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State Of U.P. Thru' Superintending Engineer & Ors. v. Chhotey Lal & Another - WRIT - C No. 970 of 2004  RD-AH 780 (14 September 2004)
Reserved on 25.8.2004.
Delivered on 14.9.2004.
Civil Misc. Writ Petition No. 970 of 2004.
& others ........... Petitioners
Chhotey Lal and another ........... Respondents
Civil Misc. Writ Petition No. 966 of 2004.
State of Uttar Pradesh
& others ........... Petitioners
Ram Pratap and another ........... Respondents
Civil Misc. Writ Petition No. 967 of 2004.
State of Uttar Pradesh
& others ........... Petitioners
Ram Lalan and another ........... Respondents
Civil Misc. Writ Petition No. 968 of 2004.
State of Uttar Pradesh
& others ........... Petitioners
Ram Bhawan and another ........... Respondents
Civil Misc. Writ Petition No. 969 of 2004.
State of Uttar Pradesh
& others ........... Petitioners
Ram Tilak and another ........... Respondents
Civil Misc. Writ Petition No. 1817 of 2004.
State of Uttar Pradesh
& others ........... Petitioners
Jawahir and another ........... Respondents
Hon'ble Ashok Bhushan, J.
Heard Sri Prashant Mathur, learned Standing Counsel appearing for the petitioners and Sri S.K. Srivastava, learned counsel appearing for respondent No.1.
In all these writ petitions, the petitioners have challenged the order dated 17th February, 2003 passed by the Labour Court rejecting the application filed by the petitioners for recall of the ex-parte award of the Labour Court dated 1st February, 1999.
Affidavits have been exchanged between the parties and with the consent of the parties, all the writ petitions are being finally decided.
Facts and submissions in all the writ petitions are almost same and reference of the facts of Writ Petition No. 970 of 2004, which is treated as leading writ petition, are sufficient to decide all the writ petitions.
Brief facts of the case are; workman, respondent no.1, initiated conciliation proceedings claiming that he was appointed as Beldar on 1st July, 1987 whose services have wrongly been terminated with effect from 1st December, 1990. The Deputy Labour Commissioner issued notice to the Assistant Engineer, Executive Engineer and Superintending Engineer asking them to appear in the proceeding. A reply was filed by Works Superintendent, P.W.D., Farenda, Maharajganj denying the claim of respondent No.1. In the reply it was stated that respondent No.1 was never appointed as Beldar and there is no relationship of master and servant. The State Government vide its order dated 25th June, 1993 made a reference to the Labour Court, Gorakhpur referring the dispute as to whether the action of the employer in separating the workman from work with effect from 1st December, 1990 is valid or not and if not to what relief the workman is entitled. Adjudication Case No. 169 of 2003 was registered before the Labour Court, Gorakhpur. On 26th November, 1997, the Labour Court in its order-sheet noted that registered letter sent to opposite party No.1 has returned back. Registered letter No.183 sent to opposite party No.2 has not come back, hence service is sufficient. Notice have been served on opposite party No.3 through peon. The order-sheet further noted that opposite party No.3 be sent a copy of notice and be asked to get the notice served on opposite party No.1. Again on 31st March, 1998 order was passed that notice be sent as per earlier order dated 26th November, 1997. On 10th July, 1998 itself the award was reserved and award was given on 30th July, 1998. The award in Adjudication Case No.164/1993, 166/1993 and 169/1993 was published on 1st February, 1999, with regard to Adjudication Case No. 168/1993 and 167/1993 ex-parte award was published on 19th February, 2001 and in Adjudication Case No. 165/1993 award was published on 21st April, 2001 on the notice board. An application dated 3rd April, 1999 was filed by the petitioners for recall of ex-parte awards with the allegation that notice was sent on wrong address, hence the petitioners could not know the proceeding. It was further stated that report of the peon is incorrect and on the basis of incorrect report, the ex-parte award has been passed. The application of the petitioners was contested by the workman. After hearing both the parties, the Presiding Officer, Labour Court vide its order dated 17th February, 2003 rejected the application dated 3rd April, 1999. All these writ petitions have been filed challenging common order dated 17th February, 2003 and ex-parte award dated 30th July, 1998.
