:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2655 OF 2009 WRIT PETITION NO. 2655 OF 2009 WRIT PETITION NO. 2655 OF 2009 M/s. Ventura Corporation ..Petitioner versus Raju P. Bendal ..Respondent Mr. P. S. Dani with Mr. Jitendra Ranawat and Mr. M. M. Kadam for the Petitioner. Mr. S. K. Chinchlikar for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 4TH APRIL, 2009 DATE : 4TH APRIL, 2009 DATE : 4TH APRIL, 2009 P.C. P.C. P.C. . Rule, returnable forthwith. Heard by consent. 2. The petitioner has challenged the Order of the 9th Labour Court, Mumbai, dated 27.1.2009, dismissing its application under Rule 26(2) of the Industrial Disputes (Bombay) Rules, 1957. 3. The Labour Court passed an Award dated 25.2.2008 directing the petitioner to reinstate the respondent workman with full back wages and continuity of service. The petitioner claim that :2: they received a copy of the Award on 18.4.2008. The petitioner then applied within a period for 30 days for setting aside the award on the ground that it was an exparte award. 4. The Labour Court considered the application and came to the strange conclusion that the award passed in the case is not an exparte award because the petitioner had filed its written statement and the petitioner has failed to cross examine the respondent inspite of opportunity. According to the Labour Court there was no quarrel about the applicability of Section 5 of the Limitation Act and logically therefore an application for condonation of delay could have been considered. However, the Labour Court came to the conclusion that since Award was not exparte at all, an application under Rule 26(2) is liable to be dismissed and accordingly dismissed the same. Rule 26(2) reads as follows :- "Where any award, order or decision is made ex-parte under sub-rule (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 :3: non-appearance 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." Sub rule (1) makes it clear that an exparte award is an award which is passed when a party to a proceeding fails to attend or be represented, without sufficient cause. Whether a party has filed a written statement or not is not material. But what is material is if the party was represented by before the court or tribunal. In the present case undisputably the petitioner was not present and therefore it cannot be said that the court did not proceed exparte to pass an Award. 5. Sub rule (2) provides for setting aside of an exparte award if the aggrieved party applied within 30 days on receipt of a copy. In the present case admittedly such an application is made. There was thus no reason for the court to have refused to consider the application for setting aside the exparte award. The learned counsel for the respondent submitted that since the Award had been published and application for setting aside was made :4: beyond the period of 30 days after its publication, the court became functus officio and therefore such an application was not tenable. That is however not the reason why the learned Labour Court has rejected the application. In fact the learned Labour Court has observed that Section 5 of the Limitation Act is applicable in the present case. It is therefore strictly not necessary to consider this submission on behalf of the respondent which is based on the judgment of this Court in Kiran Machine Tools vs. Kiran Machine Tools vs. Kiran Machine Tools vs. D. D. Hinge & Anr. [ 2006(1) Mh.L.J. 286 ]. D. D. Hinge & Anr. [ 2006(1) Mh.L.J. 286 ]. D. D. Hinge & Anr. [ 2006(1) Mh.L.J. 286 ]. 6. This Court has already taken a view that the Award passed in such circumstances must be treated as an exparte award vide Writ Petition No. 1983 of 2009 decided on 2.3.2009 and Writ Petition No. 3664 of 2009 decided on 3.4.2009. 7. Mr. Dani, the learned counsel for the petitioner relied on the decision of the Supreme Court in Radhakrishna Mani Tripathi vs. L. H. Radhakrishna Mani Tripathi vs. L. H. Radhakrishna Mani Tripathi vs. L. H. Patel & Anr. [2008 III CLR 1043] Patel & Anr. [2008 III CLR 1043] Patel & Anr. [2008 III CLR 1043] in which the Supreme Court has held that the application under 26(2) for setting aside the exparte award is maintainable notwithstanding Section 17A of the I.D. Act which provides for enforceability of award after :5: upon expiry of 30 days from the date of its publication. The Supreme Court thus held that such an application is maintainable even if the award is published. 8. In this view of the matter, the impugned is liable to be set aside and is accordingly set aside. The Labour Court shall consider and decide the petitioner’s application under Rule 26(2) afresh in accordance with law. 9. Rule is made absolute in the above terms. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)