- (1.) The Court : In this writ proceeding a challenge is thrown for issuance of writs in the nature of Mandamus and Prohibition against the concerned respondents being directed against order No.28, dated 20.12.96 passed by the learned Judge, 4th Industrial Tribunal recalling the award dated 29.6.94. The resume of facts as emerging from the records appears that by an order of reference dated 30.12.93 for determination of issues as to whether (a) dismissal of Sri Ram Subhag Roy is justified (b) what relief, if any, he is entitled to. The parties to the dispute did not appear before the concerned Tribunal for adjudication of the issues referred to above and as such no step was taken. Accordingly, the Tribunal passed a no dispute award dated 29.6.94. The said award dated 29.6.94 was published under section 17 of the Industrial Disputes Act, 1947 by an order No. 564-IR/11L-46/92 dated 27.3.55 issued by the Assistant Secretary to the Government of West Bengal, Labour Department. Much after publication of the impugned award on 27.3.95 the respondent No.3 filed an application under Rule 27 of the West Bengal Industrial Disputes Rule, 1958 on 5.6.95 for setting aside of the no dispute award. On the said application under Rule 27, as aforesaid, evidence was adduced by the respective parties and the Tribunal by Order No. 28, dated 20.12.96 has set aside the no dispute award and observed that question of limitation did not arise in this application.
(2.) The moot point which permeates the range of controversy in this proceeding the question as to whether an ex parte award can be set aside by the learned Tribunal even after the award becomes enforceable under section 17A of the Industrial Disputes Act. The application under Rule 27 of the West Bengal Industrial Disputes Rules, 1958 was caused to be made incorporating the grounds taken by the said respondent that the notice under Rule 20A of the West Bengal Industrial Disputes Rules, 1958 was not properly served upon the Union as the office of the Union was shifted from 10, K.S. Roy Road to 188, Manicktala Main Road. Rules 27 of the West Bengal Industrial Disputes Rules, 1958 as incorporated contains provision for correction of errors and review of an order. It is significant to refer to the caption of Rules 27 which is founded on two limbs namely, (1) correction of errors and (2) review of an award. The ambit of correction of errors has been adumberated in clause I to III of Rule 27 itself and that is of wide amplitude. Even, the expression "for sufficient reason" is required to be interpreted in consonance with the principle of 'ejusdem generis', there is another dimension being founded about the review of an award. The Supreme Court had the occasion to deal with the said question in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal & Ors., reported in AIR 1981 606. On construction of sub-section(1) of section 11 of the Industrial Disputes Act, it has been opined in the said decision by Supreme Court that the expression here namely, 'review' is used in two distinct senses namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misappreciation by it and (2) a review when the error ought to be corrected is one of law and is apparent on the face of record. In the same breadth, the Supreme Court becomes inclined to propound the view that where a party is prevented from appearing at the hearing due to sufficient cause and is faced with an ex parte award it is as if a party is vested with an award without a notice of the proceedings. It is needless to stress that by the award Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the exparte award and to direct the matter to be heard afresh. It is well-known even within the range of Order 47, Rule 1 of the Code of Civil Procedure that apart from execution discharge or satisfaction of a decree if the controversial decree is patently vitiated by inherent lack of jurisdiction of the court concerned to be in seisin of the controversy, then, on the score of the same the point of nullity is covered within the range of the ambit of review. This court is not required to dilate in details in view of the pith and substance as the matters seem to have been set at rest by the decision of the Supreme Court as aforesaid and the ratio of law appears to have been followed subsequently. As such, it can be safely held that the Industrial Tribunal has a right of review of an award passed by it. The same does not take care of the other point as to whether an exparte award can be set aside by the concerned Tribunal even after the award becomes enforceable under section 17A of the Industrial Disputes Act.
