VIVEK SALVI Vs. SECOND INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THIS Rule is directed against an Award dated May 31, 1980 passed by the learned Second Industrial Tribunal, West Bengal in Reference No. 5107-IR/ir 11l-497/79 dated november 17, 1979. The said Award has been made an Annexure to the writ petition. The Rule is also directed against Order No. 11 dated August 14, ,1980 passed by the learned Tribunal rejecting the petitioners prayer for reviewing the Award and the adjudication made by the learned Tribunal. It appears that the Award was passed on may 31, 1980, and the award was published on June 25, 1980. The petitioner got the communication of the said order from the State Government on July 28, 1980 and within 15 days from such communication, the petitioner made an application for review of the said expert Award passed on May 31, 1980. By the order dated august 14, 1980, the learned Tribunal rejected the application for review on the footing that the Award having been made on May 31, 1980 and the said award having been published on June 25 1980, the review application made on August 7, 1980 was barred by limitation. Having failed in the attempt to get the said exparte Award reviewed, the petitioner moved thi. 9 Court under Article 226 of the Constitution of India challenging both the said Award and also the adjudication made on the review application.

(2.) IT is contended by the learned counsel for the petitioner that under section 17 (1) of the Industrial Disputes Act, every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court Tribunal or National Tribunal shall, within a period of thirty days from the date of. its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. The learned Counsel states that although under the Industrial Disputes Act the manner of publication of the Award has been left at the discretion of the government concerned but usually in all cases the Award is published in the official Gazette. The learned Counsel contends that from the communication given to the petitioner, it appears that the Governor was pleased to publish the Award on June 25, but it does not appear whether actually publication was made on June 25 or not. The petitioner got the said communication on July 28, 1980 and within 15 days from the said communication the said application for review was made. Under the West bengal Industrial Dispute Rules, an application for review for setting aside an ex parte Award can be made within 15 days and as the petitioner has made the application for review within 15 days from the date of communication, the learned Tribunal was wrong in holding that the said Review application was barred by limitation The learned Counsel for the petitioner further submits that publication of the gazette is not always made on the date mentioned on the gazette and until and unless the party gets communication from the Government that an order, in fact, has been passed and the government has published the same, it is not possible for a party to know about the said Award and to take steps against such award. He, therefore, submits that the period of limitation for making a review application must be computed from the date of communication and not from the date of the alleged publication. The learned Counsel submits that otherwise for not giving communication to a party in time without any cause, the valuable right of the party to challenge an exparte award by making a review application will be frustrated.

(3.) MR. Sengupta, the learned Counsel for the respondent no. 4, namely, the Workman in whose favour the award was passed, however, disputes the said contention of the learned Counsel for the petitioner. He submits that the petitioner has stated in the writ petition that after the receipt of the communication he caused enquiries and came to know that the Award was published on June 25, 1980. But the petitioner did not know about the said Award prior to the receipt of the communication. Mr. Sengupta contends that when admittedly the Award was published on June 25, 1980, Tribunal becomes functus officio after the period of 30 days from the date of publication of the award and as such there was no occasion for the Tribunal to entertain the review application when the Tribunal became functus officio. He contends that even assuming that the petitioner did not receive communication in proper time, the period of limitation must be computed from the date of the publication of the Award and not from the date of communication. For this contention, the learned Counsel refers to a passage in "maxwell on The Interpretation of Statutes" (12th Edition at page 29 ). Commenting on the "examples of literal construction", it has been observed in the said Treatise that "it was repeatedly decided at law that the statutes of limitation which enacted that actions should not be brought after the lapse of certain periods of time from the accrual of the cause of action, barred actions brought after the time so limited, even though the cause of action was not discovered, nor was practicably discoverable, by the injured party at the date of accrual, and even though it was fraudulently concealed by the wrongdoer until the expiry of the statutory period".