IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7985 OF 2005. PETITION NO. 7985 OF 2005. PETITION NO. 7985 OF 2005. Shri Radhakrishna Mani Tripathi, Room No.299, 4/4, Maya Chawl, Subhash Nagar, Village Road, Near CEAT Tyres, Bhandup, Mumbai. ... PETITIONER -VERSUS- 1. Mr. L. H. Patel, Room No.6, 1st floor, Krishna Nivas, Hemkulani Cross Road No.1, Kandivali (W), Mumbai 400 06. 2. K. S. Hore, Presiding Officer 1st Labour Court Thane, having his office at 3rd floor MIDC Office Complex Mulund Check-Naka, Thane-6. Yogendra M. Pendse for the petitioner. S.C.Naidu with C.R.Naidu for respondent No.1. CORAM CORAM CORAM : V.C. DAGA, J. V.C. DAGA, J. V.C. DAGA, J. RESERVED RESERVED RESERVED ON : 20th December 2005. ON : 20th December 2005. ON : 20th December 2005. PRONOUNCED PRONOUNCED PRONOUNCED ON : 25th January 2006. ON : 25th January 2006. ON : 25th January 2006. JUDGMENT JUDGMENT JUDGMENT : : : . Rule, returnable forthwith. . Heard finally by consent of the parties. . Perused petition and annexures annexed thereto. - 2 - 2. The substantial issue raised is: whether the Labour Court constituted under the provisions of the Industrial Disputes Act, 1947 ("Act" for short) can restore or recall the award passed by it after expiry of 30 days from its publication i.e. after it becomes enforceable. 3. The parties were directed to submit their written submissions to supplement their oral submissions. Accordingly, both of them have filed their written submissions. The same are taken on record. FACTS FACTS FACTS : : : ----- ----- ----- . The facts in nutshell are as under: 4. The Deputy Commissioner of Labour, Thane in exercise of powers conferred under section 10(1) read with section 12(5) of the Act referred industrial dispute raised by the Petitioner for adjudication to the Second Labour Court, Thane which came to be registered as Reference (IDA) No.224 of 1996. The Second Labour Court, Thane caused to issue notices dated 1st October, 1996 to both parties calling upon them to appear before it. - 3 - 5. The notice to the respondent No.1 herein was addressed to M/s.Gayatri Enterprises, Vasai, 17-32 Gayatri Industrial Estate, Navaghar, Vasai Road (East), Vasai- 401 202, the address described in the Order of Reference. Notice was returned unserved as the said premises was closed. There was nobody to receive notice. According to the respondent, partnership has been dissolved. Consequent upon dissolution; the business was permanently and irrevocably stopped. 6. The petitioner-workman herein, pursuant to the Notice, filed a statement of claim asserting that he was entitled to reinstatement with full back-wages and continuity of service on and with effect from 1st March 1995. 7. The Labour Court was pleased to direct substituted service. The notice was served by pasting it on the outer door of the business premises described in the address given which was closed. 8. Based on the above service, the Learned Labour Court was pleased to proceed ex parte against respondent No.1 and passed an award on - 4 - 12th June, 1998 in favour of the petitioner. The Award was remitted by the Labour Court to the Deputy Commissioner of Labour, Thane for publication. The Deputy Commissioner of Labour, Thane approved publication by display on the Notice Board of the Labour Court. 9. The Office of the Labour Court by letter dated 7th August, 1998 informed the parties that the Award was published on the Notice Board on 5th August, 1998. 10. The petitioner sought execution of this ex parte Award. The Office of the Tahsildar, Vasai, in execution, issued Demand Notice dated 8th January, 1999 and served the same on one of the partners of respondent No.1. The partner of respondent No.1 made enquiries as to the circumstances in which the said demand was raised against him. As a result of this enquiry, he learnt that the recovery was pursuant to a certificate issued by the Office of the Commissioner of Labour, Thane. 11. The partner of respondent No.1 visited the Office of the Deputy Commissioner of Labour, Thane - 5 - who handed over a copy of the award to respondent No.1 on 27th January, 1999. 12. The respondent No.1 states that it was on that day for the first time he received the copy of the Award. That is how he claims to have come to know of the said Reference and consequent adverse award for the first time on 27th January, 1999. 13. The respondent No.1, thereafter, preferred an application under Rule 26(2) of the Industrial Disputes (Bombay) Rules, 1957 ("Bombay Rules" for short) on 29th January 1999 for setting aside the ex parte Award and prayed for restoration of the original Reference to file, which after hearing the parties came to be allowed vide order dated 12th July, 2005 passed by the Second Labour Court, Thane. 14. Being aggrieved by the above order dated 12th July, 2005, the petitioner has invoked writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India raising an issue as to the power and authority of the Labour Court to pass the impugned order. - 6 - SUBMISSIONS SUBMISSIONS SUBMISSIONS : : : ----------- ----------- ----------- 15. Mr.Pendse, learned Counsel for the Petitioner contends that the provisions of the Act do not permit any party to prefer an application for restoration of a reference after expiry of the period of 30 days from the date of publication of the Award. 16. Mr.Pendse contends that the industrial adjudication is governed by the provisions of the Act and Rules framed thereunder. That the rules framed under the Act provide for applicability of the provisions of Code of Civil Procedure, 1908 ("C.P.C." for short). Once the provisions of the C.P.C. are made applicable to the industrial adjudication, admittedly, the provisions of Order 9 Rule 13 thereof would be attracted. But, unlike ordinary Civil Code, Industrial Tribunal and the Labour Courts have limited jurisdiction in that behalf. While Industrial Court will have jurisdiction to set aside the ex parte award, but having regard to the provisions under Section 17-A of the Act, the application thereof must be filed before expiry of 30 days from the publication thereof and not thereafter. In his submission, the Tribunal after expiry of 30 days from the date - 7 - of publication of the award does not retain jurisdiction over the dispute referred to it for adjudication. It is, thus, submitted that the Tribunal has no power to entertain any such application in connection with such dispute because the award made by the Industrial Court becomes enforceable under Section 17-A of the Act on the expiry of 30 days from the date of its publication. That once the Award becomes enforceable, Industrial Tribunal and/or Labour Court becomes functus officio. In support of this submission, he relied upon the judgment in the case of Sangham Tape Co. Vs. Hans Raj Sangham Tape Co. Vs. Hans Raj Sangham Tape Co. Vs. Hans Raj, 2005 SCC (L&S) 65, in which, according to him, the Apex Court has, in categorical terms, held that the Court under the Act becomes functus officio and, thereafter, application for recalling of any award cannot be entertained by the Labour Court or Tribunal. 17. Mr.Pendse, learned counsel for the petitioner, while applying the ratio of the above case to the facts of the present case, submits that in view of the fact that the award was passed on 12th June, 1998 and having published it on 5th August, 1998, the award became enforceable on 5th - 8 - September, 1998, as such Labour Court was functus officio with effect from 6th September, 1998. In this view of the matter application dated 29th January, 1998 made for setting aside the award was not at all tenable in the eyes of law. That the Labour Court by that time had lost its jurisdiction. He also placed reliance on the judgment of the learned single Judge of this Court in the case of Vasant Govind Shirsekar V. Mhatre Vasant Govind Shirsekar V. Mhatre Vasant Govind Shirsekar V. Mhatre Pen Pen Pen and Plastics Pvt. Ltd. & Ors. and Plastics Pvt. Ltd. & Ors. and Plastics Pvt. Ltd. & Ors., 2005 II CLR 969 which is based on the Apex Court judgment in the case of Sangam Tape Co. Sangam Tape Co. Sangam Tape Co. (cited supra) to buttress his submission. 18. Per contra, learned Counsel appearing for respondent No.1 placing reliance on Rule 26(2) of the Bombay Rules, contends that the respondent was entitled to file application for setting aside ex parte award within a period of 30 days from the date of receipt of copy of the award. It is the case of the respondent No.1 that he received copy of the award only on 27th January, 1999 for the first time and the application was filed by him on 29th January, 1999. Hence, his application was well within the time prescribed under Rule 26(2) of the Bombay Rules. He tried to distinguish the - 9 - judgment of the Apex Court delivered in the case of Sangham Tape Co. Sangham Tape Co. Sangham Tape Co. (supra) on the basis of statutory provisions and that of the learned single Judge of this Court in the case of M/s.Mhatre M/s.Mhatre M/s.Mhatre Pen & Plastics Pvt.Ltd. Pen & Plastics Pvt.Ltd. Pen & Plastics Pvt.Ltd. (supra) on facts. According to him, Rules 26(2) and 31(A) which exist in the Bombay Rules do not find place in the Rules framed by the Central Government under the Industrial Disputes Act. That there is no specific rule in the Central Rules unlike Bombay Rules which provides for the period during which application can be made. According to him, this distinguishing feature is lost sight of by the learned counsel for the petitioner while placing reliance on the Apex Court judgment in the case of Sangham Tape Co. (supra). 19. Learned counsel for respondent No.1 placed reliance on another Judgment of the Learned Single Judge of this Court in the case of M/s South Seas M/s South Seas M/s South Seas Distilleries Distilleries Distilleries and Breweries Pvt. Ltd., Thane V. and Breweries Pvt. Ltd., Thane V. and Breweries Pvt. Ltd., Thane V. Deepak Deepak Deepak R. Patne and another R. Patne and another R. Patne and another, 2003 LAB.I.C. 262 in support of his submissions, which takes into account the distinguishing feature based on statutory provisions pointed out by the learned counsel for respondent No.1. The facts of this - 10 - case reveal that the ex parte Award was made on 3rd May, 1999. A copy of the intimation of publication of award was received on 10th June, 1999, the petitioner in that case averred that he came to know of the Award on 31st August, 1999; The application for certified copy of the Award was made on 5th October, 1999 (35th day after knowledge of the Award, as stated by the petitioner). The certified copy was received on 8th October, 1999. The application for restoration was filed on 20th November, 1999. On these facts, it was held that the petitioner having moved the application under Rule 26 beyond period of 30 days from the date of receipt of the Award, the Labour Court had no jurisdiction to entertain application for setting aside ex parte Award. 