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Judgment
L. Mohapatra, J.—The Petitioner in this writ application challenges the legality of the order dated 31.7.1997 passed by the learned Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar in I.D. Case No. 49/92 (C) setting aside the ex parte award passed on 27th of July, 1994 subject to payment of cost of Rs. 300/-.
Form the record, it appears that on 27.7.1994 when the aforesaid I.D. Case was posted for hearing, the opposite party No. 1-workmen filed an application for adjournment. When the case was called, none appeared for the workmen to press the petition and accordingly, the Tribunal set the workmen-opposite party ex parte. Thereafter, the ex parte hearing was done and an ex parte award was passed. After the said award was published in the Official Gazette, an application to set aside the ex parte award was filed under Order, 9, Rule 13 of the CPC (for short, "C.P.C") much after expiry of thirty days form the date of publication of the award in the Official Gazette. Said petition was allowed by the Tribunal by order dated 31.7.1997 and the ex parte award was set aside. Challenging the said order, this writ application has been filed.
Shri G. Rath, learned Senior Advocate appearing on behalf of the Petitioner, submitted that the Tribunal having passed an award and the same having been published in the Official Gazette, the Tribunal became functus officio and cannot entertain an application for setting aside the award. Shri Rath, the learned Senior Advocate, conceded to the extent that such an application could be maintainable within thirty days form the date of publication of the award in the Official Gazette, but the said petition having been filed much after expiry of thirty form the date of publication of the award in the Official Gazette, the Tribunal could not have entertained such an application as it became functus officio.
Shri Sarangi, learned Counsel appearing for the workmen-opposite party No. 1, on the other hand, submitted that if an application under Order 9, Rule 13, CPC could be entertained within thirty days form the date of publication of the award in the Official Gazette, a petition for condonation of delay in filing such an application could also be entertained and once the delay is condoned, the application filed under Order 9, Rule 13, CPC becomes entertainable. It was also contended by Shri Sarangi that after the impugned order was passed, the cost has been accepted by the Petitioner and now, therefore, it cannot question the legality of the impugned order. In this connection, both the parties relied on certain decisions.
Shri Rath, learned Counsel for the Petitioner relied on a decision of the Apex Court in the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, . The Apex Court in the said case while dealing with such a question decided in the following manner.
We are of the opinion that the Tribunal had the power to pass the impugned order if it though fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. 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. On the other hand, there are indications to the contrary.
Sub-section (1) of Section 11 of the Act, as substituted by S. 9 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, is in these terms:
(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.
The words ''shall follow such procedure as the arbitrator or other authority may think fit'' are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands. Under cls. (a) to (c) of Sub-section (3) of Section 11, the Tribunal and other authorities have the same powers as are vested in Civil Courts under the Code of Civil Procedure, 1908, of (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents and material objects, and (c) issuing commissions for the examination of witnesses. Under Clause (d) thereof, the Tribunal or such other authorities have also the same powers as are vested in Civil Courts under the Code of Civil Procedure, 1908 in respect of such other matters as may be prescribed. Although the Tribunal or other authorities specified in Section 11 are not Courts but they have the trappings of a Court, and they exercise quasi-judicial functions.
We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellate, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, 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 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 Narshi Thakershi''s case 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.
Shri Rath also relied on Anr. decision of the Apex Court in the case of Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd. and Another, . The Apex Court in the aforesaid case held as follows:
Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers form an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered form such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch 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 re-heard 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 Government Industrial Tribunal and Ors. (supra), it was held that once it is established that the Respondents were prevented form appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.
The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or the review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication.
