SRI MAHABIR PROSAD CHOUDHARYversusM/S. OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR.

1022               SUPREME[2018]
                           COURT 14 REPORTS
                                    S.C.R. 1022            [2018] 14 S.C.R.


 A                 SRI MAHABIR PROSAD CHOUDHARY
                                        v.
          M/S. OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR.
                         (Civil Appeal No. 8320 of 2011)
 B                           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
 C     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
 D
       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
 E     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.
 F
             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
 G     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
 H
                                      1022
  SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                       1023
             TEA AND INDUSTRIES LTD.

statement of case of Written Statement has to be served by            A
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     B
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      C
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    D
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      E
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]
                                                                      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         G
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,          H
1024                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A     there being violation of Rule 20B(5), the High Court committed
       no error in setting aside the order of the Tribunal’s ex-parte award
       by directing the Tribunal to proceed afresh. [Para 14][1034-F-H]
             Radhakrishna Mani Tripathi v. L.H. Patel and Another
             (2009) 2 SCC 81 : [2008] 16 SCR 490 – relied on.
 B           Grindlays Bank Ltd. v. Central Government Industrial
             Tribunal and Others (1980) Supp. SCC 420 : [1981]
             SCR 341 ; Anil Sood v. Presiding Officer, Labour Court
             II (2001) 10 SCC 534 – referred to.
                               Case Law Reference
 C
       [1981] SCR 341                   referred to               Para 9
       [2008] 16 SCR 490                relied on                 Para 10
       (2001) 10 SCC 534                referred to               Para 10
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8320
 D
       of 2011.
             From the Judgment and Order dated 23.12.2009 of the High Court
       at Calcutta in F.M.A. No. 1187 of 2009.
            Manoj Swarup, Hiren Dasan, Chand Qureshi, Ankur Raghav, Uday
 E     Gupta, Dharmendra Kumar Sinha , Advs. for the Appellant.
             Chira Ranjan Addy Adv. for the Respondents.
             The Judgment of the Court was delivered by
             ASHOK BHUSHAN, J.
 F           1. This appeal has been filed against the Division Bench judgment
       dated 23.12.2009 of Calcutta High Court in F.M.A. No. 1187 of 2009 by
       which the appeal filed by appellant has been dismissed.
             2. The issue involved in this appeal lies in a very narrow compass.
       The necessary facts of the case to be noticed for deciding the issue
 G     are:-
             2.1   The appellant was working as Accountant in the respondent
                   company since 1986. There had been change of
                   management in the year 2004 in the company. The appellant
                   was not allowed to work w.e.f. 02.05.2005. The State of
 H                 West Bengal referred the industrial dispute between the
SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                           1025
  TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

