South Seas Distilleries And ... vs Shri Deepak R. Patne And Anr.
2002 Latest Caselaw 478 Bom

JUDGMENT

F.I. Rebello, J.

1. Rule. Considering the issue involved, heard forthwith,

2. The petitioners by the present Petition impugn the order dated 14th January, 2000 in Miscellaneous Application No. (IDA)/37 of 1999. That was an application to set aside the ex parte award dated 3rd May, 1999 passed in Reference IDA No. 172 of 1998. The petitioners also by the present Petition impugn the ex parte award dated 3rd May, 1999.

3. A few facts are set out which will be relevant for the purpose of effectively deciding the issues that have been raised in the present petition. The case of the petitioners is that they were granted license to sell country liquor through its retail outlet "Waspan Wines" situated at Kashimira Road, District Thane. The respondent No. 1 was employed there. On 12th February, 1997 the respondent No. 1 vanished from his duties. It is the case of the petitioners that this was on account of improper dealings and fraud committed by the respondent No. 1. It is their further case that the respondent No. 1 apprehended that the petitioners would proceed to conduct an enquiry by issuing charge-sheet etc. behind the back of the petitioners and as such started activating the office of the Labour Commissioner. The respondent No. 1 did so by letter dated 11th May, 1997. Records indicate that on failure report being submitted by the Labour Commissioner, reference was made by the Appropriate Government to the III Labour Court, Thane, for adjudication on 28th August, 1997, The petitioners did not file any appearance and consequently an ex parte award came to be passed after recording the evidence of respondent No. 1. By the said ex parte award the petitioners were directed to reinstate the respondent No. 1 with effect from 12th February, 1997. It is the case of the petitioners that for the first time they came to know that the Labour Court had passed an award on 31st August, 1999 through the sister concern of the petitioners. It is contended that all the notices had been issued and addressed to M/s. Waspan Wines by respondent No. 2. On 8th October, 1999 the petitioners applied for a certified copy of the award. On 20th November, 1999 they applied before the IIIrd Labour Court for setting aside the ex parte award. 4. The Labour Court dismissed the application for setting aside the ex parte award on two counts namely : (1) that no sufficient cause had been shown to condone the delay in filing the application: (2) that inspite of knowledge of the proceedings the applicant did not care to appear before the Labour Court in Reference IDA No. 178 of 1998 and hence the ex parte award could not be set aside. The Labour Court formulated the following points for consideration which are as under :-

1. Whether this Court has become functus officio and cannot take into consideration this application for setting aside the Award?

2. Whether this application is barred by limitation?

3. Whether the applicants were not served with the notice of the earlier Reference (IDA) No. 172/98?

4. Whether the Reference (IDA) No. 172/98 can be set aside and same can be restored for fresh hearing?

The findings recorded in respect of each of the issue are as under :-

1. Yes.

2. Yes.

3. No.

4. No.

It may be mentioned that a reading of the order will show that contrary to the finding on Point No. 1, the Labour Court has held that it was not functus officio and could entertain the application.

5. Considering what is set out earlier the questions that will have to be determined in this Petition would be (1) what is the stage upto which a Tribunal or a Labour Court functioning and governed by the provisions of the Industrial Disputes (Bombay) Rules, 1957, can entertain an application for setting aside an ex parte award and (2) whether on facts the application moved was beyond the period for setting aside the ex parte award and (3) whether considering the findings of fact given by the Labour Court ought this Court to interfere with the order refusing to set aside the ex parte award as also the ex parte award in exercise of its extra ordinary jurisdiction under Article 227 of the Constitution of India.

6. While answering Point No. 1 as set out earlier the Labour Court has come to the conclusion that if was not functus officio by placing reliance on the judgment in the case of Anil Sood v. Presiding Officer, Labour Court II 2001 (2) L.L.N. 611 : (2001) 1 L.L.J. 1113 : 2001 (89) F.L.R. 229 : (2001) 2 C.L.R. 18 : 2001 L.L.R. 257, which according to the Labour Court has considered the earlier judgment of the Apex Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. . In so far as the point of limitation is concerned, the Labour Court held that the Government had published the award on 10th June, 1999. The Labour Court also relied on the letter forwarding the copy of the award which showed that the award and the notice had been sent both to M/s. Waspan Wines as also the petitioners herein. The copy of the letter also had been forwarded to the Court. In fact it is pointed out that the Labour Court received the letter dated 3rd June, 1999 vide Inward No. 2966 dated 7th June, 1999. The Court held that Waspan Wines is the shop of the applicant. Considering the material on record the notification must have been received on 1.0th June, 1999. The application for setting aside the Award ought to have been filed on or before 10th July, 1999. The application however was filed only on 20th November, 1999 i.e. on 163rd day from the date of knowledge. The application as filed was, therefore, late by 133 days. The petitioners have been unable to show any reason as to why they could not file the application within limitation and for other reasons therefore, held that the application is barred by limitation. In other words what the learned Labour Court has set out is that even after publication of the Award it had jurisdiction to set aside the ex parte award, if an application was made within 30 days of receipt of the notification along with the award, in terms of Rule 26(2) of the Industrial Disputes Act (Bombay) Rules, 1957. That dated would be 10th July, 1999. However, the application was moved only on 20th November, 1999. The Labour Court then considered the issue of knowledge. On the evidence on record it came to the conclusion based on the evidence of the witness for the petitioner that they came to know of the award only on 31st August, 1999. No application was made within thirty days. The learned Labour Court also considered the issue of certified copy and found that the copy was applied for on 5th October, 1999 i.e. on 35th day after the petitioner had knowledge of the award on 31st August, 1999. It was received on 8th October, 1999 and the restoration application was filed on 20th November, 1999 i.e. after thirty days of receipt. The Labour Court held that the delay has not been explained and accordingly dismissed the application.

