
which is decipherable from the Rule is that Tribunal has to
16
ensure that statement of case of W/S has to be served by
making it available to the party concerned or its authorised
representative in the office of the Industrial Tribunal/Labour
Court on a date and time fixed for the purpose. The last line
of the subrule (5) used the expression “on a date and time
fixed for the purpose and intimated to the party concerned by
the Industrial Tribunal/Labour Court”. The above expression
contains two requirements, firstly, the Industrial
Tribunal/Labour Court has to fix a date for service of
statement of case of W/S within 7 days, specially, fixed date
for the purpose and secondly date and time fixed for purpose
has to be intimated to the party concerned. Although
subrule(5) does not contemplate issuing any second notice
after receipt of the statement of a case or a W/S, i.e. date
and time is required to be fixed for the purpose of statement
of case and a date and time, which is also required to be
intimated to the party concerned for the purpose. In the
facts of present case, it has to be held that the Tribunal was
required to intimate date and time for receiving of the
written statement by the company. Neither the order sheet of
Tribunal indicate that any date was fixed for such service of
W/S nor any intimation was sent to the company. Thus, there
was a clear breach of subrule(5) of Rule 20B, no error has
17
been committed by High Court in taking the view that Rule
20B(5) has been violated, resulting in violation of principles
of natural justice.
14. Now coming to Rule 21, which empowers the Tribunal to
proceed when any party to a proceeding fails to attend.
Learned counsel for the appellant is right in his submission
that the plain language of Rule 21 does not indicate that it
is necessary for Tribunal to issue any notice to a party
before proceeding exparte. However, the expression used in
Rule 21 is “may proceed”. Thus, on nonappearance on one day
does not oblige the Tribunal to proceed exparte. The
Tribunal or arbitrator can exercise his discretion and may
decide to send a notice before proceeding exparte in facts of
each case, which may be required in facts of a particular
case. But even otherwise accepting, the submission of the
learned counsel for the appellant that no mandatory notice
under Rule 21 was required to be issued by the Tribunal to the
company, there being violation of Rule 20B(5), the High Court
committed no error in setting aside the order of the
Tribunal’s exparte award by directing the Tribunal to proceed
afresh.
15. Learned counsel for the appellant submitted that
18
appellant has already attained the age of superannuation in
July, 2018.
16. In view of the foregoing discussions, we do not find any
error in the judgment of the High Court. The appeal being
devoid of any merit is dismissed. Parties shall bear their
own costs.
..........................J.
( ASHOK BHUSHAN )
..........................J.
( INDU MALHOTRA)
NEW DELHI,
December 04, 2018.
Apex court held that This Court in Radhakrishna Mani Tripathi’s case (supra) has clearly held that the case of Grindlays Bank Ltd. (supra) did not say that the Industrial Courts would have nojurisdiction to entertain an application for setting aside an award made after thirty days of its publication.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8320 Of 2011
SRI MAHABIR PROSAD CHOUDHARY ...APPELLANT(S)
VERSUS
M/S. OCTAVIUS TEA AND
INDUSTRIES LTD. AND ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the Division Bench
judgment dated 23.12.2009 of Calcutta High Court in F.M.A. No.
1187 of 2009 by which the appeal filed by appellant has been
dismissed.
2. The issue involved in this appeal lies in a very narrow
compass. The necessary facts of the case to be noticed for
deciding the issue are:
2.1 The appellant was working as Accountant in the
respondent company since 1986. There had been
change of management in the year 2004 in the
2
company. The appellant was not allowed to work
w.e.f. 02.05.2005. The State of West Bengal
referred the industrial dispute between the company
and the appellant to the Fifth Industrial Tribunal.
The Tribunal framed the issue as to whether refusal
of employment to Shri Mahabir Prosad Choudhary by
the management w.e.f. 02.05.2005 is justified?
2.2 After receiving the reference, the Industrial
Tribunal on 27.08.2007 issued summons upon the
parties concerned directing them to appear on
19.09.2007. The workman appeared on 19.09.2007 but
no one appeared from the company, since the summons
were received back with the remarks “left”.
