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2018 Supreme(Online)(SC) 3086
SUPREME COURT OF INDIA
ASHOK BHUSHAN, J
SRI MAHABIR PROSAD CHOUDHARY – Appellant
Versus
M/S. OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR. – Respondent
CIVIL APPEAL NO. 8320 OF 2011
Important Points
Subject
Employment Law - Industrial Disputes
Act Referred
West Bengal Industrial Disputes Rules, 1958: S.Rule 20B, S.Rule 21
Headnote
(B) Industrial Tribunal - Authority to proceed ex-parte - Conditions under which such authority can be exercised - Violation of principles of natural justice precludes Tribunal from proceeding ex-parte - Appellant's contention rejected. (Paras 11, 12)
Facts of the case:
The appellant, an accountant, was not permitted to work after a management change in 2004. An industrial dispute ensued, culminating in an ex-parte award in favor of the appellant citing unjustified employment refusal. Company’s subsequent application to recall the award was rejected based on delayed filing.
Findings of Court:
High Court recognized violations of mandatory service rules of the Tribunal that nullified the ex-parte award, necessitating a fresh hearing.
Issues: Core issues include the legitimacy of the ex-parte award, and procedural compliance in the Tribunal's proceedings.
Ratio Decidendi: Tribunal’s failure to serve notice on the company was a substantive breach of natural justice, thereby invalidating the ex-parte decision and necessitating reassessment of the case.
Result: Appeal dismissed.
For the Appellants/Petitioners: Manoj Swarup
| Table of Content |
|---|
| 1. the appellant's employment was wrongfully terminated following management changes. (Para 2) |
| 2. appeal centered on the unfair dismissal of an application to recall an ex-parte award. (Para 3 , 5) |
| 3. court affirmed violation of natural justice due to the lack of proper notice to the company prior to the ex-parte award. (Para 4 , 12) |
| 4. the tribunal must ensure procedural compliance before proceeding ex-parte. (Para 11 , 14) |
| 5. the high court dismissed the appeal affirming the procedural failures that invalidated the ex-parte decision. (Para 16) |
JUDGMENT
ASHO K BHUSHAN,J.
This appeal has been filed against the Division Bench judgment dated 23.12.2009 of Calcutta High Court in F.M.A. No. 1187 of 2009 by which the appeal filed by appellant has been dismissed.
2. The issue involved in this appeal lies in a very narrow compass. The necessary facts of the case to be noticed for deciding the issue are:-
2.1 The appellant was working as Accountant in the Date: 2019.02.28 12:50:06 IST Reason:
respondent company since 1986. There had been change of management in the year 2004 in the company. The appellant was not allowed to work w.e.f. 02.05.2005. The State of West Bengal referred the industrial dispute between the company and the appellant to the Fifth Industrial Tribunal. The Tribunal framed the issue as to whether refusal of employment to Shri Mahabir Prosad Choudhary by the management w.e.f. 02.05.2005 is justified?
2.2 After receiving the reference, the Industrial Tribunal on 27.08.2007 issued summons upon the parties concerned directing them to appear on 19.09.2007. The workman appeared on 19.09.2007 but no one appeared from the company, since the summons were received back with the remarks “left”. 11.10.2007 was again fixed by the Tribunal. On 11.10.2007, Tribunal noted that summons sent through Process Server has been served upon the company. The advocate for the workman appeared and filed W/S. The W/S was filed without serving the copy of W/S to the company. On 05.11.2007, none of the parties had appeared and 27.11.2007 was fixed for W/S by the company. On 29.11.2007, no one appeared on behalf of the company, the Tribunal fixed for ex-parte hearing. 26.12.2007 was fixed for documents of the workman. On 26.12.2007, documents were filed, which were kept on record and 29.01.2008 was fixed for ex-parte hearing. The Tribunal again on the request of the workman deferred the case, which was fixed for ex-parte hearing for 26.02.2008. On 26.02.2008, none appeared for the company, workman was heard and the award was pronounced. The Hon’ble Tribunal disposed of the award ex-parte by allowing the claim of reinstatement with full back wages. The award was also published on 27.03.2008.
2.3 The company filed an application on 02.05.2008 to recall the ex-parte award. The company stated in its application that as per the agreement dated 10.06.2004 with its erstwhile management, the new management has no responsibility in respect of senior executives and managerial staff of the old management including the appellant. The company states that ex-parte award was received on 22.04.2008 and thereafter an application has been filed for recall of the ex-parte award dated 26.02.2008. The Tribunal heard the parties on the application filed by the company. The tribunal although returned the finding that the award was passed in violation of principles of natural justice and no notice under Rule 20B(5) and Rule 21 of the West Bengal Industrial Disputes Rules, 1958 (hereinafter referred to as “1958 Rules”) were served on the company. The Tribunal, however, took the view that application being filed by the company after 30 days of publication of the award, the Tribunal has become functus officio, hence the application is rejected.
2.4 After rejection of application, the company filed a writ petition in the Calcutta High Court. Learned Single Judge vide its judgment and order dated 11.02.2009 allowed the writ petition setting aside the award and the orde