The Labour Court also considered the plea of the petitioners that they had not at all received the notice of the proceedings. The Labour Court observed that the record shows that his learned predecessor was pleased to pass an order dated 30th March, 1999 based on the postal envelope Exh. 3 which disclosed that the 1st party before it. had refused to accept the notice and as such passed order to proceed ex parte in the matter. On a perusal of the envelope, the Labour Court found that there is an endorsement of refusal by the Postal Authority, dated 25th November, 1998. The envelope does show that the petitioners refused to accept service. The address on the envelope was correct and confirms with the address of Waspan Wines given in the restoration application. The Labour Court held that his predecessor was, therefore, right in proceeding ex parte with the proceedings. The Labour Court also noted that the petitioner was not disputing the address of Waspan Wines and on the contrary the address given by the petitioners in the application in respect of Waspan Wines is one and the same and is correct. The Labour Court also noted that the legal representative of the workman had sent a letter dated 13th March, 1999 to M/s. Waspan Wines in which letter the next date of hearing i.e. 30th March, 1999 was set out. This letter which was sent under Registered A.D., was also refused. The Labour Court also noted that the petitioners or for that matter M/s. Waspan Wines had not appeared before the Government Labour Officer during the proceeding in conciliation although several letters were sent. For all those reasons dismissed the application for restoration.

7. At the outset it may be noted that the reference was between M/s. Waspan Wines, 36, Mira Queens Building, Shop No. 14, 15 and 16. Western Express High Way, Kashimira, Thane and the respondent No. 1. The petitioner atleast is not a party to the reference. The Award has been passed against M/s. Waspan Wines. The application for setting aside the award was not moved by M/s. Waspan Wines, but by M/s. South Seas Distilleries, a Company. In other words the application for setting aside the ex parte award was not moved by the employer M/s. Waspan Wines. The Petition before this Court also is not by M/s. Waspan Wines, but by M/s. Sough Seas Distilleries & Breweries Pvt. Ltd., Thane. Petitioners however in the application for setting aside the ex parte award have described themselves as the employer. Even in the Writ Petition in paragraph 2 they have described "Waspan Wines" as a retail outlet of the petitioners. As this aspect was not argued before the Labour Court it need not be dealt with,

8. We may now consider the Rules. In so far as the Industrial Dispute (Central) Rules, 1957 is concerned on a conjoint reading of Rule 22 and Rule 24 the Apex Court in Grindlays Bank Ltd. (supra) took the view that if the Tribunal proceeds ex parte the provisions of Order 9, Rule 13 of the Code are clearly attracted. The Apex Court has further held that the power to set aside the ex parte award can be restored to by the Tribunal/Labour Court before the expiry of 30 days from the date of its publication under Section 17-A. Once the award is published and the period of 30 days has expired the Industrial Tribunal or Labour Court would have no jurisdiction to set aside the ex parte award. This was on the construction of the I. D. Act read with the Central Rules.

The relevant provisions of the Industrial Disputes (Bombay) Rules, 1957 may now be referred to. The relevant Rules are Rule 26, which is reproduced herein below :-

26. Board, Court Labour Court. Tribunal or Tribunal may. proceed ex parte -

(1) If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an Arbitrator fails to attend or be represented, a Board. Court, Labour Court, Tribunal or Arbitrator may proceed ex parte.

(2) Where any award, order or decision is made ex parte under Sub-rule (1). the aggrieved party, may, within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or an Arbitrator, as the case may be, to set aside such award, order or decision. If the Board, Court, Labour Court, Tribunal or Arbitrator is, satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter :

Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party.