11.10.2007 was again fixed by the Tribunal. On
11.10.2007, Tribunal noted that summons sent through
Process Server has been served upon the company. The
advocate for the workman appeared and filed W/S. The
W/S was filed without serving the copy of W/S to the
company. On 05.11.2007, none of the parties had
appeared and 27.11.2007 was fixed for W/S by the
company. On 29.11.2007, no one appeared on behalf
of the company, the Tribunal fixed for exparte
hearing. 26.12.2007 was fixed for documents of the
workman. On 26.12.2007, documents were filed, which
3
were kept on record and 29.01.2008 was fixed for
exparte hearing. The Tribunal again on the request
of the workman deferred the case, which was fixed
for exparte hearing for 26.02.2008. On 26.02.2008,
none appeared for the company, workman was heard and
the award was pronounced. The Hon’ble Tribunal
disposed of the award exparte by allowing the claim
of reinstatement with full back wages. The award
was also published on 27.03.2008.
2.3 The company filed an application on 02.05.2008 to
recall the exparte award. The company stated in
its application that as per the agreement dated
10.06.2004 with its erstwhile management, the new
management has no responsibility in respect of
senior executives and managerial staff of the old
management including the appellant. The company
states that exparte award was received on
22.04.2008 and thereafter an application has been
filed for recall of the exparte award dated
26.02.2008. The Tribunal heard the parties on the
application filed by the company. The tribunal
although return the finding that the award was
passed in violation of principles of natural justice
4
and no notice under Rule 20B(5) and Rule 21 of the
West Bengal Industrial Disputes Rules, 1958
(hereinafter referred to as “1958 Rules”) were
served on the company. The Tribunal, however, took
the view that application being filed by the company
after 30 days of publication of the award, the
Tribunal has become functus officio, hence the
application is rejected.
2.4 After rejection of application, the company filed a
writ petition in the Calcutta High Court. Learned
Single Judge vide its judgment and order dated
11.02.2009 allowed the writ petition setting aside
the award and the order dated 30.09.2008 of the
Industrial Tribunal and the Tribunal was directed to
reconsider the issue between the parties as
expeditiously as possible in accordance with law
upon affording them opportunity of being heard.
Against the judgment of learned Single Judge, the
appellant filed an appeal before the Division Bench,
which has been dismissed by the impugned judgment of
the Calcutta High Court.
5
3. Shri Manoj Swarup, learned counsel for the appellant in
support of the appeal contends that notice issued by the
Industrial Tribunal in Form D2 was served on the company,
which has also been recorded by the Industrial Tribunal, there
was no cause for nonappearance of the company before the
Tribunal. The Tribunal rightly proceeded exparte due to
nonappearance of the company. He submits that the
application for recall of the exparte award was filed after
30 days from publication of award, the Tribunal having become
functus officio, The Tribunal has rightly taken the view that
application for recall cannot be entertained. He further
submits that the view of the High Court that there was
violation of Rule 20B(5) and Rule 21 of 1958 Rules is
erroneous. He submits that Rule 20B(5) contemplates that
Tribunal, in event, if the W/S had been filed, the same shall
be made available to the party concerned or its authorised
representative in the office of Industrial Tribunal/Labour
Court. He submits that Rule 20B(5) does not contemplate that
any notice has to be issued to the other party for receiving
the W/S. He submits that there is no noncompliance of Rule
20B(5). He submits that High Court committed error in taking
the view that notice was required to be served under Rule 21
to the company before hearing the case exparte. No one has
6
appeared on behalf of the respondent.
4. We have considered the submissions of the learned counsel
for the appellant and have perused the records.
5. Before the Division Bench of the Calcutta High Court,
main submission, which was pressed by the appellant was that
application filed by the company for recall of the exparte
order was after 30 days of publication, hence, could not have
been entertained. The Division Bench of the High court has
elaborately dealt with the said issue and repelled the
contention. There is no dispute regarding dates and events,
which took place in the present case. The date of exparte
award is 26.02.2008, the publication of the award was made on
27.03.2008 and the case of the company was that it came to
know about the award on 22.04.2008. The date of filing of
application for recall of exparte award is 02.05.2008, the
application was clearly beyond 30 days from publication of the
award.
