JUDGMENT P. Subramonian Poti, J. 1. The award of the Industrial Tribunal, Alleppey in Industrial Dispute No. 53 of 1975 is challenged by the General Secretary, Devikulam Estate Employees Union, Munnar in this Original Petition. The dispute was between the Senior Manager, M/s James Finlay and Company, Munnar and a workman of the above concern represented by General Secretary, Devikulam Estate Employees Union, Munnar and that concerned dismissal of Sri Mariappan, Supervisor, No. 592. The award was published in the Kerala Gazette dated 1st June 1976. Ext. P-6 is a copy of the said award. 2. Pursuant to the reference made to the Industrial Tribunal summons was issued to the parties to appear on 3rd January 1976 at the Ernakulam Camp. According to the petitioner, he had travelled about 100 miles through the High Ranges to reach the place of sitting at Ernakulam and he reached the place on 3rd January 1976 at about 12 a.m. By that time the case had been adjourned to 7th February 1976. The petitioner was said to be suffering from acute fever on that day and having been advised by Doctors not to undertake a journey, he could not leave his place for the hearing fixed on 7th February 1976. The case was adjourned to 6th March 1976. But on that date the petitioner is said to have applied for time by a telegram, since, according to him, his daughter died on 4th March 1976. The fact remains that the award was passed without his statement or evidence and treating him as ex parte. It is not necessary to go into the causes for the absence of the petitioner, for it is not for this court to weigh the appropriateness of the cause for adjournments indicated by the petitioner.' 3. Petitioner's case is that despite his absence the disposal of the industrial dispute between the parties in the manner seen in Ext. P-6 award is unwarranted and is contrary to the provisions of law. For that reason challenge is made to the award. That is the question with which I am concerned in this case. 4. To understand the dispute it may be necessary to refer to certain facts mentioned in the Original Petition, for the award does not make mention of all necessary and relevant facts. For that reason challenge is made to the award. That is the question with which I am concerned in this case. 4. To understand the dispute it may be necessary to refer to certain facts mentioned in the Original Petition, for the award does not make mention of all necessary and relevant facts. One Sri Mariappan, a member of the petitioner's union, was a supervisor in the Chittavura Estate belonging to James Finlay and Company. A charge sheet was served on him alleging that he had committed wilful damage to or loss through negligence to the employer's goods or property in that he allowed workers under his supervision to damage side branches of more than a hundred tea bushes and that was an act of misconduct under Standing Order No. 22 of Estate Workmen. Ext. P-2 is the dismissal order, which only mentions that "after taking into account the gravity of the misconduct, the record of service of Mariappan and all the other extenuating circumstances connected with the case, Mariappan is summarily dismissed without notice and without compensation in lieu of notice, with effect from Monday 15th November 1971". The petitioner avers that being aggrieved by Ext. P-2 dismissal order, he raised an industrial dispute on the following grounds: (1) Sufficient opportunity was not given to him to prove his innocence, (2) principles of natural justice were not complied with (3) the enquiry was not in order (4) action of the manager was an act of victimisation (5) the charges were not proved in the enquiry (6) the dismissal order was not a speaking order (7) and the action of the manager was mala fide and amounted to unfair labour practice. Various conciliation conferences are said to have been convened by the Deputy Labour Officer who reported failure to arrive at a settlement and thereupon the Government of Kerala referred the industrial dispute for adjudication. 5. On 6th March 1976, M. W. 1 one Seshan was examined. Of course he does not speak specifically to any matter. He claims to be the Industrial Relations Manager of the K. D. H. P., Munnar. He did not indicate how he had any relation with James Finlay and Company Ltd., Munnar or whether he was in any way representing that company. K.D.H.P. Ltd. and James Finlay and Company Ltd., Munnar are, in law, two different entities the two being two different limited companies. He did not indicate how he had any relation with James Finlay and Company Ltd., Munnar or whether he was in any way representing that company. K.D.H.P. Ltd. and James Finlay and Company Ltd., Munnar are, in law, two different entities the two being two different limited companies. Seshan's evidence was only that Sri Mariappan was a worker, that he was chargesheeted for misconduct, that the enquiry was conducted and on the basis of the findings of the enquiry officer holding that the petitioner was guilty, the latter was dismissed. He did not speak to any personal knowledge either of the enquiry or of the dismissal. Nor did he speak as to how he was competent to speak to these things. No file relating to the chargesheeting, enquiry or punishment was proved through him and none was produced before the Industrial Tribunal. There was practically no material before the Tribunal which can be said to be evidence as to either the manner in which the proceedings were taken against Mariappan or the material before the enquiry officer which enable any action to be taken. Whether, nevertheless, the award could have been passed in the manner it has been done because of the default of the union is the question which arises for decision in this Original Petition. The discussion of the case is in a short paragraph in the award, namely in paragraph 4, and that reads thus: "4. Since there is no reason for me to disbelieve the management's witness and since the Union has not cared to appear before this Tribunal and participate in the adjudication, I hereby declare that the dismissal of Sri Mariappan, Supervisor, No. 592 from Chittavura Estate of the K.D.H.P. Company is for justifiable reasons and that there is no reason for me to interfere in the same. The award is passed accordingly and this award shall come into force on the expiry of thirty days from the date of its publication in the Government Gazette." 