High Court of Judicature at Allahabad
Case Law Search
U.P. Avas Evam Vikas Parishad Thru' Housing Commissioner v. Presiding Officer Industrial Tribunal & Ors. - WRIT - C No. 54914 of 2004  RD-AH 4233 (7 October 2005)
Hon'ble Rakesh Tiwari, J.
This writ petition was initially filed for quashing the orders dated 25.10.2004 and 31.11.2004. By the said orders, the Deputy Labour Commissioner has ordered for recovery of the amount and has issued recovery certificate against the petitioner in pursuance of the ex parte award dated 6.9.2002, which has been appended as Annexure 1 to the writ petition.
An application for amendment was subsequently filed by which the petitioner also sought the relief of quashing of the ex parte award dated 6.9.2002. The amendment was allowed by order dated 6.9.2002 and was accordingly amended.
Brief Facts of the case:-
Sri Nisar Ahmad- the concerned workman, raised an industrial dispute vide C.P. Case No. 4/1997 challenging his order of his termination from service dated 7.7.1983 which was referred by the State Government to the Industrial Tribunal (IV), U.P. Agra (for short ''the Tribunal). He expired on 18.11.2004.
It appears from record that on receipt of reference, summons were issued to the parties by R.A.P.D. On 8.3.2001, the Presiding Officer of the Tribunal found that the notice had not been sent to the petitioner, hence by order dated 17.4.2001 he directed that fresh notice be sent to the U.P. Awas Vikas Parishad, Lucknow (hereinafter called as the Parishad). It further appears that the registered letter sent to the petitioner was not received back and in view of office report to the effect that the registered letter sent to the petitioner has not been received back, the Tribunal presumed service on the Parishad to be sufficient and passed orders for ex parte proceedings in the case.
Contentions of counsel for the petitioner.
Counsel for the petitioner submits that the registered notice was not served on the petitioner as such, no one could appear on behalf of the Parishad before the Tribunal. As a result, the case proceeded ex parte against the petitioner and ultimately an ex parte award was passed on 6.9.2002 which was enforced by publication on the Notice Board on 27.4.2003. Thereafter, respondent no. 4 filed application under Section 6-H (1) of the U.P. Industrial Disputes Act, 1947 to execute the award. The petitioner on receipt of the notice of the execution case, came to know about the ex parte award against the Parishad and made enquiries in its office on 27.4.2004 in this regard. After an application before the Tribunal for restoration/recall of the ex parte award was filed praying for setting aside of the ex parte award dated 6.9.2002 along with an application for stay of the operation of the ex parte award during the pendency of the application on the ground that the notice of the Tribunal was not traceable in the office of the U.P. Avas Evam Vikas Parishad, Lucknow and that the ex parte award was without any notice to the petitioner.
As the office of the Presiding Officer of the Tribunal fell vacant, the restoration/recall application could not be heard. In the meantime the Deputy Labour Commissioner issued the impugned recovery certificate against the petitioner for a sum of Rs. 9,10,448/- in proceedings under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947.
Counsel for the petitioner further submits that the Tribunal, on 17.4.2001, after having found that the registered letter had not been received back after service, did not make any enquiry as to whether the petitioner was actually served ordered to proceed ex parte, as such, the order to proceed ex parte as well as the ex parte award are without notice and are liable to be set aside.
In support of his contentions, the counsel for the petitioner placed reliance upon the decisions in Power Grid Corporation of India Ltd., Kanpur V. Presiding Officer, Industrial Tribunal (III) U.P., Kanpur and another -2002 (1) LLJ-413; Syndet (India) Pvt. Ltd. V. Presiding Officer, Industrial Tribunal-III, Kanpur Nagar and others - 2005(105) F.L.F-393; Grindlays Bank Ltd. Vs. Central Government Industrial Tribunaland others- A.I.R. 1981 SC-606; Anil Sood V. P.O. Labour Court-II (2001)10 SCC-534; M/S Sangham Tape Company V. Hansraj- 2004 (103 F.L.R-669; State of U.P. and another Vs. Bachai Lal and another, 1997(76) F.L.R.-919; and U.P. Power Corporation Ltd. and another Vs. Presiding Officer,Labour Court, Ghaziabad and another -( 2003) (98) FLR-998.
