Holding

A Labour Court may set aside an ex‑parte award under Rule 26(2) of the Bombay Rules when sufficient cause is shown, and this power is not barred by Section 17‑A of the Industrial Disputes Act.

Summary

The Second Labour Court, Thane, passed an ex‑parte award on 12 June 1998 reinstating the workman RadhaKrishnan Mani Tripathi, which was published on 5 August 1998. Respondent No.1, who had not been served notice, learned of the award on 27 January 1999 and filed a petition within two days under Rule 26(2) of the Bombay Rules seeking recall, alleging sufficient cause for his non‑appearance. The Labour Court set aside the award, a decision upheld by the Bombay High Court. The appellant appealed, contending that Rule 26(2) conflicted with Section 17‑A of the Industrial Disputes Act, which he argued rendered the court functus officio after 30 days from publication. The Supreme Court held that Rule 26(2) is valid, does not conflict with Section 17‑A, and that the tribunal retains jurisdiction until the award becomes enforceable, allowing it to set aside an ex‑parte award where sufficient cause is shown. Consequently, the appeal was dismissed and the recall upheld.

Issues considered

Whether Rule 26(2) of the Industrial Disputes (Bombay) Rules, 1957 is inconsistent with Section 17‑A of the Industrial Disputes Act, 1947.
Whether a Labour Court becomes functus officio after 30 days from the publication of an ex‑parte award and thus loses jurisdiction to entertain a recall application.

Legislation cited

Industrial Disputes Act, 1947s. 11, s. 17, s. 17-A, s. 20(3)
Industrial Disputes (Bombay) Rules, 1957s. 26(2), s. 31A

Subjects

ex‑parte awardrecall of awardIndustrial Disputes ActIndustrial Disputes (Bombay) Rulesfunctus officioLabour Court jurisdictionprocedural fairness

Judgment

[2008] 16 S,C.R. 490

A RADHAKRISHNAMANI TRIPATHI ~· ~
v.
L. H. PATEL & AN~.
··(Civil Appeal No. 6737 of. 2008)
NOVEMBER 21, 2008
B
[TARUN C,HATTERJEE AND AFTAB ALAM, JJ.]
r- "

INDUSTRIAL DISPUTES (BOMBAY) RULES, 1957:

c r. 26(2) -·Setting aside of ah ·ex-parte award - Labour
Court set aside the award after 30 days of its publication-
HELDi If there is sufficient cause shown which prevented a
party from appeari~g and the party is visited with an award
without notice which is a nullity, the Labour Court/Tribunal must
D have power to set aside-the ex-parte award - Rule 26(2). is
not in conflict with s.17-A of the Act- In the instant case, the
application for recalling ex-parte award was completely in
accordance with r. 26(2) and the Labour Court rightly allowed
the same""" Industrial Disputes Act, 1947 - s.17A.
E
An ex-parte award under the Industrial Disputes Act,
1947 was made on 12.6.1998 by the Labour Court
directing reinstatement of the appellant. It was published
on 5.8.1998. On 29.1.1999 respondent No.1 applied before
the Labour Court for recall of the award stating that no
F
notice was served on him; that he was not aware of the 't-·-
proceedings before the Labour Court and he came to
know about it on 27 .1.1999 on receiving a copy of the
award sent to him by the Labour Court. The application
was allowed. The writ petition filed by the appellant
G challenging the recall of the award was dismissed by the
High Court.
t-
In the instant appeal it was contended for the
appellant that on expiry of 30 days from the publication
.H ' 490
RADHAKRISHNA MANI TRIPATHI v. L H. PATEL & ANR. 491

-' of the award the Labour Court became functus officio, A
""" and entertaining of any application for recall thereafter
would be beyond its authority. It was submitted that
s.26(2) of the Industrial Disputes (Bombay) Rules
providing for an application to be made for recall of an
ex-parte award made under r.26(1) was in derogation of B
~
s.17-A of the Act, in so far as it extended the time for recall
of the award after the Labour Court ceased to have any
control or authority over the matter.