6. Before we proceed to consider the submissions raised by
learned counsel for the appellant, it is relevant to notice
certain Rules of 1958 Rules. Rule 20B deals with Statement of
case or written statement. Rule 20B is as follows:
20B. Statement of case or written statement. (1)
7
The Industrial Tribunal/Labour Court shall, on the
date fixed in the summons for the appearance of the
parties direct the party which appears to the
Tribunal/Labour Court to be the party at whose
instance the reference has been initiated or where no
such party can be ascertained, the party, which, in
the opinion of the Industrial Tribunal/Labour Court,
ought to be required to state its case first
(hereinafter referred to as the first party) to state
its case, together with the grounds upon which the
claim for relief is founded, and a list of relevant
documents which are in their possession and upon
which they want to rely, in writing on a date fixed
by the Industrial Tribunal/Labour Court which shall
ordinarily be within two weeks from the date of the
order.
(2) After the first party has complied with the order
passed under sub rule (1), the other party
(hereinafter referred to as the second party) shall
be asked to file its written statement and a list of
relevant documents which are in their possession and
upon which they want to rely on a date fixed by the
Industrial Tribunal/Labour Court, which shall
ordinarily be within two weeks from the date of the
order.
(3) Every statement of case and every written
statement shall be signed and verified in the manner
prescribed by rule 69 or rule 70, as the case may be.
(4) Each party shall file along with its statement of
case or the written statement, as the case may be, as
many copies thereof as may be directed by the
Industrial Tribunal/Labour Court.
(5) A copy of the statement of case or the written
statement shall be served on the first party or the
second party, as the case may be, by the Industrial
Tribunal/Labour Court within seven days from the date
on which copies of the statement of case or the
written statement, as the case may be, are filed by
making it over to the party concerned or to its
authorised representative in the Office of the
Industrial Tribunal/Labour Court on a date and time
fixed for the purpose and intimated to the party
concerned by the Industrial Tribunal/Labour Court.
8
7. Rule 21, which empowers the Tribunal to proceed exparte
is as follows:
“21. Board, Court, Labour Court, Tribunal, or
Arbitrator may proceed exparte. If without
sufficient cause being shown, any party to a
proceeding before a Board, Court, Labour Court,
Tribunal or Arbitrator fails to attend or to be
represented, the Board, Court, Labour Court, Tribunal
or Arbitrator may proceed as if such party had duly
attended or had been represented.
8. Rule 27 deals with the correction of errors and review of
an award, which is to the following effect:
“27. Correction of errors and review of an award.
The Labour Court, Industrial Tribunal or Arbitrator
may
(i) correct any clerical or arithmetical mistake
arising from an accidental slip or omission in any
award made by it or him, and
(ii) review an award on the ground of some mistake or
error apparent on the face of the record, either of
its/his own motion or on the application of any of
the parties ;
(iii) for sufficient cause set aside after notice to
the opposite party or parties as the case may be, the
exparte award or an award on the footing that the
industrial dispute under reference is no longer in
existence either of its/his own motion or on the
application of any of the parties :
Provided that no correction shall be made without
previous notices to the parties or opposite party, as
9
the case may be.
Provided further that no application for review
under clause (iii) shall be entertained on the expiry
of the 15th day from the date of the award.”
9. This Court in Grindlays Bank Ltd. Vs. Central Government
Industrial Tribunal and Others, (1980) Supp. SCC 420, had
occasion to consider Rule 22 of Industrial Disputes (Central)
Rules, 1957 as well as Industrial Disputes (Bombay) Rules,
1957. Rule 22 of Industrial Disputes (Bombay) Rules, are pari
materia with Rule 21 of the West Bengal Industrial Disputes
Rules, 1958. This Court in the case of Grindlays Bank Ltd.
