DB CIVIL SPECIAL APPEAL(WRIT) No. 908 of 2007 · Rajasthan High Court

Aggrieved by the order dated 21.5.2007, this appeal has been preferred. It is a case where ex parte award was passed by the Labour Court on 29.4.2003. The employer thereupon moved an application for setting aside ex parte award. The said application was then accepted by the Labour Court vide order dated 31.1.2005. Aggrieved by the order dated 31.1.2005, appellant preferred a writ petition before this court. The said writ petition was dismissed. Hence, this appeal by the appellant. 2 Learned counsel for petitioner-appellant submits that after passing of the award, Labour Court became functuous officio in view of notification of award pursuant to section 17 and 17-A of the Industrial Disputes Act, 1947 (for short 'the Act of 1947'). The application for setting aside notified ex parte award cannot be entertained by the Labour court but ignoring the objection taken in the reply, order dated 31.1.2005 was passed.

Precisely on that ground the writ petition was pursued. He further submits that there was no justification to condone the delay in making application for setting aside ex parte award. On the other hand, learned Additional Advocate General supported the judgment of the learned Single Judge. We have considered rival submissions of learned counsel for the parties and perused the record of the case. It is a case where, initially, a reference was made to the Labour Court pursuant to section 10 of the Act of 1947. On receipt of reference, appellant herein made an application to the appropriate Government for amendment in the reference as the date originally mentioned in the reference was incorrect. The amendment in the reference was allowed and, as such, amended 3 reference was sent to the Labour Court. On receipt of amended reference, statement of claim was again filed by the appellant however copy thereof was not served on the non-claimants therein.

On that ground application was moved to set aside ex parte award. The Labour Court came to the conclusion that in view of amendment in the reference and amended statement of claim, a copy thereof was required to be served on the non-claimant, which was not served. In the light of aforesaid, ex parte award was set aside by the Labour Court. Now comes the issue as to whether on passing of the award, it can be set aside on an application moved by non- claimant employer. For that purpose, we are required to refer Rajasthan Industrial Disputes Rules, 1958 (for short 'the Rules'). It would be gainful to reproduce rule 22-A of the Rules which reads as under:- “22-A. Setting aside ex parte decision. - (1) On an application made within fifteen days of the ex parte decision, the Board, Court, Labour Court, Tribunal or Arbitrator may, on sufficient cause being shown after notice to the opposite party set aside either wholly or in part, an ex parte decision.

(2) The Board, Court, Labour Court, Tribunal or Arbitrator may, on an application, extend the time of fifteen days as prescribed in sub-rule (1) on sufficient cause being shown. 4 (3) Applications under sub-rules (1) and (2) shall be supported by an affidavit.” Perusal of above provision shows that if ex parte decision is given by the Labour Court/ Industrial Tribunal, it can be set aside on application made within fifteen days. In case application is made beyond fifteen days then on sufficient cause, application can be entertained. In view of aforesaid provision, ex parte decision can be set aside. Section 17 of the Act of 1947 does not bar to set aside ex parte award. In view of aforesaid, we are of the opinion that not only the Labour Court was having power to set aside ex parte award but looking to the facts and circumstances of the case, we hold that there was a justification to set aside the ex parte award.

At this stage, learned counsel for appellant informs that claimant has already led his evidence and now evidence of non-claimant employer is going on thus partial implementation of the order impugned exist. In the facts and circumstances of the case and the discussion made above, we do not find any error in the impugned order of the learned Single Judge thus we are not inclined to entertain this appeal. Hence, the same is dismissed. 5 It is expected of the Labour Court to expedite the proceedings as otherwise observed by the learned Single Judge. (MN Bhandari), J. (Dalip Singh) J bnsharma