Dismissing the appeal, the Court c
HELD: 1.1. It is undeniable that the order of the
Labour Court recalling the ex-parte award was completely
in accordance with Rule 26(2) of the Industrial .Disputes
(Bombay) Rules, 1957. The petition for recall was filed by
respondent no.1 within two days of the receipt of a copy D
of the award and he was also able to fully satisfy the
+ Labour Court that there was sufficient cause for his non
appearance since no notice was ever served on him.
[Para· 7] [495-G-H; 496-A]
E
1.2. This Court in Grindlays Bank* fou'nded the
industrial Court's jurisdiction and power to recall an ex-
parte award on rr. 22 and 24(b) of Industrial Disputes
(Central) Rules and what this Court held to be implicit in
r.22 of the Central Rules is made explicit and clear in the -F
,. -..,-
Bombay Rules in the form of sub rule (2) of r.26 of the
Rules. In Grindlays Bank this Court didn't say that the
industrial courts would have no jurisdiction to entertain
an application for setting aside an award made after 30
days of its publication. [Paras 14, 15 and 17] [498-C".D; G
499-E-F]
-4
*Grindlays Bank vs. Central Government Industrial
Tribunal & Ors., (1980) $upp SCC 240, referred to.

1.3. In Anil Sood's** case this ~ourt has held; if there H
492 SUPREME COURT -REPORTS [2008] 16 S.C.R.

A is sufficient cause .shown which prevented a party from
appearing, then .if the party is visited with an award
without a notice which is a nullity, the Labour Court/
Tribunal r:nust have power to set aside the ex-parte award.
In this view of the matter there is no question of any
B conflict between Rule 26(2) of the Industrial Disputes
(Bombay) ·Rules and Section 17-A of the Act. [Paras 18
and 19] [500-E-F; 501-A-B] .

~*Anil Sood vs, Presiding Officer Labour Court II, (2001)
c 10 sec 534, relied on.

Case Law Reference:

(1980) Supp SCC 240 referred to Para 8

D (2001) 10 sec 534 relied on Para 18

CIVIL APPELLATE JURISDICTION: Civil Appeal No.
· 6737 of 2008. ~

From the Judgment and final Order dated 25.1.2006 of the
· E High Court of Judicature at Bombay in Writ Petition No. 7985
of 2005.

. .. RachnaJoshi lssar for the Appellant.

F Shyam Diwan, Jatin Zaveri and Manoj Gujar for the
Respondents. ...,- ""

The Judgment of .the Court was delivered by

AFTAB ALAM, J. 1. Heard counsel for the parties ..
G
2. Leave granted.
+-
3. In an industrial dispute concerning the-termination of
service of the appellant (the workman) the Second Labour
H Court, Thane, Maharashtra gave an ex-parte award in
RADHAKRISHNA MANI TRIPATHI v. L. H. PATEL & ANR. 493
[AFTAB ALAM, J.)
" --;.
Reference (IDA) no.224 of 1994 in favour of the appellant on A
12 June 1998 directing his reinstatement with full back wages
and continuity in service. The award was made after taking
evidence (ex-parte} led on behalf of the appellant. It was
published on 5 August 1998. On 29 January 1999 respondent·
no.1 filed a petition (Misc. Application [IBA] no.2 of 1999) B 1

before the Labour Court making a prayer for recall of the award. ,
It was stated on behalf of the respondent that no notice was
served on him and he was not aware of the proceedings before
the Labour Court. He came to know about the matter only on '
27 January 1999 on receiving a copy of the award sent to him · c
by the court. And then without any loss of time he filed the
petition for recall of the award. After a full dressed hearing on
the recall petition the Tribunal found and held, vide order dated
12 July 2005, that the appellant obtained the order for ex-parte
hearing of the reference by knowingly suppressing the correct D
address of respondent no.1 and as a result the notice issued
by the Labour Court was never served on him. In light of the
finding, the Labour Court recalled its earlier award dated 12
June 1998 and fixed the matter for fresh hearing.
E
4. The appellant challenged the order of Labour Court
setting aside the award before the Bombay High Court in Writ
petition no. 7985 of 2005. The High Court, by its judgment and
order dated 25 January 2006 dismissed the writ petition and
confirmed the order passed by the Labour Court. This appeal
- 'r is preferred against the orders passed by the High ·court and
F
the Labour Court.

5. At this stage it will be useful to take note of certain
provisions of the Industrial Disputes Act, 1947 (hereinafter
referred to as the Act) and the Rules framed there-under. G
r
_;_ Section 11 of the Act permits the Industrial Tribunal, the Labour
Court (and the other authorities under the Act) to follow, 'subject
to any rules that may be made in this regard' such procedure
as they may think fit. Section 38 of the Act gives the power to
H
·494 SUPREME COURT REPORTS [2008) 16 S.C.R

A the 'appropriate government' to make rules for the purpose of x ~
giving effect to the provisions of the Act. Under Section 38 of """'
the Act the Central Government and many State Governments
have framed rules. Tt1e case in hand coming from Maharashtra
is gove·rned by .the provisions of the Industrial Disputes
B (Bombay) Rules (hereinafter referred to as the Bombay Rules).
Rule-26 of the Bombay Rules lays down the circumstances in
~
which an industrial court may proceed ex parte as also the
conditions on which it may set aside an ex parte award., It reads
as follows: '· .,'
c
"26. Board Court, Labour Court, Tribunal or Arbitrator may
proceed .ex-parte :

(1) If without sufficient cause being shown, any party to a
proceeding before a Board, Court, Labour Court, Tribunal
D or an Arbitrator fails to attend or to. be represented the
Board, Court, Labour Court, Tribunal or Arbitrat~r may
proceed ~x-pa~e

(2) Where any award, order or decisions made ex-parte
E u_nder sub-rule(1 }, the aggrieved party, may within thirty
days of the receipt of a copy thereof, make an application
to the Board, Court, Labour Court, Tribunal or an Arbitrator,
as the case may be, to set aside such award, order or
· decision. If the Board, Court, Labour Court, Tribunal or
F Arbitrator is satisfied that there was sufficient cause for non- '(' -.
appearance of the aggrieved party, it or he may set aside
the award, order or decisions so made and shall appoint
a date for proceeding with the matter:

G . · Provided that, n·o award, order or decision shall be
. 'set' aside on 'any 'applic~tion as' aforesaid un'iess no~ice
-
- thereof has been served' on the opposite party]. (n) . . -+-~
. ' . ~~

[It may be stated here that originally rule 26 was limited to
what now comprises sub-rule 1; sub-rule 2 was added by govt. \
H
RADHAKRISHNA MANI TRIPATHI v. L. H. PATEL & ANR. 495
[AFTAB ALAM, J.]
-..
_.. --; notification dated 20 August 1970 and the original and the A
added provisions were numbered as sub-rules 1 and 2
respectively.]

6. Rule 31A of the Bombay Rules provides as follows:
B
"Publication of report or award etc. - (1) Within thirty days
~ of the date of receipt of the report of a Board or award of
a Labour Court or Tribunal by it the State Government, -

(a) shall, if it considers that having regard to the
importance of such report or award its publication c
in the Official Gazette is necessary cause it to be
published in the Official Gazette;

(b) If it considers that the report or award is not
sufficiently important it may cause a copy thereof D
together with a notification under section 17 to be
forwarded to the Board or a Court or Tribunal, as
+ the case may be, for publication on the Notice
Board at its office.
E
(2) Where the report or award is published in the Official
Gazette or on notice board of the Board, Court or Tribunal,
the State·Government shall at the time of such publication
forward a copy thereof to the parties to the dispute, and
where the report or award is published on notice board of
_,,. y F'
the Board, Court or Tribunal, such board, Court or Tribunal,
shall inform the State Government and the parties
. concerned of the date of such publication on the notice
board."

7. It is undeniable that the order of the Labour Court G
-- ....)..
recalling the ex-parte award was completely in accord with Rule
26(2) of the Bombay Rules. The petition for recall was filed by
respondent no.1 within two days of the receipt of a copy of the
award and he was also able to fully satisfy the Labour Cqurt
H
496 SUPREME COURT REPORTS ·{2008] 16 S.C.R.

/

A that there was sufficient cause for his non appearance since X- .,,,,,.._
no notice was ever served on him.

