1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1957 OF 1998 Shri Heramb Bhaskar Sahasrabhudhe ... Petitioner v/s M/s.Shakti Capacitors & anr. ... Respondents Ms.Seema Sarnaik for the petitioner. None present for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 14TH JULY, 2010 ORAL JUDGMENT: 1. The petition has been preferred to challenge the order passed by the Labour Court dated 27.1.1998 rejecting the application filed by the petitioner under Rule 26(2) of the Industrial Disputes (Bombay) Rules, 1957. The petitioner has also challenged the award passed by the Labour Court in Reference (IDA) No.20 of 1981. 2. A reference was made for adjudication of the dispute raised by the petitioner for his reinstatement with continuity 2 of service and full back wages. That reference was pending before the Labour Court from 1981. The petitioner was informed on 16.11.1989, which was the date of hearing, that the matter had been adjourned for a month on his request. The adjourned date informed to the petitioner was 27.12.1989. However, according to the petitioner, the date of hearing was changed without notice to him and an ex- parte award was passed on 13.12.1989 i.e. prior to the adjourned date of hearing. The petitioner received a copy of that award on 16.3.1990, although it was published on 23.1.1990. After receipt of the copy, the petitioner filed the miscellaneous application for setting aside the ex-parte award. By an order dated 27.1.1998, the application was rejected. The main ground on which the application has been rejected is that the Labour Court held that the application was filed after 30 days of the publication of the award. The Labour Court concluded that it had become functus officio and could not entertain the application. 3. Under Section 17 of the Industrial Disputes Act every award is expected to be published within a period of 30 days of a receipt of the award by the appropriate Government. The award becomes enforceable under section 17-A on the expiry of 30 days from the date of its publication under section 17. Under Rule 26(1) of the Industrial Disputes 3 (Bombay) Rules, 1957, the Labour Court is empowered to proceed in a reference ex-parte if without sufficient cause being shown, any party to the proceeding fails to attend or be represented, the Court may proceed ex-parte. Sub-rule (2) provides that if an award is passed ex-parte under sub-rule (1), the aggrieved party is entitled to apply to the Labour Court for setting aside the said award or order or decision within 30 days of the receipt of the ex-parte decision. The Labour Court is then empowered to set aside such an ex- parte order after sufficient cause for non-appearance is shown by the aggrieved party. 4. In the present case, the Labour Court unfortunately has considered the date of publication as the date of receipt of the award. The rule specifically stipulates that an application for setting aside the ex-parte order can be made within 30 days after the receipt of the copy of the award. The rule does not mandate that the application must be made within 30 days of the knowledge of the award having been passed, or within 30 days of the publication of the award. Therefore, although the award was published on 23.1.1990 by displaying it on the notice board of the Labour Court, the petitioner received the copy of the same only on 16.3.1990. He has filed an application on 30.3.1990, well within 30 days of the receipt of the award. The Labour Court, therefore, has erred 4 in rejecting the application on the ground that it was not filed within the period stipulated under sub-rule (2). 5. It is now well settled that the Labour Court becomes functus officio after 30 days after the publication of the award as held in Grindlays Bank Ltd. v/s Central Government Industrial Tribunal, reported in 1981 A.I.R. (SC) 606. The Supreme Court has held that if an application for setting aside the award is made in the Industrial Tribunal within 30 days of the date of the publication of the award, the Industrial Tribunal cannot be deemed to be functus officio. This is because under Section 17-A, the award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. In the case of Anil Sood v/s Presiding Officer, Labour Court, reported in 2001 (3) JT 240, the Supreme Court has reiterated its decision in the Grindlays Bank’s case (supra). 6. In the case of Kapra Mazdoor Ekta Union v/s Management of Birla Cotton Spinning & Weaving Mills Ltd., reported in A.I.R. 2005 (SC) 1782, the Supreme Court, after considering its earlier judgments, has held thus - “19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on 5 merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the fact of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re- heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re- heard and decided again.” 6 It must be borne in mind that the Central Rules and the Bombay Rules are not identical in respect of setting aside an ex-parte award. The Bombay Rules have a specific rule, namely Rule 26(2) which provides that a party is permitted to apply for setting aside the ex-parte award within 30 days of the receipt of the award. In the present case, the ex-parte award was passed on 16.3.1990 and the application for setting it aside was made on 30.3.1990. Therefore, the Labour Court had not become functus officio on the date the application was made. Moreover the ex-parte award was passed due to a procedural illegality. The date given to the petitioner was 27.12.1990. The Labour Court while deciding the present application has found that there was some variation or interpretation of this date in the roznama and that the date of 27.12.1989 has been changed to 27.11.1989. Admittedly, no notice was given to the petitioner of this changed date. Therefore, it is obvious that the petitioner could not have had the knowledge of the changed date and, as a result, was absent on 27.11.1989. 7. In these circumstances, the order of the Labour Court in Misc. Application (IDA) No.1 of 1990 is set aside. The ex- parte order dated 13.12.1989 is also set aside. 8. Rule made absolute accordingly. 7 9. No order as to costs. 10. Parties shall remain present before the Labour Court on 2.8.2010 for further directions in respect of the reference. The Labour Court shall dispose of the reference within six months from the date on which the parties appear before it. .....