West Bengal Industrial Disputes Rules, 1958:
rr. 20B(5) and 21 – Industrial dispute – Non-appearance of the company-employer – Written Statement was filed by the workman without serving a copy thereof to the Company – Tribunal passed ex parte award in favour of the workman – Application of the company to recall ex parte award – Tribunal found that award was passed in violation of principles of natural justice and in noncompliance of rr. 20B(5) and 21 – However, rejected the application on the ground that the Tribunal had become functus officio as the application was filed after 30 days from publication of the award – Writ petition by the Company – High Court allowed the petition directing the Tribunal to reconsider the issue between the parties – Writ Appeal was dismissed by Division Bench of High Court – On appeal, held: Tribunal was required to intimate date and time for receiving Written Statement as per r.20B(5) – No such intimation was given by the Tribunal and thus there is clear breach of s.20B(5) – Though notice u/s. 21 is not mandatory, but non-appearance on one day does not oblige the Tribunal to proceed ex-parte – High Court rightly set aside the ex-parte award.
Dismissing the appeal, the Court
HELD: 1.1 By sub-rule (5) of r. 20B of West Bengal Industrial Disputes Rules, 1958, duty has been cast on the Industrial Tribunal to serve a copy of Written Statement or statement of case on either side. The use of word “shall be served” in sub-clause (5) of Rule 20B, has to be given some meaning and purpose. The provision obviously casts a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of Written Statement has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. [Para 13] [1033-F-H; 1034-A-B]
1.2 The last line of sub-rule (5) used the expression “on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court”. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of Written Statement within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a Written Statement, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. [Para 13][1034-B-D, E]
1.3 In the facts of the present 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 Written Statement nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(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. [Para 13][1034-D-F]
2. Rule 21 empowers the Tribunal to proceed when any party to a proceeding fails to attend. The plain language of Rule
21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is “may proceed”. Thus, on nonappearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. Even if it is accepted that no mandatory notice under Rule
21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal’s ex-parte award by directing the Tribunal to proceed afresh. [Para 14][1034-F-H] Radhakrishna Mani Tripathi v. L.H. Patel and Another (2009) 2 SCC 81 : [2008] 16 SCR 490 – relied on.
Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others (1980) Supp. SCC 420 : [1981] SCR 341 ; Anil Sood v. Presiding Officer, Labour Court II (2001) 10 SCC 534 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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