SRI MAHABIR PROSAD CHOUDHARY versus M/S. OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR.

Citation: [2018] 14 S.C.R. 1022 · Decided: 04-12-2018 · Supreme Court of India · Bench: ASHOK BHUSHAN, INDU MALHOTRA · Disposal: Dismissed
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Judgment (excerpt)

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1022                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
SRI MAHABIR PROSAD CHOUDHARY
v.
M/S. OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR.
(Civil Appeal No. 8320 of 2011)
DECEMBER 04, 2018
[ASHOK BHUSHAN AND INDU MALHOTRA, JJ.]
West Bengal Industrial Disputes Rules, 1958:
rr. 20B(5) and 21 – Industrial dispute – Non-appearance of
the company-employer – Written Statement was filed by the workman
without serving a copy thereof to the Company – Tribunal passed
ex parte award in favour of the workman – Application of the
company to recall ex parte  award – Tribunal found that award was
passed in violation of principles of natural justice and in non-
compliance of rr. 20B(5) and 21 – However, rejected the application
on the ground that the Tribunal had become functus officio as the
application was filed after 30 days from publication of the award –
Writ petition by the Company – High Court allowed the petition
directing the Tribunal to reconsider the issue between the parties –
Writ Appeal was dismissed by Division Bench of High Court – On
appeal, held: Tribunal was required to intimate date and time for
receiving Written Statement as per r.20B(5) – No such intimation
was given by the Tribunal and thus there is clear breach of s.20B(5)
– Though notice u/s. 21 is not mandatory, but non-appearance on
one day does not oblige the Tribunal to proceed ex-parte – High
Court rightly set aside the ex-parte award.
Dismissing the appeal, the Court
HELD: 1.1 By sub-rule (5) of r. 20B of West Bengal
Industrial Disputes Rules, 1958, duty has been cast on the
Industrial Tribunal to serve a copy of Written Statement or
statement of case on either side.  The use of word “shall be
served” in sub-clause (5) of Rule 20B, has to be given some
meaning and purpose. The provision obviously casts a duty on
Industrial Tribunal and the Court to ensure that service should
be completed within seven days. Another aspect, which is
decipherable from the Rule is that Tribunal has to ensure that
[2018] 14 S.C.R. 1022
1022
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1023
statement of case of Written Statement  has to be served by
making it available to the party concerned or its authorised
representative in the office of the Industrial Tribunal/Labour
Court on a date and time fixed for the purpose. [Para 13]
[1033-F-H; 1034-A-B]
1.2 The last line of sub-rule (5) used the expression “on a
date and time fixed for the purpose and intimated to the party
concerned by the Industrial Tribunal/Labour Court”.  The above
expression contains two requirements, firstly, the Industrial
Tribunal/Labour Court has to fix a date for service of statement
of case of Written Statement within 7 days, specially, fixed date
for the purpose and secondly date and time fixed for purpose has
to be intimated to the party concerned.  Although sub-rule(5)
does not contemplate issuing any second notice after receipt of
the statement of a case or a Written Statement, i.e. date and time
is required to be fixed for the purpose of statement of case and a
date and time, which is also required to be intimated to the party
concerned for the purpose. [Para 13][1034-B-D, E]
1.3 In the facts of the present case, it has to be held that
the Tribunal was required to intimate date and time for receiving
of the Written Statement by the company. Neither the order sheet
of Tribunal indicate that any date was fixed for such service of
Written Statement nor any intimation was sent to the company.
Thus, there was a clear breach of sub-rule(5) of Rule 20B, no
error has been committed by High Court in taking the view that
Rule 20B(5) has been violated, resulting in violation of principles
of natural justice. [Para 13][1034-D-F]
2. Rule 21 empowers the Tribunal to proceed when any
party to a proceeding fails to attend. The plain language of Rule
21 does not indicate that it is necessary for Tribunal to issue any
notice to a party before proceeding ex-parte.  However, the
expression used in Rule 21 is “may proceed”.  Thus, on non-
appearance on one day does not oblige the Tribunal to proceed
ex-parte.  The Tribunal or arbitrator can exercise his discretion
and may decide to send a notice before proceeding ex-parte in
facts of each case, which may be required in facts of a particular
case. Even if it is accepted that no mandatory notice under Rule
21 was required to be issued by the Tribunal to the company,
SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS
TEA AND INDUSTRIES LTD.
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