Next is Rule 31 -A which reads as under :

31-A. Publication of report or award, etc-

(1) Within thirty days of the date of receipt of the report of a Board or award of a Labour Court or Tribunal by it the State Government, -

(a) shall, if it. considers that having regard to the importance of such report or award its publication in the Official Gazette is necessary cause it to be published in the Official Gazette;

(b) if it considers that the report or award is not sufficiently important it may cause a copy thereof together, with a notification under Section 17 to be forwarded to the Board or a Court or Tribunal, as the case may be, for publication on the Notice Board at its Office.

(2) Where the report or award is published in the Official Gazette or on Notice Board of the Board, Court or Tribunal, the State Government shall at the time of such publication forward a copy thereof to the parties to the dispute, and where the report or award is published on notice board of the Board. Court or Tribunal, such Board, Court or Tribunal, shall inform the State Government and the parties concerned of the date of such publication on the notice board.

It is, therefore, clear that under Rule 26, there is power to set aside an ex parte award, if application is made within 30 days from the receipt of the copy of the Award. When does the period of thirty days come to an end.

Under Rule 31-A of the State Rules the State Government within 30 days of the receipt of the Award from a Labour Court or a Tribunal has to publish it in one of the modes provided under Rule 31-A. There is a further requirement that on the Award being published in the Official Gazette or on the Notice Board of the Court or Tribunal as the case may be, the State Government at the time of publication must forward a copy thereof to the parties to the dispute. It is also required that the Court or Tribunal when the award is published. On the Notice Board, must inform the State Government and the parties concerned of the date of such publication on the Notice Board. A conjoint reading of Rules 26 and 31-A would, therefore, show that the lime to set aside the award unlike the Central Rules is within 30 days of the receipt of a copy of the award by the party. Though the award becomes final on publication and expiry of thirty days, the right to apply for setting aside the award may be in excess of 30 days if the rule as it exists is construed. Rule 26(2) as it stands requires the making of an application within thirty days of the receipt of the copy of the award. There is nothing like waiting for publication of the award. The Central Rules as interpreted in Grindlays Bank (supra), a view has been taken that an application can be made any time before the expiry of thirty days from publication of the award. There is no specific rule in the Central Rules unlike the Bombay Rules which provide the period during which the application is to be made. A collateral issue as to whether an application for setting aside the award by applying for condonation of delay in moving the application till the award has become final, by one of the modes of the publication is not being considered and is left open, considering the facts of the case. That issue could arise considering the interpretation by the Apex Court of Section 17A in Grindlays Bank (supra). The Labour Court, however, has given a finding of fact that there was sufficient cause shown for condoning the delay and in fact there was no prayer to that effect. At any rate if the award was published on 10th June, the award would become final on 9th July. The Labour Court after that date would be functus officio. A duty is cast on the State Government to send a copy of the award for publication to the Labour Court or Tribunal and at the same time to the parties. The application by the party must, therefore, be within thirty days of receipt of the award. The subsequent communication by the Labour Court or the Tribunal is only a communication that the Award has been published. The second notice does not extend the period of limitation prescribed under Rule 26(2). The period of 30 days therefore expires on the expiry of thirty days from the receipt of the copy of the Award.

In the instant case, the finding given by the Labour Court is that the award was published on 3rd June, 1999. A copy of the award as also the Notification had been sent to M/s. Waspan Wines. Address of Waspan Wines at which the letter dated 3rd June, 1999 was posted has been found to be correct. The Labour Court then considered the contention of the petitioners that the letter along with the award has not been received by holding that both the respondent and the Court had received the copies. Considering the evidence of Witness No. 2 examined on behalf of the petitioners, the Court came to the conclusion that the Head Office must have received the same on or before 10th June, 1999. In these circumstances the application ought to have been filed on or before 10th July, 1999. It was however filed on 20th November, 1999. On these facts it held that it was clear that the application was not filed within the prescribed period of time. There is, therefore, a clear finding of fact recorded that the ex parte award was communicated, and received by the party to the reference.

9. It was sought to be contended on behalf of the petitioners that the Apex Court had departed from the view taken in Grindlays Bank (supra) in Anil Sood (supra). On a perusal of the said judgment, in Anil Sood from the facts it appears that the award in that case was made on 11th September. 1995. An application for setting aside was filed on 6th November, 1995. There is nothing on record to show when the Award was published. It is to be presumed, therefore, considering the judgment in Grindlays Bank (supra) which has been followed in Anil Sood (supra), that 30 days time for moving the Tribunal for setting aside the ex parte award had not expired. There is nothing in that judgment to indicate or show that the Apex Court has departed from the view that it had earlier taken after considering the various provisions. On the contrary the judgment indicates that the ratio of Grindlays Bank has been followed. The law as declared remains the same as enunciated by the Apex Court in Grindlays Bank Ltd. (supra).

10. On the facts of the present case and looking at the Rule and the findings recorded, it is clear that the petitioner-employer did not apply for setting aside the award within thirty days of receipt. Alternatively and assuming it can be done if not for anything, when they received the certified copy of the award on 5th October, 1999 they ought to have moved the application for setting aside the ex parte award on or before 7th November, 1999 which would be thirty days if the meaning of the rule is to be expanded in order to enable the Tribunal to exercise jurisdiction. It may be remembered that the judgment in Grindlays Bank (supra) proceeded on the footing that the award does not become final under the Central Rule until it is published and 30 days thereafter. In the instant case there is a finding that the Award was published on 10th June, 1999. If that be the case, the application for setting aside the Award had to be made on or before 9th July, 1999. However, considering Rule 26 it had to be moved within 30 days of the receipt of the Award. The evidence on record and the finding recorded is that the award was published. A copy of the award was communicated to the employer at the employer's address. The fact that the petitioners applied for the certified copy would show that there was communication. The order of the Labour Court does not. suffer from any error apparent on the face of the record in so far as that finding is concerned. That contention, therefore, must be rejected.

Once the Court; comes to the conclusion that the application was not made within the time contemplated by Rule 26 the Labour Court would have no jurisdiction to entertain the application beyond the period of 30 days from the communication of the order and consequently the Labour Court, would he functus officio and would have no jurisdiction to set aside the ex parte award. The challenge on that count must be rejected.

In the instant case alternatively the Labour Court rejected the application on the ground that there was delay in moving the application and there was no prayer for condoning delay nor was there any reasonable explanation given for condoning the delay.

11. Then arises the question, whether the Court on the facts of this case should Interfere with the order of the Labour Court and set aside the ex parte award. The order to proceed ex parte was made after due notice to the employer, who was party to the reference. Evidence thereafter was recorded and award passed. The issue of sufficient cause has been considered by the Labour Court. The Labour Court has noted that notice of the proceedings was served by the Labour Court on the 1st party. The first party however, refused to accept the notice. That refusal is dated 25th November, 1998. The address where the summons was addressed is the same address as that of Waspan Wines given in the restoration application. The notice was sent by RPAD. That refusal was considered as due notice and as such the matter was directed to be proceeded ex parte on 30th March, 1999. On 13th March, 1999 the legal representative of the workman had sent letter which was posted on 15th March, 1999 to M/s. Waspan Wines. That also was refused on 18th March, 1999. That letter contained the date fixed for hearing. The address was the correct address. It has also been noted that in the conciliation proceedings though various notices had been addressed to the employer, the employer M/s. Waspan Wines did not turn up for hearing before the Government Labour Officer. The telegram sent by the representative of the respondent of the hearing on 28th November, 1997 was also received. For all those reasons which disclosed the conduct of the employer, the Court found that this was not a fit case where it should interfere with the ex parte Award. It. cannot, therefore, be said that the view taken is a perverse view or which no reasonable person reasonably instructed in law could not have taken. Looking at all aspects of the matter assuming facts could be revived it would be relevant to note that it was the case of the respondent workman that his services were illegally terminated on 2nd February, 1997. The conciliation proceedings commenced from 28th October, 1997 which the employer did not attend. The reference proceedings were also communicated. The petitioners nor M/s. Waspan Wines choose to remain present. Notice of the proceedings were communicated to the employer independently by the workman's representative. Inspite of that the employer choose not to participate in the proceedings. To my mind considering all these aspects it would not be possible on the facts and circumstances of the case to interfere with the ex parte award. Even otherwise the order does not suffer from any error apparent on the face of the record or jurisdictional error to warrant interference by this Court in its extra ordinary jurisdiction,

12. The following conclusions, therefore, emerge :-

(i) Under the Bombay Industrial Dispute Rules, the time for setting aside the award is 30 days from the date of receipt of the copy of the Award. As the Rule reads, even on the award becoming final on expiry of 30 days from the publication of award under Section 1 7A the Court or Tribunal does not become functus officio, considering the Bombay Rules, The time for setting aside the Award stands extended even after the expiry of 30 days from the date of publication.

(ii) If the Tribunal does not become functus officio even after expiry of 30 days from publication, considering Rule 26, the issue whether there can be an application for condonation of delay is not decided and is left open as it is not required to be decided on the facts of the case.

(iii) On facts no case is made out to either interfere with the order rejecting the application for setting aside the ex parte award or the ex parte award itself.

Considering the above Rule discharged. Petition dismissed. No order as to costs.

Personal Secretary of this Court to issue an ordinary copy of this order to the parties duly authenticated.

Certified copy expedited.