8. However, Mrs. lssar, learned counsel appearing for the
appellanttried to question the validity of rule 26(2) itself. She
B submitted that under Section 17-A of the Act an award
becomes enforceable on expiry of thirty 'days from the date of
its publication whereupon the labourcourt is rendered functus r
officio. Hence, any application for recall could only. be made
within thirty days from the date of public;atic;m ,of the award,
otherWise it would not be open to the Labour Co'Urt to entertain
c it, as the matter would have gone completely beyond its
authority. In support of the submission she relied upon certain
observations in the decision in Grindlays Bank vs. Central
Government Industrial Tribu(1al & Ors., 1980 (Supp) SCC 240.
She further submitted that the provision of rule 26(2) of the
D
· Bombay Rules was in derogation of Section 17-:-A of the Act in
so far as it extended th~ time for making. an
application for
recall of the award and stretched it t9 a p9~nt w,here the Labour +
Court ceased to have any control er authority ~ver the matter.
Learned counsel submitted that rule 26(2) of the Bombay Rules
E
was in conflict with Section 17-A of. the Act and tended to •,
supplement it. The provision of the rule must, therefo~e. be held
to be invalid and inoperative. In support of the su.bmission she
relied upon a number of decisionswhich it is not-necessary to

F
mention here. .
' ..
. y ....
9. We are unable to accept the submissio'ns made on
' ' I I

behalf of the appellant and we think any reliance placed on the
decision in Grindlays Bank i~ quite misplaced. In Grindlays
Bank an order passed by the Labour Court, recalling its'award,
G was assailed on the same lines as adyocated ,by: Mrs. lssar
before us. In view·of the submissions made before it in that .......
f . • -

case the Court framed the second _qlJ~stion. arising for its
• • • ~

+.
consideration as follows:
'
H "Whether the Tribunal becomes functus officio ori the
RADHAKRl,SHNA MANI TRIPATHI v. L. H. PATEL & ANR. 497
[AFTAB ALAM, J.]

expiry of 30 .days from the date of publication of the ex- A
pa rte award under Section 17, by reason of sub-section
(3) of Sec. 20 and, therefore, had no jurisdiction to set
aside the award and the Central· Government alone had
·the.power under sub (1) of Sec.17-A to set it aside."
I
B
1o.. Here. it needs to be noted that the case of Grind lays
Bank arose under.the Industrial Disputes (Central) Rules. In the
Central Rules there is nothing like rule 26(2) of the Maharashtra
Rules; but rule 22 is almost. identical to rule 26(1) of the
Maharashtra Rules. Rule 22 of the Central rules reads as G
follows:
- '

"22. If without sufficient cause being shown, any party to
proceedings before a Board, Court, Labour Court, Tribunal,
National Tribunal or Arbitrator fails to attend or to be
: represented, the Board, Court, Labour Court, Tribunal,
p
, .National Tribunal or Arbitrator may proceed, as if the party
· ·had duly attended or had been represented."
+
11. Further, rule 24 of the Central Rules gives to the
Industrial Tribunal, Labour Court (and the other authorities under E
the Act) ·certain powers under the Civil Procedure Code as
vested in a Civil Court when trying a suit. The powers
enumerated under the rule include the power of granting
adjournments.
F
12. In Grind/ays Bank this Court held that rules 22 and 24
(b) were sufficiently the source of power for the industrial courts
to recall an,ex-parte award. It was pointed out that in terms of
rule 22 the industrial courts could proceed ex parte in the matter
only in case a party to the proceeding failed to attend or be G'
represented without showing sufficient cause. The Court held
,._.),. that power to proceed ex-parte under rule 22 carried with it the
power to inquire whether or not there was sufficient cause for
the absence of the party at the hearing and in case the party
was able to show sufficient cause for its non appearance on H
498 ·SUPREME COURT REPORTS [2008] 16 S.C.R.

A the date the court had proceeded ex parte against it, to recall
the award. (vlde paragraph 11 of the decision).
/"· , ' , • .~· ' I 1

· · 13. Similarly;the·Court·pointed out, the provision of rule
24(b) empowered the industrial pourts to refuse to adjourn the
8 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 of c·pc would be clearly attracted. It logically r
follows that tile Tribunal is competent to e~rtain an application
to set aside an ex parte award. (vide paragraph 12 of the
C decision)

14. The Court thus founded the industrial court's jurisdictior1··- ·
and power to· recall an ex~parte award on rule 22 and 24 (b)of
Central Rules. ·· ·

