Chabada Petrol Pump vs Shaikh Hasan Shaikh Husain
2007 Latest Caselaw 580 Bom

JUDGMENT

Deshmukh S.B., J.

1. Rule. Rule made returnable and heard forth with by consent of the learned Counsel for the parties.

2. Heard learned Counsel Mr. R.V. Ghuge for the petitioner and learned Counsel Mr. M.N. Deshmukh for the respondent sole.

3. This Petition challenges the impugned judgement and order passed in Misc. Reference (IDA) Restoration No. 1 of 2005 dated 4-4-2007 as well as the judgement and Award, copy of which is at Exhibit 4, annexed with this Petition. At Exhibit 4 copy of the ex parte Award passed by the learned Judge, Labour Court, Aurangabad in Reference (IDA) No. 36 of 1995 is annexed.

4. Learned Counsel Mr. Ghuge for the petitioner restricts his submissions to prayer pertaining to quashing and setting aside the order passed in Misc. Reference (IDA) Restoration No. 1 of 2005. Learned Counsel for the petitioner has invited my attention to Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'Act of 1947' for short) and Rule No. 31-A of Industrial Disputes (Bombay) Rules, 1957 (hereinafter referred to as 'Bombay Rules' for short). Learned Counsel Mr. Deshmukh for the respondent relies on Sub-section (2) of Section 17 of the Act of 1947.

5. It is not in dispute between the parties that Reference (IDA) No. 36 of 1995, has been decided by the learned Judge, Labour Court, Aurangabad by its judgement and Award passed on 29-12-2004. Present petitioner was party No. 1 and respondent herein was party No. 2 in the said Reference (IDA) No. 36 of 1995. Learned Counsel for the petitioner submits, that initially, petitioner/ party No. 1 was being represented through Advocate before the learned Judge, Labour Court in this Reference (IDA) No. 36 of 1995, however, subsequently Advocate for petitioner did not remain present. That is how Reference (IDA) No. 36 of 1995 virtually came to be disposed of ex parte. This position is also not disputed by the learned Counsel Mr. Deshmukh for the respondent.

6. After dismissal of Reference (IDA) No. 36 of 1995, the petitioner filed an Application for restoration. It was registered as Misc. Application (IDA) Restoration No. 01 of 2005 in Reference (IDA) No. 36 of 1995. The Board, Court, Labour Court, Tribunal or Arbitrator, may proceed ex parte. Remedy for setting aside such exparte orders or decision, is also provided. This procedure is under Rule 26 of the Bombay Rules. It reads thus:

26. Board, Court, Labour Court, Tribunal or Arbitrator may proceed exparte.

(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, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed exparte.

[(2) Where any award, order or decision is made exparte 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, 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.].

From the facts on record, it reveals, that the order passed in Reference (IDA) No. 36 of 1995, is exparte, under Sub-rule (1) of Rule No. 26. Learned Judge, Labour Court, Tribunal or Arbitrator, if satisfied that there was sufficient cause for non-appearance of the aggrieved party, he may set aside such award or decision on filing application for the same within 30 days of receipt of the copy thereof, as per Sub-rule (2) of Rule No. 26 of Bombay Rules.

7. Learned Counsel Mr. Deshmukh submits, that the notification is published by the Deputy Commissioner, Aurangabad on behalf of the State Government. Copy of the notification is annexed with the petition and is at page No. 43. It seems that date put on said notification is 22-2-2005. Contention of learned Counsel Mr. Deshmukh is regarding publication of this notification on 22-2-2005 by the Deputy Commissioner of Labour on behalf of the State Government. According to him, therefore, time for filing of the application, seeking quashing and setting aside ex-parte award starts from 22-2-2005. Undisputedly within 30 days from 22-2-2005 Misc. Reference (IDA) No. 1 of 2005 in Reference (IDA) No. 36 of 1995 is not filed by the petitioner and therefore the order passed by the learned Judge, Labour Court is legal and proper as per the submissions of Mr. Deshmukh.

8. Per contra, Mr. Ghuge, learned Counsel for the petitioner submits that notification page No. 43, does not bear date of publication of said Notification. According to him, notification was published/ exhibited by Judge, Labour Court on 17-3-2005 on its Notice Board and copy thereof was served to the petitioner on 21-3-2005. At the most exhibition/ publication of the said Award on the notice board of the Judge, Labour Court on 17-3-2005, is the relevant date from which limitation for filing of such application commences as per the contention of Advocate Mr. Ghuge. From that day the petitioner has filed application within 30 days and therefore is within limitation.

9. Chapter IV of the Act of 1947 contains procedure, powers and duties of authorities. Section 11 deals with procedure and power of conciliation officers, Boards, Courts and Tribunals. Section 11-A, refers to powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Duties of conciliation officers are enumerated under Section 12 and duties of Board are listed under Section 13. Duties of the Courts are provided under Section 14. Duties of the Labour Courts, Tribunals and National Tribunals, are provided under Section 15. Form of the report or award, is considered under Section 16. The Board or Court shall submit a report in writing and it shall be signed by all the members of the Board or Court, as the case may be, as per Section 16. It is clarified, under the proviso of Section 16 that member of the Board or Court is not precluded from recording any minute of dissent from a report or from any recommendation made therein. It is provided under Sub-section (2) of Section 16 that the award of a Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its Presiding Officer.

10. It is apposite to consider the provision laid down under Section 17 of the Act of 1947, which reads thus:

Section 17. Publication of reports and awards:

(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.

(2) Subject to the provisions of Section 17-A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.

