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1981 DIGILAW 258 (CAL)

Vivek Salvi v. Second Industrial Tribunal

1981-07-17

G.N.Roy

body1981
JUDGMENT 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 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. 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. 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". 3. THE learned Counsel for the respondent no. 4 also refers to a decision of the supreme Court made in the case of Municipal Board Pushkar vs. State Transport authority, Rajasthan and others, reported in air 1965 SC at page 458. It appears that in the relevant Statute under consideration of the Supreme Court in the said case it was provided that the State Transport Authority should not entertain any application from a person aggrieved by an order of regional Transport Authority unless the application was made within 30 days from the date of the order. 4. IT was noted by the Supreme Court that the question of knowledge was totally irrelevant for the purpose of deciding the period of limitation. The observation of the Privy Council made in the case of Nayendranath vs. Surest) Chandra, reported in air 1932 P. C. 165 and General Accidental fire and Life Insurance Corporation Ltd.-vs- Janmahomed Abdul Rahim, reported in AIR 1941 P. C. page 6 that in interpreting the provisions of limitation, "equitable considerations are out of place, and the strict: grammatical meaning of the words is the. only safe guide" was relied on by the Supreme Court. The Supreme Court, therefore, held that the words "date of the order" should not be read "as from the date of knowledge of the order. " In my view, the contentions of the learned Counsel of the respondent no. 4 that after expiry of thirty days from the date of publication of the award, the Tribunal becomes functus officio and the application for review is also barred by the West Bengal industrial Disputes Rules, are justified and I am inclined to accept the same. If the publication was made on June 25, 1980 as appears from the order, then the Tribunal, in any event, became functus officio after the expiry of 30 days from the date of oublication of the award and therefore it had no jurisdiction to entertain the said application for review. The petitioner, if aggrieved for good cause, could seek remedy in a different forum but not before the Tribunal which had no jurisdiction to entertain the application 5. IT may also be noted that the petitioner has not made out any case that although the publication was stated to have been made on June 25, 1980, but in reality such publication was not made on the said date and the publication which was made in the instant case was anti dated. Hence, it will not be open to this Court, to enquire whether in reality the publication was made on June 25 or not. The petitioner has challenged the original Award on the footing that the said Award was passed without giving any notice to the petitioner and only after receipt of the communication from the State Govt, about the said Award in July, 1980, the petitioner came to know for the first time that an ex parte Award had beer, made. This Court called for original records of the Tribunal to see how the notice was served on the petitioner and it appears from the record that the notice was sent by registered post with acknowledgment due and on January 14, 1980, the said registered cover was accepted on behalf of the addressee, namely, the petitioner. It also appears that the address was rightly given in the acknowledgment receipt. It also appears that the address was rightly given in the acknowledgment receipt. The presumption of correctness, therefore, is in favour of the proper service on the petitioner and if the petitioner contents that such service was not effected on the Petitioner, it is for the Petitioner to rebut such presumption of correctness. 6. IN the review application which was made by the Petitioner before the learned Tribunal, the Petitioner made a statement that after getting the communication from the State Government about the exparte Award, the Petitioner searched for the notice from the office and even after a thorough search, the said notice had not been fount in the office. Although, the petitioner has stated that the Petitioner did not receive the said Notice at any point of time, it has not been stated by the Petitioner that the signature appearing on the acknowledgement receipt was not the signature of the Petitioner or any person duly authorised to receive communication for the petitioner. In my view, if the Petitioner intends to establish that the said postal communication was not given to the Petitioner, there must be proper averments prima facie justifying the contention of the Petitioner. The teamed Tribunal has considered the material produced before the Tribunal and the evidence of the concerned workman and thereafter has passed the Award after giving cogent reasons and it cannot be contended that the said Award was passed without applying the mind to the facts and circumstance of the case. I would have been inclined to ask the Tribunal to make a finding as to whether in fact the said Notice was served on the Petitioner or not if the petitioner had even indicated in the application that the signature appearing in the acknowledgement receipt was not the signature of the Petitioner or any of the employees of the Petitioner authorised to receive the notice. In the circumstances, I do not feel inclined to send the matter for further investigation simply because the Petitioner has stated that the Petitioner did not receive any notice. In the circumstances, no inference is called for in this Rule and the Rule is discharged but I make no order as to costs. 7. THE learned Counsel for the Petitioner prays for stay of the operation of the order but the said prayer is opposed by Respondent No. 4. In the circumstances, no inference is called for in this Rule and the Rule is discharged but I make no order as to costs. 7. THE learned Counsel for the Petitioner prays for stay of the operation of the order but the said prayer is opposed by Respondent No. 4. Considering the facts and circumstances, the said prayer is refused.