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

The necessary facts of the case to be noticed for deciding the issue are:-2.1 The appellant was working as Accountant in the respondent company since 1986. There had been change of management in the year 2004 in the company. The appellant was not allowed to work w.e.f. 02.05.2005. The State of West Bengal referred the industrial dispute between the company and the appellant to the Fifth Industrial Tribunal. The Tribunal framed the issue as to whether refusal of employment to Shri Mahabir Prosad Choudhary by the management w.e.f. 02.05.2005 is justified?2.2 After receiving the reference, the Industrial Tribunal on 27.08.2007 issued summons upon the parties concerned directing them to appear on 19.09.2007. The workman appeared on 19.09.2007 but no one appeared from the company, since the summons were received back with the remarks ?left?. 11.10.2007 was again fixed by the Tribunal. On 11.10.2007, Tribunal noted that summons sent through Process Server has been served upon the company. The advocate for the workman appeared and filed W/S. The W/S was filed without serving the copy of W/S to the company. On 05.11.2007, none of the parties had appeared and 27.11.2007 was fixed for W/S by the company. On 29.11.2007, no one appeared on behalf of the company, the Tribunal fixed for ex-parte hearing. 26.12.2007 was fixed for documents of the workman. On 26.12.2007, documents were filed, which were kept on record and 29.01.2008 was fixed for ex-parte hearing. The Tribunal again on the request of the workman deferred the case, which was fixed for ex-parte hearing for 26.02.2008. On 26.02.2008, none appeared for the company, workman was heard and the award was pronounced. The Hon?ble Tribunal disposed of the award ex-parte by allowing the claim of reinstatement with full back wages. The award was also published on 27.03.2008.2.3 The company filed an application on 02.05.2008 to recall the ex-parte award. The company stated in its application that as per the agreement dated 10.06.2004 with its erstwhile management, the new management has no responsibility in respect of senior executives and managerial staff of the old management including the appellant. The company states that ex-parte award was received on 22.04.2008 and thereafter an application has been filed for recall of the ex-parte award dated 26.02.2008. The Tribunal heard the parties on the application filed by the company. The tribunal although return the finding that the award was passed in violation of principles of natural justice and no notice under Rule 20B(5) and Rule 21 of the West Bengal Industrial Disputes Rules, 1958 (hereinafter referred to as ?1958 Rules?) were served on the company. The Tribunal, however, took the view that application being filed by the company after 30 days of publication of the award, the Tribunal has become functus officio, hence the application is rejected.2.4 After rejection of application, the company filed a writ petition in the Calcutta High Court. Learned Single Judge vide its judgment and order dated 11.02.2009 allowed the writ petition setting aside the award and the order dated 30.09.2008 of the Industrial Tribunal and the Tribunal was directed to reconsider the issue between the parties as expeditiously as possible in accordance with law upon affording them opportunity of being heard. Against the judgment of learned Single Judge, the appellant filed an appeal before the Division Bench, which has been dismissed by the impugned judgment of the Calcutta High Court.

Reasoning:
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.