JUDGMENT
1. Heard counsel for the parties
2. The legality of termination of services of Panchudev Nayak, A.S. Patro and S.N. Nanda and suspension of A.K. Choudhury was the subject-matter of reference made under Section 10(1)(d) read with Section 12(5) of the Industrial Disputes Act, 1947, to the Industrial Tribunal, Orissa. After the parties had filed their written statements, issues were framed. August 27, 1980 was fixed as the date of hearing when the management was present, but there was no appearance on behalf of the Union representing the workmen. A no-dispute award was passed on that day which was published in Official Gazette on September 16, 1982. On September 29, 1982 an application was filed for setting aside the ex parte award. The same was registered as Misc. Case No. 1 of 1982. On January 28, 1983 to which date the proceeding stood ultimately posted, neither party appeared and the Industrial Tribunal dismissed the application for non-appearance of parties. On February 23, 1983, the petitioners filed an application for restoration of Misc. Case No. 1 of 1982. Holding that a second application was not maintainable, the Tribunal rejected the application by order dated January 6, 1984 in Misc. Case No. 3 of 1983, copy whereof has been filed as Annexure-1.
3. It is now settled law that Order 9, Rule 13 of the Code of Civil Procedure applies to proceeding under Section 10(1)(d) read with Section 12(5) of the Industrial Dispute Act for setting aside an ex parte award. The controversy is if Order 9, Rule 4 or 9 applies when such an application has been dismissed. Counsel for the petitioner-Union has strenuously urged that when an award has not been passed on merits, the Tribunal is not functus officio and must devise its procedure to do justice between the parties by passing an order and having regard to the advancement in the field of law and several decisions of the Supreme Court and of this Court, the application should not have been rejected as not maintainable.
4. Mr. S.B. Nanda, the learned counsel for opposite party No. 3, however, submits that though having regard to the provisions contained in Section 11(1) read with Orissa Rules 23 and 25 applying the provisions contained in Order 17 to proceedings before the Industrial Tribunal or Labour Court, an application under Order 9 Rule 3 is maintainable, a second application under Order 9, Rule 13, is not maintainable inasmuch as neither Section 151 nor 141 is applicable to proceedings before the Industrial Tribunal or Labour Court. Hence, though Order 9. Rule 13 applies for setting aside an ex parte award, a second application under Order 9, Rule 4 or Rule 9 is not maintainable to restore in application under Order 9, Rule 13, dismissed for default.
5. There is substance in the submission of the
counsel for the opposite parties. Order 9, Rule
13 was made applicable to proceedings by
reason of Orissa Rules specifically applying
Order 17 and Section 11(1) providing that the
Tribunal shall devise such procedure as it thinks
fit but unless Section 141 or 151 applied to
proceedings before the Industrial Tribunal or
Labour Courts, a second application would not
be maintainable.
6. The workmen are also not without any remedy since an award has not been passed on the disputes between the parties. It is always open to them to move the Government for reference of the dispute. We may note here that one of the workmen, namely A.K. Choudhury, has settled his dispute with the employer. Hence, his dispute should be treated as having been resolved and not subsisting.
7. The writ application is accordingly disposed of. No costs.