The counsel for the petitioners, challenging the award and the order dated 17th February, 2003, has made following submissions:-
(i) Labour Court committed error in rejecting the application dated 3rd April, 1999. Sufficient cause was shown on behalf of the petitioners for recall of the ex-parte award. Summons sent in the case were never received by the petitioners, hence they could not appear in the proceeding. The address on which notice was sent was wrong address on which service of notice was not possible. The report of peon that notice has been received is incorrect.
(ii) The award dated 30th July, 1998 was a nullity since it was passed ex-parte to the petitioners without giving them opportunity to have their say.
(iii) The Labour Court did not consider the claim of the workman on merit and without there being any material that workman has worked for 240 days, the order of reinstatement with back wages has been passed.
Reliance has been placed by counsel for the petitioner on various judgments of this Court and apex Court, which shall be referred to while considering the respective submissions.
Sri S.K. Srivastava, learned counsel appearing for workman has refuted the submissions of counsel for the petitioners. It has been contended by counsel for respondent No.1 that the Labour Court had become functus officio and the application filed by the petitioners on 3rd April, 1999 to recall the ex-parte award dated 30th July, 1998 was not maintainable and was liable to be rejected. It has further been contended that notice was duly served on the petitioners and inspite of service they failed to appear, hence no error has been committed by the Labour Court in rejecting the application for recall. It has also been contended that registered notice was sent on the address of the petitioners which shall be deemed to be sufficient. The counsel for respondent No.1 has placed reliance on various judgments of this Court as well as apex Court which shall be referred to while considering the respective submission.
I have considered the submissions raised by counsel for the parties and perused the record.
A perusal of the order dated 17th February, 2003 makes it clear that the Labour Court has rejected the application on the observation that there was sufficient service on the petitioners and no sufficient cause has been made out for recall of the award. The Labour Court had not rejected the application on the ground that application was not maintainable or the Labour Court had become functus officio. However, since the counsel for workman has raised the submission that the Labour Court had become functus officio and the application for recall was liable to be rejected on that ground, it is necessary to consider the same. In support of his submission, the counsel for the workman has placed reliance on judgment of the apex Court reported in 1981 Lab.I.C. 155 SC; Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others, 1985 FLR (50) 6; Satnam Verma Vs. Union of India, and judgment of this Court reported in 1997 (76) FLR 919; State of U.P. and another Vs. Bachai Lal and another, 1997 (2) A.W.C. 1212; State of U.P. Vs. Labour Court, Varanasi and another, 2000(4) A.W.C. 2908; Executive Engineer vs. Presiding Officer, Labour Court, Gorakhpur and judgment of Calcutta High Court reported in 1998 (78) FLR 3944 (Cal.); M/s Raniganj Chemicals Works Vs. Judge, Ivth Industrial Tribunal and others.
In Grindlays Bank Ltd.'s case (supra), the apex Court has considered the provisions of Rule 22 of Industrial Disputes (Central Rule) 1957. The apex Court held that language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex-parte award conditional upon the fulfillment of its requirements. The apex Court further observed that if there was sufficient cause, which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set-aside the ex-parte award. Under U.P. Industrial Disputes Act, 1947, rules have been framed, namely U.P. Industrial Disputes Rules, 1957 (hereinafter referred to as the Rules). Under Rule 16, the Tribunal has been expressly recognized the power to set-aside the order if the party applies in writing for such an order and shows sufficient cause for his absence. Rule 16 of the Rules is quoted below:-
"16. Labour Court or Tribunal or Arbitrator may proceed ex parte.- (1) If, on the date fixed or on any other date to which the hearing may be adjourned, any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper.
(2) The Labour Court, Tribunal or an Arbitrator may set-aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order."
In Grindlays Bank Ltd.'s case (supra), the apex Court held that Tribunal does not become functus officio after giving the award. It held that proceeding before the Tribunal shall be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of Industrial Disputes Act, 1947, the award becomes enforceable on expiry of 30 days from the date of its publication. The apex Court held that till date the award become enforceable, the Tribunal retain jurisdiction over the dispute and it has power to entertain an application in connection with such dispute. Following relevant observations were made by the apex Court in the above judgment:-
"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 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 Tribunals retain jurisdiction over the dispute referred to it for adjudication and upto 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 Section 17A. 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 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 order."