Contentions of counsel for the respondents.
Counsel for the respondent submits that workman was appointed as Overseer/Junior Engineer on 4.5.1975 in the Parishad and was confirmed in 1997. Due to strained relationships between the Superintending Engineer and one Sri Kali Charan, a contractor, the workman was unnecessarily implicated and charge sheeted. He was found not guilty of charge nos.1,2 and 4 and after enquiry no finding was recorded in respect of charge no. 3. However, in spite of it the Housing Commissioner terminated the services of the workman vide order dated 7.7.1983 which was challenged by the workman before the Tribunal.
It is further submitted that since notice/summons sent to the petitioner by registered post were not received back after service, the Tribunal has rightly deemed the service to be sufficient and proceeded ex parte which was not illegal as such presumption could be made by the Tribunal, in law. The proceedings culminated into ex parte award in favour of the workman directing the employers to reinstate him with full back wages from the date of raising of the industrial dispute by filing C.B.Case no. 4/97. The application filed by the workan under Section 6-H(1) of the Industrial Disputes Act, 1947 for execution of the ex parte award was also allowed and a recovery certificate was issued for execution of the award.
Reliance has been placed by the counsel for the respondents upon Rule 11 of the U.P. Industrial Disputes Rules which provides the manner of service in proceedings before the Labour Court/Tribunal. It is as under :-
" 11. 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)."
Rule 19-A in respect of service of summons was inserted in Order V C.P.C. The proviso to sub-Rule 2 of Rule 19-A of Order V of the Code of Civil Procedure.
was omitted by Act No. 46 of 1999 and replaced by Rule 9 in Order V by Act No. 22 of 2002 w.e.f. 1.7.2002. Proviso to sub-rule (5) of Rule 9 of Order V remained the same as was earlier in proviso to sub-rule (2) of S Rule 19-A. It is as under :-
" Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-Rule shall be made notwithstanding the fact that the acknowledgement having been lost or misplaced or for other reason, has not been received by the Court within 30 days from the date of issue of summons.
It is then urged that a perusal of the address of the petitioner- U.P. Awas Evam Vikas Parishad as contained in the award of the Tribunal is the same as contained in the present writ petition and the amendment application filed theein. therefore, it can be safely said that the summons/notices on the aforesaid address by registered post must have been served on the petitioner in law except it proved to be contrary. It is submitted that the Tribunal was, therefore, justified on facts and in law to presume service of notices/summons on the petitioner in the order dated 17.4.2001.
The counsel for the respondent- workman has relied upon the case of U.P. State Electricity Board and another Vs. Presiding Officer, Industrial Tribuna-, F.L.R. 1985 (51) page-551, and upon U.P. State Sugar Corporation Vs. Om Prakash Upadhyaya- 2002(10) SCC-1489. On the basis of the law expounded in
the aforesaid cases he submits that under the Central Act there is no limitation prescribed for filing an application for recall of the ex parte award and as such the Hon'ble Supreme Court in the case of Grindlays Bank Ltd., ( supra) has held that the application could be moved within 30 days from the date of publication of the award. He further submits that in so far as the U.P. Industrial Disputes Rules,1957 framed under the U.P. Industrial Disputes Act,1947 are concerned, they provide limitation for 10 days for moving an application for recall of the exparte award. He further submits that the Court after considering the law expounded in Anil Sood and others Vs. S.K. Sarwaria and others-1998 FLR (78) page-14 has held that it did not propound any law. He lastly submits that in case of U.P. State Sugar Corporation Vs. Om Prakash Upadhyaya (supra the Court has held that in the State of U.P., U.P. Industrial Disputes Act,1947 would apply in so for as question of retrenchment/termination of services of an employee is concerned and as such the Rules framed under the U.P. Industrial Disputes Act, 1947 would apply to the facts of the present case as the services of the petitioner had been terminated under the U.P. Act and the reference was also made under the U.P. Act. He states that since the Rule prescribed clearly provide limitation for 10 days during which the application for setting aside the ex parte award could be moved, the Labour Court has not committed any illegality or infirmity in rejecting the application of the petitioner.
The question before the Court is thus confined as to whether the summons could have been deemed to have been served on the petitioner and whether the application for restoration could have been filed beyond the limitation of ten days as provided under Rule 16 of the U.P. Industrial Disputes Rules, 1957. If so, what would be the limitation in law for filing the application? Whether the application for setting aside ex parte order was barred by time and whether petitioner is guilty of latches. There are two types of ex parte award (i) in which service is sufficient and (ii) in which party is not served or is not properly served.
Under the Industrial Disputes Act of Industrial Disputes Act,1947 ( Central). In Rule 22 of Central Rules there is no limitation provided for application for setting aside ex parte award but in U.P. limitation of 10 days has been inserted.
This Court in a catena of decisions has held that application under Rule 16(2) has to be filed within 10 days of the order. Reference may be made to Deen Dayal Shodh Sansthan Vs. State- 1997(1) LLJ 982 and U.P. State Road Transport Corporation Vs. State-1996 (1) LLJ 31.
The question regarding limitation for filing application for recall/setting aside of the ex parte order/award under the U.P. Industrial Disputes Rules, 1957 was specifically considered in detail by this court in Civil Misc. Writ No. 16152 of 1999-M/s. Shree Talkies, Mohaddipur Gorakhpur V. Labour Court (U.P.) at Gorakhpur and another.
According to law laid down in U.P. State Sugar Corporation Vs. Om Prakash Upadhaya-2002 (93) FLR 600, the U.P. Industrial Disputes Act alone applies in State of U.P., hence in U.P. Ten days limitation has to be followed and application filed after 10 days after ex parte award will be barred by limitation. Hon'ble the Apex Court also in a catena of decisions has held that the Labour Court or Tribunal does not become functus officio till expiry of 30 days from the publication of award. Reference may be made to cases of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others ( supra) and Sanghavi Tape Company Vs. Hans Raj (supra). Thus if the application for setting aside the ex parte award is not filed within 10 days, it can be filed with application under Section 5 of the Limitation Act up to 30 days of publication of the award. The Labour Court has no jurisdiction to entertain such application after 30 days of publication of ex parte award.
In so far as second type of cases are concerned it may be noted that Article 123 (Explanation) of Limitation Act itself provides that substituted service will not be deemed to be due service and matter may be considered by Labour Court/Tribunal. Right to proceed ex parte is procedural. Every procedure in law has been provided to enhance justice and not injustice. Hence, the Labour Court/Tribunal has to exercise jurisdiction to do justice in view of circumstances and facts of each case.
In paragraph 9 of the judgment in State of U.P. and another Vs. Bachai Lal and another- 1997(76) F.L.R.-919 it has been held that :-
" The next question that arises for consideration is as to whether the application filed after ten days of the exparte award is maintainable. In my opinion, the Labour Court retains jurisdiction to entertain an application for setting aside an ex-parte award at least till the award attains finality under Section 6 of the Act albeit according to Grindlays Bank Ltd. ( supra),it retains jurisdiction " until expiry of 30 days from the publication of the award". It is another thing that the jurisdiction can be invoked only upon sufficient cause being shown for absence."
Similarly in paragraph 13 of the judgment in U.P. Power Corporation Ltd. and another Vs. Presiding Officer,Labour Court, Ghaziabad and another -( 2003) (98) FLR-998 it is observed by Hon'ble the Supreme Court as under:-
" As has already been held that the award was made under Rule 12(9), question of limitation of ten days does not arise. The Labour Court could still recall the order dated 2.8.1986 as by 3.9.1986, when the recall application was filed, the award was not enforceable as it was not published, thus the question of limitation of ten days did not arise. The merits of the reason for non-appearance was to a large extent in the judicial discretion of the Labour Court."
In both the aforesaid cases the High Court had held that the Labour Court retains jurisdiction to entertain an application for setting aside an ex-parte award till it attains finality under Section 6 of the U.P.Industrial Disputes Act,1947. In these cases, the Court took support from the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others, (supra) and categorically held that the term "sufficient" used in Rule 16, no doubt, should receive liberal construction so as to advance substantial justice but if the party is found guilty of latches, indifference and inaction or where want of bona fides is imputable to the party, it cannot be said to have shown sufficient cause for absence.
In the instant case, admittedly the award has been published and has attained finality. It has become enforceable as the application for recall for ex parte award was filed after 30 days from the date of its publication.
It appears from the perusal of restoration/recall application filed by the petitioner before the Tribunal that the petitioner in paragraph 5 of the affidavit filed along with the restoration application has stated that since the notice was not traceable in the office of the petitioner at Lucknow, it could not be presumed to have been served on the petitioner . Paragraph 5 is as under :-
" 5. That, therefore, this is a case in which the service has been presumed by the Hon'ble Tribunal but as information gathered from Lucknow the notice of the Honble Tribunal is not traceable, therefore, obviously the service of the notice cannot be presumed."
It is apparently clear from perusal of paragraph 5 above that service of summons is not definitely denied by the petitioner. What is said is that it is not traceable, hence notice cannot be presumed. Further, the restoration application having been filed more than 30 days after the publication of the award, the same was not maintainable in view of the recent judgment of Hon'ble the Supreme Court in M/s. Sangam Tape Company's case (supra) wherein it has been held that when the Court has become functus officio it has no right to entertain any application whatever may be the reason.
The ex parte award passed on 25.5.93 was published on 31.1.94. It would have become enforceable on expiry of 30 days thereafter publication in accordance with Sub-section (3) of Section 6 of the U.P. Industrial Disputes Act. The application for setting aside award was filed on 15.2.94 i.e. within 30 days of the publication of the award. Rule 16(2) of the U.P. Industrial Disputes Act provides as under:-
" 16(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."
Limitation Act, 1963 provides that limitation for suits and applications. Section 29(2) of Limitation Act, 1963 provides as under:-
" 29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit,appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
Under entry 123 limitation for moving application for exparte decree is 30 days but in view of Section 29(1) the limitation of 30 days. It will have to be read as 10 days in cases governed by U.P. Industrial Disputes Act which is a special Act. The provisions of Limitation Act have not been excluded by the U.P. Industrial Disputes Act. Hence Sections 4 to 24 of Limitation Act including Section 5 thereof applies to proceedings under U.P. Industrial Disputes Act also and a party can file application under Rule 16(2) of U.P. Industrial Disputes Rules with application under Section 5 of the Limitation Act explaining the delay in not filing application within 10 days and the Labour Court has full power to decide it providing of course the application is moved within 30 days of the publication of the exparte order or award. If application is filed after said 30 days the Labour Court can not entertain it as it becomes functus officio on expiry of 30 days.
A Full Bench of this Court in case of Badri Prasad Haridas- 1983 U.P. Local Bodies and Education Cases page 56= 1984(48) FLR- 315 relying on the case of Grindlays Bank (supra) held that Labour Court/Industrial Tribunal retains power to set aside exparte proceedings till award is enforced after 30 days of the publication. The Tribunal rejected its application for setting aside the ex parte award as the Tribunal was not satisfied with the explanation offered by the petitioner in paragraphs 5 and 7 of the application in respect of delay in filing application under Rule 16(2) of the Industrial Disputes Rules. The view taken is not perverse or arbitrary.
For the reasons stated above and in view of law considered above, the writ petition fails and is dismissed as the remedy of challenging the ex parte award was not availed of by the petitioner since the restoration application was filed beyond prescribed period of limitation. No order as to costs.
Dated 7th October, 2005/kkb
Double Click on any word for its dictionary meaning or to get reference material on it.