6. Before I discuss this manner of disposal in the award, it will be useful to refer to relevant rules. The Kerala Industrial Disputes Rules, 1957 came into force with effect from 10th March 1957. Before I discuss this manner of disposal in the award, it will be useful to refer to relevant rules. The Kerala Industrial Disputes Rules, 1957 came into force with effect from 10th March 1957. R.22 of the said Rules read: "If without good cause shown, any party to proceedings, before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, or Arbitrator may proceed as if he had duly attended or had been represented." The rule is headed 'Board, Court, Labour Court, Tribunal or Arbitrary may proceed ex parte'. Evidently proceeding ex parte within the meaning of the Rule means proceeding as if the party had duly attended or had been represented. Therefore there is no question of disposing of a case for default. Whether a party attends or not, the Tribunal has to proceed as if the party had attended or had been represented and that casts on it the duty to consider the question referred to the Industrial Tribunal on whatever materials is available on record and to reach a proper decision thereon. In this background let me examine what materials would normally be available to the Industrial Tribunal in the matter of adjudication. 7. Rules 10A and 10B were inserted in the Rules by notification dated 30th April 1958. R.10A(2) provides that the party representing workmen or in the case of an individual workman, the workman himself, involved in a dispute in a non public utility service, shall forward a statement of its demands to the Conciliation Officer concerned, before such date as may be specified by him for commencing conciliation proceedings. The statement shall be accompanied by as many spare copies thereof as there are opposite parties. Sub-r.(3) of R.10A reads: "The statement of demands submitted by the party representing the workmen or in the case of an individual workman, the workman himself, under sub-r.(1) or sub-r.(2) shall be transmitted to the Government by the Conciliation Officer concerned with his report under sub-s.(4) of S.12." Therefore at the time the Government decides on the question of reference it is the conciliation report of the officer and the statement of demands both of which are to be forwarded by the Conciliation Officer along with his report that are available to Government. R.10B(1) provides that there the Government refers any case for adjudication to a Labour Court or Tribunal, it shall send to the Labour Court or Tribunal concerned as also to the opposite party concerned in the industrial dispute a copy of every such order of reference together with a copy of the statement received by the Government under sub-r.(3) or sub-r.(4) of R.10A. Sub-r.(2) of this rule is also relevant: "Within two weeks of the receipt of the statement referred to in sub-r.(1), the opposite party shall file its rejoinder with the Labour Court or Tribunal, as the case may be, and simultaneously forward a copy thereof to the other party: Provided that such rejoinder shall relate only to such of the issues as are included in the order for reference." 8. So far as it is relevant for the purpose of this case the provisions adverted to may be paraphrased thus: It is for the party representing workmen involved in a dispute to forward a statement of its demands to the Conciliation Officer before commencement of the conciliation proceedings. The statement of demands is to be transmitted by the Conciliation Officer together with his conciliation report to the Government. When the Government makes a reference, besides sending the order of reference to the Labour Court or Tribunal, and to the opposite party concerned in the industrial dispute a copy of the statement of demand submitted by the party representing the workmen and forwarded by the conciliation officer to the Government is also to be sent to them. The opposite party who receives such statement is under an obligation to file a rejoinder before the Labour Court or Tribunal referring to the issues included in the order of reference. Those Provisions indicate that the Labour Court or the Tribunal is appraised of the nature of the dispute, the claim of one of the parties to the dispute and the answer of the other party to the dispute by way of a rejoinder. 9. Ext. R-2 filed by the 3rd respondent in this case along with the counter affidavit is said to be a copy of the notice issued by the Industrial Tribunal to the party as summons. 9. Ext. R-2 filed by the 3rd respondent in this case along with the counter affidavit is said to be a copy of the notice issued by the Industrial Tribunal to the party as summons. In the last sentence it calls upon the Union to file a statement with copy to the management and I am told at the hearing that it did not call upon the management to file the rejoinder, so much so they did not file a rejoinder. If so, the summons is contrary to R.10B(2) of the Industrial Dispute Rules, for there is no provision therein to call upon a Union to file a statement. It is for the management to file their rejoinder to the issues raised and the question of adducing any evidence would arise only on such a rejoinder being filed. Still Ext. R-2 summons calls upon the parties to produce on the posting day all the books, papers and other documents and things in their possession or under control in any way relating to the matter under investigation by the Tribunal. If a rejoinder is contemplated, this notice appears to be premature. At any rate calling upon the Union to file a statement, which is not warranted by provisions of R.10B(2), and failing to notice the failure of the management to file a rejoinder as enjoyed by R.10B(2) seems to be in direct contravention of the Rules. I have perused the original of the summons from the file with the Government counsel and I find that the words "the Union will file their claim statement with copy to the management on the above date" has been added by typing it on to a printed form. The form is seen presented as early as in 1958. Learned counsel Sri Appu Nair submits that despite the introduction of R.10A and 10B in the Industrial Disputes Rules even as early as in 1958 the procedure under the said R.10A and 10B is not being followed. I am not taking serious notice of this plea, for this answer does not find any place in the counter affidavit and apart from that I am not inclined to take notice of what is said to be a practice, which is contrary to the rule in force for a long time. May be one Tribunal or other might have ignored the rules. May be one Tribunal or other might have ignored the rules. That is not to say that the rule is not in force. 10. Therefore as matters stand the Union could not be said to have been treated fairly, for under the rules what ought to have been done was to call upon the management to file a rejoinder. That was not done. Therefore the first requisite under the rule has not been complied with by the Industrial Tribunal, The contention of Sri K. A. Nair was that the management was present. The presence of management is not a substitute for rejoinder in answer to issues and therefore that is not an answer at all. Whether the Union was present or not would not be material until and unless what is required by law to be done, namely filing of a rejoinder is shown to be done. Further so long as the obligation of the Industrial Tribunal is to proceed in accordance with law treating even the absentee party as represented, absence would not dispense with the need for taking notice of available material and making a judicial approach. The fact that on the day the case was posted the Union was not present should not have led the Industrial Tribunal to a different manner of disposal. Therefore, 1 think, the procedure adopted by the Industrial Tribunal is vitiated. 11. Apart from this, the reference to the award itself would be sufficient to show that the Tribunal has thoroughly misdirected itself in its consideration of the question it had to decide. The two reasons to declare the dismissal of Mariappan as justifiable are: (1) no reason to disbelieve the management's witness and (2) the Union has not cared to appear. The management's witness, as I have stated, does not speak to anything from his personal knowledge and does not even indicate that he has anything to do with the management. He says that he is the Industrial Relations Manager of K.D.H.P. Company and further states that Chittavura Estate belongs to K.D.H.P. Company, but the case is referred to the Industrial Tribunal in regard to a dispute arising in respect of Chittavura Estate as a company owned by James Finlay Company. The award also mentions the Chittavura Estate as of the K.D.H.P. Company, which is not the case in the reference. The award also mentions the Chittavura Estate as of the K.D.H.P. Company, which is not the case in the reference. Apart from that nothing turns on his evidence as he does not speak to any matter reflecting on the dispute, and therefore unless one feels that formal adherence to procedure is sufficient there cannot be any reliance placed on the evidence of P.W. 1. The other reason is equally bad, for even if the Union has not 'cared to appear' that calls for no consequence in the matter of the conclusion to be reached in view of R.22 of the Industrial Disputes Rules. The question ought to have been discussed on the materials which the rules envisage the Industrial Tribunal to possess, If the view of the Tribunal, as the learned counsel Sri Appu Nair attempts to argue, was that there was no material as should be normally available under the rules before the Industrial Tribunal in this case, I expect the Industrial Tribunal to say so, and then deal with the matter. The statement of demands, the conciliation report and rejoinder are normally the materials expected to be available to the Tribunal. In these circumstances I am not inclined to uphold the award. When the Government refers an industrial dispute to an Industrial Tribunal that requires to be dealt with in a proper fashion. That has not been done. Ext. P-6 award is therefore quashed. The Industrial Tribunal, Alleppey is called upon to go into the matter afresh and decide the case in accordance with law and in the light of what I have said here. 12. If what the learned counsel Sri Appu Nair stated before me is correct, there is reason for concern. If, despite R.10A and 10B which are in force for nearly 20 years, and which are evidently intended to make the functioning of the Industrial Tribunal in the matter of the trial of the dispute smooth there is no advertence to the rule non adherence to such rules ought not be viewed lightly and such a practice cannot be urged as an argument to sustain a wrong proceeding when the court has occasion to notice it. The earlier it is set right the better. The earlier it is set right the better. Again in the issue of summons the use of a proper form must necessarily receive consideration if the prescribed form is not in accordance with the amended rules, namely rules 10A and 10B At any rate the addition in the prescribed form seen in Ext. R-2 does not appear to be warranted even on the basis of the rules, for there is no justification to add a prescribed form and that too to make a departure from the rule. The reference is only to rules 10A and 10B. In the circumstances, the Original Petition is disposed of as above No costs.