1. Heard Sri B.D. Mandhyan, learned Senior Advocate for the petitioner and learned Standing Counsel for respondent no. 1. None has appeared on behalf of respondent no. 2 when the case has been called in revised though name of Sri S.K. Srivastava has been shown in the cause list.
2. This writ petition is directed against the ex parte award dated 16.04.1996 passed by Industrial Tribunal-4, Agra in Adjudication Case No. 0121 of 1995 and the order dated 05.05.1997 whereby the petitioner's application for recall of ex parte award has been rejected.
3. The facts, in brief, are that the respondent no. 2 claimed to be a daily wage employee, engaged by petitioner's Mandi Samiti on 30.08.1990 as Peon, and ceased to work on 18.01.1994, raised an industrial dispute that he was wrongly terminated, which resulted in a reference under Section 4-K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the "Act, 1947") by State Government vide notification dated 16.06.1995. The following reference was made for adjudication of respondent no. 1:
**D;k lsok ;kstdksa }kjk vius Jfed Jh iq"isUnz flag iq= Jh ikrh jke pijklh dh lsok, fnukWad 18&1&1994 ls lekIr djuk mfpr [email protected] oS/kkfud gS\ ;fn ugh] rks lEcfU/kr Jfed D;k [email protected]'k; ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgr\**
4. It is said that several opportunities were given to employer to file their written statement and rejoinder, if any, but they failed. One Sri Hari Shankar Goyal appeared as authorised representative of employer stating that he is not receiving any instructions from employer, whereafter the respondent no. 1 proceeded ex parte and relying on written statement of workman supported by his oral statement recorded by respondent no. 1, held that termination of workman on 18.01.1994 was illegal and he is entitled for reinstatement with full back wages.
5. The petitioner employer filed an application dated 24.02.1997 stating that copy of ex parte award was received by employer on 26.01.1997 and prior thereto they had no information or notice about aforesaid adjudication, hence had no occasion to appear. The request, therefore, was made to recall the ex parte award and to decide the same on merits after giving opportunity of filing written statement and adducing evidence by employer.
6. This application of petitioner has been rejected by respondent no. 1 vide order dated 05.05.1997 stating that since Sri Hari Shankar Goyal had continuously appeared claiming himself to be an advocate of petitioner-Mandi Samiti and, therefore, it cannot be said that petitioner did not have information of Adjudication case pending before Industrial Tribunal. It has further held that after communication of award and expiry of thirty days the Tribunal becomes functus offitio and has no jurisdiction or authority to recall its award.
7. Sri B.D. Mandhyan, learned Senior Advocate appearing for petitioner pointed out that no notice of the proceedings were ever served upon petitioner and without looking into this aspect of the matter simply because one Sri Hari Shankar Goyal, Advocate had appeared claiming himself to be the authorised representative of petitioner, the Industrial Tribunal presumed as if petitioner possessed information of pending case. It has also not taken care to find out, whether Sri Hari Shankar Goyal had submitted any written authority whereby he was appointed as "Authorised Representative" to appear in Adjudication Case No. 121 of 1995, by petitioner and without verifying these facts, as also, whether the registered notice alleged to have been sent was actually served upon petitioner or not, on presumption and conjectures, it has rejected petitioner's application and declined to recall the ex parte award.
8. From para 4 of the order dated 50.05.1997 it is clear that Industrial Tribunal itself has noticed that Sri Hari Shankar Goyal continuously stated that he is not receiving any instructions from his client. It has also recorded a finding that he was never engaged or authorised to appear as "Authorised Representative" of petitioner before respondent no. 1 in the present case. Why Sri Goyal was appearing is not relevant. Where an Advocate unless has been authorised to appear in a particular case and has filed a written authority in accordance with Rules, one cannot presume representation of any, whether employer, or employee, as the case may be by mere presence.
9. Section 6-I of Act, 1947 read with Rule 40 of U.P. Industrial Disputes Rules, 1957 clearly provided the "Authorised Representative" who shall represent a party before the adjudicatory forum, namely, Industrial Tribunal or Labour Court. An Advocate can be permitted by adjudicatory forum to appear provided conditions laid down in sub-section 2 of Section 6-I are satisfied. Nothing is on record to show the authority of Sri Hari Shankar Goyal, whether allowed in the manner provided in Section 6-I of Act, 1947.
10. Be that as it may, without filing an authority before court below in the prescribed form no person can represent either employer or employee before the Labour Court. This aspect has completely been ignored and omitted by respondent no. 1 while considering petitioner's application. Further a notice sent by registered post gives rebuttal presumption about service but when addressee specifically comes with a case that he has not received a notice, service of notice upon him has to be proved like any other fact. No such attempt has been made by respondent no. 1 to examine even this aspect particularly when service of notice was specifically disputed and denied by petitioner. In my view the matter therefore requires reconsideration by Industrial Tribunal.
11. In view of above, the writ petition is allowed. The impugned order dated 05.05.1997 is hereby quashed. The matter is remanded to Industrial Tribunal to reconsider petitioner's application for recall of ex parte award in the light of discussions made above and in accordance with law. No costs.
Order Date :- 22.05.2012 KA/AK