11. Report or award of the Board or Court, has to be submitted by the Board or Court concerned, in a manner laid down under Section 16. The provision for publication of reports and awards by the State Government finds place in Section 17 of the Act of 1947. It provides that every such report of the Board or Court together with any minutes of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall be published by the appropriate Government in such a manner as the appropriate Government thinks fit. Time limit considered for such publication is also provided as 30 days from the receipt of such report or award by the appropriate Government. Thus power of deciding mode and manner of publication of reports and awards, is vested with the appropriate Government. Manner of such publication, is left with the appropriate Government. Sub-section (2) of Section 17, has given finality to the award published under Sub-section (1) of Section 17 and it is further stated that said award shall not be called in question by any Court in any manner whatsoever. Here in the case on hand, we are concerned with the manner and method of publication of the award passed by the learned Judge, Labour Court. The date of publication of such award is also important, since from that date limitation for filing of Application commences. The State of Maharashtra, it seems, has made a provision for such publication of the award, under Rule No. 31-A of Industrial Dispute (Bombay) Rules, 1957.

12. Rule No. 31-A of Industrial Dispute (Bombay) Rules, 1957 is relevant and is reproduced herein below: "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.

13. From this Rule, it appears that the choice is left with the State Government so far as publication of report or Award is concerned. Sub-clause (a)(1) of Rule 31 A, lays down modality of publication of such Award in official gazette by the State Government. It depends upon the importance of the matter and the approach of the State Government towards the particular case. Sub-clause (b), provides, that if the Government considers that the report or Award is not sufficiently important, it may cause copy thereof together with notification under Section 17 of the Act of 1947 to be forwarded to the Board, Court or Tribunal, as the case may be, for publication on notice board at its office. Sub-rule (2) of Rule 31-A, obligates the State Government in case of publication of Award in the official gazette or notice board of such Court, Board or Tribunal; to send copy thereof to the parties to the dispute concerned. It also provides that when the report or the Award is published by the Court, Board or Tribunal, such Tribunal shall inform the State Government and parties concerned of the date of such publication/ exhibition on the notice board. It appears that this Rule 31-A, has provided not only publication of report or Award in the official gazette and/or exhibition thereof on the notice board of Court, Board or Tribunal, however, it shall inform the State Government and the parties concerned of the date of such publication on the notice board.

14. In the present case undisputedly ex parte Award is passed by the Judge, Labour Court in Reference (IDA) No. 36 of 1995 on 29-12-2004. Learned Counsel appearing for the parties are not in a position to give date of receipt of such Award by State Government. However copy of notification is annexed with the petition. I am inclined to accept the submission advanced on behalf of the petitioner that the date put on this notification cannot be considered or accepted as date of publication of the Award in Official Gazette. Publication has to be in accordance with the provisions of law and in Maharashtra Government Gazette if it is desired in that manner by the State Government. From this page No. 43, notification, it cannot be said that it is a publication of the Award in the Maharashtra Government Official Gazette. Thus, Rule No. 31-A is most important from the view point of publication of the award and procedure. It refers to the manner of publication of such Award or the report. In the present case, Government has exercised option provided under Rule 31-A(1)(b) of the Bombay Rules of 1957. Having exercised this option, the relevant date, would be the date of publication of such Award on the notice board of the Court or Tribunal and the date of receipt of copy of Award i.e. 21-3-2005. In the present case, the date of exhibition or publication of Award on the notice board of the Judge, Labour Court, Aurangabad is 17-3-2005 and copy of the Award is received by the petitioner on 21-3-2005.

15. Learned Judge Labour Court, was of the opinion that date of publication of Notification was 22-2-2005 and therefore application under Rule 26 filed by the present petitioner on 15-4-2005, is barred by limitation. A question for consideration in this Writ Petition, therefore, is regarding the relevant date for computing the period of 30 days, contemplated under sub-rule No. (2) of Rule No. 26 of Bombay Rules. This Rule No. 26 is quoted in foregoing paragraph No. 6 of this judgement. Sub-rule (2) of Rule No. 26 provides that where any award, order or decision is made exparte under Sub-rule (1), the aggrieved party, may, within thirty days of receipt of a copy thereof, make the application to the Board, Court, Labour Court, Tribunal or Arbitrator, as the case may be, to set aside such award, order or decision. Thus on conjoint reading of Section 17 of the Act of 1947, Rule No. 31-A and Sub-rule (2) of Rule No. 26 of the Bombay Rules, it is evident, date of receipt of the copy of such ex parte award, is significant and gives cause of action for party aggrieved, to make an application under Sub-rule (2) of Rule No. 26, praying for quashing and setting aside of the award in question. Thus the commencement of limitation of 30 days provided under Sub-rule (2) of Rule No. 26 starts from receipt of the copy of such award by the aggrieved party under Rule 31-A of the Bombay Rules. In the case on hand, date of publication of the award is 17-3-2005. Copy of the said award, was received by the petitioner on 21-3-2005. The application under Sub-rule (2) of Rule No. 26 of the Bombay Rules filed by the petitioner on 15/4/2005, therefore, was well within limitation,

16. In this view of the matter, Writ Petition is partly allowed.

17. Order passed by the learned Judge, Labour Court, Aurangabad in Misc. Reference (IDA) Restoration No. 1 of 2005 is quashed and set aside. Matter is remanded back to the learned Judge, Labour Court, Aurangabad for decision thereof in accordance with provisions of law, as early as possible, preferably within a period of three months. Learned Counsel for the parties assures co-operation for disposal of the proceeding before the learned Labour Court.

18. The petitioner shall deposit an amount of Rs. 10,000/- (Rs. Ten thousand only) in the office of the learned Judge, Labour Court, within three weeks from today. Learned Judge, Labour Court, Aurangabad, at the time of final disposal of the case, shall pass an appropriate order regarding this payment of money.

19. Rule made absolute in above terms. No costs.