Point of Law : When an application is submitted by the employer for setting aside ex-parte award, the Tribunal has to balance equities.

JUDGMENT :

1. All these petitions are arising out of the impugned award dated 31.7.2008 and impugned order dated 12.3.2010 passed by Industrial Tribunal, Jaipur (hereinafter referred as “the Tribunal”) by which the Tribunal has held that the Workmen of the Rajasthan Handpump Workers Union (AITUC) [hereinafter referred as “the Union”] are entitled to get pay scale of Rs. 2950-4475 w.e.f. 1.4.1992.

2. It is worthy to note here that in spite of service of notices and in spite of engaging lawyer and seeking several opportunities, the petitioner/State failed to submit its reply, evidence and finally it failed to appear before the Tribunal, who ultimately passed an ex-parte award dated 31.7.2008. Thereafter the petitioner/State submitted an application for setting aside the ex-parte award on 3.2.2009 and the said application was rejected on 12.3.2010.

3. Feeling aggrieved by both, judgments dated 31.7.2008 and 12.3.2010, the State has submitted petition (CW 13061/2010) for quashing these judgments and the Union and the Workmen have submitted two separate petitions (CW 7736/2017, CW 7146/2014 respectively) for implementation of the award dated 31.7.2008.

4. The facts stated, briefly are that the respondent Union filed a Reference (I.T.R.28/2002) before the Tribunal. Notices were issued and served upon the petitioner/State as per the Tribunal’s order-sheet dated 21.7.2005 but no one appeared on behalf of the petitioner/State, hence ex-parte proceedings were initiated against them. Thereafter State’s counsel Shri Swami put in appearance on 29.5.2006 and sought time to file power and reply and the same was granted to him by the Tribunal on 14.7.2006, 23.8.2006 and 6.10.2006 but neither any power nor reply was submitted and finally the opportunity of filing reply of the State was closed and after recording the evidence of the witness Mr. M.L. Yadav, ex-parte arguments were heard and award was passed on 31.7.2008 and the same was sent to the State Government for its publication. After six months, the petitioner/State submitted an application for setting aside the ex-parte award, which came to be rejected on 12.3.2010.

5. The Tribunal rejected the application filed by the State for setting aside the ex-parte award by holding that the counsel for the State appeared on 29.5.2006 and thereafter on five to six occasions he sought opportunities till 20.1.2007 for filing reply but the same was not submitted, hence the opportunity of the State for filing reply was closed and the matter proceeded ex-parte. It was also observed by the Tribunal that no step was taken by the Officer of the State to get the status of the pending matter before the Tribunal and they did not bother to take corrective measures.

6. Feeling aggrieved by the impugned ex-parte award dated 31.7.2008 and the impugned order dated 12.3.3010, the State has approached this court for setting aside these judgments, while on the contrary the Union and the Workmen have approached this court for implementation of the award dated 31.7.2008.

7. Counsel for the State assailed the impugned award and order by submitting that the State was prevented by sufficient cause from appearing before the Tribunal, hence the application for setting aside the ex-parte award ought to have been allowed. Reliance was placed upon the decision of the Hon’ble Apex Court in the case of M/s. Haryana Suraj Malting Ltd. v. Phool Chand (2018) 16 SCC 567, for the proposition that if a party is in a position to show sufficient cause for its absence before the Tribunal, whether the Tribunal in exercise of its ancillary or incidental powers, is competent to entertain the application for setting aside such ex-parte award. The power cannot be circumscribed by limitations.

8. Per contra, the President of the Union Mr. M.L. Yadav and Workmen Mr. Ramesh Chand Sharma and Mr. Bahadur Singh opposed the arguments raised by the counsel for the State and submitted that for almost three years the employer/State did not attend the proceedi