AI Structured Summary
Not yet generated for this judgment
Judgment
SHAMPA DUTT (PAUL), J.:-
The writ application has been preferred challenging an order dated 20th August, 2025, passed by the Learned 9th Industrial Tribunal, West Bengal in Case No. 40/ 2023 under Section 10(1B) (d) of the Industrial Dispute Act, 1947.
Vide the impugned order the learned 9th Industrial Tribunal, Durgapur, Paschim Bardhaman, set aside an ex parte award dated 17.12.2024, passed in case no. 40 of 2023.
It is the case of the petitioner, that the petitioner joined the respondent No.2 Company on 01.07.2015 as a Medical Representative with the designation of Marketing Executive (Sales Promotion Employee) and was posted at Bankura Headquarter. The principal duties and functions performed by the petitioner in the respondent No.2 Company was to promote the different Pharmaceutical products (medicines) of the Company to the doctors by promotional detailing as per the direction and guideline of the respondent company, with request to the doctors to prescribe those promoted medicines. The petitioner used to discharge his Sales Promotion Job with a lot of sincerity and diligence to the satisfaction of the Company.
All on a sudden a letter of charge sheet cum show-cause notice dated 09.01 2021 was issued to the petitioner with an allegation that on 06.11.2020 the petitioner reported that he met Dr. A.S. Dutta without visiting him actually. The petitioner refuted such allegation with cogent assertion that he had actually visited that Doctor and duly reported on him. However, the respondent Company initiated a domestic enquiry and informed by a letter dated 18.02.2021 that domestic Enquiry would start on 09.03.2021 during the period when Covid Pandemic was at its peak. The petitioner informed the respondent No.2 that due to Covid-19 Pandemic he would not attend the domestic enquiry.
Ultimately the respondent Company terminated the service of the petitioner on the basis of the sham and botched enquiry report. The petitioner having exhausted the due process of law filed a Written Statement before the Learned 9th Industrial Tribunal, Durgapur under Section 10(1B)(d) of the Industrial Disputes Act, 1947. Inspite of due service upon the respondent Company, none appeared for contesting the case before the Learned Tribunal. Thereafter the respondent No.2 challenged the Award by filing a Misc. Application without filing a review application. The Learned Tribunal after contested hearing. illegally allowed the application.
It is further stated that the petitioner abovenamed has obtained an ex-parte Award from the Learned 2nd Industrial Tribunal on 17.12.2024 after hearing of the matter against the respondent No. 2 abovenamed. The Learned Tribunal passed an award directing inter-alia to the respondent No.2 to reinstate the petitioner in his previous post immediately with the payment of full back wages. The petitioner submits that there is no provision as such for assailing the contested/ex-parte Award before this Learned Tribunal, by way of filing a Misc. Petition. Rule 27 of the West Bengal Industrial Dispute Rules 1958 unequivocally says in terms of the correction of error and review of an award. It is also submitted that the respondent no.2 has willfully and deliberately decided not to appear in the original case in spite of having the full knowledge of the proceeding which is crystal clear from the conduct of the respondent no.2 with the clear intention to cause delay and undue harassment to the petitioner.
The petitioner has relied upon the judgment in Ranigunj Chemical Works Mazdoor Sangh v. Raniganj Chemical Works and Ors. reported in 1998(79)FLR133 and North Bengal State Transport Corporation & Ors. vs. Sanjoy Kundu reported in 2022(175) FLR 417, wherein the upheld the order of the Single Judge holding inter alia Para (1). The Court relied upon the judgment of the Supreme Court in Grindlays Bank Ltd. vs Central Government Industrial Tribunal and Ors., 1980 (Supp) SCC 420.
The respondent no.2 argues that the present issue centers around the point as to whether the time limit of 15 days to file an Application for setting aside an Ex Parte Award in terms of Second Proviso to Sub Rule (iii) of Rule 27 of the West Bengal Industrial Dispute Rules, 1958 (in short "the said Rules") is to be reckoned from the date of knowledge or not. The learned Tribunal has passed an ex parte award on 17.12.2024. The said ex parte award has been published by the State Government being the appropriate Government on 27.01.2025. The respondent company received the said ex parte award on 10.02.2025.
On 17.02.2025 the respondent prayed for setting aside of the ex parte order which the learned tribunal vide the impugned order was pleased to set aside. Hence the writ application.
