TMI Blog2018 (12) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rule 21 is “may proceed”. Thus, on nonappearance on one day does not oblige the Tribunal to proceed exparte - 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. There is no error in the judgment of the High Court - appeal dismissed - decided against appellant. - CIVIL APPEAL NO. 8320 Of 2011 - - - Dated:- 4-12-2018 - Ashok Bhushan And Indu Malhotra, JJ. JUDGMENT 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 compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 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 Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 High Court after considering the submission of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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