ORDER
D.K. Deshmukh, J.
1. By this petition, the petitioner challenges the order passed by the Labour Court, Nasik in Miscellaneous (I.D.A.) No. 3 of 1996. The facts that are material and relevant for deciding the present petition are that a Reference (I.D.A.) No. 30 of 1990 was sent by Deputy Commissioner, Nasik under section 10 read with section 12 of the Industrial Disputes Act, 1947 to the Labour Court for adjudication. The question that has to be determined in that reference was whether the respondent-Kacharu is entitled to the relief of reinstatement in service with continuity and full back wages with effect from 4th February, 1986. It appears that reference was decided ex parte by the Labour Court by its award dated 20th January, 1996. The answer of the Court was that the termination of the service of the workman concerned was unjustified. The petitioner-employer was directed to reinstate the workman with continuity of service and full back wages from 24th January, 1989. It appears that the said award was published in the Official Gazette as required by the provisions of the Industrial Disputes Act on 13th December, 1996. It further appears that on 25th April, 1996, the petitioner made an application to the Labour Court, Nasik which was registered as Miscellaneous (I.D.A.) No. 3 of 1996 for setting aside the ex parte award. Before the Labour Court, a preliminary objection was raised to the tenability of the application on behalf of the workman and therefore, that objection was
decided by the Labour Court by its order dated 21st May, 1998. The objection that was raised was that the award has been published on 13th December, 1996 and therefore, an application for setting aside that award can be made within a period of 30 days from the date of publication of the award because after the expiry of the period of 30 days from the date of publication of the award, the Labour Court becomes functus officio and therefore, cannot entertain an application for setting aside the ex parte award. This objection was raised on the basis of the law laid down by the Supreme Court in its judgment in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others, reported in 1981 Labour and Industrial Cases 155. The Labour Court, after considering the facts of the case and the law laid down by the Supreme Court, held that the application for setting aside the ex parte award which is filed beyond the period of 30 days from the date of publication of the award is not maintainable because the Court does not have jurisdiction to entertain such application filed after a period of 30 days from the date of publication of the award.
2. It is this order of the Labour Court, Nasik which is challenged in the present petition.
3. The learned Counsel appearing for the petitioner firstly relying on a judgment of the Supreme Court in the case of Satnam Verma v. Union of India, and a judgment of this Court in Writ Petition No. 4466 of 1997, Zilla Parishad v. Bhagwant S. Gharate, decided on 11th January, 1999, submitted that the Labour Court, even after expiry of the period of 30 days from the date of publication of the award, does not become functus officio and therefore, it can entertain the application filed beyond the period of 30 days from the date of publication of the award by condoning delay, of course for sufficient cause in making the application. The learned Counsel, for this proposition, also relied on a judgment of the Orissa High Court in the case of Samuel Pani v. Presiding Officer, Labour Court and others, reported in 1996 Labour and Industrial Cases 2709. The learned Counsel further submits that the Division Bench of this Court in its judgment in the case of M/s. New India Structural and Crane Works v. Abdul Rashid Abdul Majid and another, has held that the provision of section 5 of the Limitation Act are applicable to the proceedings filed before the Labour Court for setting aside an ex parte award made under the Industrial Disputes Act. In the submission of the learned Counsel therefore, the Labour Court has committed an error in holding that the Labour Court becomes functus officio after expiry of the period of 30 days from the date of publication of the award, in the submission of the learned Counsel, the Court had the jurisdiction to entertain the application. The most that could have been done by the Court was to consider the reasons that have been given for condonation of delay in filing the application for setting aside the award.
4. The learned Counsel appearing for the respondent, on the other hand, submits that under sub-section (3) of section 20, the proceedings before the Labour Court are deemed to have commenced on the date of reference of the dispute for arbitration and such proceedings are deemed to have continued on the date on which the award becomes enforceable under section 17-A of the Industrial disputes Act. According to the learned Counsel, an award becomes enforceable on the expiry of period of 30 days from the date of its publication under section 17. In the submission of the learned Counsel therefore, the proceedings before the Court came to an end on expiry of period of 30 days from the date of publication of the award and therefore the Court which has made the award ceases to have jurisdiction over the subject matter on expiry of a period of 30 days from the date of publication of the award. The learned Counsel submits that the Supreme Court in its judgment in Grindlays Bank’s case has categorically held that the Labour Court holds jurisdiction to set aside an ex parte award in case an application for setting aside the ex parte award is made within 30 days of its publication. The learned Counsel submits that so far as the judgment of the Supreme Court in Satnam Verma’s case referred to above is concerned, it does not deal with a case where application for setting aside an ex parte award has been made beyond the period of 30 days from the date of its publication in the Official Gazette. Now, if in the light of these rival submissions, the record of the case is perused, it becomes clear that the Industrial Tribunal or the Labour Court is competent to make an ex parte award if the other side does not appear. There is no express provision made either in the Industrial Disputes Act or the Rules framed thereunder empowering the Industrial Tribunal or the Labour Court to set aside an ex parte award made by it. Perusal of the judgment of the Supreme Court in Grindlays Bank’s case shows that the first question that fell for consideration before the Supreme Court was whether in the absence of any express provision in the Act or the Rules framed thereunder empowering the Industrial Tribunal or the Labour Court to set aside an ex parte award, the Industrial Tribunal or the Labour Court has the power to set aside an ex parte award. The second question that was being considered by the Supreme Court was upto what time the Labour Court or the Industrial Tribunal can exercise that jurisdiction in case it has such jurisdiction. The Supreme Court answered first question by holding that the Labour Court or the Industrial Tribunal has the jurisdiction to set aside an ex parte award. The relevant observations of the Supreme Court are to be found in paragraph 6 of its judgment in Grindlays Bank’s case which read as under:-
“6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought 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 which 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.”
