Case: MAHABIR PROSAD CHOUDHARY Vs. M/S OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR

the submission of the parties had made following observations:-?On a perusal of the order dated 30.09.2008 it is difficult for this Court to accept the contention raised on behalf of the workman. It appears from the said order that the Tribunal had accepted the position that notice under Rule 21 of the said Rules had not been served upon the company before placing the case for ex-parte hearing. It has also accepted that Written Statement filed the workman had not been served upon them in accordance with provisions contained in Rules 20B(5) of the said Rules. On the face of such finding recorded by the Tribunal, it is absolutely clear that proceedings were conducted before it, leading to the impugned award, in clear violation of principles of natural as well as mandatory provisions of law. The award passed on 26.2.2008 is liable to be set aside only on this ground.?12. Shri Manoj Swarup, learned counsel for the appellant has strenuously contended that present is not a case of any breach of Rule 20B(5) as held by the High Court. The relevant order of the Industrial Tribunal has been brought on the record by the appellant, i.e., of 11.10.2007, where workman had appeared and filed Written Statement. It has been noted in the order that copy of the W/S cannot be served upon the another party as none appeared on behalf of the company. Sub-rule (5) of Rule 20B, which is relevant for present case is reproduced for ready reference:- 20B. Statement of case or written statement. – XXXXXXXXXXXXXXXXXXXXXXXX (5) A copy of the statement of case or the written statement shall be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh.15. Learned counsel for the appellant submitted that appellant has already attained the age of superannuation in July, 2018.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]From the above quotation it would appear that in Grindlays Bank the recall application was filed within thirty days from the date of publication of the award and hence, the objection raised on the basis of Section 17-A did not arise in this case. In Grindlays Bank this Court did not say that the Industrial Courts would have no jurisdiction to entertain an application for setting aside an award made after thirty days of its publication. Nevertheless, on the basis of the passage marked in italics in the above quotation Ms Issar strongly contended that that is the true import of the judgment. 17. We are unable to accept.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh.