# (2009) 3 ILRA 1041

- **Citation:** (2009) 3 ILRA 1041
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-22
- **Case number:** Civil Misc. Writ Petition No. 34240 of 1997
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2009-3-ilra-1041-41461
- **Pages:** 5

## Headnote

U.P. Industrial Dispute Act-Section 6-ARestoration of Ex Party award published
on 20.04.95-publication of Notice Board
on 22.05.95-application for recall of
award moved on 25.10.96- allowed on
03.05.97
nowhere

in
restoration
application
on
date
of
knowledge
disclosed- in spite of registered notices
workman did not response- after expiry
of 30 days from the date of publication-
tribunal become "functus officio" at last
its
jurisdiction
to
entertain
any
application- restoration order set-a-side.

Held: Para 15

Under these facts and circumstances,
since the application for setting aside the
exparte award was filed after the expiry
of 30 days of its publication, therefore it
could not be entertained as the Tribunal
had become functus officio and lost its
jurisdiction to entertain any application.
Case law discussed:
AIR 1981 S.C. 606 14, (2005) 9 S.C.C. 331. 6
and 8, A.I.R. 1985 Supreme Court 294,
2005(2) U.P. L.B.E.C. 1751And 2 008(118)
F.L.R. 922.

## Text

3 All] Aligarh Muslim University and another V.Industrial Tribunal and another
1041
We find no good reason to differ
from the view taken by the learned
Judge."
15. In the result, the writ petition is
allowed. The impugned order dated
03.10.2007 as well as the selection and
appointment of respondent no. 4 is hereby
quashed. The respondent no. 2 is directed
to reconsider the matter of appointment
on the post of Collection Peon of the
petitioner and the respondent no. 4 in
accordance with law and in the light of
the
observations
made
hereabove,
expeditiously, preferably within a period
of two months from the date of
production of a certified copy of this
order. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2009

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34240 of 1997

Aligarh Muslim University, Aligarh and
another

...Petitioner
Versus
Industrial Tribunal(4), Agra and another

 ...Respondent

Counsel for the Petitioners:
Ms. Sunita Agrawal

Counsel for the Respondents:
S.C.
Sri J.J. Munir

U.P. Industrial Dispute Act-Section 6-ARestoration of Ex Party award published
on 20.04.95-publication of Notice Board
on 22.05.95-application for recall of
award moved on 25.10.96- allowed on
03.05.97
nowhere

in
restoration
application
on
date
of
knowledge
disclosed- in spite of registered notices
workman did not response- after expiry
of 30 days from the date of publication-
tribunal become "functus officio" at last
its
jurisdiction
to
entertain
any
application- restoration order set-a-side.

Held: Para 15

Under these facts and circumstances,
since the application for setting aside the
exparte award was filed after the expiry
of 30 days of its publication, therefore it
could not be entertained as the Tribunal
had become functus officio and lost its
jurisdiction to entertain any application.
Case law discussed:
AIR 1981 S.C. 606 14, (2005) 9 S.C.C. 331. 6
and 8, A.I.R. 1985 Supreme Court 294,
2005(2) U.P. L.B.E.C. 1751And 2 008(118)
F.L.R. 922.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
for issuing a writ of certiorari quashing
the orders dated 3rd May, 1997 and 22nd
August,
1997
passed
by
Industrial
Tribunal (4), Agra (respondent No. 1).
Vide order dated 3rd May 1997, the
Tribunal had allowed the restoration
application for setting aside an exparte
award dated 10th February, 1995 rendered
in Adjudication Case No. 204 of 1994,
whereas by the subsequent order dated
22nd August, 1997, the Tribunal had
rejected the petitioners' application to
recall the order dated 3rd May, 1997.

2. The facts giving rise to this case
are that the respondent no 2. claiming
himself to be a workman has raised an
industrial dispute. The dispute was
referred under Section 4-K of the U.P.
Industrial Dispute Act, 1947 (hereinafter
referred to as Act of 1947) The reference
was registered as Adjudication Case No.
204 of 1994 before the Industrial Tribunal
(4) Agra. The dispute referred was
1042 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
'whether the employers were justified in
terminating the services of the workman
from 16th April, 1993 and if not then to
what relief the workman was entitled to.'

3.

The
petitioners-employers
appeared before the Tribunal and filed
their written statement stating therein that
the State had no jurisdiction to refer the
dispute under Section 4-K of the Act of
1947. It was also contented that the
respondent no. 2 is not workman as his
engagement was only for a fixed period
and that had come to an end after expiry
of the aforesaid period.

4. The notices were issued to the
parties through registered post but it
appears the workman did not appear
before the Tribunal and on 10th February,
1995, the Tribunal has passed an exparte
award deciding the reference against the
workman.

5. The aforesaid award was
published on 20th April,1995 under
Section 6 (3) of the Act of 1947 and it
was also published on the notice board on
22nd May, 1995.

6.

It
appears
thereafter
the
respondent no. 2 filed an application on
25th October, 1996 before the Tribunal
for setting aside the exparte award dated
10th February, 1995 with a prayer to
restore the Adjudication Case No. 204 of
1994
to
its
original
number.
The
petitioners-employers
have
filed
a
detailed
reply
to
the
restoration
application supported with an affidavit
stating therein that the application itself
was not maintainable as it was filed
beyond the period of limitation as
prescribed under Rule 16 of the rules
framed under the Act. It was also stated
that the Tribunal had sent registered
letters to both the parties on 24th
December, 1994 fixing 9th February,
1995 but the workman did not appear. It
was also stated that the workman had not
stated in his application as to on which
date he had acquired knowledge of the
exparte award. It was also contended that
the award attained finality under Section 6
(5) of the Act on its publication under
Section 6(3) of the act and Under Section
6 (A) of the Act of 1972, the award
became enforceable after the expiry of 30
days from the date of its publication.

7. The Tribunal after hearing both
the parties had allowed the restoration
application by the impugned order dated
3rd May, 1997. While allowing the
application, the Tribunal has observed
that the limitation shall start from the date
of the knowledge of the award and not
from the date of its publication.

8.

Thereafter
the
petitionersemployers have filed an application on
21st June, 1997 for recalling the order
dated 3rd May, 1997 on the ground that
the workman had not disputed the address
indicated in the summons sent by the
Tribunal through registered cover which
had not returned back after service. The
presumption goes that there was sufficient
service on the workman. The Tribunal
thereafter hearing the parties had rejected
the application of the petitioners vide
order dated 22nd August 1997. Hence this
writ petition.

9. Ms. Sunita Agarwal learned
counsel appearing for the petitioners has
assailed
the
impugned
orders
on
following grounds:
3 All] Aligarh Muslim University and another V.Industrial Tribunal and another
1043
1. Because the exparte award dated
10th February, 1995 was published in
accordance with Section 6 (3) of the U.P.
Industrial Disputes Act, 1947 on 20th
April 1995 and was also put on the notice
board on 22nd May, 1995, therefore, it
became enforceable after 30 days from its
publication as per provision contained
under Section 6-A of the Act of 1947.

2. Because the Tribunal had become
functus officio after 30 days from the date
of publication of award and it had no
jurisdiction to proceed any further.
In support of her submissions she has
placed reliance upon the few judgments of
the Apex court namely A.I.R. 1981 S.C.
606 14 Grindlays Bank Vs. Central
Government Industrial Tribunal and
(2005) 9 S.C.C. 331. 6 and 8 Sangham
Tape Co. Vs. Hansraj (Grindlays Bank
Ltd.)

3
Because under Rule 16 (2) of the
U.P. Industrial Disputes Rules, 1957 an
application to set-aside an exparte award
could be filed within ten days from the
date of the exparte award and even if it be
assumed that the said application could be
made within 30 days from the date of
publication of the exparte award even
then the restoration application filed on
25th October, 1996 was barred by time.