        company and the appellant to the Fifth Industrial Tribunal.     A
        The Tribunal framed the issue as to whether refusal of
        employment to Shri Mahabir Prosad Choudhary by the
        management w.e.f. 02.05.2005 is justified?
  2.2   After receiving the reference, the Industrial Tribunal on
        27.08.2007 issued summons upon the parties concerned            B
        directing them to appear on 19.09.2007. The workman
        appeared on 19.09.2007 but no one appeared from the
        company, since the summons were received back with the
        remarks “left”. 11.10.2007 was again fixed by the Tribunal.
        On 11.10.2007, Tribunal noted that summons sent through
        Process Server has been served upon the company. The            C
        advocate for the workman appeared and filed W/S. The
        W/S was filed without serving the copy of W/S to the
        company. On 05.11.2007, none of the parties had appeared
        and 27.11.2007 was fixed for W/S by the company. On
        29.11.2007, no one appeared on behalf of the company, the       D
        Tribunal fixed for ex-parte hearing. 26.12.2007 was fixed
        for documents of the workman. On 26.12.2007, documents
        were filed, which were kept on record and 29.01.2008 was
        fixed for ex-parte hearing. The Tribunal again on the request
        of the workman deferred the case, which was fixed for ex
        parte hearing for 26.02.2008. On 26.02.2008, none appeared      E
        for the company, workman was heard and the award was
        pronounced. The Hon’ble Tribunal disposed of the award
        ex-parte by allowing the claim of reinstatement with full
        back wages. The award was also published on 27.03.2008.
  2.3   The company filed an application on 02.05.2008 to recall        F
        the ex-parte award. The company stated in its application
        that as per the agreement dated 10.06.2004 with its erstwhile
        management, the new management has no responsibility in
        respect of senior executives and managerial staff of the old
        management including the appellant. The company states          G
        that ex-parte award was received on 22.04.2008 and
        thereafter an application has been filed for recall of the ex
        parte award dated 26.02.2008. The Tribunal heard the
        parties on the application filed by the company. The tribunal
        although returned the finding that the award was passed in
                                                                        H
1026                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A                  violation of principles of natural justice and no notice under
                    Rule 20B(5) and Rule 21 of the West Bengal Industrial
                    Disputes Rules, 1958 (hereinafter referred to as “1958
                    Rules”) were served on the company. The Tribunal,
                    however, took the view that application being filed by the
                    company after 30 days of publication of the award, the
 B
                    Tribunal has become functus officio, hence the application
                    is rejected.
             2.4    After rejection of application, the company filed a writ petition
                    in the Calcutta High Court. Learned Single Judge vide its
                    judgment and order dated 11.02.2009 allowed the writ petition
 C                  setting aside the award and the order dated 30.09.2008 of
                    the Industrial Tribunal and the Tribunal was directed to
                    reconsider the issue between the parties as expeditiously as
                    possible in accordance with law upon affording them
                    opportunity of being heard. Against the judgment of learned
 D                  Single Judge, the appellant filed an appeal before the Division
                    Bench, which has been dismissed by the impugned judgment
                    of the Calcutta High Court.
              3. Shri Manoj Swarup, learned counsel for the appellant in support
       of the appeal contends that notice issued by the Industrial Tribunal in
 E     Form D2 was served on the company, which has also been recorded by
       the Industrial Tribunal, there was no cause for non-appearance of the
       company before the Tribunal. The Tribunal rightly proceeded ex-parte
       due to non-appearance of the company. He submits that the application
       for recall of the ex-parte award was filed after 30 days from publication
       of award, the Tribunal having become functus officio, the Tribunal has
 F     rightly taken the view that application for recall cannot be entertained.
       He further submits that the view of the High Court that there was violation
       of Rule 20B(5) and Rule 21 of 1958 Rules is erroneous. He submits that
       Rule 20B(5) contemplates that Tribunal, in event, if the W/S had been
       filed, the same shall be made available to the party concerned or its
 G     authorised representative in the office of Industrial Tribunal/Labour Court.
       He submits that Rule 20B(5) does not contemplate that any notice has
       to be issued to the other party for receiving the W/S. He submits that
       there is no non-compliance of Rule 20B(5). He submits that High Court
       committed error in taking the view that notice was required to be served
       under Rule 21 to the company before hearing the case ex-parte. No
 H     one has appeared on behalf of the respondent.
  SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                                  1027
    TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

      4. We have considered the submissions of the learned counsel for           A
the appellant and have perused the records.
       5. Before the Division Bench of the Calcutta High Court, main
submission, which was pressed by the appellant was that application
filed by the company for recall of the ex-parte order was after 30 days
of publication, hence, could not have been entertained. The Division             B
Bench of the High court has elaborately dealt with the said issue and
repelled the contention. There is no dispute regarding dates and events,
which took place in the present case. The date of ex-parte award is
26.02.2008, the publication of the award was made on 27.03.2008 and
the case of the company was that it came to know about the award on
22.04.2008. The date of filing of application for recall of ex-parte award       C
is 02.05.2008, the application was clearly beyond 30 days from publication
of the award.
      6. Before we proceed to consider the submissions raised by learned
counsel for the appellant, it is relevant to notice certain Rules of 1958
Rules. Rule 20B deals with Statement of case or written statement.               D
Rule 20B is as follows:-
      20B. Statement of case or written statement. - (1) The
      Industrial Tribunal/Labour Court shall, on the date fixed in the
      summons for the appearance of the parties direct the party which
      appears to the Tribunal/Labour Court to be the party at whose              E
      instance the reference has been initiated or where no such party
      can be ascertained, the party, which, in the opinion of the Industrial
      Tribunal/Labour Court, ought to be required to state its case first
      (hereinafter referred to as the first party) to state its case, together
      with the grounds upon which the claim for relief is founded, and a         F
      list of relevant documents which are in their possession and upon
      which they want to rely, in writing on a date fixed by the Industrial
      Tribunal/Labour Court which shall ordinarily be within two weeks
      from the date of the order.
      (2) After the first party has complied with the order passed under         G
      sub rule (1), the other party (hereinafter referred to as the second
      party) shall be asked to file its written statement and a list of
      relevant documents which are in their possession and upon which
      they want to rely on a date fixed by the Industrial Tribunal/Labour
      Court, which shall ordinarily be within two weeks from the date
      of the order.                                                              H
1028                SUPREME COURT REPORTS                        [2018] 14 S.C.R.


