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2002 Supreme(Bom) 435
IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
South Seas Distilleries Breweries Pvt. Ltd. .... Petitioner.
Versus
Deepak R. Patne another.... Respondents.
Writ Petition No. 2636 of 2002, decided on 2-5-2002.
Advocates appeared :
G.M. Joshi, for petitioners.
Headnote:Industrial Disputes (Bombay) Rules, 1957 - Rule 26 and 31A - Setting-aside of ex-parte award - Application for - To be made within 30 days - No waiting for publication of award - Application made beyond time - Labour Court have no jurisdiction to entertain application - Labour Court functus officio - Have no jurisdiction to set-aside ex parte award. - A conjoint reading of Rules 26 and 31-A would, therefore, show that the time to set-aside the award unlike the Central Rules is within 30 days of the receipt of a copy of the award by the party. Though the award becomes final on publication and expiry of thirty days, the right to apply for setting-aside the award may be in excess of 30 days if the rule as it exists is construed. Rule 26(2) as it stands requires the making of an application within thirty days of the receipt of the copy of the award. There is nothing like waiting for publication of the award. The Central Rules as interpreted in Grindlays Bank (supra), a view has been taken that an application can be made any time before the expiry of thirty days from publication of the award. Once the Court comes to the conclusion that the application was not made within the time contemplated by Rule 26 the Labour Court would have no jurisdiction to entertain the application beyond the period of 30 days from the communication of the order and consequently the Labour Court, would be functus officio and would have no jurisdiction to set-aside the ex parte award. The challenge on that count must be rejected
2. The petitioners by the present petition impugn the order dated 14th January, 2000 in Miscellaneous Application No. (IDA)/37 of 1999. That was an application to set aside the ex parte Award dated 3rd May, 1999 passed in Reference IDA No. 172 of 1998. The petitioners also by the present petition impugn the ex parte Award dated 3rd May, 1999.
3. A few facts are set out which will be relevant for the purpose of effectively deciding the issues that have been raised in the present petition. The case of the petitioners is that they were granted licence to sell country liquor through its retail outlet "Waspan Wines" situated at Kashimira Road, District Thane. The respondent No. 1 was employed there. On 12th February, 1997 the respondent No. 1 vanished from his duties. It is the case of the petitioners that this was on account of improper dealings and fraud committed by the respondent No. 1. It is their further case that the respondent No. 1 apprehended that the petitioners would proceed to conduct an enquiry by issuing charge-sheet, etc. behind the back of the petitioners and as such started activating the office of the Labour Commissioner. The respondent No. 1 did so by letter dated 11th May, 1997. Records indicate that on failure report being submitted by the Labour Commissioner reference was made by the appropriate Government to the III Labour Court, Thane, for adjudication on 28th August, 1997. The petitioners did not file any appearance and consequently an ex parte Award came to be passed after recording the evidence of respondent No. 1. By the said ex parte Award the petitioners were directed to reinstate the respondent No. 1 with effect from 12th February, 1997. It is the case of the petitioners that for the first time they came to know that the Labour Court had passed an Award on 31st August, 1999 through the sister concern of the petitioners. It is contended that all the notices had been issued and addressed to M/s. Waspan Wines by respondent No. 2. On 8th October, 1999 the petitioners applied for a certified copy of the Award. On 20th November, 1999 they applied before the IIIrd Labour Court for setting aside the ex parte Award.
4. The Labour Court dismissed the application for setting aside the ex parte Award on two counts namely (1) that no sufficient cause had been shown to condone the delay in filing the application; (2) that inspite of knowledge of the proceedings the applicant did not care to appear before the Labour Court in Reference IDA No. 178 of 1998 and hence the ex parte Award could not be set aside. The Labour Court formulated the following points for consideration which are as under:-
1. Whether this Court has become functus officio and cannot take into consideration this application for setting aside the Award?
2. Whether this application is barred by limitation?
3. Whether the applicants were not served with the notice of the earlier Reference (IDA) No. 172/98?
4. Whether the Reference (IDA) No. 172/98 can be set aside and same can be restored for fresh hearing?
The findings recorded in respect of each of the issue are as under:-
1. Yes
2. Yes
3. No.
4. No.
It may be mentioned that a reading of the order will show that contrary to the finding on Point No. 1 the Labour Court has held that it was not functus officio and could entertain the application.
5. Considering what is set out earlier the questions that will have to be determined in this petition would be (1) what is the stage upto which a Tribunal of a Labour Court functioning and governed by the provisions of the Industrial Disputes (Bombay) Rules, 1957, can entertain an application for setting aside an ex parte Award and (2) whether on facts the application moved was beyond the period for setting aside the ex parte Award and (3) whether considering the findings of fact given by the Labour Court, ought this Court to interfere with the order refusing to set aside the ex parte
