JUDGMENT : D.P. Singh, J. Though this writ petition is listed for orders, counsel for both the parties state that otherwise the case is ripe for hearing and the time consumed for disposing of the stay vacation application and the writ petition itself would be the same, therefore, the writ petition be finally disposed of. The office report dated 6th March, 2003, also confirms that the case is ripe for hearing. In view of the aforesaid the writ petition is being finally disposed of. 2. Heard Sri Tarun Agarwal, learned Counsel for the Petitioner and Sri K. M. Garg, learned Counsel for the contesting Respondent. 3. This writ petition is directed against two orders. An ex-parte labour court award dated 21.8.1986 and order dated 16.8.1987 by which recall application for recalling the aforesaid award was rejected. 4. The Respondent No. 2 (hereinafter referred to as the workman) was employed as an operator in the erstwhile U.P. State Electricity Board (now U.P. Power Corporation Ltd.) on daily wage basis w.e.f. 10th September, 1978. Since the workman was not allowed to work from 2.6.1979 he approached the Conciliation Officer and upon a failure report the matter was referred u/s 4K to the Labour Court, Ghaziabad, which was registered as Adjudication Case No. 251 of 1985. The reference was to the following effect: Kya sewayojakon dwara apne shramik Satish Chandra Shringaria ki sewayen dinank 2.6.1979 se samapt kiya jana uchit tathav/athwa waidhanik hai? Yadi nahin to sambandhit shramik kya labh/chhatipurti (Relief) pane ka adhikari hai. Tatha anya kis vivran sahit? 5. The workman filed his written statement but the Petitioner did not file its written statement, though for the said purpose 28.6.1986 and 15.7.1986 was fixed. On both the aforesaid dates, holiday was declared. It appears that 2.8.1986 was the next date fixed for filing of the written statement by the Petitioner. None appeared for the Petitioner on 2.8.1986 when the labour court passed an order that proceedings will be ex-parte against the Petitioner. It is not evident from the order sheet, which is Annexure-7 to the writ petition, as to when the arguments were heard or when the orders were reserved. From the order-sheet only this much is apparent that the award was signed on 21.8.1986 and the same was notified on 1.10.1986. 6. It is not evident from the order sheet, which is Annexure-7 to the writ petition, as to when the arguments were heard or when the orders were reserved. From the order-sheet only this much is apparent that the award was signed on 21.8.1986 and the same was notified on 1.10.1986. 6. The case of the Petitioner is that from 11.7.1986 to 22nd of July, 1986, there was complete strike in the Petitioner's establishment and, therefore, no one could appear on 15.7.1986. The case of the Petitioner further is that after the withdrawal of the strike when the representative of the Petitioner went to the labour court on 26.7.1986 he noted 2.9.1986 as the next day fixed. When the representative went to the Court on 2.9.1986 he found that an order to proceed ex-parte was passed on 2.8.1986. Immediately on the next day, i.e., 3.9.1986 he made an application for recall of the order dated 2.8.1986 and also filed his personal affidavit pointing out that by mistake he had noted 2.9.1986 instead of 2.8.1986. The workman filed detailed objection to the aforesaid recall application. However, the labour court vide the impugned order rejected the application holding that all the officials of the Petitioner's establishment were not on strike, therefore, they ought to have been present in Court. 7. Counsel for the Petitioner has raised three legal submissions in support of his petition. Firstly, he urged that 2.8.1986 was fixed for filing of written statement and thus, the Petitioner could only have been debarred from filing the same and the Court could not make an award without fixing a date for filing rejoinder. The second contention is that in view of Rule 16 and the language employed therein, the Court could only order to proceed ex-parte if the date was fixed for hearing and not for any other purpose. The third contention is that in any event since the application for recall was within ten days of the knowledge of the order, the labour court ought to have recalled the order. 8. The rules framed under the Act prescribe the procedure for proceedings of the labour court. Rule 12 of the rules provides that the labour court has to fix a date for filing of statements, etc. It will be useful to produce Rules 12 and 16 which are quoted below: 12. Proceedings before the Labour Court or Tribunal. 