(supra) has held that Rule 22 and Rule 24B were sufficiently
the source of power for the Industrial Courts to recall the
exparte award. Following was laid down in Paragraph 11:
“11. The language of Rule 22 unequivocally makes the
jurisdiction of the Tribunal to render an ex parte
award conditional upon the fulfilment of its
requirements. If there is no sufficient cause for the
absence of a party, the Tribunal undoubtedly has
jurisdiction to proceed ex parte. But if there was
sufficient cause shown which prevented a party from
appearing, then under the terms of Rule 22, the
Tribunal will have had no jurisdiction to proceed and
consequently, it must necessarily have power to set
aside the ex parte award. In other words, there is
power to proceed ex parte, but such power is subject
to the fulfilment of the condition laid down in Rule
22. The power to proceed ex parte under Rule 22
carries with it the power to enquire whether or not
there was sufficient cause for the absence of a party
at the hearing.”
10. The submission which was pressed before the High Court in
10
the present case that application having been filed to recall
after expiry of 30 days from publication of the award as per
the judgment of this Court in Grindlays Bank Ltd. (supra), the
Tribunal has become functus officio and could not have been
entertained the application. This Court had occasion to
consider this very aspect in Radhakrishna Mani Tripathi Vs.
L.H. Patel and Another, (2009) 2 SCC 81. This Court noticed
the observation made by this Court in the case of Grindlays
Bank Ltd. (supra) in Paragraph No.14 as well as judgment of
this Court in Anil Sood Vs. Presiding Officer, Labour Court
II, (2001) 10 SCC 534 in Paragraph Nos. 16, 17 and 18, this
Court laid down following:
“14. In Grindlays Bank this Court held that Rules 22
and 24(b) were sufficiently the source of power for
the Industrial Courts to recall an ex parte award. It
was pointed out that in terms of Rule 22 the
Industrial Courts could proceed ex parte in the
matter only in case a party to the proceeding failed
to attend or be represented without showing
sufficient cause. The Court held that power to
proceed ex parte under Rule 22 carried with it the
power to inquire whether or not there was sufficient
cause for the absence of the party at the hearing and
in case the party was able to show sufficient cause
for its nonappearance on the date the court had
proceeded ex parte against it, to recall the award.
(Vide para 11 of the decision.)
16. Coming now to the submission based on Section
17A of the Act the Court in para 14 of the decision
held and observed as follows: (Grindlays Bank case,
SCC pp. 42526)
“14. The contention that the Tribunal had
11
become functus officio and, therefore, had no
jurisdiction to set aside the ex parte award
and that the Central Government alone could
set it aside, does not commend to us.
Subsection (3) of Section 20 of the Act
provides that the proceedings before the
Tribunal would be deemed to continue till the
date on which the award becomes enforceable
under Section 17A. Under Section 17A of the
Act, an award becomes enforceable on the
expiry of 30 days from the date of its
publication under Section 17. The proceedings
with regard to a reference under Section 10
of the Act are, therefore, not deemed to be
concluded until the expiry of 30 days from
the publication of the award. Till then the
Tribunal retains jurisdiction over the
dispute referred to it for adjudication and
up to that date it has the power to entertain
an application in connection with such
dispute. That stage is not reached till the
award becomes enforceable under Section 17A.
In the instant case, the Tribunal made the ex
parte award on 9121976. That award was
published by the Central Government in the
Gazette of India dated 25121976. The
application for setting aside the ex parte
award was filed by Respondent 3, acting on
behalf of Respondents 5 to 17 on 1911977
i.e. before the expiry of 30 days of its
publication and was, therefore, rightly
entertained by the Tribunal. It had
jurisdiction to entertain it and decide it on
merits.”
(emphasis added)
From the above quotation it would appear that in
Grindlays Bank the recall application was filed
within thirty days from the date of publication of
the award and hence, the objection raised on the
basis of Section 17A did not arise in this case. In
Grindlays Bank this Court did not say that the
Industrial Courts would have no jurisdiction to
entertain an application for setting aside an award
made after thirty days of its publication.
