JUDGMENT Rakesh Tiwari, J.
1. These three writ petitions relate to same matter i.e. an ex parte award for issuance of an order for recovery in pursuance of the award and order for recovery of amount due to the petitioner after adjustment of the amount paid by the petitioner in pursuance of the ex parte award.
2. Writ Petition No. 16152 of 1999 has been filed challenging the validity and correctness of the ex parte award dated 25.5.1993 in Adjudication Case No. 360 of" 1991 passed by the Labour Court, U.P. Gorakhpur. By the impugned award, the Labour Court has decided the reference regarding termination of services of respondent No. 2, Chandra Prabhakar from the post of operator and has held that he is entitled to reinstatement with continuity of service with back wages as the termination of his services were illegal and unjustified.
3. Since the connected writ petitions arise out of the impugned award challenged in Writ Petition No. 16152 of 1999, they are being decided together along with writ petition No. 16152 of 1999 which is being taken as the leading case. The judgment would cover the other connected writ petitions also.
4. The brief facts of the case are that Workman Chandra Prabhakar is alleged to have tendered his resignation on 9.5.1990 which was accepted by the management on the same date. Thereafter an industrial dispute was raised by him before the Regional Conciliation Officer. On failure of conciliation proceedings, the matter was referred to the Labour Court, U.P. Gorakhpur where it was registered as Adjudication Case No. 360 of 1991. An ex parte award was passed by the Labour Court, U.P., Gorakhpur. On coming to know about the ex parte award an application dated 15.2.1994 was moved by the petitioner before the Labour Court for setting aside the ex parte award within 30 days from the date of publication of the award which was published on 31.1.1994. The application was numbered as Misc. Case No. 30 of 1994.
5. The case of the petitioner in the application for setting aside the ex parte award was that the petitioner had not been served with summons and had no notice of the case. It was averred that the notice was served on the manager of the petitioner Talkies; that he on receipt of the notice had attended the case but the copy of the written statement filed by the workman was not served on him as required under Rule 12 (1) of the U.P. Industrial Disputes Rules, 1957, the date fixed in the case i.e. 18.11.1992. It was alleged that the manager fell ill and Assistant Manager Sri Tej Pratap Singh was deputed to do Pairvi of the case but he colluded with the workman and did not attend the Court. It is also alleged that the Manager after recouping from the illness attended the Court and was informed By the reader that the order would be sent to him in due course. It is only after receipt of the ex parte award to the petitioner on 11.2.1994 that the petitioner came to know about the ex parte proceedings and moved an application dated 15.2.1994 for setting aside of the aforesaid ex parte award within 30 days from the date of its publication. The restoration application was registered as Misc. Case No. 30 of 1994.
6. After exchange of counter and rejoinder affidavits in Misc. Case No. 30 of 1994 the Labour Court rejected the application of the petitioner for setting aside the ex parte award vide order dated 29.1.1999 on the ground that the petitioner was not diligent and the application for setting aside the ex parte award was made after 7 months i.e. beyond the limitation prescribed under Rule 16 of the U.P. Industrial Disputes Rules, 1957.
7. The award passed in Misc. Case No. 30 of 1994 has been challenged in Writ Petition No. 16152 of 1999.
8. This Court vide order dated 21.4.1999 stayed the operation of the impugned ex parte award with certain conditions which is as under :
"Heard Sri P.K. Mukherji learned Counsel for the petitioner and Sri Arvind Kumar appearing on behalf of respondent No. 2.
Let a counter affidavit be filed within six weeks.
List thereafter.
In the meantime the enforcement of the impugned award shall remain stayed provided :
(i) the back wages to the extent of 50 per cent payable under the award are deposited with the concerned Labour Court within two months from today.
(ii) A sum equal to wages payable to the workman from the date of award till the last preceding month is paid to the respondent workman within two months from today; and
(iii) Wages at the rate admissible under Section 17B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent workman, month by month basis, till further orders of this Court, (see Dena Bank v. Kirti Kumar T. Patel, AIR 1998 SC 511).
The back wages so deposited, in terms of this order shall be invested in some Nationalised Bank by the concerned Labour Court under an interest earning term deposit scheme initially for a period of one year, subject to further renewal. This deposit shall be made subject to the ultimate decision of this petition.
In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end and award in question shall become enforceable and recovery proceedings, if any, shall revive.
Sd. Hon. O.P. Garg, J.
21.4.1999."
9. After the application for setting aside the ex parte award was rejected, the respondent workman moved an application dated 19.2.1999 under Section 6-H (i) of the U.P. Industrial Disputes Act, 1947 claiming an amount of Rs. 2,16,940/- as wages for the period 1.5.1999 to 31.1.2000. The claim application of the workman was registered as R.D. Case No. 45 of 1999.
10. The petitioner claims that the workman was asked to join duties but he did not join duties. It is also claimed that the petitioner has deposited a sum of Rs. 69,616/- and Rs. 9,225/-+ Rs. 60,391/- with the Labour Court, Gorakhpur which was withdrawn by the respondent workman.
11. It appears from the record that the Deputy Labour Commissioner, Gorakhpur vide order dated 5.8.1999 allowed the claim of the workman in R.D. Case No. 45 of 1999 and issued a recovery certificate dated 25.8.99 for a sum of Rs. 2,16,940/-.
12. The counsel for the petitioner submits that the petitioner firm moved an application before the Deputy Labour Commissioner, Gorakhpur informing that all the conditions imposed by the High Court while granting stay of operation of award vide order dated 21.4.1999 have been complied with, as such the recovery certificate dated 25.5.1999 may be withdrawn. The Deputy Labour Commissioner withdrew/cancel the recovery certificate dated 25.8.1999 which has been challenged by the workman in Writ Petition No. 22292 of 2000. The Court in the aforesaid writ petition stayed the operation of the order of the Deputy Labour Commissioner dated 20.9.1999 by ad-interim order dated 16.5.2000 which is as under :
"Heard Sri Arvind Kumar learned Counsel for the petitioner-employee. The learned Standing Counsel takes notice on behalf of respondents 1 and 3. Let him file counter affidavit on their behalf within six weeks.
Issue notice to respondent No. 2 who may file counter affidavit within the same time.
List thereafter.
In the meantime the operation of the order dated 20.9.1999, Annexure-6 to the writ petition shall remain stayed.
Sd. Hon. O.P. Garg, J.
16.5.2000"
13. The Deputy Labour Commissioner thereafter issued a fresh recovery certificate for recovery of Rs. 1,47,342/- vide recovery certificate dated 21.8.2000 after adjusting the amount deposited by the petitioner. This recovery certificate is challenged in W.P. No. 42134 of 2000.
14. Learned Counsel for petitioner submits that the Labour Court has wrongly rejected the application for restoration of ex parte award on ground of delay and latches holding that cause shown is not sufficient and has illegally issued recovery certificates in the circumstances of this case. The counsel for workman submits that application for setting aside ex parte award was barred by limitation provided in Rule 16 (2) of the U.P. Industrial Disputes Rules and the Labour Court rightly dismissed it on ground of latches and delay.
15. I have heard the counsel for the petitioner and the Standing Counsel appearing for the respondents.
16. The Apex Court also in a catena of decisions has held that the Labour Court or Tribunal does not become functus officio till expiry of 30 days from the publication of award. Reference may be made to case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) and Sanghavi Tape Company v. Hans Raj, 2004 AIR SCW 5452.
17. The above cases relate to U.P. Industrial Disputes Act and Industrial Disputes Act, 1947 (Central). In Rule 22 of Central Rules there is no limitation provided for application for setting aside ex parte award but in U.P. limitation of 10 days has been inserted.
18. This Court in a catena of decisions has held that application under Rule 16 (2) has to be filed within 10 days of the order. Reference may be made to Deen Dayal Shodh Sansthan v. State, 1997(1) LLJ 982 and U.P. State Road Transport Corporation v. State, 1996 (1) LLJ 31.
19. According to law laid down in U.P. State Sugar Corporation v. Om Prakash Upadhaya, 2002 (93) FLR 600, the U.P. Industrial Disputes Act alone applies in State of U.P., hence in U.P. 10 days limitation has to be followed and application filed after 10 days after ex parte award will be barred by limitation. Thus in State of U.P. application to set aside ex parte award has to be filed within 10 days of the award. If it is not filed within 10 days, it can be filed with application under Section 5 of the Limitation Act up to 30 days of publication of the award. The Labour Court has no jurisdiction to entertain such application after 30 days of publication of ex parte award.
20. The present case is case of first type in which employer petitioner had been served with summonses. The petitioner filed even application for further time and thereafter did not participate in proceedings. The Labour Court rejected his application for setting aside the ex parte award holding that it was guilty of latches and application was filed after 7 months of the ex parte order though application was filed within 30 days of publication of award but Labour Court was not satisfied with the explanation offered for delay in filing application under Rule 16 (2) of the Industrial Disputes Rules. The view taken is not perverse or arbitrary. So far as cases of second type of the cases, are concerned it may be noted that Article 123 (Explanation) of Limitation Act itself provides that substituted service will not be deemed to be due service and matter may be considered by Labour Court. Right to proceed ex parte is procedural. Every procedure in law has been provided to enhance justice and not injustice. Hence, in such cases Labour Court has to exercise jurisdiction to do justice in view of circumstances and facts of each case.
21. The counsel for the petitioner has placed reliance on paragraph 9 of the judgment in State of U.P. and Anr. v. Bachai Lal and Anr., 1997 (76) FLR 919 which is as under :
"The next question that arises for consideration is as to whether the application filed after ten days of the ex parte award is maintainable. In my opinion, the Labour Court retains jurisdiction to entertain an application for setting aside an ex parte award at least till the award attains finality under Section 6 of the Act albeit according to Grindlays Bank Ltd. (supra), it retains jurisdiction "until expiry of 30 days from the publication of the award". It is another thing that the jurisdiction can be invoked only upon sufficient. cause being shown for absence."
22. He has also placed reliance on paragraph 13 of the judgment in "U.P. Power Corporation Ltd. and Anr. v. Presiding Officer, Labour Court, Ghaziabad and Anr., 2003 (98) FLR 998 which is as under :
"As has already been held that the award was made under Rule 12 (9), question of limitation of ten days does not arise. The Labour Court could still recall the order dated 2.8.1986 as by 3.9.1986, when the recall application was filed, the award was not enforceable as it was not published, thus the question of limitation of ten days did not arise. The merits of the reason for non-appearance was to a large extent in the judicial discretion of the Labour Court."
23. In both the cited cases the High Court has held that the Labour Court retains jurisdiction to entertain an application for setting aside an ex parte award till it attains finality under Section 6 of the U.P. Industrial Disputes Act, 1947. In the aforesaid cases, the Court took support from the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors., 1981 (42) FLR 88. The Court has categorically held that the term "sufficient" used in Rule 16 no doubt should receive liberal construction so as to advance substantial justice but if the party is found guilty of latches, indifference and inaction or where want of bona fides is imputable to the party, it cannot be said to have shown sufficient cause for absence. In the instant case, admittedly the award has been published and has attained finality. It has become enforceable as the application for recall for ex parte award was filed after 30 days from the date of its publication.
