IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.452 of 2010 BINOD KUMAR PANDIT, S/O LATE MAHENDRA KUMAR PANDIT, MODI NAGAR, KUTUBGANJ, MADEA TALAB MIRJANHAT,BHAGALPUR … RESPONDENT-APPELLANT Versus 1. THE MANAGEMENT OF PUNJAB NATIONAL BANK, REGIONAL OFFICE (SINCE NAMED AND STYLEDAS CIRCLE OFFICE), DARBHANGA THROUGH ITS CHIEF MANAGER …………………….PETITIONER RESPONDENT, 2. THE UNION OF INDIA THROUGH THE MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI, 3. THE INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD, PATNA THROUGH ITS PRESIDING OFFICER, AND 4. THE PRESIDING OFFICER, THE INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD, PATNA ….…. …………………………… RESPONDENTS-RESPONDENTS. ----------- For the Appellant: Mr. Devi Kant Jha, Advocate. For the Respondent No.1:Mr. Mahesh Narayan Parbat,Advocate. For the Respondents 2-4: Miss Kalpana, CGC. ---------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (15.03.2010) As per Dipak Misra, C.J.- Invoking the jurisdiction of this Court under Clause X of the Letters Patent, the appellant-workman (hereinafter referred to as `the workman’) has called in 2 question the legal substantiality and acceptability of the order dated 11.01.2010 passed by the learned single Judge in CWJC No. 16470 of 2009. 2. The factual exposé which are warranted to be adumbrated for disposal of the appeal are that the workman was employed in the Punjab National Bank as a Peon and his services were dispensed with on 02.05.2007. He initiated a proceeding before the Assistant Labour Commissioner (Central), Patna and the conciliation proceeding was taken up by the said authority under the provisions of the Industrial Disputes Act, 1947 (for brevity `the Act’). Despite best efforts, as is evincible, an amicable settlement could not be arrived at and a failure report was submitted by the competent authority to the Government. The Government of India in the Ministry of Labour after consideration of the failure report expressed the opinion that there did exist an industrial dispute and, accordingly, referred the matter to the Industrial Tribunal, Patna for adjudication vide notification No. L- 12012/37/20081R(B-II) dated 26.08.2008. 3. To appreciate the controversy, it is apposite to 3 reproduce the terms of reference: “Whether the action of the management of Punjab National Bank, Regional Office, Darbhanga in terminating the service of Sri Binod Kumar Pundit without complying section 25 F of I.D. Act and not regularizing in sub-ordinate cadre of group-IV post is legal and justified? What relief the workman concerned is entitled to?” 4. After the matter was referred to the Industrial Tribunal, the proceedings continued and, eventually, as is manifest from the asseverations made in the Memorandum of Appeal, despite grant of a number of adjournments, the Management-Bank did not appear and ultimately the Industrial Tribunal passed the award on 19.05.2009. The award was notified in the Official Gazette on 03.06.2009. 5. After the award was published in the Official Gazette, the Management-Bank filed an application under Order IX Rule 13 of the Code of Civil Procedure on 31.08.2009 for setting aside the award. When the Industrial Tribunal did not pass an order on the said application, the Management-Bank preferred the writ petition challenging the ex parte award and also seeking a consequential direction for remitting the matter to the Tribunal for re-hearing. The learned single Judge without 4 issuing notice to the present appellant has, by the order impugned, expressed the view that the Industrial Tribunal is competent to recall and re-hear the matter on merits, if it is satisfied that there were legitimate reasons for the petitioner not to appear in the case and that it had no notice of the proceeding or the dates fixed therein and, on that foundation, directed the tribunal to consider the petitioner’s application for recall of the ex parte award as passed by the tribunal and, accordingly, disposed of the writ petition. The said order is the subject matter of assail in this appeal. 6. We have heard Mr. Devi Kant Jha, learned counsel for the appellant-workman, Mr. Mahesh Narayan Parbat, learned counsel for the respondent-Bank and Miss. Kalpana, learned Standing Counsel for the Union of India. 7. It is submitted by Mr. Jha, learned counsel for the appellant that the learned single Judge has erroneously come to the conclusion that the tribunal has jurisdiction to recall the order though the application seeking setting aside of the ex parte award was passed after expiration of 30 days of the publication of the award in the Gazette. It is 5 his further submission that the learned single Judge has failed to appreciate the decision rendered in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others., AIR 1981 SC 606. In addition to the aforesaid, it is urged by Mr. Jha that the High Court should not have directed for a futile exercise to be done or carried out by the Industrial Tribunal but should have put the controversy to rest, if it so desired, after issuing notice to the present appellant. To buttress his submission, learned counsel has commended us to the decision rendered in Sangham Tape Co. v. Hans Raj, 2005 SCC (L&S) 65. 