J.E. International vs S.K. Minocha And Ors.
1996 Latest Caselaw 923 Del

JUDGMENT

Usha Mehra, J.

(1) M/S. J.E. International had filed an application for setting aside the ex-parte award dated 3rd March, 1994 passed by the Presiding Officer, Labour Court, Delhi. This application by the impugned order was dismissed on 6th September, 1994, inter alia, on the ground that the Labour Court became functus officio, hence had not jurisdiction to set aside the exparteaward after 30 days lapsed since the publication of the award in Gazette or after the date when the award came into operation.

(2) The legal point raised in this petition is whether the jurisdiction of the Labour Court to entertain such If like application ceased after the expiry of the period of 30 days of the publication of the award in the Official Gazette. In order to appreciate the legal point raised the brief and relevant facts necessary for the disposal of this legal point are that the respondent No. 2 workman made a claim against the Management i.e., present petitioner. That claim was referred for adjudication to the Labour Court, Delhi. The term of reference was "whether the service of Shri Rajmani have been terminated illegally and/or unjustifiably and if so to what relief he is entitled and what terms are necessary in this regard". After receipt of the reference. Presiding Officer, Labour Court on 26th October, 1991 passed an order for the issuance of a notice to the parties for 3rd February, 1992. Pursuant to this order, the reference was registered as LC.ID No. 561 /91. It is the case of the petitioner that the said notice issued by the Labour Court was not received byit,hencecould notappearon3rd February, 1992. Since,nooneappeared on behalf of the petitioner on 3rd February, 1992 the Labour Court proceeded the Management ex-parte. The workman also did not put in appearance on that day yet he was not proceeded exparte because one Virender Singh purported to be the representative of the workman had put in appearance. The said Virender Singh did not file any authorisation letter on 3rd February, 1992 still the Labour Court accepted him to be authorised representative of the workman and adjourned the case to 4th November, 1992. On 4th November, 1992 the said Virender Singh filed the authorisation letter. On 3rd February, 1992 in fact the workman was not represented by any one nor the management was represented, still the Labour Court erroneously chosen to proceed exparteonly against the Management. Even otherwise on the basis of alleged service of summons on an unauthorised person, namely, one Shri A.K. Sharma who was not an employee of the petitioner nor authorised to receive the summon, the Court fell in error in assuming that summon had been served on the petitioner. It is in this background that an application was filed by petitioner before the Labour Court for setting aside the ex parte award.

(3) The Labour Court by the impugned order conduced that the Labour Court had become functus officio because after 30 days of the publication of the award it ceased to have any jurisdiction to rescind the award already passed or to readjudicate the reference.

(4) Mr. S.K. Bhaduri appearing for the petitioner contended that the Labour Court while arriving at this conclusion completely overlooked the fact that no service was effected on the Management. In the absence of any service having been effected on the Management there was no question of proceeding it ex-parte. In this regard he placed reliance on the decision of this Court in the case of M/s. Top Action Security v. ShriR-L. Chugh & Ors. CM(M). 3/94decided or. 12th September, 1994. In that case the Court opined that "when the Industrial Tribunal finds that there was no proper service of notice of the proceedings on the petitioner, the award passed shall stand withdrawn and cancelled". It was further observed that- "if actually there was no proper service of notice of the proceedings. limitation if at all could operate from the date of the service of notice and not from the date of the earlier notice which was never served on the petitioner. Assuming that the Industrial Tribunal had lost its jurisdiction to recall the award nothing prevents this Court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India from going into the question and direct the Industrial Court to consider the matter. It is the responsibility of this Court under Article 227 of the Constitution to oversee the functioning of the Tribunal in the State and to prevent the occurrence of injustice."

(5) Relying on these observations Mr. Bhaduri contended that the present petition is also under Article 227 of the Constitution of India. The petitioner can prove from the record that petitioner had not been served with the summon issued by the Labour Court. That the Labour Court without verifying the facts proceed ex-parte against it and thereafter refused to recall the order proceeding ex-parte against the Management and thereafter declaring ex-parte award.

(6) So far as judgment relied by the Trial Court namely that of Grindlay Bank Ltd. v. Central Government Industrial Tribunal, Air 1991 Sc 606 is concerned, in that case the Court was not considering whether the ex-parte award was made after the notice had been served. Therefore, the ratio of Grindlay Bank Ltd. (supra) does not apply to the facts of this case. Mr. Bhaduri then placed reliance on the decision of the Supreme Court in the case of Satnam Verma v. Union of lndia,1 Llj 1983 page79(SC) and Babu Ram Bhatnagar v.Satish Kumar Rawat,31 (1992)All India Land Laws Reporter 271. Admittedly, it is well settled principle of law that the Labour Court can entertain an application for setting aside the award within 30 days from the date of publication of the award. But after the expiry of 30 days from the date of publication of the award in the Gazette the Labour Court becomes functus officio. This has been so held in the case of Jagdamba Auto Industries v. Kamal Yadav, as well as in the Supreme Court authorities cited above. In none of these cases Courts were considering the power of Labour Court for setting aside the ex-parte award where ex-parte award was made without service of summons on the party. However, in the case of M/s. Top Action Security (supra) the Single Judge of this Court dealt with the case where the ex-parte award was made without service of summons on the party. While deciding that case this Court took note of the Division Bench judgment of this Court in the case of fagdamba Auto Industries (supra) and concluded that so far as the jurisdiction of this Court under Article 227 of the Constitution is concerned, that cannot be taken away. The exercise of this extraordinary jurisdiction cannot be taken away nor debarred from going into the question and directing the Labour Court to consider the matter provided it is satisfied that there was an error of jurisdiction by the Subordinate Court or for that matter the LabourCourt. In this case, from the record which has been placed it is not clear whether the Court notice for appearance on 3rd February, 1992 had been served on the Management. It was not considered nor established that Mr. A.K. Sharma was the employee of the Management. Therefore, relying on the observation of this Court in the case of Top Action Security (supra) in which the facts were almost identical I have no hesitation to hold that the order of the Labour Court cannot be sustained. Petitioner in this case had alleged that he had not been served, hence there was no question of the Management appearing on 3rd February, 1992. Ex-parte award was passed by the Labour Court without looking into these facts. Since the petitioner has raised questions which go to the root of the matter with regard to the service of the summon on the petitioner, therefore, to my mind, this Court in exercise of its jurisdiction under Article 227 o" the Constitution cannot lose sight of the fact that a party who has not been served cannot be condemned upheard. I accordingly direct the Labour Court that since the question of service of notice is an important question he should re-examine the question of service of notice on the petitioner after affording opportunity to the parties. In case the Labour Court comes to the conclusion that there was no proper service of notice on the petitioner, then ex-parte award passed shall stand with- drawn and cancelled. In the circumstances mentioned above, the petition is allowed subject to payment of Rs. 3,000.00 as costs.