The main legal point established in the judgment is that the Tribunal does not become functus officio until the award becomes enforceable, and the burden to rebut the presumption of service lies on the party challenging the factum of service.

Heard Sri Prashant Mathur, learned Standing Counsel appearing for the petitioners and Sri S. K. Srivastava, learned Counsel appearing for respondent No. 1.

2. In all these writ petitions, the petitioners have challenged the order dated 17th February, 2003 passed by the Labour Court rejecting the application filed by the petitioners for recall of the ex-parte award of the Labour Court dated 1st February, 1999.

3. Affidavits have been exchanged between the parties and with the consent of the parties, all the writ petitions are being finally decided.

4. Facts and submissions in all the writ petitions are almost same and reference of the facts of Writ Petition No. 970 of 2004, which is treated as leading writ petition, are sufficient to decide all the writ petitions.

5. Brief facts of the case are: workman, respondent No. 1, initiated conciliation proceedings claiming that he was appointed as Beldar on 1st July, 1987 whose services have wrongly been terminated with effect from 1st December, 1990. The Deputy Labour Commissioner issued notice to the Assistant Engineer, Executive Engineer and Superintending Engineer asking them to appear in the proceeding. A reply was filed by Works Superintendent, P. W. D. , Farenda, Maharajganj denying the claim of respondent No. 1. In the reply it was stated that respondent No. 1 was never appointed as Beldar and there is no relationship of master and servant. The State Government vide its order dated 25th June, 1993 made a reference to the Labour Court, Gorakhpur referring the dispute as to whether the action of the employer in separating the workman from work with effect from 1st December, 1990 is valid or not and if not to what relief the workman is entitled. Adjudication Case No. 169 of 2003 was registered before the Labour Court, Gorakhpur. On 26th November, 1997; the Labour Court in its order-sheet noted that registered letter sent to opposite party No. 1 has returned back. Registered Letter No. 183 sent to opposite party No. 2 has not come back, hence service is sufficient. Notice have been served on opposite party No. 3 through peon. The order-sheet further noted that opposite party No. 3 be sent a copy of notice and be asked to get the notice served on opposite party No. 1. Again on 31st March, 1998 order was passed that notice be sent as per earlier order dated 26th November, 1997. On 10th July, 1998 itself the award was reserved and award was given on 30th July, 1998. The award in Adjudication Case Nos. 164/1993, 166/1993 and 169/1993 was published on 1st February, 1999, with regard to Adjudication Case Nos. 168/1993 and 167/1993 ex-parte award was published on 19th February, 2001 and in Adjudication Case No. 165/1993 award was published on 21st April, 2001 on the notice board. An application dated 3rd April, 1999 was filed by the petitioners for recall of ex-parte awards with the allegation that notice was sent on wrong address, hence the petitioners could not know the proceeding. It was further stated that report of the peon is incorrect and on the basis of incorrect report, the ex- parte award has been passed. The application of the petitioners was contested by the workman. After hearing both the parties, the Presiding Officer, Labour Court vide its order dated 17th February, 2003 rejected the application dated 3rd April, 1999. All these writ petitions have been filed challenging common order dated 17th February, 2003 and ex-parte award dated 30th July, 1998.

6. The counsel for the petitioners, challenging the award and the order dated 17th February, 2003, has made following submissions:

(i) Labour Court committed error in rejecting the application dated 3rd April, 1999. Sufficient cause, was shown on behalf of the petitioners for recall of the ex-parte award. Summons sent in the case were never received by the petitioners, hence they could not appear in the proceeding. The address on which notice was sent was wrong address on which service of notice was not possible.