Back
1997 Supreme(Cal) 466
High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE, SUJIT BARMAN ROY
RANIGUNJ CHEMICAL WORKS MAZDOOR SANGH - Appellant
Versus
RANIGANJ CHEMICAL WORKS - Respondent
W. P 301 Of 1997
Decided On : 12/16/1997
ARUNAVA GHOSH, DINESH ROY, Partha Bhanja Chowdhury, PARTHA SARATHI SENGUPTA, SOUMYA MAJUMDAR
The Tribunal does not have the jurisdiction to set aside an ex parte award after it becomes enforceable under Section 17-A of the Industrial Disputes Act. Rule 27(III) and Proviso II of the West Bengal Industrial Disputes Rules, 1958, confer power on the Tribunal to set aside an ex parte award within 15 days from the date of the award.
Headnote:
INDUSTRIAL DISPUTES - AWARD - EX PARTE AWARD - SETTING ASIDE - JURISDICTION OF TRIBUNAL - INDUSTRIAL DISPUTES ACT, 1947, SECTIONS 17-A, 20(3) - WEST BENGAL INDUSTRIAL DISPUTES RULES, 1958, RULE 27(III), PROVISO II - FACT THAT NO DISPUTE AWARD IS NO AWARD - TRIBUNAL HAS NO POWER TO SET ASIDE EX PARTE AWARD AFTER IT BECOMES ENFORCEABLE UNDER SECTION 17-A OF THE ACT - RULE 27(III) AND PROVISO II CONFERS POWER ON TRIBUNAL TO SET ASIDE EX PARTE AWARD WITHIN 15 DAYS FROM THE DATE OF AWARD - TRIBUNAL BECOMES FUNCTUS OFFICIO AFTER THE EXPIRY OF 15 DAYS.
Fact of the Case:
The appellant, a company, dismissed one of its employees, Ram Subhag Rai. The State Government referred the matter to the 4th Industrial Tribunal for adjudication. The Tribunal issued notices to both parties, but neither appeared. The Tribunal passed a 'no dispute' award on the ground that the industrial dispute no longer existed. The appellant filed an application to set aside the award, which was allowed by the Tribunal. The respondent company challenged the Tribunal's order in the High Court, which set it aside.
Finding of the Court:
The High Court held that the Tribunal had become functus officio after the expiry of 30 days from the date of the award, as per Section 17-A of the Industrial Disputes Act. The Court also relied on the provisions of Rule 27(III) and Proviso II of the West Bengal Industrial Disputes Rules, 1958, which provide that an application for setting aside an ex parte award must be filed within 15 days from the date of the award.
Issues: 1. Whether the Tribunal had the jurisdiction to set aside the ex parte award after it became enforceable under Section 17-A of the Industrial Disputes Act? 2. Whether Rule 27(III) and Proviso II of the West Bengal Industrial Disputes Rules, 1958, confer power on the Tribunal to set aside an ex parte award within 15 days from the date of the award?
Ratio Decidendi: 1. The Court held that the Tribunal did not have the jurisdiction to set aside the ex parte award after it became enforceable under Section 17-A of the Industrial Disputes Act. The Court relied on the Supreme Court's decision in Grindlays Bank v. Central Government Industrial Tribunal, which held that the Tribunal's power to set aside an ex parte award could not be exercised after it became enforceable under Section 17-A of the Act. 2. The Court held that Rule 27(III) and Proviso II of the West Bengal Industrial Disputes Rules, 1958, confer power on the Tribunal to set aside an ex parte award within 15 days from the date of the award. The Court noted that these provisions were introduced by the same notification on the same day, and that the intention of the Rule making authority was clear that the power under Section 27(III) could be exercised within the aforesaid period.
Final Decision: The Court dismissed the appeal, upholding the decision of the High Court. However, the Court clarified that its order was without prejudice to the rights and contentions of the State Government to refer the dispute again if it considered it fit and proper in the facts and circumstances of the case.
( 1 ) THIS is an appeal against the order dated September 2,1997 passed by the learned trial Judge allowing the writ application holding, inter alia, that the Tribunal had become functus officio after the commencement of the Award under Section 17-A of the Industrial Disputes Act.
( 2 ) THE tact of this case is that one Ram Sub-hag Rai was dismissed from service of the appellant and thereafter after conciliation proceedings the State Government has referred the matter to the 4th Industrial Tribunal for adjudication under order of reference dated December 30,1993 on the following issues:" (A) Is the dismissal of Sri Ram Subhag Rai justified? (B) What relief, if any, is he entitled to?"
( 3 ) THEREAFTER, it appears that the Tribunal has issued notice to both the parties and waited for a long time and ultimately the Tribunal passed a 'no Dispute' Award on June 29, 1994 and in that Award the Tribunal has stated that in view of the fact that none of the parties appeared and contested the matter, industrial dispute no longer exists. On coming to know of the said ex pane award the appellants/petitioners filed an application before the Tribunal and by the order: dated December 20,1996 the Tribunal has set aside the 'no Dispute' Award passed by the Tribunal on June 29,1994 and restored the case to its original file and number accepting the contention of the Union and the workman that the notices were not properly served and they did not receive the notice issued by the Tribunal.
( 4 ) BEING aggrieved by and dissatisfied with the order dated December 20, 1996 the respondent company filed writ application before the learned single Judge and the said writ application was disposed of by the learned trial Judge by an order dated September 2,1997. In the said order the learned Judge held that the Tribunal had become fitnctus officio as the said application for setting aside the said award was filed after a lapse of 30 days from the date of the Award and accordingly the Tribunal had become fane-tus officio in view of the provisions of Section 17-A of the Industrial Disputes Act and in view of the several decisions referred to by the learned trial Judge.
( 5 ) THE appellant being aggrieved by the order of the learned Judge dated September 2, 1997 has preferred appeal before this Court. In this appeal it is contended by the learned counsel appearing on behalf of the appellants/petitioners that under the provision of the Industrial Disputes Act there is no provision for 'no Dispute' Award, as the 'award' means some determination final or interim of any Industrial Dispute and in the absence of any determination made by the Tribunal the order passed by the learned Tribunal cannot be said to be an 'award' and if there was no award in that event the Tribunal retains inherent jurisdiction to set aside any order passed by the Tribunal and in this connection referred to the decision of the Hon'ble Supreme Court reported in (1981-1-LLi-327) (Grindlays Bank v. Central Government Industrial Tribunal) wherein the Supreme Court has held that where a party is prevented from appearing at the hearing due to sufficient cause, and is faced with an ex pane award,-it is as if the party is visited with an award without a notice of the proceedings. An Award without notice to a party is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex pane award and to direct the matter to be heard afresh. In this case the Supreme Court also held that the contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex pane 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 aw