In the submissions of learned counsel
for the petitioners, the language used in
Section 6 (A) of the U.P. Industrial
Dispute Act is identical to Section 17-A
of the Industrial dispute Act, 1947 ( Act
No.
14
of
1947),
(Central
Act)
(hereinafter referred to as Act No. 14 of
1947) and in the cases referred above, it
has been held that the award becomes
enforceable after expiry of 30 days from
the date of its publication and the
Tribunal/labour
court
retain
their
jurisdiction within thirty days from the
publication
and
thereafter
the
Tribunal/labour court becomes functus
officio. In her submissions, although
cases referred above are related to under
Section 17-A of the Act No.14 of 1947
but it will be fully applicable with respect
to Section 6-A of the U.P. Industrial
Dispute Act, 1947.

Refuting the submissions of learned
counsel for the petitioners, Sri J.J.Munir
learned
counsel
appearing
for
the
respondent no. 2 submitted that an
application for setting aside an exparte
award can be entertained by the Tribunal
and Tribunal does not become functus
officio as argued by learned counsel for
the
petitioner.
In
support
of
his
submissions, he has placed reliance upon
the judgment of the Apex Court reported
in A.I.R. 1985 Supreme Court 294
Satnam Verma Vs. Union of India.

10. I have heard learned counsel for
the parties and perused the record.

11. It has not been disputed by the
learned counsel for the parties that the
matter
was
referred
by
the
State
Government under Section 4-K of the Act
of 1972 for adjudicating the reference as
mentioned above and the said reference
was registered as Adjudication Case No.
204 of 1994 before the Industrial Tribunal
(4) Agra. The notices were issued to the
parties through registered post but the
respondent no. 2 did not appear and the
Tribunal has passed an exparte award on
10th
February,
1995
deciding
the
reference against the workman. The
aforesaid award was published on 20th
April, 1995 under Section 6 (3) of U.P.
Industrial
Dispute
Act,
1947.
The
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
respondent no. 2 has filed an application
for setting aside the exparte award and
that was allowed vide order dated 3rd
May, 1997 and the application to recall
the order dated 3rd May, 1997 was
rejected by the Tribunal vide order dated
22nd August, 1997.

12. Rule 16 (2) provides that an
application to set aside the exparte award
can be filed within 10 days of such award.
From the pleadings of the parties, it
transpires that the factum of sending of
notices through registered post has not
been denied and it has also not been stated
that on which date the respondent no. 2
acquired knowledge of the exparte award.
Further the application for setting aside
exparte award was filed after 30 days of
its publication. In these circumstances, it
cannot be said that the application filed by
the respondent no. 2 to set aside the
exparte award was within time or there
was a reasonable reason to not apply for
the same.

13. The Apex Court, in the case of
Grindlays Bank (supra) has held that the
Tribunal/court retained its jurisdiction to
set aside an exparte award provided the
application has been filed within 30 days
of its publication. In the case of Sangham
Tape Co. (supra), the Apex court has held
that once the award becomes enforceable,
the Industrial Tribunal or labour court
becomes functus officio.

14. Here in the present case, as has
been mentioned above, the award was
given on 10th February,1995 and it was
published on 20th April, 1995 and it was
also published on the notice board on
22nd May, 1995, whereas the respondent
no. 2 has filed the application for setting
aside the exparte award on 25th October,
1996 apparently this was beyond 30 days
from the date of its publication i.e. 20th
April 1995 or 22nd May, 1995. Section 6A of the U.P. Industrial Dispute Act
provides
that
the
award
becomes
enforceable
after
30
days
of
its
publication. The language used in Section
6-A of the U.P. Industrial Dispute Act is
identical to the language used in Section
17-A of the Industrial Dispute Act, 1947.
In the cases of Grindlays Bank (supra)
and Sangham Tape Co. (supra), the Apex
Court has held that once the award
becomes
enforceable,
the
Industrial
Tribunal or labour court become functus
officio. Although in the case of Satnam
Verma, (the case cited by respondent's
counsel) the Apex Court has held that the
labour court has jurisdiction to entertain
the application for setting aside the
exparte award but the facts of this case are
totally different as in the case of Satnam
Verma the application was filed prior to
the publication of the award and was well
within time, therefore, the case cited by
the respondent's counsel is distinguishable
on facts.

