IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : January 29, 2025 Excel Abrasives (P) Ltd. .. Petitioner Versus Presiding Officer Industrial Tribunal-cum- Labour Court-II, Faridabad and another .. Respondents CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI Present: Mr. D.K. Singal, Advocate, for the petitioner.

None for the respondents.

HARSIMRAN SINGH SETHI J. (ORAL)

1. In the present writ petition, the grievance being raised by the petitioner is that the petitioner filed an application for setting aside an ex parte Award dated 01.09.2017 so as to give an opportunity to the petitioner to rebut the prayer of the workman but the said application has been dismissed by the Labour Court vide order dated 21.05.2018 (Annexure P-6) on the ground that after a period of 30 days from the publication of the Award, the Labour Court become functus officio and no application for setting aside the ex parte Award can be entertained. The said order passed by the Labour Court dated 21.05.2018 (Annexure P-6) is under challenge in the present petition.

2. Notice of motion was issued but despite service, no one has appeared on behalf of the respondent No.2.

3. Learned counsel for the petitioner submits that as the impugned order dated 21.05.2018 (Annexure P-6) was stayed, the Award dated

01.09.2017 in favour of respondent No.2 has not been executed so far.

4. I have heard learned counsel for the petitioner and have gone through the record with his able assistance.

5. The only argument which has been raised by the learned counsel for the petitioner is that the reason given for rejecting the application for setting aside the ex parte Award by the Labour Court, Faridabad vide order dated 21.05.2018 (Annexure P-6) is that no application for setting aside an ex parte Award can be entertained beyond 30 days from the date of publication of the Award and in the present case, the Award was published on 01.09.2017 and the application for setting aside the ex parte Award was only filed on 11.12.2017, which is after a period of 30 days.

6. The said reason given is to be adjudicated keeping in view the settled principle of law settled by the Hon’ble Supreme Court of India in M/s Haryana Suraj Malting Ltd. vs. Phool Chand, 2018 (3) SCT 97 wherein, it has been held that qua ex parte Award, an application can also be entertained by the Labour Court even after 30 days and it cannot be said that the Labour Court becomes functus officio. The relevant paragraph of the said judgment is as under:-

“35. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.”

7. Keeping in view the said proposition of law, the order passed by the Labour Court dated 21.05.2018 (Annexure P-6) is set aside and the case is remanded