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TMI Blog2018 (12) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 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 exparte 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 exparte hearing. The Tribunal again on the request of the workman deferred the case, which was fixed for exparte 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 exparte by allowing the claim of reinstatement with full back wages. The award was also published on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B(5) and Rule 21 of 1958 Rules is erroneous. He submits that Rule 20B(5) contemplates that Tribunal, in event, if the W/S had been filed, the same shall be made available to the party concerned or its authorised representative in the office of Industrial Tribunal/Labour Court. He submits that Rule 20B(5) does not contemplate that any notice has to be issued to the other party for receiving the W/S. He submits that there is no noncompliance of Rule 20B(5). He submits that High Court committed error in taking the view that notice was required to be served under Rule 21 to the company before hearing the case exparte. No one has appeared on behalf of the respondent. 4. We have considered the submissions of the learned counsel for the appellant and have perused the records. 5. Before the Division Bench of the Calcutta High Court, main submission, which was pressed by the appellant was that application filed by the company for recall of the exparte order was after 30 days of publication, hence, could not have been entertained. The Division Bench of the High court has elaborately dealt with the said issue and repelled the contention. There is no dispute regarding dates and events, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of the statement of case or the written statement, as the case may be, are filed by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. 7. Rule 21, which empowers the Tribunal to proceed exparte is as follows: "21. Board, Court, Labour Court, Tribunal, or Arbitrator may proceed exparte. If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed as if such party had duly attended or had been represented. 8. Rule 27 deals with the correction of errors and review of an award, which is to the following effect: " 27. Correction of errors and review of an award. The Labour Court, Industrial Tribunal or Arbitrator may - (i) correct any clerical or arithmetical mistake arising from an accidental slip or omission in any award made by it or him, and (ii) review an award on the ground of some mistake or error app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and could not have been entertained the application. This Court had occasion to consider this very aspect in Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, (2009) 2 SCC 81. This Court noticed the observation made by this Court in the case of Grindlays Bank Ltd. (supra) in Paragraph No.14 as well as judgment of this Court in Anil Sood Vs. Presiding Officer, Labour Court II, (2001) 10 SCC 534 in Paragraph Nos. 16, 17 and 18, this Court laid down following: " 14. In Grindlays Bank this Court held that Rules 22 and 24(b) were sufficiently the source of power for the Industrial Courts to recall an ex parte award. It was pointed out that in terms of Rule 22 the Industrial Courts could proceed ex parte in the matter only in case a party to the proceeding failed to attend or be represented without showing sufficient cause. The Court held that power to proceed ex parte under Rule 22 carried with it the power to inquire whether or not there was sufficient cause for the absence of the party at the hearing and in case the party was able to show sufficient cause for its nonappearance on the date the court had proceeded ex parte against it, to recall the award. (Vide para 11 of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt had rejected the recall application on the very same ground that after making the award it became functus officio in the matter. The order of the Labour Court was challenged before the High Court but the High Court also took the same view. In appeal this Court noted that the award was made on 11-9-1995 and the application for its recall was filed on 6111995. The Court referred to the earlier decision in Grindlays Bank and the provisions of subsections (1) and (3) of Section 11 of the Act and in paras 6, 7 and 8 of the decision observed and held as follows: (Anil Sood case, SCC p. 536) "6. The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the tribunal or court they have to be decided objectively and the tribunals/courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice. 7. The power to proceed ex parte is available under Rule 22 of the Central Rules which also includes the power to inquire whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Rules 20B(5) of the said Rules. On the face of such finding recorded by the Tribunal, it is absolutely clear that proceedings were conducted before it, leading to the impugned award, in clear violation of principles of natural as well as mandatory provisions of law. The award passed on 26.2.2008 is liable to be set aside only on this ground." 12. Shri Manoj Swarup, learned counsel for the appellant has strenuously contended that present is not a case of any breach of Rule 20B(5) as held by the High Court. The relevant order of the Industrial Tribunal has been brought on the record by the appellant, i.e., of 11.10.2007, where workman had appeared and filed Written Statement. It has been noted in the order that copy of the W/S cannot be served upon the another party as none appeared on behalf of the company. Subrule (5) of Rule 20B, which is relevant for present case is reproduced for ready reference: 20B. Statement of case or written statement. - XXXXXXXXXXXXXXXXXXXXXXXX (5) A copy of the statement of case or the written statement shall be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of subrule( 5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice. 14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding exparte. However, the expression used in Rule 21 is "may proceed". Thus, on nonappearance on one day does not oblige the Tribunal to proceed exparte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding exparte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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