(1) THIS is an application for setting aside the orders dated March 11, 2007, April 13, 2007 and August 1, 2007, passed by the Tribunal.

(2) THE case of the petitioner is that an application was filed under section 33 (2) (b) of the Industrial Disputes Act, 1947. An Advocate was engaged for pursuing the said matter. Direction was also given for filing written statement by the workman. Such written statement, though filed, was not served on the petitioner-company and for nonappearance of the petitioner-company and/or its Advocate engaged, the matter, by order dated March 11, 2007, was fixed for ex parte hearing. On April 13, 2007, as none appeared on behalf of the company, the application was dismissed for non-prosecution. On April 25, 2007, at a meeting with the union, the petitioner came to know of the order of dismissal dated April 13, 2007. Thereafter, enquiry was made from its Advocate and the petitioner was informed that no step had been taken by its Advocate to appear before the Tribunal because of ill health and, therefore, the matter was fixed for ex parte hearing and dismissed on April 13, 2007: An application was thereafter filed for recalling the order dated April 13, 2007 and by order dated August 1, 2007, the same was dismissed. Hence the instant application has been filed.

(3) THE petitioner seeks setting aside of the orders dated March 11, 2007, April 13, 2007 and August 1, 2007 on the grounds that the petitioner ought not to be penalised for laches of its Advocate. The petitioner had taken all steps to be represented and was of the belief that the matter would be attended to by its Advocate. For omission of the Advocate, the petitioner ought not to be penalised and for the said proposition reliance is placed on decisions reported in AIR 1981 SC 1400,1981 (4) SCC 574, (1984) Supp. SCC 431 and 2002 CWN 596.

(4) RULE 20b (5) of the West Bengal Industrial Disputes Rules, 1985 postulates service of a copy of the written statement on the party or its authorised representative by handing over the same. Intimation in this regard is to be given by the Tribunal to the party or its representative. In the instant case, this has not been done and, therefore, there has been violation of the principles of natural justice and Rule 20b (5) which is mandatory as has been held in 1991 (1) LLJ 85. Award passed without notice will render the award a nullity, as has been held in 1981 (1) LLJ 327.

(5) THEREFORE, for all the aforesaid reasons, the award dated April 13, 2007 and the order dated August 1, 2007 are liable to be set aside.

(6) COUNSEL for the workman submits that the company cannot be allowed to take advantage of its own wrong as the application filed was by the company under Section 33 (2) (b) of the 1947 Act. Several dates were fixed but none appeared on each occasion for the company. An application was made by the workman for rejection of the companys application and the said application was also rejected. By fixing the matter for ex parte hearing, an opportunity was given to the company to once again appear. Failure of the company to appear at the hearing left the Tribunal with no option but to reject the application for non-prosecution. For delay on the part of the company, it is the workman who has suffered and tribunals are set up to effect speedy remedy. Therefore, non-appearance of the company throughout prompted the tribunal to dismiss its application and in doing so the tribunal was justified. The application for recalling of the ex parte award was without any merit and was also rightly dismissed. Therefore, no order be passed on this application.

(7) HAVING considered the submissions of the parties and in view of the decisions cited by the petitioner a litigant cannot be penalised for laches or omission on the part of its Advocate. The Tribunal, in not complying with Rule 20b (5) of the 1958 rules by not giving notice of intimation of the filing of the written statement to the company has also n