JUDGMENT

AFTAB ALAM,J.

1. Heard counsel for the parties.

2. Leave granted.

3. In an industrial dispute concerning the termination of service of the appellant (the workman) the Second Labour Court, Thane, Maharashtra gave an ex-parte award in Reference (IDA) no.224 of 1994 in favour of the appellant on 12 June 1998 directing his reinstatement with full back wages and continuity in service. The award was made after taking evidence (ex- parte) led on behalf of the appellant. It was published on 5 August 1998. On 29 January 1999 respondent no.1 filed a petition (Misc. Application [IBA] no.2 of 1999) before the Labour Court making a prayer for recall of the award. It was stated on behalf of the respondent that no notice was served on him and he was not aware of the proceedings before the Labour Court. He came to know about the matter only on 27 January 1999 on receiving a copy of the award sent to him by the court. And then without any loss of time he filed the petition for recall of the award. After a full dressed hearing on the recall petition the Tribunal found and held, vide order dated 12 July 2005, that the appellant obtained the order for ex-parte hearing of the reference by knowingly suppressing the correct address of respondent no.1 and as a result the notice issued by the Labour Court was never served on him. In light of the finding, the Labour Court recalled its earlier award dated 12 June 1998 and fixed the matter for fresh hearing.

4. The appellant challenged the order of Labour Court setting aside the award before the Bombay High Court in Writ petition no. 7985 of 2005. The High Court, by its judgment and order dated 25 January 2006 dismissed the writ petition and confirmed the order passed by the Labour Court. This appeal is preferred against the orders passed by the High Court and the Labour Court.

5. At this stage it will be useful to take note of certain provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and the Rules framed there-under. Section 11 of the Act permits the Industrial Tribunal, the Labour Court (and the other authorities under the Act) to follow, `subject to any rules that may be made in this regard' such procedure as they may think fit. Section 38 of the Act gives the power to the `appropriate government' to make rules for the purpose of giving effect to the provisions of the Act. Under Section 38 of the Act the Central Government and many State Governments have framed rules. The case in hand coming from Maharashtra is governed by the provisions of the Industrial Disputes (Bombay) Rules (hereinafter referred to as the Bombay Rules). Rule 26 of the Bombay Rules lays down the circumstances in which an industrial court may proceed ex parte as also the conditions on which it may set aside an ex parte award. It reads as follows:

"26. Board Court, Labour Court, Tribunal or Arbitrator may proceed ex-parte –

(1) If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an Arbitrator fails to attend or to be represented the Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex-parte

(2) Where any award, order or decisions made ex-parte under sub-rule(1), the aggrieved party, may within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or an Arbitrator, as the case may be, to set aside such award, order or decision. If the Board, Court, Labour Court, Tribunal or Arbitrator is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decisions so made and shall appoint a date for proceeding with the matter: Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party]. (n)

[It may be stated here that originally rule 26 was limited to what now comprises sub-rule 1; sub-rule 2 was adde