In Satnam Verma's case (supra), the award was made on 23rd February, 1982. The application for recall was made on 26th February, 1982, i.e., within three days. The apex Court held that Tribunal had jurisdiction to recall the award and it had not become functus officio. Satnam Verma's case (supra) has also relied Grindlays Bank Ltd.'s case (supra). In State of U.P. Vs. Bachai Lal case (supra), this Court had occasion to consider Rule 16(1)(2) of the Rules. After considering the relevant Rules and after relying on Grindlays Bank Ltd.'s case (supra), this Court laid down following in paragraph 10:-
"10. In the instant case the Labour Court passed the order to proceed ex-parte on 1.2.1991 and made the ex-parte award on 19.4.1991 which was published by affixation on the notice board on 5.8.1991 with the prior permission of the State Government accorded vide G.O. dated 26.9.1991. The application for setting aside the ex-parte award was moved on or after 10.11.1991. The award became enforceable after its publication on 5.8.1991 and in view of the Supreme Court's decision in Grindlays Bank Ltd.'s (supra), the Labour Court had the jurisdiction until expiry of thirty days of the date of publication of the award to entertain the application for setting aside the ex-parte award. The expression "within 10 days of such order" occurring in Rule 16(2) of the Rules even if construed to mean "within ten days of the knowledge of such order" would not help the petitioners for they would be presumed to have the knowledge of the award on the date on which the permission was given for its publication. The Labour Court ceased to have the seisin of the dispute referred to it after expiry of thirty days from the publication of the award. The application for setting aside the ex-part award was made in November, 1991. The Labour Court has committed no illegality or irregularity in exercise of its discretion."
Other cases relied by counsel for the workman lays down the same proposition that the Tribunal does not become functus official till the award become enforceable, i.e., within 30 days of publication of the award, the Tribunal has jurisdiction to entertain the application.
Sri Mathur, learned counsel, appearing for the petitioners, has relied on judgment of apex Court reported in 2001 (89) FLR 229; Anil Sood Vs. Presiding Officer, Labour Court-II. In the aforesaid case, the award was made on 11.9.1995 and an application was filed by the appellant on 6.11.1995 for recall of the ex-parte award. The application was dismissed on the ground that Labour Court had become functus officio. The apex Court relied on judgment of the apex Court in Grindlays Bank Ltd.'s case (supra). The proposition laid down in Grindlays Bank Ltd.'s case (supra) was reiterated and apex Court held that Tribunal must necessarily have power to set-aside the ex-parte award. Following was observed in paragraph 4 of the judgment:-
"4. 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 notice which is a nullity and therefore, the Tribunal will have no jurisdiction proceed and consequently, it must necessarily have power to set-aside the ex-parte award."
In the above judgment, the apex Court reiterated the same proposition, which was laid down in Grindlays Bank Ltd.'s case (supra). In the aforesaid judgment no such proposition has been laid down that even after 30 days of publication of the award application to recall under Rule 22 can be entertained. The said judgment does not support the contention that award can be set-aside at any time. Another judgment relied by Sri Mathur is 2002-I-LLJ (Alld) 413; Power Grid Corporation of India Ltd., Kanpur Vs. Presiding Officer, Industrial Tribunal (III), U.P., Kanpur and another. In the aforesaid case ex-parte award was given on January 17, 2000 which was challenged in this Court by means of Writ Petition No. 25522 of 2000 and the same was disposed of permitting the employer to file an application for recall. The application for recall was rejected on July 4, 2001 which was challenged by the employer. This Court held that there was sufficient cause for recall of the ex-parte award and the writ petition was allowed.
