Civil Appeal No 2355 of 1979
Appeal by Special Leave from the Judgment and Order dated 25 7 1979 of the Calcutta High Court in Appeal No 31978
GB Pai Mrs Rashmi Dhariwal Miss Bina Gupta Mr Praveen Kumar and JR Das for the Appellant
Amlan Ghosh for Respondents 3 4
The Judgment of the Court was delivered by SEN J
This is an appeal by special leave from a judgment of the Calcutta High Court by which it refrained from interfering with an order of the Central Government Industrial Tribunal Calcutta constituted under section 7A of the  setting aside an ex parte award made by it
The facts giving rise to the appeal are these The Government of India Ministry of Labour by an order dated July 26 1975 referred an industrial dispute existing between the employers in relation to the Grindlays Bank Ltd Calcutta and their workmen to the Central Government Industrial Tribunal in exercise of its powers under section 10 of the for adjudication
By a notice 343 dated March 6 1976 the Tribunal fixed peremptory hearing of the reference for May 28 1976 but the hearing was adjourned from time to time on one ground or other
Eventually the hearing of the reference was fixed for December 9 1976
On December 9 1976 counsel appearing on behalf of respondent No 3 the Commercial establishments Employees Association representing respondents Nos
5 to 17 sought an adjournment on the ground that the General Secretary of the Association had suffered a bereavement as his father had died on November 25 1976 and therefore he had to leave to perform the shradhha ceremony falling on December 9 1976
In support of his prayer for adjournment the counsel produced a telegram but the Tribunal refused to grant any further adjournment and proceeded to make an ex parte award
On the basis of the statement recorded by the manager of the appellant the Tribunal held that the respondents Nos 5 to 17 were employed as drivers by the officers of the appellant and were not the employees of the appellant and therefore they were not entitled to the benefits enjoyed by the drivers employed by the appellant
On January 19 1977 respondent No 3 acting for respondents Nos 5 to 17 applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing on December 9 1976
The Tribunal by its order dated April 12 1977 set aside the ex parte award on being satisfied that there was sufficient cause within the meaning of O IX r 13 of the Code of Civil procedure 1908
The appellant challenged the order passed by the Tribunal setting aside the ex parte award but the High Court declined to interfere
Two questions arise in the appeal namely 1 whether the Tribunal had any jurisdiction to set aside the ex parte award particularly when it was based on evidence and 2 whether the Tribunal became functus officio on the expiry of the 30 days from the date of publication of the ex parte award under section 17 by reason of sub section
3 of section 20 and therefore had no jurisdiction to set aside the award and the Central Government alone had the power under sub section
1 of section 17 A to set it aside
It is contended that neither the Act nor the rules framed there under confer any powers upon the Tribunal to set aside an ex parte award
It is urged that the award although ex parte was an adjudication on merits as it was based on the evidence led by the appellant and therefore the application made by respondent No 3 was in reality an application for review and not a mere application for setting aside an ex parte award
A distinction is sought to be drawn between 344 an application for review and an application for setting aside an ex parte award based on evidence
The contention is that if there is no evidence led before the Tribunal there may be power to set aside an ex parte award but if the award is based on evidence the setting aside of the award cannot but virtually amount to a review
In dealing with these contentions it must be borne in mind that the is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties
In other words the purpose of the Act is to settle disputes between workmen and employers which if not settled would result in strikes or lockouts and entail dislocation of work essential to the life of the community
The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation arbitration and if necessary by approaching the Tribunal constituted under the Act
It therefore endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties
We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so
But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties
In a case of this nature we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary
We do not find any such statutory prohibition
On the other hand there are indications to the contrary
Sub section 1 of section 11 of the Act as substituted by section 9 of the Industrial Disputes Amendment  Miscellaneous Provisions Act 1956 is in these terms 11
1 Subject to any rules that may be made in this behalf an arbitrator a Board Court Labour Court Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit
 The words shall follow such procedure as the arbitrator or other authority may think fit  are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such proce 345 dure as the justice of the case demands
Under cls
a to c of sub section
3 of section 11 the Tribunal and other authorities have the same powers as are vested in civil courts under the Code of Civil Procedure 1908 of a enforcing the attendance of any person and examining him on oath b compelling the production of documents and material objects and c issuing commissions for the examination of witnesses
Under cl
d thereof the Tribunal or such other authorities have also the same powers as are vested in civil courts under the Code of Civil Procedure 1908 in respect of such other matters as may be prescribed
Although the Tribunal or other authorities specified in section 11 are not courts but they have the trappings of a court and they exercise quasi judicial functions
The object of giving such wide powers is to mitigate the rigour of the technicalities of the law for achieving the object of effective investigation and settlement of industrial disputes and thus assuring industrial peace and harmony
The discretion thus conferred on these authorities to determine the procedure as they may think fit however is subject to the rules made by the appropriate Government  in this behalf
Part III of the Industrial Disputes Central Rules 1957 makes rules in this behalf
Rules 9 to 30 are the relevant rules regulating procedure
State Governments too have made their own corresponding rules
Except to the extent specified in sub s3 of section 11 of the Act and the rules framed thereunder the provisions of the Code of Civil Procedure 1908 are not applicable to proceedings before the authorities mentioned in sub s1
The provisions of the Evidence Act in their strict sense likewise do not apply to proceedings before the authorities
Nevertheless all these authorities being quasi judicial in nature objectively determining matters referred to them have to exercise their discretion in a judicial manner without caprice and according to the general principles of law and rules of natural justice