15.

Under
these
facts
and
circumstances, since the application for
setting aside the exparte award was filed
after the expiry of 30 days of its
publication, therefore it could not be
entertained as the Tribunal had become
functus officio and lost its jurisdiction to
entertain any application.

16. This Court has also taken the
same view in the cases of State of U.P Vs.
the Presiding Officer Labour Court (II)
U.P. Meerut and another 2005 (2) U.P.
L.B.E.C. 1751 and 2 008 (118) F.L.R.
922 District Panchayat (Zila Parishad)
Kanpur Dehat Vs. Presiding Officer,
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1045
Labour Court (IV) Kanpur Nagar and
another.

17. In view of that, the impugned
order passed by the Tribunal cannot be
sustained. The writ petition succeeds and
is allowed. The impugned orders dated
3rd May, 1997 and 22nd August, 1997
passed by Industrial Tribunal (4) Agra
(respondent no. 1) are hereby quashed.
There shall be no order as to costs.
However dismissal of this writ petition
will not preclude the respondents to
approach the appropriate forum if any
available under law against the exparte
award.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.19101 of 1999
With
Civil Misc. Writ Petition No.21965 of 2003.

Rishikesh Lal Srivastava
...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioners:
Sri Harish Chandra Singh
Sri R.K. Ojha
Sri O.P. Pandey
Sri A.P. Singh
Sri S.C. Singh

Counsel for the Opposite Parties:
Sri R.C. Dwivedi,
Sri N.K. Pandey,
Sri R.C. Singh
Sri Dinesh Dwivedi
Sri M.C. Chaturvedi, C.S.C.
assisted by Dr. Y.K. Srivastava,
Standing Counsel.

U.P. Intermediate Education Act-1921-
Chapter III Reg.-31- prior approval of
dismissal-whether
prior
approval
for
awarding punishment of dismissal to a
Class
4th
employee
is
must
as
contemplated in Regulation 31? held
"No" various reasons discussed?

Practice and Procedure-Law Conflicting
view of different D.B. Judgment-the
judgment reported in 2006 (3) ESC 1765,
2006(65) ALR 767 and 2000 (1) UPLBEC
707 approved hold correct law.

Held: Para -73

Our answer to the questions referred to
us are as under:
(i)
For
awarding
a
punishment
as
enumerated
under
Regulation
31
Chapter III of the U.P. Intermediate
Education
Act,
1921
to
a
Class-IV
employee of a institution recognized
under
the
aforesaid
Act,
no
prior
approval or sanction from the Inspector
of Schools is required.
(ii) The Division Bench judgments in the
case of Ali Ahmad Ansari Vs. District
Inspector
of
Schools,
Kushinagar
[2006(3) ESC 1765 (All)] and Pujari
Yadav Vs. Ram Briksh Yadav [2006(65)
ALR 767] lay down the correct law in
contradistinction to the Division Bench
judgment of Principal, Rashtriya Inter
College,
Bali
Nichlaul,
District
Maharajganj
And
Others
[(2000)
1
UPLBEC 707] and the other judgments to
that effect.
Case law discussed:
[1991 (1) UPLBEC 467], [1998(2) UPLBEC
1101], [2000(1) UPLBEC 707],[2000 (3) E.S.C.
1880 (All.), [2001(1) UPLBEC 487], [2002 (4)
ESC 201], [2006(3) ESC 1765 (All) (DB)],
(1998)2 UPLBEC 1101, [2000(3) E.S.C. 1880
(All), 1998 Lab IC 1252, (2007) 1 AWC 253,
1981 U.P.L.B.E.C. 135, 1988 U.P.L.B.E.C 123,
1998(3) A.W.C.1940(L.B.), [AIR 2002 SCC
1334], [(1951) 2 All E.R. 839], [AIR 1953 SCC