Thereafter, the question whether the time within which such an application is to be made to the Court was considered by the Court in paragraph 14 of its judgment which reads as under:-
“14. The contention that the Tribunal had become fund us 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 17A. Under section 17A 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 upto that date it has the power to entertain an application in connection with dispute. That stage is not reached till the award becomes enforceable under section 17A …..”
5. It is clear from the observations of the Supreme Court in paragraph 14 above that the Supreme Court has said that because of the provisions of subsection (3) of section 20 of the Industrial Disputes Act, the Tribunal continues to be ceased of the matter and the proceedings before it are deemed to be continued till the award becomes enforceable and therefore, till that date, as the Tribunal continues to be served of the matter, the Tribunal or the Labour Court can entertain an application for setting aside the ex parte award. The Supreme Court has however held in the same paragraph that for this purpose, it is necessary that an application should be made within 30 days of the publication of the award and it is not necessary that the application should also be decided within 30 days. It therefore follows that any ex parte award made by the Tribunal which is published in the Official Gazette is final subject to the power of the Tribunal to entertain an application for setting aside that award if made within 30 days. The corollary is that if any ex parte award is published in the Official Gazette and an application for setting aside that award is filed within 30 days, then that award will not become final or the award would be considered to be final subject to the decision on the application filed for setting aside that award within 30 days of the publication of the award. In my opinion, the judgment of the Supreme Court in Grindlays Bank’s case leaves no manner of doubt that the Industrial Tribunal or the Labour Court can entertain an application for setting aside the award only till the expiry of 30 days from the date of publication of the award. Insofar as Satnam Verma’s case is concerned, in my opinion, the Supreme Court was not considering the question of limitation for making an application for setting aside an ex parte award. Perusal of paragraph 3 of that judgment shows that in that case, after the ex parte award was made on 23rd February, 1982, the application for recall of that order was filed soon thereafter. The Supreme Court in that judgment does not refer to the date of publication of the award at all. The question of limitation of filing an application for setting aside the ex parte award is incapable of being considered without referring to the date of publication of the award. The only question that was considered in the said case was the power of the Tribunal to entertain an application for setting aside an ex parte award and the Supreme Court relying on first part of its judgment in Grindlays Bank’s case, has held that the
Industrial Tribunal or the Labour Court has such power. The second question decided by the Supreme Court in Grindlays Bank’s case viz, the question of limitation for filing such application was not considered by the Supreme Court in Satnam Verma’s case. So far as the judgment of this Court in Writ Petition No. 4466 of 1997 is concerned, it appears that the judgment of the Supreme Court in Grindlays Bank’s case was not pointed out to the learned Single Judge who passed that order and referring only to the observations of the Supreme Court in Satnam Verma’s case, it was held that if an application is made beyond 30 days, the Court can condone the delay by applying the Limitation Act. In my opinion, considering the facts of that case, the decision of the Supreme Court in Satnam Verma’s case was not at all relevant because as I have observed above, the Supreme Court in Satnam Verma’s case does not at all decide the question of limitation for making an application for setting aside the ex parte award. So far as the reliance placed by the learned Counsel for the petitioner on the Division Bench judgment of this Court in the case of M/s. New India Structural and Crane Works is concerned, in that case, this Court was not at all considering the question that falls for considering in this case, viz. the period during which an application for setting aside an ex parte award which has been published in the Official Gazette, can be made. It is pertinent to note that in that judgment, nowhere it is stated as to when the award was published in the Official Gazette. Therefore, it is possible that in that case, the award might not have been published at all and an application for setting aside the ex parte award might have been made before its publication in the Official Gazette, with the result in view of the provisions of sub-section (3) of section 20 of the Act, the proceedings before the Labour Court were pending and therefore, the Labour Court could entertain the application for setting aside the ex parte award. Insofar as the judgment of the Orissa High Court in the case of Samuel Pani is concerned, in that case also, I do not find any reference to the date on which the award was published in the Official Gazette and therefore, it is obvious that in that case also, the Court was not considering the question of limitation for making an application for setting aside the ex parte award which is published in the Official Gazette. To my mind, it is absolutely clear that an application for setting aside an ex parte award can be made to the Industrial Tribunal or Labour Court till the proceedings before it are pending. The proceedings in terms of provisions of subsection (3) of section 20 remain pending till the award becomes enforceable under section 17A and therefore, that is the limitation for making an application for setting aside an ex parte award. In the present case admittedly the application has not been made within a period of 30 days from the date of publication of the award in the Official Gazette and therefore, the Labour Court has rightly rejected that application.
6. In the result therefore, petition fails and the same is dismissed with no order as to costs.
Certified copy expedited.
7. Petition dismissed.