 A           (3) Every statement of case and every written statement shall be
             signed and verified in the manner prescribed by rule 69 or rule 70,
             as the case may be.
             (4) Each party shall file along with its statement of case or the
             written statement, as the case may be, as many copies thereof as
 B           may be directed by the Industrial Tribunal/Labour Court.
             (5) A copy of the statement of case or the written statement shall
             be served on the first party or the second party, as the case may
             be, by the Industrial Tribunal/Labour Court within seven days from
             the date on which copies of the statement of case or the written
 C           statement, as the case may be, are filed by making it over to the
             party concerned or to its authorised representative in the Office
             of the Industrial Tribunal/Labour Court on a date and time fixed
             for the purpose and intimated to the party concerned by the
             Industrial Tribunal/Labour Court.

 D            7. Rule 21, which empowers the Tribunal to proceed ex-parte is
       as follows:-
             “21. Board, Court, Labour Court, Tribunal, or Arbitrator
             may proceed ex-parte. - If without sufficient cause being shown,
             any party to a proceeding before a Board, Court, Labour Court,
 E           Tribunal or Arbitrator fails to attend or to be represented, the Board,
             Court, Labour Court, Tribunal or Arbitrator may proceed as if
             such party had duly attended or had been represented.
            8. Rule 27 deals with the correction of errors and review of an
       award, which is to the following effect:-
 F           “27. Correction of errors and review of an award. - The
             Labour Court, Industrial Tribunal or Arbitrator may -
             (i) correct any clerical or arithmetical mistake arising from an
             accidental slip or omission in any award made by it or him, and
             (ii) review an award on the ground of some mistake or error
 G           apparent on the face of the record, either of its/his own motion or
             on the application of any of the parties ;
             (iii) for sufficient cause set aside after notice to the opposite party
             or parties as the case may be, the ex-parte award or an award on
             the footing that the industrial dispute under reference is no longer
 H
  SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                              1029
    TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

      in existence either of its/his own motion or on the application of     A
      any of the parties :
         Provided that no correction shall be made without previous
      notices to the parties or opposite party, as the case may be.
          Provided further that no application for review under clause
      (iii) shall be entertained on the expiry of the 15th day from the      B
      date of the award.”
      9. This Court in Grindlays Bank Ltd. Vs. Central Government
Industrial Tribunal and Others, (1980) Supp. SCC 420, had occasion
to consider Rule 22 of Industrial Disputes (Central) Rules, 1957 as well
as Industrial Disputes (Bombay) Rules, 1957. Rule 22 of Industrial           C
Disputes (Bombay) Rules, are pari materia with Rule 21 of the West
Bengal Industrial Disputes Rules, 1958. This Court in the case of
Grindlays Bank Ltd. (supra) has held that Rule 22 and Rule 24B
were sufficiently the source of power for the Industrial Courts to recall
the ex-parte award. Following was laid down in Paragraph 11:-                D
      “11. The language of Rule 22 unequivocally makes the jurisdiction
      of the Tribunal to render an ex parte award conditional upon the
      fulfilment of its requirements. If there is no sufficient cause for
      the absence of a party, the Tribunal undoubtedly has jurisdiction
      to proceed ex parte. But if there was sufficient cause shown           E
      which prevented a party from appearing, then under the terms of
      Rule 22, the Tribunal will have had no jurisdiction to proceed and
      consequently, it must necessarily have power to set aside the ex
      parte award. In other words, there is power to proceed ex parte,
      but such power is subject to the fulfilment of the condition laid
      down in Rule 22. The power to proceed ex parte under Rule 22           F
      carries with it the power to enquire whether or not there was
      sufficient cause for the absence of a party at the hearing.”
       10. The submission which was pressed before the High Court in
the present case that application having been filed to recall after expiry
of 30 days from publication of the award as per the judgment of this         G
Court in Grindlays Bank Ltd. (supra), the Tribunal has become functus
officio and could not have entertained the application. This Court had
occasion to consider this very aspect in Radhakrishna Mani Tripathi
Vs. L.H. Patel and Another, (2009) 2 SCC 81. This Court noticed
the observation made by this Court in the case of Grindlays Bank Ltd.
                                                                             H
1030                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A     (supra) in Paragraph No.14 as well as judgment of this Court in Anil
       Sood Vs. Presiding Officer, Labour Court II, (2001) 10 SCC 534
       in Paragraph Nos. 16, 17 and 18, this Court laid down following:-
             “14. In Grindlays Bank this Court held that Rules 22 and 24(b)
             were sufficiently the source of power for the Industrial Courts to
 B           recall an ex parte award. It was pointed out that in terms of Rule
             22 the Industrial Courts could proceed ex parte in the matter only
             in case a party to the proceeding failed to attend or be represented
             without showing sufficient cause. The Court held that power to
             proceed ex parte under Rule 22 carried with it the power to inquire
             whether or not there was sufficient cause for the absence of the
 C           party at the hearing and in case the party was able to show
             sufficient cause for its non-appearance on the date the court had
             proceeded ex parte against it, to recall the award. (Vide para 11
             of the decision.)
             16. Coming now to the submission based on Section 17-A of the
 D           Act the Court in para 14 of the decision held and observed as
             follows: (Grindlays Bank case, SCC pp. 425-26)
                “14. The contention that the Tribunal had become functus
                officio and, therefore, had no jurisdiction to set aside the ex
                parte award and that the Central Government alone could set
 E              it aside, does not commend to us. Sub-section (3) of Section
                20 of the Act provides that the proceedings before the
                Tribunal would be deemed to continue till the date on which
                the award becomes enforceable under Section 17-A. Under
                Section 17-A of the Act, an award becomes enforceable on
 F              the expiry of 30 days from the date of its publication under
                Section 17. The proceedings with regard to a reference
                under Section 10 of the Act are, therefore, not deemed to
                be concluded until the expiry of 30 days from the
                publication of the award. Till then the Tribunal retains
                jurisdiction over the dispute referred to it for adjudication
 G              and up to that date it has the power to entertain an
                application in connection with such dispute. That stage is
                not reached till the award becomes enforceable under
                Section 17-A. In the instant case, the Tribunal made the ex
                parte award on 9-12-1976. That award was published by the
 H              Central Government in the Gazette of India dated 25-12-1976.
SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                               1031
  TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

     The application for setting aside the ex parte award was filed         A
     by Respondent 3, acting on behalf of Respondents 5 to 17 on
     19-1-1977 i.e. before the expiry of 30 days of its publication
     and was, therefore, rightly entertained by the Tribunal. It had
     jurisdiction to entertain it and decide it on merits.”
                                                     (emphasis added)       B
  From the above quotation it would appear that in Grindlays Bank
  the recall application was filed within thirty days from the date of
  publication of the award and hence, the objection raised on the
  basis of Section 17-A did not arise in this case. In Grindlays
  Bank this Court did not say that the Industrial Courts would have         C
  no jurisdiction to entertain an application for setting aside an award
  made after thirty days of its publication. Nevertheless, on the basis
  of the passage marked in italics in the above quotation Ms Issar
  strongly contended that that is the true import of the judgment.
  17. We are unable to accept. The position is made clear in the            D
  later decision in Anil Sood v. Labour Court. In Anil Sood
  interestingly the Labour Court had rejected the recall application
  on the very same ground that after making the award it became
  functus officio in the matter. The order of the Labour Court was
  challenged before the High Court but the High Court also took
  the same view. In appeal this Court noted that the award was              E
  made on 11-9-1995 and the application for its recall was filed on
  6-11-1995. The Court referred to the earlier decision in Grindlays
  Bank and the provisions of sub-sections (1) and (3) of Section 11
  of the Act and in paras 6, 7 and 8 of the decision observed and
  held as follows: (Anil Sood case, SCC p. 536)                             F
     “6. The aspect that the party against whom award is to be
     made due opportunity to defend has to be given is a matter of
     procedure and not that of power in the sense in which the
     language is adopted in Section 11. When matters are referred
     to the tribunal or court they have to be decided objectively and       G
     the tribunals/courts have to exercise their discretion in a judicial
     manner without arbitrariness by following the general principles
     of law and rules of natural justice.
     7. The power to proceed ex parte is available under Rule 22 of
     the Central Rules which also includes the power to inquire
                                                                            H
1032                SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A               whether or not there was sufficient cause for the absence of a
                 party at the hearing, and if there is sufficient cause shown
                 which prevented a party from appearing, then if the party is
                 visited with an award without a notice which is a nullity and
                 therefore the Tribunal will have no jurisdiction to proceed and
                 consequently, it must necessarily have power to set aside the
 B
                 ex parte award.
                 8. If this be the position in law, both the High Court and the
                 Tribunal (sic Labour Court) fell into an error in stating that the
                 Labour Court had become functus officio after making the
                 award though ex parte. We set aside the order made and the
 C               award passed by the Labour Court and affirmed by the High
                 Court in this regard, in view of the fact that the learned counsel
                 for the respondent conceded that application filed by the
                 appellant be allowed, set aside the ex parte award and restore
                 the reference.”
 D           18. In light of the decision in Anil Sood we find no substance in
             the appellant’s submission based on Section 17-A of the Act. There
             being no substance in the first limb of the submission there is no
             question of any conflict between Rule 26(2) of the Bombay Rules
             and Section 17-A of the Act.”
 E            11. This Court in Radhakrishna Mani Tripathi’s case (supra)
       has clearly held that the case of Grindlays Bank Ltd. (supra) did not
       say that the Industrial Courts would have no jurisdiction to entertain an
       application for setting aside an award made after thirty days of its
       publication. This Court’s judgment in Radhakrishna Mani Tripathi
 F     (supra) is clearly applicable in the present case. Furthermore, in the
       present case, the Tribunal, which rejected the application of the company
       to recall the ex-parte award had itself returned the finding that there
       was violation of principles of natural justice since a copy of W/S was not
       sent to the company. The High Court after considering the submission
       of the parties had made following observations:-
 G
             “On a perusal of the order dated 30.09.2008 it is difficult for this
             Court to accept the contention raised on behalf of the workman.
             It appears from the said order that the Tribunal had accepted the
             position that notice under Rule 21 of the said Rules had not been
             served upon the company before placing the case for ex-parte
 H
  SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                               1033
    TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