8. Mr. Parbat, learned counsel appearing for the respondent-Bank submitted that the order passed by the learned single Judge is absolutely supportable inasmuch as the tribunal is not denuded of the jurisdiction to set aside an ex parte award and the reliance placed on Grindlays Bank Ltd. (supra) cannot be found fault with. It is urged by him that when the Industrial Tribunal has the power to consider an application for recall, the order cannot be flawed and deserves to be affirmed in exercise of 6 rectificatory jurisdiction in the intra-court appeal. To bolster his submissions, he has placed reliance on the decisions in Anil Sood v. Presiding Officer, Labour Court II, 2001 II CLR 18, Nice Rubber v. Presiding Officer and Ors., 2003 III CLR 450 (Delhi High Court). 9. At the very outset we must state that there is no controversy with regard to the two dates, namely, the date of passing of the award and the date of publication of the award. That being the position, the question that emanates for consideration whether an application for recall or, for that matter, setting aside the award in exercise of power under Order IX Rule 13 of the Code of Civil Procedure could have been entertained. 10. In Grindlays Bank Ltd. (supra), a two-Judge Bench of the Apex Court after scanning the anatomy of the Act has held thus: “6. 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 7 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.” xxx xxx xxx xxx “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 S. 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 S. 17-A. Under S. 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S. 17. The proceedings with regard to a reference under S. 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 reached till the award becomes enforceable under S.17-A. 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 i.e., 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 8 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.” (Emphasis supplied) 11. In Sangham Tape Co. (supra), the Apex Court after referring to the decisions in Grindlays Bank Ltd. (supra), Satnam Verma v. Union of India, 1984 Supp. SCC 712, J.K. Synthetics Ltd. v. CCE, (1996) 6 SCC 92 has expressed the view as follows: “8. 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 therefor 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.” 12. In view of the aforesaid enunciation of law there can be no shadow of doubt that an application for setting aside the award has to be filed within thirty days from the date of publication of the award in the Official Gazette. It is worth noting in the case of Sangham Tape 9 Co. (supra) reliance was placed by the appellant therein on the decision rendered in Anil Sood (supra). Their Lordships in paragraph 12 of the decision has opined thus: “12. This Court in Anil Sood, (2001) 10 SCC 534 : (2001) 2 Scale 193, did not lay down any law to the contrary. The contention raised on the part of Mr Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. (See Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362 : 2004 SCC (Cri) 551). Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession.” 13. In view of the aforesaid we can only say with certitude that the reliance placed on the decision in Anil Sood (supra) by the learned counsel for the respondent - Management is of no assistance to him. As far as the decision in Nice Rubber (supra) is concerned, on a scrutiny of the facts therein, it is noticeable that the learned single Judge of the High Court of Delhi had noticed the facts in paragraph 3 wherein the learned single Judge had found that the application was filed after 30 10 days of the publication of the same, and placing reliance on Anil Sood (supra) came to hold as follows: “5. In view of the aforesaid judgment of the Supreme Court, it is clear that even after passing an ex-parte award the Labour Court had the jurisdiction to set aside the same, in case sufficient cause was shown by the party against whom the award was passed for his absence before the Court. The order of the Labour Court, therefore, holding that the Court had become functus officio after the award had become enforceable is clearly erroneous and cannot be sustained. I, accordingly, make the rule absolute, quash the impugned order dated 23rd February, 2000 and allow the writ petition. The matter is remanded to the Labour Court with a direction to decide the application of the petitioner for setting aside the ex-parte award on its merits. In the facts of the case I leave the parties to bear their own cost. The parties are directed to appear before the Labour Court on 7.4.2003.” 14. In our considered opinion the decision rendered in Nice Rubber (supra) is not in accord with the law laid down in Grindlays Bank Ltd. (supra) as well as the ratio in Anil Sood (supra) as it has been explained by their Lordships of the Apex Court in Sangham Tape Co. (supra). 15. In view of the aforesaid pronouncement of law we are of the considered opinion that the order passed by the learned single Judge is unsustainable inasmuch as the Industrial Tribunal, in the obtaining factual matrix, does 11 not have the jurisdiction to recall the award as it has already become functus officio. On the anvil of aforesaid premised reasons, we are compelled to allow the appeal and set aside the order passed by the learned single Judge. However, our setting aside the order passed by the learned single Judge would not disentitle the Management-Bank to challenge the award, as advised in law, before the appropriate legal forum. There shall be no order as to costs. Patna High Court. The 15th March, 2010. AFR. Dilip. ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )