DIVISIONAL RAILWAY MANAGER Vs. SECRETARY

JUDGEMENT

(1.) . Rule returnable today. Mr.Mishra waives service of rule on behalf of the respondent. With the consent of the parties, the matter is heard finally today. The present Special Civil Application has been filed by the Railway Administration, challenging the Award passed by the Industrial Tribunal (Central), Ahmedabad in Miscellaneous Application (ITC) No.8 of 1999.

(2.) The facts leading to the present controversy are as under :- The respondent Union had raised an industrial dispute, which was referred to the Industrial Tribunal (Central), Ahmedabad and was numbered as Reference (ITC) No.14 of 1997. The aforesaid dispute was raised by the Union for certain demands. At this stage, we are not ..2/- concerned with the merits of the said Reference. The aforesaid Reference was dismissed for default since on behalf of the respondent-Union, nobody remained present on the relevant day before the Tribunal. The original order, by which the said reference was dismissed for default, is produced at page 39. In the said order, it has been mentioned by the Court that, on the date of hearing, nobody remained present nor Statement of Claim was produced. It is stated in the order that no reasons are given for such absence. In that view of the matter, it was presumed that the Union was not interested in the said order and in view of their absence, the said Reference was dismissed. The aforesaid order was passed on 7.10.1998. Thereafter, on behalf of the respondent-Union, application was made to the Tribunal for setting aside the aforesaid order, by which the Reference was dismissed for default. The said application was numbered as Miscellaneous Application (ITC) No.8 of 1999. The Tribunal came to the conclusion that there was sufficient reason and explanation given on behalf of the present respondent, who was the applicant of that application before the Tribunal. Initially, reference was made by the Union of India and by mistake, it was referred to the Industrial Tribunal, Khanpur. Subsequently, the same was transferred to the Ahmedabad Tribunal, but after the matter was transferred to the Ahmedabad Tribunal, no notices were sent to the union, informing them that the matter is transferred to the Industrial Tribunal, Ahmedabad. The aforesaid aspect is discussed by the Tribunal in paragraph 6 of the impugned order. The Tribunal found that there is nothing to show that the Union has received any intimation about the pendency of the matter at Ahmedabad Tribunal. The Tribunal, therefore, came to the conclusion that there was sufficient reason for setting aside the order dismissing the Reference for default. The Tribunal came to the conclusion that in view of the decision of the Supreme Court in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others, AIR 1981 SC 606, even if such an application is made after 30 days after the publication of the Award, still, the Tribunal has jurisdiction to decide the same and the Tribunal can pass appropriate orders. The Tribunal, having found that there was sufficient reason for setting aside the order of dismissal, set aside the order dismissing the Reference for default and, accordingly, original Reference (ITC) No.14 of 1997 was restored and it was ordered that the said Reference should be decided on merits. The aforesaid decision of the Tribunal is impugned in the present petition at the instance of the Railway Administration.

(3.) At the time of hearing of this petition, Mr.Jayant Patel, learned Advocate appearing for the petitioner, argued that the original Reference was dismissed for default on 7th October, 1998. The said decision was published in the Gazette on 9.11.1998 and that 30 days' period from the date of publication of the said Award was over on 9.12.1998 and, thereafter, the application for restoration was made on 25.10.1999. According to Mr.Patel, therefore, the Tribunal had no jurisdiction to set aside that ex parte Award since such application was filed by the respondent-Union after a period of 30 days from the date of publication of such Award. Mr.Patel, therefore, submitted that the Industrial Tribunal had no power to restore the said Reference since the Award was already published since long and it cannot be said that the Tribunal was possessing any power to restore the matter as the Tribunal has become functus officio moment period of 30 days expired from the date of publication of the Award.