Shri Sarangi, learned Counsel for the opposite party No. 1- workmen, on the other hand, relied on a decision of this Court in the case of M/s. IDL Chemicals Ltd. v. Presiding Officer, Labour Court, Sambalpur, and Ors. reported in 72 (1991) CLT 73. A Division Bench of this Court faced with a similar question, decided as follows:
It is argued that the application was incompetent after lapse of 30 days form the date of publication of the award in the Gazette. Reliance was placed on the Grindlays Bank''s case (supra) where the application had been filed within 30 days. The Supreme Court has not observed in the said case that an application filed beyond 30 days is not maintainable. The finality which attaches to an award is subject to decisions in other proceedings including proceedings in this Court under Articles 226 and 227 of the Constitution of India. The principles of Order 9, Rule 13 apply and an application can be filed if sufficient causes can be shown for its filing beyond 30 days. We give a very simple illustration. The employer or the worker meets with an accident on the way to the Industrial Tribunal or the Labour Court, sustains a head injury and remains under a coma till after expiry of 30 days form the date of publication of the award in the Gazette, would the employer or the worker in such circumstances have no remedy under the law? Is the law so inexorable? We do not understand the decision in Grindlays Bank''s case (supra) to lay down the rule that an application for setting aside an ex parte award cannot be made after expiry of 30 days form the date of publication of the award in Official Gazette. Such a rule would cause irreparable injury and injustice in some cases. If sufficient cause is shown, the ex parte award can be set aside. So, in our opinion, an ex parte award can be set aside if sufficient cause is shown even beyond 30 days form the date of its publication in Official Gazette. As in our view the decisions of this Court and of the Supreme Court conclude the matter, we do not consider it worthwhile to refer to a cluster of other decisions cited by the parties.
Shri Sarangi also relied on Anr. decision of the Karnataka High Court in the case of Karnataka State Road Transport Corporation, Bangalore and Anr. v. Sindhanoor Veerabhandrappa and Anr. 1988 Lab. I.C. 896. The Karnataka High Court under similar circumstances also held that even though thirty days have lapsed since publication of the award in the Gazette, it does not mean that the Labour Court becomes functus officio and further held that an application for setting aside ex parte award can be entertained.
On perusal of the aforesaid decisions, it appears that the Division Bench of this Court in the case of M/s. IDL Chemicals Ltd. v. Presiding Officer, Labour Court, Sambalpur, and Ors. (supra) took note of the decision of the Apex Court in the case of Grindlays Bank Ltd., v. The Central Government Industrial Tribunal and Ors. (supra) and found that even after expiry of thirty days form the date of publication of the award in the Official Gazette, a petition under Order 9, Rule 13, CPC can be entertained with a prayer for condonation of delay. While explaining the aforesaid judgment of the Apex Court, the Division Bench of this Court has also given an illustration. After perusal of both the judgments, I am of the view that the decision of the Division Bench of this Court in the case of M/s. IDL Chemcals Ltd. v. Presiding Officer, Labour Court, Sambalpur, and Ors. (supra) in no way conflicts with the decisions of the Supreme Court in the case of Grindlays Bank Ltd., v. The Central Government Industrial Tribunal and Ors. (supra). On the other hand, this Court held that if an application under Order 9, Rule 13 CPC can be entertained within thirty days form the date of publication of the award in the Official Gazette, there is no reason why such an application with prayer for condonation of delay cannot be entertained. The judgment of the Apex Court in the case of Kapra Mazdoor Ekta Union v. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and Ors. (supra) deals with an application for review. The Apex Court in the said judgment held that once the dispute is adjudicated on merits, the power of review does not lie with the Tribunal. Here is a case where the Tribunal had not decided the dispute on contest but the same was decided ex parte. Therefore, the present case completely stands on a different footing than that of the case in the aforesaid decision of the Apex Court. I am, therefore, of the view that in the present facts and circumstances of the case, the Division Bench decision of this Court in the case of M/s. IDL Chemicals Ltd. v. Presiding Officer, Labour Court, Sambalpur and Ors. (supra) has full application. The Tribunal in the impugned order having condoned the delay by awarding cost, has not committed any illegality in entertaining the application under Order 9, Rule 13, CPC for setting aside the ex parte award.
I, therefore, find no merit in this writ application and the same is accordingly dismissed. No costs.