20. Learned Counsel for respondent No.1, turning to the facts of the case in hand, submits that on merits the Labour Court has come to the conclusion that the notice and process of the Reference proceedings were never served upon the said respondent. That the Labour Court held that the petitioner was aware of the fact that the establishment of respondent No.1, the address of - 11 - which was given in the Reference, was closed; and no one was available on the given address to accept the service. That the Labour Court also noticed that, in another application filed the petitioner before the Fourth Labour Court, Thane, being Application (IDA) No.69/1995, the residential address of the partner/ respondent No.1 was given and not the factory address. The Labour Court, thus, concluded that the petitioner- workman was very much aware of the address of respondent No.1 where service could have been effected. However, he got the notice of the Reference proceedings issued on the factory address and sought to effect service by pasting it on the premises which ceased to be the business premises of respondent No.1 and where no one was available to accept service of notice. 21. The learned counsel for respondent No.1 tried to distinguish the judgment of the learned single Judge in the case of M/s.Mhatre Pen & M/s.Mhatre Pen & M/s.Mhatre Pen & Plastics Plastics Plastics Pvt.Ltd. Pvt.Ltd. Pvt.Ltd. (supra) contending that in that case the award was passed on 13th January, 1997. It was published on 6th March, 1997. The employer had received copy of the Award sent by the workman on 7th March, 1997. The employer was, thus, in - 12 - receipt of a copy of the Award forwarded by the workman on 7th March, 1997. Period of 30 days from the date of receipt of the Award had, thus, started running from 8th March, 1997 and expired on 7th April, 1997. Application for restoration for setting aside the ex parte Award and restoration of Reference was filed on 17th April, 1998; much after expiry of 30 days from the date of service of the award. From the facts of the said case it is, thus, clear that the employer had filed an application after more than one year in spite of having the knowledge of the ex parte Award and also from the date of publication of the Award on 7th March, 1997. More than 30 days had elapsed after receipt of copy of the Award. By the time application was made, the Award had became enforceable under Section 17A of the Act. 22. The learned Counsel for the petitioner reiterating the reliance placed on the another judgment of the learned Single Judge in the case of M/s South Seas Distilleries and Breweries Pvt. M/s South Seas Distilleries and Breweries Pvt. M/s South Seas Distilleries and Breweries Pvt. Ltd. Ltd. Ltd. (supra) contends that the learned Single Judge in para-8 considered the impact of Rules 26 and 31 (A) of the Bombay Rules in its right perspective. - 13 - 23. The learned counsel for respondent No.1 further submits that there is no apparent conflict of law between two judgments of this Court, one in the case of M/s.Mhatre Pen & Plastics Pvt.Ltd. M/s.Mhatre Pen & Plastics Pvt.Ltd. M/s.Mhatre Pen & Plastics Pvt.Ltd. (supra) and, another M/s South Seas Distilleries M/s South Seas Distilleries M/s South Seas Distilleries and and and Breweries Pvt. Ltd. Breweries Pvt. Ltd. Breweries Pvt. Ltd. (supra). The decisions have been rendered on the facts obtainable in the respective cases. 24. The learned Counsel for respondent No.1 also referred two other judgments of the Apex Court; which were referred to in the case of M/s M/s M/s South South South Seas Distilleries and Breweries Pvt. Ltd. Seas Distilleries and Breweries Pvt. Ltd. Seas Distilleries and Breweries Pvt. Ltd. (supra); one delivered in the case of Anil Sood Anil Sood Anil Sood Vs. Vs. Vs. Presiding Officer, Labour Court Presiding Officer, Labour Court Presiding Officer, Labour Court, 2001 II CLR 18 and another delivered in the case of Grindlays Grindlays Grindlays Bank Bank Bank Ltd., V/s Central Government Industrial Ltd., V/s Central Government Industrial Ltd., V/s Central Government Industrial Tribunal Tribunal Tribunal and others and others and others, 1980 Supp SCC 420: 1981 SCC (L&S) 309. 25. In re-joinder, learned Counsel for the petitioner contends that as per Rule 31-A, a duty is caste upon the Board; Court or the Tribunal as the case may be to inform the respective parties to the dispute, the publication of the report or award as the case may be. In this context, he - 14 - submits that the Second Labour Court had already informed both the parties vide its letter dated 7th August, 1998 (Exh.’B’) and that it is not the case of respondent No.1 that the address of M/s.Gayatri Enterprises was wrong address; therefore, it has to be presumed that M/s.Gayatri Enterprises, the respondent No.1 was already in receipt of the award. Even it was not the case of respondent No.1 that he was not at all served with the proceedings of the reference. On the contrary, the Labour Court in its award (Exh.‘A’) has taken a note that the first party- employer (respondent No.1 herein) was duly served with the notice and, therefore, the plea of respondent No.1 is not to be relied upon. 26. In the above context, learned counsel for the petitioner further submits that respondent No.1 had given his address that of Mumbai and there was a publication made by the petitioner about the award in the local daily news paper by name ‘Asian Age’ dated 9th October, 1998, as such it has to be presumed that at least by 9th October, 1998 the respondent No.1 was made aware about the publication of the award. The learned counsel for the petitioner, therefore, submits - 15 - that at least the period of knowledge about the passing of the award had on and from 9th October, 1998 in terms of Rule 31A of the Bombay Rules; and, thus, the limitation of 30 days had started running from the date of knowledge as contemplated under Rule 26(2). Learned counsel for the petitioner, thus, submits that the respondent No.1 should have been diligent enough to apply for setting aside ex parte award within 30 days at least from the date of knowledge through the news paper publication. 27. Before considering the rival contentions raised by the rival parties, it is necessary to notice certain statutory relevant provisions and the law holding the field. Statutory Statutory Statutory Provisions : Provisions : Provisions : -------------------- -------------------- -------------------- 28. The Power and jurisdiction of Labour Court under the Act is briefly set out below : "11. 11. 11. Procedures and powers of Procedures and powers of Procedures and powers of Conciliation Conciliation Conciliation Officers, Boards, Courts and Officers, Boards, Courts and Officers, Boards, Courts and Tribunal. Tribunal. Tribunal.- (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 Arbitrator or other authority concerned may think fit. ..... ..... ..... ..... - 16 - 29. Section 11 (3) empowers the authorities with the same powers as vested in a Civil Court under C.P.C. (5 of 1908), when trying a suit, in respect of the following matters, namely: (a) Enforcing the attendance of any person and examining him on oath. (b) Compelling the production of document and material objects; (c) Issuing commissions for the examination of witnesses; (d) In respect of such other matters as may be prescribed. 30. Section 17-A, which is relevant for a decision in this petition, is extracted below : "17A. 17A. 17A. Commencement of the award.- Commencement of the award.- Commencement of the award.- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17; Provided that- (a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or (b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the - 17 - award shall not become enforceable on the expiry of the said period of thirty days; (2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government; (3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1) the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2). (4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforcibility of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be. 31. Section 38 of the Act empowers the appropriate Government to make Rules for the purpose of giving effect to the provisions of this Act. The then State Government of Bombay in exercise of powers conferred on it under section 38 of the Act has framed the Rules known as the - 18 - Industrial Disputes (Bombay) Rules, 1957 (the Bombay Rules) 32. Rules 26 and 31A of the Bombay Rules are relevant for the purpose of this Petition. The same are reproduced herein below : "26. 26. 26. Board, Board, Board, Court, Court, Court, Labour Labour Labour Court, Court, Court, Tribunal, Tribunal, Tribunal, Tribunal or Arbitrator may Tribunal or Arbitrator may Tribunal or Arbitrator may proceed proceed proceed exparte.- exparte.- exparte.- (1) If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an Arbitrator fails to attend or be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed exparte. (2) Where any award, order or decision is made exparte under subrule (1), the aggrieved party, may within thirty days of the receipt of a copy thereof, make an application to the; Board, Court, Labour Court, Tribunal or an Arbitrator, as the case may be, to set aside such award, order or decision. If the Board, Labour Court, Tribunal or Arbitrator is, satisfied that there was sufficient cause for non-appearnace of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter: Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party. "31A. 31A. 31A. Publication of report or award, Publication of report or award, Publication of report or award, etc.- etc.- etc.- (1) Within thirty days of the date of receipt of the report of a Board or award of a Labour Court or Tribunal by it the State Government,- (a) shall, if it considers that having regard to the importance of such report or award its publication in the Official Gazette is necessary cause it to be published in the Official Gazette; - 19 - (b) if it considers that the report or award is not sufficiently important it may cause