D 15. 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.
·•

E 16. Coming now to the submission based on Sec.17-A of
the Act the Court in paragraph 14 of the decision held and
observed as follows:
'·
"The contention that the Tribunal had become func'tus
officio and, therefore, had no jurisdiction to set·aside the
F
ex-p-arte award and that the Central Government alone
·;1 ,could set it aside, does not commend to .us. Sub-section.
,, (3) of Section ~O .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
G Section . Under Section· 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 1O of the Act are,
therefore, not deemed to be concluded· until the expiry
H
RADHAKRISHNA MANI TRIPATHI v. L. H. PATEL & ANR. 499
[AFTAB ALAM, J.]

of 30 days from the publication of the award. Till then the A
Tribunal retains jurisdiction over the dispute referred to
it for adjudication and up to that date it has the power to
entertain an application in connection with such dispute;
That stage is not reached till the award becomes
enforceable under Section . In the instant case, the tribunal B
made the ex-parte award on December 9, 1976. That
award was published by the Central Government in the
Gazette of India dated December 25, 1976. The
application for setting aside the ex-parte award was filed
by respondent 3, acting on behalf of respondents 5 to 17 c
on January· 19, 1977 i.e., before the expiry of 30 days of
its publication and was, therefore, rightly entertained by the
Tribunal. It had jurisdiction to entertain it and decide it on
merits."
D
(emphasis added)

17. From the above quotation it would appear that in
Grindlays Bank the recall application was filed within 30 days
from the date of publication of the award and hence, the
objection raised on the basis of Sec.17A did not arise in this E,
case. In Grindlays Bank this Court didn't say that the industrial
courts would have no jurisdiction to entertain an application for
setting aside an award made after 30 days of its publication.
Nevertheless, on the basis of the passage marked in italics in
the above quotation Mrs. lssar strongly contended that is the F'
true import of the judgment.

· 18. We are unable to accept. The position is made clear
in the later decision in Anil Sood vs. Presiding Officer Labour
Court· II, (2001) 10 SCC 534. In Anil Sood interestingly the G
Labour Court had rejected the recall application on the very
same ground that after making the award it became functus
officio in the matter. The order of the Labour Court was
challenged before the High Court but the High Court also took
H ,
500 SUPREME COURT REPQRTS [2008J 16 S.C.R.

A the same view. In appeal this Court noted that the award was :,..- :;:,
made on 1' 1 .09 .1995 and the application for its recall was filed
on 6.11.95. The Court referred to. the earlier decision in
Grindlays .Barik and the provisions of sub-sections (1) and (3)
of Section 11.of the Act and in paragraphs 6, 7, a.nd 8 of the
B decision observed and held as follows:

"6. The aspect that.the party against whom award· is to be
made due opportunity to defend has to be given is amatter
. of procedure and not that of power in the sense in which
the language is adopted in Section 11. When matters are :
c
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.
D
"7. The power to proceed ex-parte is av~ilable under Rule
22 of the Central Rules which also includes the power to
inquire wh.ether or not there was sufficient cause for the
absence ofa party at the hearing, and if there is sufficient
E cause shown which prevented a party from appearing,
then if the party is visited with an award without a notice
which .is a nullity and therefore the Tribunal will have· no
jurisdiction to proceed and consequently, it must
necessarily have p~wer to set aside the ex-parte award.
F
"8. If this be the position in law, both the High Court and
the Tribunal (sic Labour Court) Jell into an error in stating
that the Labour Court had become functus officio after
making the award though ex-parte. We set aside the order
G made and the award passed· by the Labour Cou~ and
.. affirmed by the High Court in this regard, in v1ew of the fact
that the learned counsel for the respondent conceded that
application filed by the appellant be allowed, set aside the
ex-parte award and restore the reference."
H
RADHAKRISHNA MANI TRIPATHI v. L. H. PATEL & ANR. 501
[AFTAB ALAM, J.]

' -1 19. In light of the decision in Anil Sood we find no A
substance in the appellant's submission based on Section 17-
A of the Act. There being no substance in the first limb of the
submission there is no question of .any conflict between rule
26(2) of the Maharashtra Rules and Section 17-A of the Act.
~ B
20. We find no merit in the appeal. It is accordingly
~ dismissed.· Having regard to the fact that.the appellant is a
o\ workman we refrain from imposing any cost

R.P. Appeal dismissed.
c