IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1910 of 2009. Reserved on: 20.10.2010. Decided on: 12.11.2010. _____________________________________________________ Harbans Singh. … Petitioner. Versus Ld. President, H.P. Industrial Tribunal-cum- Labour Court and another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Pritam Singh Chandel, Advocate. For the Respondents : Mr. R.P. Singh, Assistant Advocate General for respondent No.1. Mr. Rahul Mahajan, Advocate for respondent No.2. Rajiv Sharma, J. : Petitioner has assailed the order dated 28th April, 2009. Material facts necessary for adjudication of this petition are that the petitioner (hereinafter referred to as the ‘workman’ for convenience sake) was engaged by respondent No.2 (hereinafter referred to as ‘employer’ for convenience sake) as workman (unskilled labourer) on regular basis. He was issued attendance card etc. He was 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - retrenched by the employer. He filed application before the Labour Officer-cum-Conciliation Officer, Baddi. The employer did not appear before the Conciliation Officer. Thereafter on the failure report, the State made a reference bearing No.10 of 2006 to the Labour Court- cum-Industrial Tribunal, Shimla to the following effect:- “Whether the termination of service of Shri Harbans Singh S/O Shri Dhani Ram by the M/s Alembic Ltd. Baddi, Tehsil Nalagarh, District Solan H.P. without conducting any domestic enquiry w.e.f. 8.9.2004 is proper and justified? If not, what relief of service benefit and amount of compensation the above aggrieved workman is entitled to?” 2. Notice was issued to the employer by the Labour Court. However, no appearance was put in by the employer and he was proceeded ex-parte on 8th June, 2006. The Labour Court answered the reference by ordering reinstatement of the workman on 13th November, 2006. Thereafter the employer filed an application on 4th December, 2006 seeking setting aside of ex-parte award, dated 13.11.2006 passed in reference No.10 of 2006. The workman filed reply to the same on 12.9.2007. Labour Court allowed the application vide order dated 28.4.2009 and the ex-parte award, dated 13.11.2006 was set aside. 3. Mr. Pritam Singh Chandel, learned counsel for the petitioner has strenuously argued that the order dated 28.4.2009 is against the principles of law. According to him, the Labour Court has not correctly appreciated the oral and documentary evidence. Mr. Rahul Mahajan, learned counsel appearing on behalf of respondent No.2 has supported the order dated 28.4.2009. - 3 - 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. According to Mr. Rahul Mahajan, learned counsel for respondent No.2, his client had no notice of the proceedings in Reference No.10 of 2006 pending before the Labour Court. According to him, his client came to know about the ex-parte award, dated 13.11.2006 only when it received the communication dated 20.11.2006. He has further contended that the General Manager of the Company has not been served. It is evident from the records that the Company was sued through its General Manager. However, in the A.D. Form, the designation of Factory Manager has been given. The Factory Manager was never added as respondent in the proceedings. The application for setting aside ex-parte award was moved within 30 days from the date of passing the ex-parte award dated 13.11.2006. However, according to Mr. Pritam Singh Chandel, learned counsel for the petitioner, the service had been duly effected on the Company and it did not intentionally appear before the Labour Court to participate in the proceedings. 6. What emerges from the material brought on record and discussed by the Labour Court is that the RAD notice was, in fact, not issued in the name of General Manager. It was issued in the name of Factory Manager. The General Manager, alone of the respondent- Company was required to be served. Somebody has appended the initials of Factory Manager on the A.D. form, as noticed by the Labour Court. In these circumstances, it is apparent that the respondent No.2 was not served. In case the respondent No.2 had been served, it - 4 - ought to have participated in the proceedings. It is difficult to believe that the respondent No.2 would not participate in the proceedings even though it was served. It was not in the interest of the employer not to participate in the proceedings and to suffer the ex-parte award. Since respondent No.2 was not duly served, it was prevented from appearing before the Labour Court. 7. Their Lordships of Hon’ble Supreme Court in Grindlays Bank Ltd. Versus Central Government Industrial Tribunal and others, 1980 (Supp) SCC 420 have held that the Industrial Tribunal is competent to set aside the ex-parte award if it is satisfied that aggrieved party was prevented from appearing by sufficient cause. Their Lordships of the Hon’ble Supreme Court have also explained the impression ‘review’. Their Lordships have held as under (paras 6, 7, 10, 11, 12 and 13):- “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 S. 11 of the Act, as substituted by S. 9 of the Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956, is in these terms : - 5 - "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 procedure as the justice of the case demands. Under cls. (a) to (c) of sub-sec. (3) of S. 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 S. 11 are not courts but they have the trappings of a court, and they exercise quasijudicial functions. When sub-sec. (1) of S. 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 - 6 - 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. 24 (b) 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, 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 v. Pradyumansinghji, AIR 1970 - 7 - SC 1273 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 S. 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 S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 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 statute 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.” 