It is the case of the respondent that from a plain reading of Section 20(3) of the said Act of 1947, the proceeding before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17A of the said statute. As per Section 17A of the said Act an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17 of the said Act.
It is further stated that the necessary application was filed on behalf of the company within 15 days from knowledge of the ex parte award. The learned Tribunal did not become functious officio, in view of Section 20(iii) of the said Act, 1947.
Finally it is argued that in the instant case the Respondent Company reposed faith on the Learned Advocate who filed the vokalatnama in the instant matter. Secondly, Rule 21 of the West Bengal Industrial Disputes Rules, 1958 empowers the Learned Tribunal to proceed ex-parte but the very expression "may" in the said Rules clearly indicates that the same is discretionary in nature. In other words, it is not mandatory one. Thirdly, the Hon'ble Supreme Court in the case of Grindlays Bank (supra) in no uncertain terms has been pleased to hold that ".... But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition". And lastly, the application dated 17.02 2025 has been filed by the Company with a prayer to "vacate" the ex-parte Award in question. Admittedly, there is no prohibition either in the said Act of 1947 or the Rules framed thereunder prohibiting the Learned Tribunal from exercising such power especially when it did not become functus officio in terms of Section 17A and Section 20(3) of the relevant statutory provisions.
The respondent no.2 has relied upon the following judgment:-
Grindlays Bank Ltd. v. Central Government Industrial Tribunal and ors. reported in 1980(Supp) SCC 420.
Collector of Central Excise, Madras v. M/s. M.M. Rubber and Co. Tamil Nadu reported in 1992(Supp) (1)SCC 471.
D. Saibaba v. Bar Council of India & Anr. reported in (2003) 6 SCC 186.
V. Nagarajan v. SKS Ispat & Powr Limited & Ors. reported in (2022) 2 SCC 244.
Sugandhi (dead) by Legal Representatives & Anr. v. P. Rajkumar reported in (2020) 10 SCC 706, (Para 9).
Devendra Swamy v. Karnataka State Road Transport Corp. reported in (2002) 9 SCC 644.
Keya De v. Jyotirmoy Mitra reported in 2025(1) CHN (CAL) 567, (Para 19).
Rohan Builders (India) Pvt. Ltd. v. Berger Paints India Limited reported in (2025) 10 SCC 802.
The tribunal passed the impugned award, in view of Section 17A(1) of the Industrial Dispute Act:-
“Section 17A. Commencement of the award.- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17: Provided that-
(a)if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b)if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.”
In Grindlays Bank Ltd. vs Central Government Industrial Tribunal and Ors., 1980 (Supp) SCC 420, the Supreme Court held:-
“12.Under Rule 24(b) a Tribunal or other body has the powers of a civil court under Order 17 of the Code of Civil Procedure, relating to the grant of adjournments. Under Order 17, Rule 1, a civil court has the discretion to grant or refuse an adjournment. Where it refuses to adjourn the hearing of a suit, it may proceed either under Order 17, Rule 2 or Rule 3. When it decides to proceed under Order 17, Rule 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9, or to make such other order as it thinks fit. As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte. In a case in which the Tribunal or other body makes an ex parte award, the provisions of Order 9, Rule 13 of the Code are clearly attracted. It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award.
13.We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273] 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. It is in the latter sense that the court in Patel Narshi Thakershi case [(1971) 3 SCC 844 : AIR 1970 SC 1273] held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
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 concluded until the expiry of 30 days from the publication of the award. Till then the 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 17-A. In the instant case, the Tribunal 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 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. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed, the Tribunal had in any event become functus officio. We cannot accede to this argument. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.”
Rule 27 of the West Bengal Industrial Disputes Rules, 1958 in the present case has to applied along with Section 17A of the Industrial Dispute Act, which has been clearly decided in Grindlays Bank Ltd.(Supra).
In the present case:-
The ex parte award was passed on 17.12.2024.
The ex parte award was published under Section 17 of the Industrial Dispute Act, 1947 on 27.01.2025.
An application for vacating the ex parte award was made on 17.02.2025, that is within 30 days from the date of publication of the award as per Section 17A of the Act.
Thus considering the facts and the reasons in the order impugned of the tribunal this Court finds no reason to interfere with the same, the order being in accordance with law.
WPA 26101 of 2025 is dismissed.
Applications, if any, connected thereto stand disposed of consequently.
Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities.