Bhagabati Prosad Banerjee, J.@mdashThis is an appeal against the order dated September 2,1997 passed by the learned trial Judge allowing the writ application holding, inter alia, that the Tribunal had become functus officio after the commencement of the Award u/s 17A of the Industrial Disputes Act.
2. The tact of this case is that one Ram Sub-hag Rai was dismissed from service of the appellant and thereafter after conciliation proceedings the State Government has referred the matter to the 4th Industrial Tribunal for adjudication under order of reference dated December 30,1993 on the following issues:
"(A) Is the dismissal of Sri Ram Subhag Rai justified?
(B) What relief, if any, is he entitled to?"
3. Thereafter, it appears that the Tribunal has issued notice to both the parties and waited for a long time and ultimately the Tribunal passed a ''No Dispute'' Award on June 29, 1994 and in that Award the Tribunal has stated that in view of the fact that none of the parties appeared and contested the matter, industrial dispute no longer exists. On coming to know of the said ex pane award the appellants/petitioners filed an application before the Tribunal and by the order: dated December 20,1996 the Tribunal has set aside the ''No Dispute'' Award passed by the Tribunal on June 29,1994 and restored the case to its original file and number accepting the contention of the Union and the workman that the notices were not properly served and they did not receive the notice issued by the Tribunal.
4. Being aggrieved by and dissatisfied with the order dated December 20, 1996 the respondent company filed writ application before the learned single Judge and the said writ application was disposed of by the learned trial Judge by an order dated September 2,1997. In the said order the learned Judge held that the Tribunal had become finites'' officio as the said application for setting aside the said award was filed after a lapse of 30 days from the date of the Award and accordingly the Tribunal had become fanetus officio in view of the provisions of Section 17A of the Industrial Disputes Act and in view of the several decisions referred to by the learned trial Judge.
5. The appellant being aggrieved by the order of the learned Judge dated September 2, 1997 has preferred appeal before this Court. In this appeal it is contended by the learned counsel appearing on behalf of the appellants/petitioners that under the provision of the Industrial Disputes Act there is no provision for ''No Dispute'' Award, as the ''Award'' means some determination final or interim of any Industrial Dispute and in the absence of any determination made by the Tribunal the order passed by the learned Tribunal cannot be said to be an ''Award'' and if there was no award in that event the Tribunal retains inherent jurisdiction to set aside any order passed by the Tribunal and in this connection referred to the decision of the Hon''ble Supreme Court reported in
"We are of the opinion that the Tribunal had I the power to pass the impugned order if it thought it fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that tribunal or body should be considered � to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the l Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there J are indications to the contrary?"
Reference was also made to the decision of a learned single Judge of this Court in the case of Ganesh Chandra Sarkar v. State of West Bengal'' and Ors. reported in 1988 (I) CHN p.207 where the learned Judge has held that if the dispute cannot be settled in the absence of both the parties there would be no materials before it to decide such dispute. In such event, no award is: possible to be made by the authority concerned and as such the provision has been made under Rule 22 to submit a suitable report to the State Government and to put an end to the proceeding before the Tribunal. When both the parties fail to appear nothing remains pending before the authority concerned to whom the dispute is referred although the dispute remains outstanding and not adjudicated. In such event, Section 20(3) of the Industrial Disputes Act which provides for the termination of the proceedings cannot be attracted because no final or any award can be made whereby the dispute can be resolved. Reference was also made to another decision reported in
6. In the instant case on behalf of the respondents Mr. Partha Sarathi Sengupta appearing with Mr. Arunava Ghosh submitted that the Industrial Tribunal has passed ''No Dispute'' award on June 26, 1994 and the said award was published on June 5,1995. The application for setting aside the ex. parte award was filed on June6,1995.
7. Mr. Sengupta drew our attention to paragraph 5 of the application filed before the Tribunal wherein it is stated that the workmen concerned came to know sometime in the month of August 1994 that an Industrial Dispute was referred to 4th Industrial Tribunal and thereafter the workmen enquired into the matter before the Tribunal and came to know on or about May 29, 1995 that the Tribunal having received the reference issued notice and ultimately stated that the said notice was not properly served upon the Union and the said notice was not received by the Union and that the Union was not at all aware of the said notice and the date fixed for appearance of the workman in this behalf and after coming to know of the ''No Dispute'' award passed by the Tribunal on June 29, 1994 filed application. 8. Before this Court in paragraph 5 of the application it was stated that the appellants came to know from the office of the Labour Commissioner on May 29, 1995 that the disputes were referred to the Industrial Tribunal and thereafter they came to know of the said ex parte award. The ground for not receiving the notice was that the registered office of the Union viz. Ranigunj Chemical Works Ltd. was at No. 10, K.S.Roy Road, Calcutta and that it is stated that the Union Office has been shifted from that place to some other place and that is why they 1 did not get the notice. It is not in dispute that the Union after changing of the address did not intimate to any of the authorities including the Labour Department before whom the matter was pending about the change of address. In the order of reference the address of that Union has been given and the copy of the reference was also forwarded to the Secretary of that Union at No.-10, K.S.Roy Road, Calcutta. The Labour Department and/or the other concerned Departments were not notified about the change of address. On the contrary it appears from the 3 evidence that notice which was issued by the Tribunal was received by somebody at No. 10, K.S.Roy Road. But the petitioner claimed that because of the change of address of the Union, the Union did not receive it and consequently" could not contest the matter. The Tribunal found that the Tribunal without dealing with the matter in detail had held that the Union was prevented by sufficient cause for not appearing before the Tribunal and that is why the matter was: decided ex pane and for which the matter was required to oe reheard and that is why set aside the order and restored the file to the Tribunal.
9. Mr. Sengupta submitted that the principle: laid down by the Supreme Court in the case of Grindlays Bank (supra) cannot confer any power upon the Tribunal to restore the matter''''^ view of the fact that the Supreme Court in that case had observed that "in a case of this nature", we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find such statutory prohibition. On the other hand, there are indications to the contrary."
10. It is also submitted that a Rule has been framed by the State of West Bengal in exercise of the power conferred u/s 38 of the Industrial Disputes Act which is known as West Bengal Industrial Disputes Rules and Rule 27(iii) of the said Rules provides that the Labour Court, Industrial Tribunal or Arbitrator may for sufficient cause set aside after notice to the opposite party or parties as the case may be, the ex-pane award or an award on the footing that the industrial dispute under reference is no longer in existence either of its/his own motion or on the application of the parties. Second proviso to Rule 27 provides that no application for review under clause (iii) shall be entertained on the expiry of the 15th day from the date of the award. It is significant to note that clause (iii)of Rule 27 and the second proviso have been brought into existence by the notification dated June 5,1976. So, it appears that when a power was conferred upon the Tribunal for setting aside an ex-pane award or awards made on the footing that the industrial disputes under reference were no longer in existence, the Tribunal could set aside the same on its own motion or on the application of the parties and at the same time under the second proviso if 15 days period of limitation starting from the date of the award was also incorporated, the power was conferred for setting aside an ex pane award with the specific condition that such a power could only be exercised upto a period of 15 days from the date of the award. There is a statutory provision so far as West Bengal is concerned and by that provision an ex pane award or awards or ''no dispute'' award could only be set aside if an application is filed by the party or the Tribunal on its own motion suo motu within a period of 15 days from the date of the award can do so. From the language used in the second proviso it appears that no application of such nature shall be entertained on the expiry of 15th day from the date of the award.
11. The learned Counsel appearing on behalf of the appellant submitted that the provision has resulted in an anomalous position inasmuch as if a party is not aware of the award, in that event, how one can file an application for setting aside of an award within 15 days from the date of the award. Referring to the decision of the learned Single Judge in the case of Ganesh Sarkar v. State of West Bengal (supra) Mr. Sen-gupta drew our attention to the provision of Rule 22 a part of which was relied upon by the learned Judge in that judgment but the other part of the Rule has not been looked into and considered. Under Rule 22 it is provided that if without sufficient cause being shown both the parties fail to appear before a Board, Court, Labour Court, Tribunal or Arbitrator, the Board, Court, Labour Court, Tribunal or Arbitrator may submit a suitable report to the State Government and the Labour Court, Tribunal or an Arbitrator may submit an award to the State Government on the footing that the industrial dispute under reference is no longer in existence. The latter part of this Rule provides that the Labour Court or Tribunal is authorised to submit a report to the Government on the foot ing that the industrial dispute under reference is no longer in existence. Relying upon that provi sion Mr. Sengupta submitted that in the absence of the provisions of Rule 22 it might be said that no dispute award is no award at all. But when! the statute provides to the contrary and by legal fiction it must be deemed to be an award. In the instant case relying upon the provisions of Rule 22 the Tribunal has submitted an award to the State Government on the footing that the Indus-1 trial dispute under reference is no longer in ex istence. Accordingly, it was submitted that the Tribunal has become functus official on the date when an application for setting aside the order of the Tribunal was filed. -
12. Grindlays Bank''s (supra) decision is an authority for the proposition that the power of the Industrial Tribunal to set aside an ex-pane award or order could not be exercised after it-becomes enforceable u/s 17A of the Industrial Disputes Act. This question was decided by the Supreme Court m a case when there was no express provision, this way or other, in that connection the Supreme Court ob-: served that the statutory construction is that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge the functions effectively for the purpose of doing justice between the parties. Such a power was held to be inherent but the period of limitation according to the Supreme Court judgment is that the power would only be exercised upto the date on which it becomes enforceable u/s 17A of'' the Act, an application was filed by the Union representing the workmen to set aside an ex, pane award passed in exercise of the power conferred under Rule 22 of the Industrial Disputes Rules, 1958. It was allowed by the Tribunal but the learned Trial Judge has set aside the same on the basis of the case laws on this point. We are of the view that the decision of the Single Bench of this Court in Ganesh Sarkar''s case (supra) was rendered without considering the second part of Rule 22 which conferred power upon the Tribunal to submit an award to the State Government on the footing that Industrial dispute is no longer in existence and accordingly time said decision cannot be said to be an authority for the proposition that in the absence of both the parties there will be no material before it to decide such dispute and in that view even if no award is possible that cannot be said to be correct. This said judgment was rendered without looking into the second part of the provisions of Rule 22. It is now well settled principle that if any judgment is rendered in ignoring the statutory provisions, the same should be treated as per incurious and cannot have any persuasive value even. With regard to the language used hi Rule 22 of the said Rules is concerned we cannot agree with the view expressed by the learned single Judge in Mis. Eagle Wood Agencies Pvt. Ltd. (supra) that second proviso to Rule 22 has to be ignored because of the error apparent on the said Rules. It cannot be said that in the second proviso the period of limitation is only for review as contemplated u/s 27(ii). When the second proviso made it clear that no application for review under clause (ii) shall be entertained on the expiry of 15th day from the date of the award and clause (iii) of Rule 27 and the second proviso were incorporated by the same notification on the same day. Accordingly, it is clear to us that the Rule making authority when decided to confer power upon the Tribunal to set aside an expense award, the Rule making authority thought it fit to impose a period or limitation and accordingly the same was done. Originally there was no clause (iii) of Rule 27 and there was no second proviso. Second proviso was introduced with Rule 27(iii) of the said Rules. Accordingly, we have to hold that the power under Rule 27 (iii) is controlled by the period of limitation as provided under second proviso to the Rule.
13. The High Court sitting in writ jurisdiction had not been conferred with any power to make any correction in respect of a legislation. Power of review of the High Court in Article 226 of the Constitution does not extend to sit over any judgment, over any law or Rules framed by the Rule making Authority and to correct and/or to make it clear or remove any ambiguity if it appears even on the face of it. But reading the provisions of Rule 27(iii) and the second proviso to that Rule, which were introduced on the same day, by the same notification, we have no doubt in our mind that the intention of the Rule making authority was clear that the power u/s 27(iii) could be exercised within the aforesaid period and that is why the period of limitation was fixed. In any event, when Rule 22 provides that the Tribunal has the power to submit an award to the State Government on the footing that the industrial dispute under reference is no longer in existence and when the Tribunal exercised that power in view of the decision made in the Grindlays Bank''s case (supra), the Tribunal has the jurisdiction till the date on which the award becomes enforceable u/s 17A of the Act and not thereafter. This cut-off date is very significant and accordingly, it cannot be said that on any count the Tribunal retains its jurisdiction to: set aside the ex-parte award even after the same had become enforceable u/s 17A of the Act as interpreted by the Supreme Court in Grindlays Bank''s case (supra).
14. Lastly, we cannot uphold the contention of the learned Counsel appearing on behalf of the petitioner that the Tribunal has inherent power to pass any order that may be necessary in the interest of justice as provided u/s 151 of the C.P.C. The Tribunal is a statutory authority and cannot discharge any power or function unless expressly conferred. But it is well- known principle that when a power is conferred by a statute, in that event, that authority must have the power to do anything which is ancillary or incidental to such power as may be necessary for effective discharge of its function. But in the instant case, when the Rules of limitation have been imposed by the Rule making authority and when the Rule making authority has taken away the power of the Tribunal to entertain any application for recalling of an ex-parte order after expiry of 15 days from the date of the award, in that event, in view of the express prohibition the Tribunal cannot be said to have any power inherent or otherwise to exercise the power of recalling an order or setting aside an order after the period mentioned in the second proviso to Rule 27 of the West Bengal Industrial Disputes Rules, 1958 as well as the award has become enforceable in view of provisions of Section 17A of the Industrial Disputes Act.
15. Accordingly, we do not find any reason to interfere with the decision of the learned Trial Judge. In view of the decision of this Court in the case of B.R. Harmohatha v. 7th Industrial Tribunal reported in 1997 Lab iC 13 wherein the Division Bench of this Court held that the Government does not have the power to refer the dispute for the second time when nothing is decided in respect of the dispute in the first reference following certain decisions of the Supreme Court. Accordingly we dismiss the appeal. We make it clear that this order is passed without prejudice to the rights and contentions of die State Government to refer the dispute again if the State Government considers it fit and proper in the facts and circumstances of the case.
There will be no order as to costs.
Sujit Barman Roy, J.
16. I agree.