(3.) Sri Arunava Ghosh, the learned Advocate of the petitioner, has contended before this court that in terms of section 20(3) of the Industrial Disputes Act, proceedings before such Tribunal shall be deemed to have commenced on the date of reference of the dispute for adjudication and such proceeding shall be deemed to have concluded on the date on which the award becomes enforceable. In aid of further elucidation of the point raised by Mr. Ghosh, he has referred to provisions of section 17A of the said Act which postulates that an award will become enforceable on the expiry of the 30 days from the date of its publication under section 17. According to Mr. Ghosh, two dates are relevant in the said context namely, the date of the order of reference being 30.12.93 and the date of publication of award dated 27.3.95. According to the submission of the learned Advocate of the petitioner, the same can be extended by another 30 days from the date of publication and after expiry of the additional period of 30 days it looses the character of its pendency. According to Mr. Ghosh, after expry of 30 days from the publication of the impugned award the Tribunal has become functus officio. According to Mr. Ghosh, no application either of review or for setting aside of an impugned award under section 11(1) of the Industrial Disputes Act can be entertained after the Tribunal is relegated to the position of functus officio and it looses all its authority to be in seisin of such controversy relating to a prayer for setting aside of such impugned award. Mr. Ghosh has further submitted that application for setting aside of the exparte award was made by the concerned respondents on 5.6.94 which is long after the expiry date of the enforceability of the award. In support of the said submission, a reliance was placed on the reported decision of AIR 1981 SC 606 (supra) and attention of the observation of the Supreme Court in the penultimate paragraph has been drawn which is quoted hereunder : "Sub-section(3) of section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date when the award becomes enforceable under section 17A. Under section 17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of publication under section 17. The proceedings with regard to a reference under section 10 of the Act are therefore not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the disputes referred to it for adjudication and upto that date it has a power to entertain." Much reliance has been led by Mr. Ghosh on the said observation made by the apex court in the case of Grindlays Bank v. Central Government Industrial Tribunal & Ors. Next case that was referred to by Mr. Ghosh is the case of Satnam Verma v. Union of India., reported in AIR 1985 SC 294. In that case, award was passed exparte on 23.2.82 and application was made on 26.2.82 itself for setting aside the exparte award which appears even before publication of the same under section 17. As such, the question of expiry of 30 days from the date of publication under section 17 does not and cannot arise and deeming effect cannot be given to the conclusion of the same. In the said decision, a reference was made to the earlier case of the Grindlays Bank, reported in AIR 1981 SC 606 and after due consideration of the judgment passed in the said case where concurrence was expressed by making reference to the observation of the court that if the tribunal has the power to proceed exparte as provided by Rule 22 of the Industrial Disputes and Central Rules, 1957, it should be considered to be endowed with such ancillary and incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. If Rule 22, as aforesaid, unequivocally confers jurisdiction on the tribunal to proceed exparte, then, the tribunal seems to have the power to set aside such exparte order. There does not appear to be a direct dissent from the view expressed in the earlier decision of the Grindlays Bank's case by the apex court that the proceedings with regard to a reference under section 10 of the Act are therefore not deemed to be concluded until expiry of 30 days from the publication of the award. Till then the tribunal retains jurisdiction of the dispute referred to it for adjudication and upto that date it has the power to entertain the application in connection with such dispute. Mr. Ghosh, learned Advocate of the petitioner, has then relied on the decision of Warring Co-operative Agricultural Service Society Limited v. State of Punjab, reported in 1987 Labour IC 359 and reliance was placed on paragraph 10 of the said judgment to indicate that proceedings in a reference under section 10 of the Act are not deemed to be concluded until the expiry of 30 days after the publication of the award. Till then the tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute impliedly thereafter it becomes functus officio and cannot entertain an application for setting aside an exparte award. A further reference was made by Mr. Ghosh to the case of Anil Sood & Ors. v. S.K. Sarvania & Ors., reported in 1997(1) LLJ 1006, Delhi where the Division Bench of Delhi High Court observed that the ratio of relevant decision as referred to therein was clear that the Industrial Tribunal retains jurisdiction to deal with an application for setting aside an exparte award only until the expiry of 30 days from the publication of the award.;