Ashok Bhushan, J. - (1.) 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 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 return 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 order dated 30.09.2008 of the Industrial Tribunal and the Tribunal was directed to reconsider the issue between the parties as expeditiously as possible in accordance with law upon affording them opportunity of being heard. Against the judgment of learned Single Judge, the appellant filed an appeal before the Division Bench, which has been dismissed by the impugned judgment of the Calcutta High Court.
(3.) Shri Manoj Swarup, learned counsel for the appellant in support of the appeal contends that notice issued by the Industrial Tribunal in Form D2 was served on the company, which has also been recorded by the Industrial Tribunal, there was no cause for non appearance of the company before the Tribunal. The Tribunal rightly proceeded ex parte due to non appearance of the company. He submits that the application for recall of the ex parte award was filed after 30 days from publication of award, the Tribunal having become functus officio, The Tribunal has rightly taken the view that application for recall cannot be entertained. He further submits that the view of the High Court that there was violation of Rule 20B(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 non compliance 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 ex parte. No one has appeared on behalf of the respondent.;