# State of U.P v. The Presiding Officer, Labour Court II), U.P. Meerut and another

- **Citation:** (2005) 1 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-10-11
- **Case number:** Civil Misc. Writ Petition No. 9626 of 2001
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-presiding-officer-labour-court-ii-u-p-meerut-and-another-40427
- **Pages:** 3

## Headnote

U.P. Industrial Dispute Act 1947-Section
6-A-readwith U.P. Industrial Dispute
Rules
1957-Rule-16-Setting
a
sideexparte
award-passed
on
1.10.97Published 1.6.98- became inforceable on
1.7.98-No application filed either before
the Labour Court or before the Civil court
prior 1.7.9-held-Labour Court became
functus office.

Held: Para 7

In the instant case admittedly the order
to proceed ex-parte was passed on
1.10.1997 and the award was published
on 1.6.1998. According to Section 6-A of
the Industrial Disputes Act it became
enforceable on 1.7.1998. Admittedly also
the application to recall the ex-parte
order was not filed and has neither been
challenged before the Labour Court nor
in the writ petition before this Court. The
application for restoration has therefore
been filed after about three months from
the date of enforcement of the award.
The Labour Court became functus officio
on 1.7.1998; hence the application for
recall of the order filed on 26.9.1998 was
not applicable.
Case law discussed:
1983 UPLBEC-56 (FB)
1984 (48) FLR 606

## Text

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1All] State of U.P. V. The Presiding Officer, Labour Court II), U.P. Meerut and another
215
 enumerated herein above and in the
absence of any such consideration and
recording of reasons accordingly, the
impugned order cannot be sustained and
is liable to be set aside.

15. Accordingly, we quash the order
dated 11.10.2004 with a direction to the
respondent no. 1 to reconsider the matter
again in the light of the observations
made herein above and also taking into
account
all
such
relevant
matters
pertaining to the applicability of the
government order dated 22.10.2002 in
the case of the petitioner.

16. The writ petition is, accordingly
allowed. The impugned order dated
11.10.2004 is quashed with a direction to
the respondent no. 1 to consider the
matter afresh in the light of the
observations made herein above and in
accordance with law within a period of
three months from the date of presentation
of a certified copy of the order before
him.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 9626 of 2001

State of U.P.

 ...Petitioner
Versus
The Presiding Officer, Labour Court (II),
U.P., Meerut and another ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri Y.K. Sinha
S.C.

U.P. Industrial Dispute Act 1947-Section
6-A-readwith U.P. Industrial Dispute
Rules
1957-Rule-16-Setting
a
sideexparte
award-passed
on
1.10.97Published 1.6.98- became inforceable on
1.7.98-No application filed either before
the Labour Court or before the Civil court
prior 1.7.9-held-Labour Court became
functus office.

Held: Para 7

In the instant case admittedly the order
to proceed ex-parte was passed on
1.10.1997 and the award was published
on 1.6.1998. According to Section 6-A of
the Industrial Disputes Act it became
enforceable on 1.7.1998. Admittedly also
the application to recall the ex-parte
order was not filed and has neither been
challenged before the Labour Court nor
in the writ petition before this Court. The
application for restoration has therefore
been filed after about three months from
the date of enforcement of the award.
The Labour Court became functus officio
on 1.7.1998; hence the application for
recall of the order filed on 26.9.1998 was
not applicable.
Case law discussed:
1983 UPLBEC-56 (FB)
1984 (48) FLR 606

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the petitioner
and Sri Y.K.Sinha for the contesting
respondent.

2. This writ petition has been filed
by the State of U.P. challenging the
validity and correctness of the impugned
ex-parte award dated 13.11.1997 as well
as of the impugned order dated 5.8.2000
passed by the Labour Court dismissing
the application moved by the petitioner
for recall of the aforesaid ex-parte award
which was published on 1.6.1998 and
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 216
became enforceable under Section 6-A of
the Industrial Disputes Act after 30 days
of the expiry of the publication, i.e., w.e.f.
1.7.1998.
The
petitioner
filed
an
application on 26.9.1998 for setting aside
the impugned ex-parte award, but the
same was rejected by respondent no. 1.

3. This Court after discussing the
case laws on the question of limitation for
recall of the order of award to proceed exparte under Section 16 (2) of the
Industrial Disputes Act as well as the
provisions of the Limitation Act held as
under: -
"Limitation Act, 1963 provides for
limitation for suits and applications.
Section 29(2) of the 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."

4. 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.

5. A Full Bench of this Court in case
of Badri Prasad Haridas, 1983 U.P.
Local Bodies and Education Cases page
56= 1984(48) FLR- 315 relying on the
case of Grindlays Bank Case 1981 SC606 held that Labour Court/Industrial
Tribunal retains power to set aside exparte proceedings till award is enforced
after 30 days of the publication.

6. 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
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1All]
 Ali Jabed V. Union of India and others
217
 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."

7. In the instant case admittedly the
order to proceed ex-parte was passed on
1.10.1997 and the award was published
on 1.6.1998. According to Section 6-A of
the Industrial Disputes Act it became
enforceable on 1.7.1998. Admittedly also
the application to recall the ex-parte order
was not filed and has neither been
challenged before the Labour Court nor in
the writ petition before this Court. The
application for restoration has therefore
been filed after about three months from
the date of enforcement of the award. The
Labour Court became functus officio on
1.7.1998; hence the application for recall
of the order filed on 26.9.1998 was not
applicable.

8. For the reasons stated above, no
interference with the impugned order,
which has attained finality, is called for.
The
writ
petition
is
accordingly
dismissed. The interim order granted by
this Court is vacated.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.25118 of 1996

Ali Jabed

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri B.K. Chaturvedi

Counsel for the Respondents:
Sri U.N. Sharma
Sri S.K. Rai
S.C.

Army Rules-Rule 15 (2)(g)II-discharge
from service-Petitioner being habitual
offender-

being
absent-four
times
without leave-4 times award red ink
entry-full opportunity given for defencedischarge from service held-proper.

Held: Para 7 & 9

From the perusal of the aforesaid rule, it
is clear that the power has been
conferred to the Army authorities to take
an
administrative
action
against
a
person, who is serving in the army, as
the petitioner was a habitual offender
and he was warned and he was punished
four times and found absent without
leave as provided U/s 39 of the Army
Act.

It has also been held that the person
concerned
was
given
adequate
opportunity of placing his defence in
accordance with rules and procedure
provided, therefore, it cannot be held
that the punishment which has been
awarded is not correct.
Case law discussed:
AIR 1994 SC 215
AIR 1988-SC 705
AIR 1996-SC 1368
2002 ESC- ?

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition, the petitioner has approached this
Court for issuing a writ of certiorari
quashing the order of discharge dated
16.9.1995 under Rule 13 (3)(v) of the
Army Rules.

2. The fact arising out of the present
writ petition is that the petitioner joined