Ex parte industrial award set aside for breach of mandatory service rules and natural justice despite delayed recall application.

An Industrial Tribunal's power to proceed ex parte does not end merely because an application to recall the ex parte award is filed after publication. The Tribunal retains jurisdiction where the award is challenged as having been made without due opportunity to participate. On the facts, Rule 20B(5) of the West Bengal Industrial Disputes Rules, 1958 was breached because no date was fixed or intimated for service of the statement of case or written statement on the opposite party. Rule 21 did not dispense with fair procedure, and the ex parte award was therefore vitiated by breach of mandatory service requirements and natural justice. The fresh adjudication direction was left undisturbed.

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Issues: (i) Whether the Industrial Tribunal became functus officio and could refuse to entertain an application to recall an ex parte award filed after thirty days from publication of the award. (ii) Whether the ex parte award was vitiated for breach of Rule 20B(5) and Rule 21 of the West Bengal Industrial Disputes Rules, 1958 and for violation of natural justice.

Issue (i): Whether the Industrial Tribunal became functus officio and could refuse to entertain an application to recall an ex parte award filed after thirty days from publication of the award.

Analysis: The governing principle is that the power to proceed ex parte includes the power to examine whether sufficient cause existed for non-appearance and, where the ex parte award was made without due opportunity, to recall it. The time taken for publication and the subsequent application does not by itself oust jurisdiction where the award itself is alleged to have been made in breach of the party's right to participate in the proceedings. The earlier authorities relied on did not lay down that an application for recall filed after thirty days from publication was necessarily barred in all circumstances.

Conclusion: The Tribunal was not rendered functus officio merely because the recall application was filed after thirty days from publication; the objection on that ground failed.

Issue (ii): Whether the ex parte award was vitiated for breach of Rule 20B(5) and Rule 21 of the West Bengal Industrial Disputes Rules, 1958 and for violation of natural justice.

Analysis: Rule 20B(5) casts a duty on the Tribunal to serve the statement of case or written statement on the opposite party by fixing and intimating a date and time for such service within the prescribed period. On the facts found, no date was fixed for such service and no intimation was sent to the company, resulting in non-compliance with the rule. Rule 21 does not mandate a prior notice before proceeding ex parte in every case, but the discretion to proceed ex parte must still be exercised consistently with fair procedure. Since the Tribunal itself recorded violation of the service requirement and breach of natural justice, the ex parte award could not stand.

Conclusion: The ex parte award was rightly set aside for breach of Rule 20B(5) and violation of natural justice; the challenge to this finding failed.

Final Conclusion: The appeal was without merit and the High Court's decision directing a fresh adjudication after affording both sides an opportunity of hearing was left undisturbed.

Ratio Decidendi: An Industrial Tribunal's power to proceed ex parte carries with it the duty to ensure compliance with mandatory procedural safeguards, and an ex parte award passed in breach of the prescribed service requirement and natural justice is liable to be set aside even if the recall application is filed after publication of the award.

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