      hearing. It has also accepted that Written Statement filed the          A
      workman had not been served upon them in accordance with
      provisions contained in Rules 20B(5) of the said Rules. On the
      face of such finding recorded by the Tribunal, it is absolutely clear
      that proceedings were conducted before it, leading to the impugned
      award, in clear violation of principles of natural as well as
                                                                              B
      mandatory provisions of law. The award passed on 26.2.2008 is
      liable to be set aside only on this ground.”
       12. Shri Manoj Swarup, learned counsel for the appellant has
strenuously contended that present is not a case of any breach of Rule
20B(5) as held by the High Court. The relevant order of the Industrial
Tribunal has been brought on the record by the appellant, i.e., of            C
11.10.2007, where workman had appeared and filed Written Statement.
It has been noted in the order that copy of the W/S cannot be served
upon the another party as none appeared on behalf of the company.
Sub-rule (5) of Rule 20B, which is relevant for present case is reproduced
for ready reference:-                                                         D
      20B. Statement of case or written statement. –
                  XXXXXXXXXXXXXXXXXXXXXXXX
      (5) A copy of the statement of case or the written statement shall
      be served on the first party or the second party, as the case may       E
      be, by the Industrial Tribunal/Labour Court within seven days from
      the date on which copies of the statement of case or the written
      statement, as the case may be, are filed by making it over to the
      party concerned or to its authorised representative in the Office
      of the Industrial Tribunal/Labour Court on a date and time fixed
      for the purpose and intimated to the party concerned by the             F
      Industrial Tribunal/Labour Court.
       13. A perusal of sub-rule(5) of Rule 20B indicates that the copy
of the statement of the case or the W/S is to be served on the first party
or the second party, as the case may be, by the Industrial Tribunal/Labour
Court within seven days from the date on which copies of the statement        G
of case or the written statement, as the case may be, are filed, by making
it over to the party concerned or to its authorised representative in the
Office of the Industrial Tribunal/Labour Court on a date and time fixed
for the purpose and intimated to the party concerned by the Industrial
Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to
                                                                              H
1034                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


 A     serve a copy of W/S 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 cast 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 statement of case of W/S has to be
 B
       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. The last line of the 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
 C     above expression contains two requirements, firstly, the Industrial
       Tribunal/Labour Court has to fix a date for service of statement of case
       of W/S 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 W/S, i.e. date and time is
 D
       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. In the facts of 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
 E     that any date was fixed for such service of W/S 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.
 F            14. Now coming to Rule 21, which empowers the Tribunal to
       proceed when any party to a proceeding fails to attend. Learned counsel
       for the appellant is right in his submission that 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
 G     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. But even otherwise accepting, the submission
       of the learned counsel for the appellant that no mandatory notice under
 H     Rule 21 was required to be issued by the Tribunal to the company, there
  SRI MAHABIR PROSAD CHOUDHARY v. M/S. OCTAVIUS                                1035
    TEA AND INDUSTRIES LTD. [ASHOK BHUSHAN, J.]

being violation of Rule 20B(5), the High Court committed no error in           A
setting aside the order of the Tribunal’s ex-parte award by directing the
Tribunal to proceed afresh.
       15. Learned counsel for the appellant submitted that appellant
has already attained the age of superannuation in July, 2018.
        16. In view of the foregoing discussions, we do not find any error     B
in the judgment of the High Court. The appeal being devoid of any merit
is dismissed. Parties shall bear their own costs.

Kalpana K. Tripathy                                        Appeal dismissed.

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