12
Nevertheless, on the basis of the passage marked in
italics in the above quotation Ms Issar strongly
contended that that is the true import of the
judgment.
17. We are unable to accept. The position is made
clear in the later decision in Anil Sood v. Labour
Court. In Anil Sood interestingly the Labour Court
had rejected the recall application on the very same
ground that after making the award it became functus
officio in the matter. The order of the Labour Court
was challenged before the High Court but the High
Court also took the same view. In appeal this Court
noted that the award was made on 1191995 and the
application for its recall was filed on 6111995.
The Court referred to the earlier decision in
Grindlays Bank and the provisions of subsections (1)
and (3) of Section 11 of the Act and in paras 6, 7
and 8 of the decision observed and held as follows:
(Anil Sood case, SCC p. 536)
“6. The aspect that the party against whom
award is to be made due opportunity to defend
has to be given is a matter of procedure and
not that of power in the sense in which the
language is adopted in Section 11. When
matters are referred to the tribunal or court
they have to be decided objectively and the
tribunals/courts have to exercise their
discretion in a judicial manner without
arbitrariness by following the general
principles of law and rules of natural
justice.
7. The power to proceed ex parte is available
under Rule 22 of the Central Rules which also
includes the power to inquire whether or not
there was sufficient cause for the absence of
a party at the hearing, and if there is
sufficient cause shown which prevented a party
from appearing, then if the party is visited
with an award without a notice which is a
nullity and therefore the Tribunal will have
no jurisdiction to proceed and consequently,
it must necessarily have power to set aside
13
the ex parte award.
8. If this be the position in law, both the
High Court and the Tribunal (sic Labour Court)
fell into an error in stating that the Labour
Court had become functus officio after making
the award though ex parte. We set aside the
order made and the award passed by the Labour
Court and affirmed by the High Court in this
regard, in view of the fact that the learned
counsel for the respondent conceded that
application filed by the appellant be allowed,
set aside the ex parte award and restore the
reference.”
18. In light of the decision in Anil Sood we find no
substance in the appellant’s submission based on
Section 17A of the Act. There being no substance in
the first limb of the submission there is no question
of any conflict between Rule 26(2) of the Bombay
Rules and Section 17A of the Act.”
11. This Court in Radhakrishna Mani Tripathi’s case (supra)
has clearly held that the case of Grindlays Bank Ltd. (supra)
did not say that the Industrial Courts would have no
jurisdiction to entertain an application for setting aside an
award made after thirty days of its publication. This Court’s
judgment in Radhakrishna Mani Tripathi (supra) is clearly
applicable in the present case. Furthermore, in the present
case, the Tribunal, which rejected the application of the
company to recall the exparte award had itself returned the
finding that there was violation of principles of natural
justice since a copy of W/S was not sent to the company. The
14
High Court after considering the submission of the parties had
made following observations:
“On a perusal of the order dated 30.09.2008 it is
difficult for this Court to accept the contention
raised on behalf of the workman. It appears from the
said order that the Tribunal had accepted the
position that notice under Rule 21 of the said Rules
had not been served upon the company before placing
the case for exparte hearing. It has also accepted
that Written Statement filed the workman had not been
served upon them in accordance with provisions
contained in Rules 20B(5) of the said Rules. On the
face of such finding recorded by the Tribunal, it is
absolutely clear that proceedings were conducted
before it, leading to the impugned award, in clear
violation of principles of natural as well as
mandatory provisions of law. The award passed on
26.2.2008 is liable to be set aside only on this
ground.”