8. In Anil Sood Versus Presiding Officer Labour Court II, (2001) 10 SCC 534 their Lordships of Hon’ble Supreme Court have held that the Labour Court or Tribunal has the power to set aside an ex parte award passed without notice. Their Lordships have held as under (paras 6 and 7):- “The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in - 8 - which the language is adopted in Section 11. When matters are referred to the tribunal or court they have to be decided objectively and the tribunals/courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice. The power to proceed ex parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.” 9. Their Lordships of Hon’ble Supreme Court in Kapra Mazdoor Ekta Union Versus Birla Cotton Spinning and Weaving Mills Ltd. and another, (2005) 13, SCC 777 have explained in detail that procedural review belongs to a different category. Their Lordships have held that in such review, the Court or quasi-judicial authority having jurisdiction to adjudicate, proceeds to do so, but in doing so ascertains whether it has committed a procedural illegality which goes to the root of the matter and invalidates the proceedings itself, and consequently the order passed therein. Their Lordships have further held that the 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 - 9 - invoked. Their Lordships of the Hon’ble Supreme Court have held as under (paras 17 & 19):- “The question still remains whether the Tribunal had jurisdiction to recall its earlier Award dated June 12, 1987. The High Court was of the view that in the absence of an express provision in the Act conferring upon the Tribunal the power of review the Tribunal could not review its earlier Award. The High Court has relied upon the judgments of this Court in Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P.) and others (1987) 4 SCC 525 and Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 wherein this Court has clearly held that the power of review is not an inherent power and must be conferred by the law either expressly or by necessary implication. The appellant sought to get over this legal hurdle by relying upon the judgment of this Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others (supra). In that case the Tribunal made an ex parte Award. Respondents 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. The Tribunal set aside the ex parte Award on being satisfied that there was suf- ficient cause within the meaning of Order 9 Rule 13 of the Code of Civil Procedure and accordingly set aside the ex parte Award. That order was upheld by the High Court and thereafter in appeal by this Court. 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 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 - 10 - 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 face 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 1981 Lab (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.” 10. Similarly, their Lordships of Hon’ble Supreme Court in Jammu Tehsil Versus Hakumar Singh and others, (2006) 12 SCC 193 have held that the Labour Court-cum-Tribunal has jurisdiction to set aside an ex parte award provided the application is preferred within 30 days from the date of publication of award. Their Lordships of Hon’ble Supreme Court have held as under (paras 4 and 5):- - 11 - “An industrial adjudication is governed by the provisions of the Act and the Rules framed thereunder. The Rules framed under the Act may provide for applicability of the provisions of CPC. Once the provisions of CPC are made applicable to the industrial adjudication, indisputably the provisions of Order 9 Rule 13 thereof would be attracted. But unlike an ordinary civil court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf. An award made by an Industrial Court becomes enforceable under Section 17-A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or the Labour Court becomes functus officio. This Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal1980 Supp SCC 420 : 1981 SCC (L&S) 309 held that the Tribunal does not become functus officio provided an application for setting aside the award is filed within thirty days of publication of the award having regard to the provisions contained in Section 11 of the Act and Rules 22 and 24 of the Industrial Disputes (Central) Rules, 1957 stating: (SCC at pp. 425-26, para 14) "14. 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 which the award becomes enforceable under Section 17-A. Under Section 17-A 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 up to that date it has the power to entertain an application in connection with such dispute. That stage is not - 12 - reached till the award becomes enforceable under Section 17-A. In the instant case, the Tribunal made the ex parte award on 9-12-1976. That award was published by the Central Government in the Gazette of India dated 25-12-1976. The application for setting aside the ex parte award was filed by Respondent 3, acting on behalf of Respondents 5 to 17 on 19-1-1977 i.e. before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal." The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award, but having regard to the provision contained in Section 17-A of the Act, an application therefore must be filed before the expiry of 30 days from the publication thereof. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and only up to that date, it has the power to entertain an application in connection with such dispute. It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labour Court after one month of the publication of the award. In view of this Court's decision in Grindlays Bank case1 such jurisdiction could be exercised by the Labour Court within a limited time-frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the Gazette, the same having become enforceable, the Labour Court would become functus officio.” 11. Their Lordships of Hon’ble Apex Court in Radhakrishna Mani Tripathi versus L.H. Patel and another, (2009) 2, SCC 81 have reiterated that the Labour Court or Tribunal has the power to entertain an application to set aside ex parte award. - 13 - 12. Accordingly, in view of the observations made hereinabove, there is neither any illegality nor procedural impropriety in the order dated 28.4.2009 passed by the Labour Court. Consequently, there is no merit in the writ petition and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. November 12, 2010. (sck).