24. The counsel for the respondent workman has relied upon the case of U.P. State Electricity Board and Anr. v. Presiding Officer, Industrial Tribunal, 1985 (51) FLR 551, 2004 (103) FLR 699 and lastly upon, U.P. State Sugar Corporation v. Om Prakash Upadhyaya, 2002 (10) SCC 1489. On the basis of the law expounded in the aforesaid cases he submits that under the Central Act there is no limitation prescribed for filing an application for recall of the ex parte award and, as such, the Hon'ble Supreme Court in the case of Grindlays Bank's case (supra) has held that the application could be moved within 30 days from the date of publication of the award. He further submits that in so far as the U.P. Industrial Disputes Rules, 1957 framed under the U.P. Industrial Disputes Act, 1947 are concerned, they provide limitation for 10 days for moving an application for recall of the ex parte award. He further submits that the Court has considered the law expounded in Anil Sood and Ors. v. S.K. Sarwaria and Ors., 1998 (78) FLR 14 and has held that it did not profound any law. He lastly submits that in case of U.P. State Sugar Corporation v. Om Prakash Upadhyaya, the Court has held that in the State of U.P., U.P. Industrial Disputes Act, 1947 would apply in so far as question of retrenchment/ termination of services of an employee is concerned and, as such, the Rules framed under the U.P. Industrial Disputes Act, 1947 would apply to the facts of the present case as the services of the petitioner had been terminated under the U.P. Act and the reference was also made under the U.P. Act. He states that since the Rule prescribed clearly provide limitation for 10 days during which the application for setting aside the ex parte award could be moved, the Labour Court has not committed any illegality or infirmity in rejecting the application of the petitioner.
25. Question arises whether the application for setting aside ex parte order was barred by time and whether petitioner is guilty of latches. There are two types of ex parte award (i) in which service is sufficient and (ii) in which party is not served or is not properly served.
26. The ex parte award passed on 25.5.1993 was published on 31.1.1994. It would have become enforceable on expiry of 30 days thereafter publication in accordance with Sub-section (3) of Section 6 of the U.P. Industrial Disputes Act. The application for setting aside award was filed on 15.2.1994 i.e. within 30 days of the publication of the award. Rule 16 (2) of the U.P. Industrial Disputes Act provides as under :
"16 (2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order."
27. Limitation Act, 1963 provides that limitation for suits and applications. Section 29(2) of Limitation Act, 1963 provides as under :
"29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent, to which, they are not expressly excluded by such special or local law."
28. Under entry 123 limitation for moving application for ex parte decree is 30 days but in view of Section 29(1) the limitation of 30 days. It will have to be read as 10 days in cases governed by U.P. Industrial Disputes Act which is a special Act. The provisions of Limitation Act have not been excluded by the U.P. Industrial Disputes Act. Hence Sections 4 to 24 of Limitation Act including Section 5 thereof applies to proceedings under U.P. Industrial Disputes Act also and a party can file application under Rule 16 (2) of U.P. Industrial Disputes Rules with application under Section 5 of the Limitation Act explaining the delay in not filing application within 10 days and the Labour Court has full power to decide it providing of course the application is moved within 30 days of the publication of the ex parte order or award. If application is filed after said 30 days the Labour Court cannot entertain it as it becomes functus officio on expiry of 30 days.
29. A Full Bench of this Court in case of Badri Prasad Haridas, 1983 UPLBEC 56 : 1984 (48) FLR 315 relying on the case of Grindlays Bank case, AIR 1981 SC 606 held that Labour Court/Industrial Tribunal retains power to set aside ex parte proceedings till award is enforced after 30 days of the publication.
30. Admittedly, the notice was served on the manager of the Cinema Hall of the petitioner, hence it cannot be said that the summons had not been served on the employer. The application for setting aside the ex parte award had been filed after about 7 months from the date of the publication of the award and the employer was negligent not even to attend the Court without sufficient cause. Under Rule 16 of the U.P. Industrial Disputes Rules, 1957 framed under the U.P. Industrial Disputes Act, 1947 the application for setting aside the ex parte award should have been moved within 10 days from the date of the passing of the ex parte award. Any application filed beyond the aforesaid time prescribed would be beyond the limitation for which sufficient cause has to be shown. This is because the rule provides 10 grace days for moving the application for setting aside the ex parte award.
31. From perusal of the impugned award it appears that the Labour Court has given a clear finding that the manager of the petitioner was never ill for about a year. He had worked in the establishment during the relevant period, he alleged to be ill, but did not attend the Court and, as such, there were latches and negligency on the part of the employer.
32. For the reasons stated above, W.P. No. 16152 of 1999 is dismissed and interim orders are vacated. W.P. No. 22292 of 2000 is allowed. W.P. No. 42134 of 2000 is dismissed which has been filed against withdrawal of recovery amount.