From the proposition laid down by the apex Court and this Court, as noted above, it is clear that application for recall of an ex-parte award can be made before the award become enforceable. Under the U.P. Industrial Disputes Act, 1947, the award become enforceable on expiry of 30 days from the date of publication as laid down in Section 6-A of U.P. Industrial Disputes Act, 1947. In facts of the present case in Adjudication Case No. 168/1993, 167/1993 and 165/1993, the award was published subsequent to application dated 3rd April, 1999, hence application was fully maintainable with regard to those cases. It is true that in Adjudication Case No. 164/1993, 166/1993 and 169/1993, the award was published on 1.2.1999 and the application was moved after one month from the said date. It is, however, relevant to note that Tribunal decided all the applications by common order and since all the applications were based on same facts, the Tribunal did not reject the application on the ground that it has become functus officio, rather it proceeded to examine the cause given by the employers on merits. Although the submission of counsel for the workman is that with regard to Adjudication Case No.164/1993, 166/1993 and 169/1993 the application dated 3rd April, 1999 could not have been entertained but in view of the fact that in the writ petitions out of above adjudication case, award dated 30th July, 1998 has also been challenged, this Court is examining the correctness of the award in Adjudication Case No.164/1993, 166/1993 and 169/1993 in view of the facts and circumstances of those cases.
Now coming to the merits of the order dated 17th February, 2003 by which the Tribunal rejected the application to recall the ex-parte award, it is necessary to note the cause shown by the petitioners in the application dated 3rd April, 1999. The application to recall the ex-parte award was duly supported by affidavit of Assistant Engineer, Construction Division, Public Works Department, Maharajganj. It has been stated in paragraph 3 of the affidavit that address which was given in the proceeding was incorrect and without any information to the applicants, the peon has submitted wrong report regarding service. In paragraph 4, it was stated that the address being wrong, the service of notice was not possible. In the application, the address of applicant No.1 was shown as Assistant Engineer, Construction Division, P.W.D., Maharajganj and applicant No.2 Executive Engineer, Construction Division, P.W.D., Maharajganj. The address given by the applicants in their application is different from the address given in reference order and proceeding before the Labour Court. The address of Assistant Engineer given in the proceeding before the Labour Court was Assistant Engineer, Temporary Division, Construction Unit, P.W.D., Farenda, Maharajganj and address of Executive Engineer was given as Executive Engineer, Temporary Division, Construction Unit, Farenda, Maharajganj. The said ground was specifically taken in the affidavit but from the perusal of the order of the Labour Court dated 17th February, 2003, it is clear that the Tribunal has observed that since in the order-sheet dated 10th July, 1998 the service was held to be sufficient by refusal, hence it cannot be held that notice was sent on wrong address. The said reasoning given by the Tribunal is erroneous. When the service of summon is being challenged, the mere fact that in the order-sheet dated 10th July, 1998 service was held sufficient on the basis of alleged refusal, it cannot be said that the cause given by the applicants was not sufficient. No finding has been recorded by the Tribunal that address given by the applicants in their application, which is admittedly different from the address given in the proceeding before the Labour Court, is incorrect. When the notice is sent by registered post which is not returned, the presumption of service shall arise but the said presumption can be rebutted. The counsel for the workman, in support of his contention that service will be deemed sufficient, has placed reliance on judgment of this Court reported in 1964 Allahabad 52; Shri Nath and another Vs. Smt. Saraswati Devi Jaiswal in which this Court laid down that on refusal to accept delivery, presumption of service shall be made. The apex Court in Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani; FLR 1989 (52) 474 has laid down that there is presumption of service of letter sent under registered cover if the same is returnable back with a postal endorsement that the addressee refused to accept the same. No doubt that presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. It is seen that in the present case, the employers have taken the plea that address shown was incorrect which has been recognized as one of the grounds for rebutting the presumption of service.