Rule 22 of the Industrial Disputes Central Rules 1957 framed by the Central Government in exercise of its powers under section 38 of the Act provides 22
If without sufficient cause being shown any party to proceedings before a Board Court Labour Court Tribunal National Tribunal or arbitrator fails to attend or to be represented the Board Court Labour Court Tribunal National Tribunal or arbitrator may proceed as if the party had duly attended or had been represented 346 Rule 24b provides that the Tribunal or other body shall have the power of a civil court under the Code of Civil Procedure 1908 in the matter of grant of adjournments
It runs thus 24
In addition to the powers conferred by the Act Boards Courts Labour Courts Tribunals and National Tribunals shall have the same powers as are vested in a civil court under the Code of Civil Procedure 1908 when trying a suit in respect of the following matters namely a     b granting adjournment When sub section
1 of section 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute after affording all the parties an opportunity of a hearing
We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award it is as if the party is visited with an award without a notice of the proceedings
It is needless to stress that where the Tribunal proceeds to make an award without notice to a party the award is nothing but a nullity
In such circumstances the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh
The language of r 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 r 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 this power is subject to the fulfilment of the condition laid down in r 22
The power to proceed ex parte under r 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing
Under r 24b a Tribunal or other body has the powers of a civil court under O XVII of the Code of Civil Procedure relating to the grant of adjournments
Under O XVII r 1 a civil court has the discretion to grant or refuse an adjournment
Where it refuses to adjourn the hearing of a suit it may proceed either under O XVII 347 r 2 or r 3
When it decides to proceed under O XVII r 2 it may proceed to dispose of the suit in one of the modes directed in that behalf by O IX or to make such other order as it thinks fit
As a necessary corollary when the Tribunal or other body refuses to adjourn the hearing it may proceed ex parte
In a case in which the Tribunal or other body makes an ex parte award the provisions of O IX r 13 of the Code are clearly attracted
It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award
We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant the order setting aside the ex parte award in fact amounts to review
The decision in Narshi Thakershi vs Pradyumansinghji is distinguishable
It is an authority for the proposition that the power of review is not an inherent power it must be conferred either specifically or by necessary implication
Sub sections 1 and 3 of section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act
While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act the powers of civil court conferred upon it are clearly defined
The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11
The answer to the question is therefore to be found in sub section
1 of section 11 and not in sub section
3 of section 11
Furthermore different considerations arise on review
The expression review  is used in two distinct senses namely 1 a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and 2 a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record
It is in the latter sense that the Court in Narshi Thakershi s case held that no review lies on merits unless a status specifically provides for it
Obviously when a review is sought due to a procedural defect the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every court or Tribunal
The contention that the Tribunal had 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
Sub section 3 of section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on 348 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 upto 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 December 9 1976
That award was published by the Central Government in the Gazette of India dated December 25 1976
The application for setting aside the ex parte award was filed by respondent No 3 acting on behalf of respondents Nos
5 to 17 on January 19 1977 ie 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
It was however urged that on April 12 1977 the date on which the impugned order was passed the Tribunal had in any event become functus officio
We cannot accede to this argument
The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders
The result therefore is that the appeal must fail and is dismissed with costs throughout
VDK Appeal dismissed


Summary:
Dismissing the appeal the Court  HELD 1 It is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties
In a case of this nature the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary
The words shall follow such procedure as the arbitrator or other authority may think fit in sub section 1 of section 11 of the Industrial Disputes Act are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands
The discretion thus conferred on these authorities to determine the procedure as they may think fit however is subject to the rules made by the appropriate Government  in this behalf
Nevertheless all these authorities being quasi judicial in nature objectively determining matters referred to them have to exercise their discretion in a judicial manner without caprice and according to the general principles of law and rules of natural justice
344 E F H 345A C F 2 Where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award it is as if the party is visited with an award without a notice of the proceedings
Where the Tribunal proceeds to make an award without notice to a party the award is nothing but a nullity
In such circumstances the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh
Further Rules 22 and 24b of the Industrial Disputes Central Rules 1957 make it clear that the Tribunal was competent to entertain an application to set aside an ex parte award
346 C E 3 Merely because the ex parte award was based on the statement of the manager of the appellant the order setting aside the ex parte award in fact does not amount to review
The expression review is used in two distinct senses namely i a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a 342 misapprehension by it and ii a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record
When a review is sought due to a procedural defect the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every court or Tribunal
347 B C E G Narshi Thakershi vs Pradvumansinghji AIR  distinguished
4 The Tribunal had not become functus officio and therefore had the jurisdiction to set aside the ex parte award
To contend that the Central Government alone could set aside the ex parte award is not correct
Under section 17 A 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 upto 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 17 A 347 G 348 A B 5 The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders
348 D E