8. The rules framed under the Act prescribe the procedure for proceedings of the labour court. Rule 12 of the rules provides that the labour court has to fix a date for filing of statements, etc. It will be useful to produce Rules 12 and 16 which are quoted below: 12. Proceedings before the Labour Court or Tribunal. (1) Where the State Government refers an industrial dispute for adjudication to a Labour Court or Tribunal within two weeks of the date of receipt of order of reference, the party representing the workmen, or in the case of individual workman, the workman himself and the employer involved in the dispute shall file before the Labour Court or the Tribunal, as the case may be, a statement of the demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute: Provided that where the Labour Court or Tribunal, as the case may be, considers it necessary, it may: (a) extend the time limit for filing of such statement; or (b) ... (c) ... (d) ... (e) ... (2) Within two weeks of the receipt of this statement referred to in Sub-rule (1) above the opposite party shall file its rejoinder with the Labour Court or the 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 of reference: Provided also that where the Labour Court or the Tribunal, as the case may be, considers it necessary, it may: (a) extend the time limit for filing of such a rejoinder or reduce the time limit for filing of such rejoinder to one week in emergent cases for reasons to be recorded in writing; (b) permit the workman to file reply to the said rejoinder on a date fixed by the Presiding Officer, and on such date the parties shall file their documents and issues, if any, arising out of the pleadings of the parties shall be framed. (c) Fix a date for filing documents and may on the same date frame such issues, if any, as may arise out of the pleadings of the parties after the written statements and rejoinders have been filed. (c) Fix a date for filing documents and may on the same date frame such issues, if any, as may arise out of the pleadings of the parties after the written statements and rejoinders have been filed. (3) The Labour Court or the Tribunal, as the case may be, shall ordinarily fix the date for the first hearing of the dispute within six weeks of the date on which it was referred for adjudication: (4)... (5)... (6) At the first hearing of the Labour Court or the Tribunal, the Presiding Officer may call upon the parties to state their case, in such order as it may think fit. (7)... (8) The written statement filed by the union or the workmen shall state the grounds on which the claim of the concerned workman is based and the written statement shall be accompanied by an affidavit in which the consents of the written statement are sworn to. (9) If the affidavit accompanying the written statement of the union or the workmen is not rebutted by the employers the labour court or the Tribunal, as the case may be, shall presume the consents of the affidavit to be true and made an award accepting the facts stated in the written statement. (10)... 16. Labour Court or Tribunal or Arbitrator may proceed ex-parte.-(1) If, on the date fixed or on any other date to which the hearing may be adjourned, any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper. (2) The Labour Court or Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the ord6:39 PM 12/17/2010er. 9. A perusal of Rule 12 shows that on receipt of the reference both the parties have to file a statement of demand in relation to issues included in the reference. After receipt of this statement or written statement (as called in legal lingo), the respective parties may file their rejoinder (or rebuttal) to the averments contained in the written statement of the opposite party. The period of two weeks fixed by the rules can be extended or reduced by the labour court. Thereafter, the labour court has to fix a date in case the workman seeks to file further reply to the rejoinder of the employer. On this date, the parties may also file their documents in support of their respective cases and issues may be struck. If no reply to the rejoinder of the employer is sought to be filed by the workman, the labour court has to fix a date for filing of the document and striking of issues. Only after these dates have been fixed and exercise completed, then the date of first hearing can be fixed by the labour court. It is only on the first date of hearing that the parties are required to state their case. It may be noted that the written statement of only the workman has to be accompanied by an affidavit in which the contents of the written statement have to be sworn. This is because Sub-clause (9) of Rule 12 provides that if employer does not rebut the written statement of the workman, the contents of the affidavit accompanying the written statement of the workman shall be presumed to be true and an award can straightaway be made. But Rule 12 does not speak about ex-parte order as in the case of Rule 16. 10. It is this background that the first contention of the learned Counsel for the Petitioner is to be examined. It is apparent that 2.8.1986 was the date fixed for filing of the written statement of the Petitioner. But Rule 12 does not speak about ex-parte order as in the case of Rule 16. 