There is one more aspect of the matter which makes it clear that there was no service of notice on the Assistant Engineer, who is petitioner No.3 in the writ petition. Copy of the order-sheet has been filed by the petitioners as Annexure-6 to the writ petition. Order-sheet dated 26.11.1997 notes that registered letter sent to opposite party No.1, who was the Assistant Engineer, has returned back. The order-sheet further notes that letter of opposite party No.2, i.e., Executive Engineer has not come back, hence service is sufficient. On opposite party No.3, i.e., Superintending Engineer, notice was treated to be served through peon. Notice on opposite party No.1 Assistant Engineer was not sufficient, hence in the same order it was directed that annexing copy of the notice, opposite party No.3 be written to get the notice served on opposite party No.1. In pursuance of the order-sheet dated 26.11.1997, notice was again directed to be sent on 31st March, 1998 and on 10th July, 1998 report of peon was noted that employers have refused to take summon. From the order-sheet, it is clear that report, which was submitted by peon, was report with regard to sending of notice to opposite party No.3 for serving it on opposite party No.1. When the notice sent to opposite party No.3 was refused, as mentioned by the peon in its report, the said refusal cannot be treated to be service on opposite party No.1, i.e., Assistant Engineer. The order-sheet dated 26.11.1997 makes it clear that for serving notice on Assistant Engineer, the Superintending Engineer was written and even if Superintending Engineer refused to accept the notice, the said cannot result in refusal by Assistant Engineer to whom notice was never tendered. From perusal of the order-sheet, it is clear that there was no service of notice on Assistant Engineer. From paragraph-2 of the award, it is clear that the above factual aspect has been substantiated. The Labour Court itself has written that summon sent to Assistant Engineer came back, hence for that purpose Superintendent Engineer was sent a letter that the same may be got served on Assistant Engineer on which report has been given by the Peon 12-D that one Clerk read the summon and returned the same. On the basis of the aforesaid report 12-D service of summon on the Assistant Engineer cannot be presumed since after 26th November, 1997 letter was sent to Superintending Engineer for affecting service on the Assistant Engineer. From the record it does not appear that any registered notice or any personal notice was sent to Assistant Engineer. Rule-11 of the U.P. Industrial Disputes Rules, 1957 deals with service of summon or notice which is quoted below:-
"11. Service of summons or notice.- Any notice, summons, process or order issued by a Board, Labour Court or Tribunal or Arbitrator may be served either by personal delivery or by registered post or in any other manner prescribed in this behalf in the Code of Civil Procedure, 1908 (Act V of 1908)."
Service of summon as contemplated under Rule-11 is either by personal delivery or by registered post or in any other manner prescribed in this behalf. The service on Assistant Engineer is neither made by registered post nor by personal delivery since letter was sent to Superintending Engineer for serving summon on Assistant Engineer. The refusal of the said letter, as mentioned in 12-D, was by Superintending Engineer on the basis of which service on Assistant Engineer cannot be presumed. Order V Rule 9 to Rule 20 of C.P.C. does not contemplate service as directed in the present case by Presiding Officer to be effected by Superintending Engineer on Assistant Engineer. The service on Assistant Engineer is neither in accordance with Rule 11 of U.P. Industrial Disputes Rules, 1957 nor in accordance with any of the rules of C.P.C. In this view of the matter also, the award is clearly ex-parte and Tribunal fell in error in rejecting the application by order dated 17th February, 2003.
The last submission of counsel for the workman is that the jurisdiction of this Court is very limited and it cannot upset the award unless it is either based on no evidence or wholly perverse. Reliance has been placed by counsel for the workman on AIR 1984 SC 38; Mohd. Yunus Vs. Mohd. Mustaqim and others and 2002(95) FLR 949; M/s Essen Deinki Vs. Rajiv Kumar.
As observed above, in the present case there was no sufficient service on Assistant Engineer and the presumption of service was rebutted in the affidavit. It having been established on the basis of the order-sheet of the Labour Court that there is no service sufficient on the employers, the award was ex-parte to the employer and is nullity. In above view of the matter, this Court does not lack jurisdiction to set-aside such ex-parte award.
In view of above discussions, the orders dated 17th February, 2003 rejecting the applications for recall of the ex-parte award dated 30th July, 1998 in Adjudication Case Nos. 168/1993, 167/1993 and 165/1993 cannot be sustained. The awards in Adjudication Case Nos. 164/1993, 166/1993 and 169/1993 having been given ex-parte to the employers, the said awards also deserve to be set-aside. However, in view of the fact that the award was given in the year 1998 and proceedings for recall of the award have been pending for several years, ends of justice be served in directing for setting aside the ex-parte awards on payment of costs by the petitioners of Rs.5,000/- in each case to workman concerned. The adjudication being pending for last several years, it is further directed that employers shall file their written statement within one month from today before the Labour Court in each of the cases and the Labour Court shall proceed to give award within a further period of six months.
All the writ petitions are allowed to the extent as indicated above.
Dated September 14, 2004.
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