TaxTMI 
TaxTMI 
2018 (5) TMI 2153
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....ence to a larger bench was made in the following terms: 1. Whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases. 2. It may be noted that on this question two Division Bench decisions have taken apparently conflicting views. In Sangham Tape Co. v. Hans Raj a two-Judge Bench held and observed that an application for recall of an ex parte award may be entertained by the Industrial Tribunal/Labour Court only in case it is filed before the expiry of 30 days from the date of pronouncement/publication of the award. A contrary view was taken in Radhakrishna Mani Tripathi v. L.H. Patel to which one of us (Aftab Alam, J.) was a party. 3. In both cases, that is to say, Sangham Tape Co. and Radhakrishna Mani Tripathi, the Court referred to and relied upon the earlier decisions in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal and Anil Sood v. Labour ....
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....ational Tribunal] Under Section 10 during the pendency of conciliation proceedings. (3) Proceedings before an arbitrator Under Section 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable Under Section 17A. 8. Section 38 provides for power to frame Rules for the purpose of giving effect to the provisions of the Act including the powers and procedure of the Courts/Tribunals. 9. Rule 10B(9), as introduced in 1984 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as the "Central Rules"), reads as follows: 10B(9). In case any party defaults or fails to appear at any stage the Labour Court, Tribunal or National Tribunal, as the case may be, may proceed with the reference ex parte and decide the reference application in the absence of the defaulting party: Provided that the Labour Court, Tribunal or National Tribunal, as the case may be, may on the application of either party filed before the ....
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.... published becomes enforceable after a period of 30 days of its publication. 13. In case of an ex parte award, whether the Court/Tribunal can set aside the same after 30 days of its publication, is the question to be considered. 14. That an ex parte award can be set aside in case the Court/Tribunal is approached within 30 days of its publication Under Section 17 of the Act, is no more res Integra. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. 1980 (Supp) SCC 420, it has been held at paragraph-14 that: 14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable Under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication Under Section 17. The proceedings with regard to a reference Under Section 10 of the Act are, therefore, not deemed to be conc....
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....iew taken at paragraph-10 is in consonance with the mandate of Rule 22. 19. At paragraph-12, the Court took the view that going by Rule 24 of the Central Rules regarding grant of adjournment being governed by the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code of Civil Procedure"), the provisions of Order IX Rule 13 of the Code of Civil Procedure would apply in case of an ex parte award. 20. In paragraph-13, it was held that setting aside an ex parte award is a matter of procedural review exercised ex debito justitiae to prevent abuse of its process and such powers are inherent in every Court or Tribunal. 21. Paragraphs-10 to 13 read as follows: 10. When Sub-section (1) of Section 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing. We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award....
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....ghji is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in Sub-section (1) of Section 11 and not in Sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression "review" is used in the 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 misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. I....
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....trial Disputes Act and enunciated that Section 11 of the Industrial Disputes Act conferred ample powers upon the Tribunal to devise its own procedure in the interest of justice which includes powers which bring out the adjudication of an existing industrial dispute. Sub-sections (1) and (3) of Section 11 of the Act thereby indicate the difference between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the extent of powers of the civil court are clearly set out. 6. The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the tribunal or court they have to be decided objectively and the tribunals/courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and Rules of natural justice. 7. The power to proceed ex parte is available Under Rule 22 of the Central Rules which also includes the power to inquire....
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....award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio. 11. Grindlays Bank has been followed in Satnam Verma v. Union of India and J.K. Synthetics Ltd. v. CCE. 25. This Court in Sangham (supra) also referred to the decision in Anil Sood (supra) and noted as follows: 12. This Court in Anil Sood did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. (See Mehboob Dawood Shaikh v. State of Maharashtra). Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on....
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....powered the Industrial Courts to refuse to adjourn the hearing and to proceed ex parte. Hence, in a case in which the Industrial Court makes an ex parte award the provisions of Order 9 Rule 13 Code of Civil Procedure would be clearly attracted. It logically follows that the Tribunal is competent to entertain an application to set aside an ex parte award. (Vide para 12 of the decision.) The Court thus founded the Industrial Court's jurisdiction and power to recall an ex parte award on Rules 22 and 24(b) of the Central Rules. It is thus to be seen that in Grindlays Bank what this Court held to be implicit in Rule 22 of the Central Rules is made explicit and clear in the Bombay Rules in the form of Sub-rule (2) of Rule 26. 28. After referring to and quoting paragraph-14 in Grindlays (supra), it was further held that: 16....From the above quotation it would appear that in Grindlays Bank the recall application was filed within thirty days from the date of publication of the award and hence, the objection raised on the basis of Section 17-A did not arise in this case. In Grindlays Bank this Court did not say that the Industrial Courts would have no jurisdiction to enterta....
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....s, setting aside an ex parte award is a matter of procedural review. In the case of procedural review, as held in Kapra (supra), the party "... has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal it was held that once it is established that the Respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard ....
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....ant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes (11th edn.) "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. [See also ITO v. M.K. Mohammed Kunhi]. In J.K. Synthetics Ltd. v. Collector of Central Excise (1996) 6 SCC 92, while dealing with a case from the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), this Court went a step further to hold that there are certain inherent powers vested in every tribunal in regulating their own procedure. It held at paragraph-6 as follows: 6. If, in a given case, it is established that the Respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every....