10. It is this background that the first contention of the learned Counsel for the Petitioner is to be examined. It is apparent that 2.8.1986 was the date fixed for filing of the written statement of the Petitioner. It is also apparent that no date was fixed for filing of rejoinder by the parties, also, no date was fixed for filing of documents by the respective parties in support of their case. Sub-clause (3) of Rule 12 mandates the Court to fix a date for first hearing of the dispute, no date for hearing was fixed. Thus, the Petitioner contends that at best it could have been debarred from filing any written statement. But even after disentitling the Petitioner from filing its written statement, it was incumbent upon the Labour Court to have fixed a date for filing of rejoinder of the Petitioner for rebutting the affidavit and written statement filed by the workman and also for filing documents in support of the rejoinder. Sub-clause (9) of Rule 12, which is the deeming clause by virtue of which if no rebuttal is filed by the employers, the contents of the affidavit accompanying the written statement are to be presumed correct and an award can be made on that basis alone. The right to file a rejoinder or rebuttal is as substantial a right, if not more, than the right to file written statement. As already noted above, both parties are required to file their written statement on a fixed date, after serving a copy on the other party. This statement is only in the nature of demand raised in the cause of the reference order. That is to say, each raises its own demand irrespective of what the other party has to say. But the right of the employer to file rejoinder is crucial, as non-filing may result into an award under Rule 12 (9). An employer even without filing a written statement, may still have his defence in the nature of rejoinder, which the labour court has to consider on merits even though it may be in the absence of the employer at the time of hearing. But if no rejoinder is filed, the labour court is bound to accept the written statement of the workman as correct. But if no rejoinder is filed, the labour court is bound to accept the written statement of the workman as correct. The right to file a rejoinder on behalf of the employer is sacrosanct and an award made without giving an opportunity to file it, would be void. Thus, in my opinion, the labour court erred in passing the award without fixing a date for filing of rejoinder and document in support thereof. 11. Learned Counsel for the Respondent has laid great emphasis that power under Rule 16 could be utilised at any stage of the proceedings, including at the stage of filing of written statement or at the hearing. This question does not arise in the present case. The labour court has made the award on the ground that there was no rebuttal to the written statement and affidavit of the workman. This power which the labour court has exercised is only referable to Rule 12 and not Rule 16. It may be that the labour court can pass an award 'ex-parte' or may pass an order to 'proceed ex-parte', but as this question does not arise in the present petition, it would be futile to deal with the argument of the learned Counsel for the workman. Therefore, in my view the contention of the learned Counsel for the Petitioner has to be accepted. 12. Learned Counsel for the workman had placed reliance upon the ratio laid down in the case of Executive Engineer, Electricity Distribution Division Vs. Presiding Officer, Labour Court, Gorakhpur and another, (2000) 4 AWC 2908 and U.P. State Electricity Board, Agra v. Presiding Officer 1985 UPLBEC 483, in support of his contention that the High Court ought not to interfere in the present case since the Petitioner did not give satisfactory explanation for his absence on the date fixed and also that the application of recall being made beyond limitation of ten days was not maintainable. In the case of Executive Engineer (supra) the application for setting aside the award passed under Rule 16 was made after nine months of the knowledge of the award. Thus, it was in those circumstances that the Court held that the expression "order" appearing in Rule 16 includes ex-parte award and further that there was no explanation for the delay. In the case of Executive Engineer (supra) the application for setting aside the award passed under Rule 16 was made after nine months of the knowledge of the award. Thus, it was in those circumstances that the Court held that the expression "order" appearing in Rule 16 includes ex-parte award and further that there was no explanation for the delay. In U.P. State Electricity Board (supra) the Court was concerned with inconsistency between the provisions contained in Section 6 and Rule 16 (2). In my view, none of the two cases support the contention of the workman. 13. As has already been held that the award was made under Rule 12 (9), question of limitation of ten days does not arise. The labour court could still recall the order dated 2.8.1986 as by 3.9.1986, when the recall application was filed, the award was not enforceable as it was not published, thus, the question of limitation of 10 days did not arise. The merits of the reason for non-appearance was to a large extent in the judicial discretion of the labour court. 14. In view of the discussions of the said contention of the learned Counsel for the Petitioner, it is needless to deliberate upon the other contentions. 15. For the reasons given hereinabove, the writ petition succeeds and is allowed and the impugned award dated 21.8.1986 and the order dated 16.8.1987 are hereby quashed. No order as to cost. 16. After the order has been dictated the counsel for the Respondents prayed that since the matter is very old one, the labour court may be directed to decide it on merit expeditiously. In view of the aforesaid, the labour court is directed to decide the aforesaid Adjudication Case No. 251 of 1985 expeditiously, preferably within a period of two months from the date of production of a certified copy of this order.