12. Shri Manoj Swarup, learned counsel for the appellant has
strenuously contended that present is not a case of any breach
of Rule 20B(5) as held by the High Court. The relevant order
of the Industrial Tribunal has been brought on the record by
the appellant, i.e., of 11.10.2007, where workman had appeared
and filed Written Statement. It has been noted in the order
that copy of the W/S cannot be served upon the another party
as none appeared on behalf of the company. Subrule (5) of
Rule 20B, which is relevant for present case is reproduced for
ready reference:
20B. Statement of case or written statement. –
XXXXXXXXXXXXXXXXXXXXXXXX
15
(5) A copy of the statement of case or the written
statement shall be served on the first party or the
second party, as the case may be, by the Industrial
Tribunal/Labour Court within seven days from the date
on which copies of the statement of case or the
written statement, as the case may be, are filed by
making it over to the party concerned or to its
authorised representative in the Office of the
Industrial Tribunal/Labour Court on a date and time
fixed for the purpose and intimated to the party
concerned by the Industrial Tribunal/Labour Court.
13. A perusal of subrule(5) of Rule 20B indicates that the
copy of the statement of the case or the W/S is to be served
on the first party or the second party, as the case may be, by
the Industrial Tribunal/Labour Court within seven days from
the date on which copies of the statement of case or the
written statement, as the case may be, are filed, by making it
over to the party concerned or to its authorised
representative in the Office of the Industrial Tribunal/Labour
Court on a date and time fixed for the purpose and intimated
to the party concerned by the Industrial Tribunal/Labour
Court. The duty, thus, has been cast on the Tribunal to serve
a copy of W/S or statement of case on either side. The use of
word “shall be served” in subclause (5) of Rule 20B has to be
given some meaning and purpose. The provision obviously cast a
duty on Industrial Tribunal and the Court to ensure that
service should be completed within seven days. Another aspect,
which is decipherable from the Rule is that Tribunal has to
16
ensure that statement of case of W/S has to be served by
making it available to the party concerned or its authorised
representative in the office of the Industrial Tribunal/Labour
Court on a date and time fixed for the purpose. The last line
of the subrule (5) used the expression “on a date and time
fixed for the purpose and intimated to the party concerned by
the Industrial Tribunal/Labour Court”. The above expression
contains two requirements, firstly, the Industrial
Tribunal/Labour Court has to fix a date for service of
statement of case of W/S within 7 days, specially, fixed date
for the purpose and secondly date and time fixed for purpose
has to be intimated to the party concerned. Although
subrule(5) does not contemplate issuing any second notice
after receipt of the statement of a case or a W/S, i.e. date
and time is required to be fixed for the purpose of statement
of case and a date and time, which is also required to be
intimated to the party concerned for the purpose. In the
facts of present case, it has to be held that the Tribunal was
required to intimate date and time for receiving of the
written statement by the company. Neither the order sheet of
Tribunal indicate that any date was fixed for such service of
W/S nor any intimation was sent to the company. Thus, there
was a clear breach of subrule(5) of Rule 20B, no error has
17
been committed by High Court in taking the view that Rule
20B(5) has been violated, resulting in violation of principles
of natural justice.
14. Now coming to Rule 21, which empowers the Tribunal to
proceed when any party to a proceeding fails to attend.
Learned counsel for the appellant is right in his submission
that the plain language of Rule 21 does not indicate that it
is necessary for Tribunal to issue any notice to a party
before proceeding exparte. However, the expression used in
Rule 21 is “may proceed”. Thus, on nonappearance on one day
does not oblige the Tribunal to proceed exparte. The
Tribunal or arbitrator can exercise his discretion and may
decide to send a notice before proceeding exparte in facts of
each case, which may be required in facts of a particular
case. But even otherwise accepting, the submission of the
learned counsel for the appellant that no mandatory notice
under Rule 21 was required to be issued by the Tribunal to the
company, there being violation of Rule 20B(5), the High Court
committed no error in setting aside the order of the
Tribunal’s exparte award by directing the Tribunal to proceed
afresh.
15. Learned counsel for the appellant submitted that
18
appellant has already attained the age of superannuation in
July, 2018.
16. In view of the foregoing discussions, we do not find any
error in the judgment of the High Court. The appeal being
devoid of any merit is dismissed. Parties shall bear their
own costs.
..........................J.
( ASHOK BHUSHAN )
..........................J.
( INDU MALHOTRA)
NEW DELHI,
December 04, 2018.
