- (1.) Heard Sri Birendra Pratap Singh learned Standing Counsel for the petitioner and Sri Bhoopendra Nath Singh for the contesting respondent workman.
(2.) This petition principally lays a challenge to an order passed by the concerned Labour Court rejecting an application seeking recall of an ex parte award which was rendered. The sole ground on which this application has come to be rejected is that the application for recall was made 30 days after the publication of the award in question. That a power to undertake a procedural review stands vested inherently in the Labour Court is an issue which need not detain the Court since undisputedly it stands settled in light of the decision rendered by the Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp. SCC 420]. The only issue which therefore, survives for consideration is whether after the expiry of 30 days from the publication of the award, the Labour Court become functus officio and upon the award becoming enforceable is not empowered to entertain an application for recall of an ex parte award. The conflicting decisions which were rendered by the Supreme Court on this issue stands conclusively settled by three learned Judges in Haryana Suraj Malting Ltd. v. Phool Chand [(2018) 16 SCC 567] wherein the following principles were enunciated:- "34. In case a party is in a position to show sufficient cause for its absence before the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal. 35. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise as held in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420], an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law. .... 37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its power to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act , 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent."
(3.) In view thereof the position as such stands settled and constrains the Court to hold that the Labour Court was clearly incorrect in rejecting the application merely because it had come to be made 30 days post publication of the award. Sri Singh learned counsel for the respondent however contends that the decision of the Supreme Court has come to be rendered without noticing the special provisions which are made in Section 6D of the U.P. Industrial Disputes Act 1947 read with Rule 16 of the Rules framed thereunder. Both these provisions for the sake of convenience are extracted hereinbelow:- "[6D. Commencement and conclusion of proceeding. - Proceedings before a Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a dispute to adjudication, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 6-A .] 16. Labour Court or Tribunal or Arbitrator may proceedex-parte.- (1) If, on the date fixed or on any other date to which the hearing maybe adjourned, any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper. 2. The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, setting the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order." As is evident from a reading of Section 6D all that it provides is to prescribe the date from which proceedings would be deemed to have commenced and the date when they would be liable in law to be viewed as concluded. Insofar as Rule 16 is concerned it provides a power to the concerned Tribunal or Court to proceed in the matter ex parte. Rule 16(2) further empowers the Labour Court or the Tribunal to set aside an order passed against a party in his absence if within 10 days of such order the party applies in writing for setting aside that decision. A perusal and consideration of these two provisions does not in the considered view of this Court change or impact the position in law as enunciated in Haryana Suraj Malting Ltd. where it had been clearly held that an award passed ex parte can neither be said to be binding nor can it be viewed as having rendered finality to the adjudication process. This however should not be construed as this Court ruling on the merits of the application which was made by the petitioner and whether sufficient cause was shown and established for recall of the ex parte award. The Court enters these findings since in the facts of the present case, the only ground which has weighed with the Labour Court in refusing to entertain the application was that it had been made 30 days after the publication of the award. In light of the discussion aforesaid, this view cannot be sustained. ;