JUDGMENT : J.J. Munir, J. 1. Case called on for hearing today. Sri Piyush Bhargava, learned counsel for the petitioner is present. 2. No one appears on behalf of the respondent-workman. 3. Sri S.P. Singh, learned Standing Counsel for the State appears on behalf of respondent nos. 1 and 2. 4. This petition has been filed challenging an ex parte award of the Labour Court dated 30.10.2009 passed in Adjudication Case No. 9 of 2003 and the order dated 24.09.2010 passed in the said adjudication case, rejecting an application brought to set aside the ex parte award. There is a further relief sought by way of a writ, order or direction in the nature of mandamus restraining the respondents from enforcing an order of reference, bearing no. 1444-C.P.267/2001 dated 05.03.2003. 5. The short question involved in the present petition as urged by Sri Piyush Bhargava, learned counsel appearing on behalf of the petitioner is to the effect whether the State Government was at all competent under the law to make a reference of the industrial dispute involved, in exercise of their powers under Section 4K of the U.P. Industrial Disputes Act, 1947 concerning a controlled industry, notified as such under sub-clause (i) of Clause 2 (a) of the Industrial Disputes Act, 1947. According to learned counsel for the petitioner, the petitioner-corporation have been declared a controlled industry under Section 2 of the Industries (Development and Regulation) Act, 1951. He has invited the attention of the Court to a notification of the Government of India, published in the Gazette of India, Extraordinary, dated 08.11.1977 where the relevant notification issued by the Government of India in the Ministry of Labour, reads as under: "MINISTRY OF LABOUR NOTIFICATION New Delhi, the 8th November, 1977 S.O.757(E)-In pursuance of sub clause (1) of clause (a) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby specifies, for the purposes of that sub-clause, the controlled industry engaged in the manufacture or production of Cement, which has been declared as a controlled industry under Section 2 of the Industries (Development and Regulation) Act, 1951 (65 of 1951). {No. S 11025/9/77/DI(A)} Sd/- D. BANDYOPADHYAY, Jt. Scey. " 6. {No. S 11025/9/77/DI(A)} Sd/- D. BANDYOPADHYAY, Jt. Scey. " 6. Indeed, there appears to be no quarrel about the fact that the petitioners are a controlled industry within the meaning of Section 2 of the Industries (Development and Regulation) Act, 1951, and, further that they have been declared to be a controlled industry vide notification dated 8.11.1977, published in the Gazette of that date, under Section 2 (a) (i) of the Industrial Disputes Act, 1947, the relevant part whereof reads as under: "Section 2 (a)(i) Definitions-In this Act, unless there is anything repugnant in the subject or context,- (a) "appropriate Government" means,- (i) in relation to any Industrial Disputes concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an Industrial Dispute concerning [a Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948)......................, the Central Government, and..." (Emphasis by Court) 7. It appears that the petitioner are a public limited company incorporated under the Companies Act, 1956 and engaged in the business of manufacture and marketing of cement. They have a factory at Satna in the district of Madhya Pradesh and branches throughout the country. 8. The factual matrix giving rise to the present petition in brief is that Gopal Mishra, respondent no. 3, who shall hereinafter referred to as 'the workman', filed an application under Section 2-A of the U.P. Industrial Disputes Act, 1947 (in short 'the U.P. Act') before the Conciliation Officer, Allahabad alleging illegal termination of his services with effect from 23.08.2001. It was claimed that he was appointed on the post of a driver by the petitioner and was terminated illegally by an oral order, on the date last mentioned. The application made to the Conciliation Officer was registered on his file as C.P. Case No. 267 of 2001. It was claimed that he was appointed on the post of a driver by the petitioner and was terminated illegally by an oral order, on the date last mentioned. The application made to the Conciliation Officer was registered on his file as C.P. Case No. 267 of 2001. In their reply before the Conciliation Officer, the petitioners have averred in paragraph 11 of the writ petition that besides denying the factual basis to the industrial dispute then sought to be raised, it was particularly pointed out that the petitioner are a controlled industry as notified by the Central Government under Section 2(ee) of the Industrial Disputes Act, 1947 (for short 'the Central Act') read with Section 2 of the Industries (Development and Regulation) Act, 1951 (for short 'the Act of 1951') vide notification dated 8th November, 1977. 9. It was pleaded specifically that the appropriate Government in relation to a controlled industry, by virtue of Section 2(a)(i) of the Central Act, once notified as a controlled industry under Section 2 of the Act of 1951 would be the Central Government. As such, the industrial dispute sought to be raised could not be referred by the State Government under Section 2(k) of the State Act for adjudication. In addition, on facts, it was also pleaded that there was no employer-employee relation existing between parties. 10. The Additional Labour Commissioner U.P., Allahabad made a reference under Section 2(k) of the State Act for adjudication to the Industrial Tribunal (Ist), U.P., Allahabad in the following terms:- ^^D;k lsok;kstdksa }kjk vius Jfed Jh xksiky izlkn feJk iq= Jh d`".k izlkn feJ dh lsok,a fnukad 23-08-2001 ls lekIr fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugh rks lEcaf/kr Jfed D;k fgrykHk@vuqrks"k¼fjyhQ½ ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgrA^^ 11. The reference aforesaid was registered before Industrial Tribunal as Adjudication Case No. 9 of 2003. Before the Tribunal, on 12th January, 2005 respondent no. 3 filed his written statement, alleging that he was engaged on the post of a driver on 17.10.1988 on a monthly wages of Rs. 2,500/-, and that his services were orally terminated by the petitioners with effect from 23.08.2001, without complying with the provisions of Section 6 N of the State Act. He claimed that he is entitled to relief of reinstatement, with full back wages. 12. 2,500/-, and that his services were orally terminated by the petitioners with effect from 23.08.2001, without complying with the provisions of Section 6 N of the State Act. He claimed that he is entitled to relief of reinstatement, with full back wages. 12. The petitioner filed their written statement on 04.10.2006, reiterating the legal position that cement industry has been declared by the Central Government as a controlled industry, as defined under Section 2(ee) of the Central Act, and, as such the appropriate Government under Section 2(a)(i) of the said Act, in relation to the petitioner, is the Central Government. It was pointed out that the State Government is not competent to make a reference under Section 4(k) of the State Act. It was submitted that the order of reference dated 05.03.2003 was without jurisdiction and bad in law. 13. It was stated for a fact that the workman was not an employee of the petitioners or was he ever paid wages by them. In fact, the workman was a personal driver to the Vice President (Marketing), Allahabad of the petitioners, one Sri M.S. Dhamija. It was further said that since the workman was not the petitioners' employee, the question of termination of his services by the petitioner did not arise. It was pointed out that on 27.08.2007, on the basis of pleadings of parties, a preliminary issue was framed to the following effect: "whether the reference has been made by the Central Government? If not so, its effect." 14. The petitioner then came up with a case that there were some parleys going on between the workman and the petitioner to work out an amicable settlement, and in between the petitioners' authorized representative, Sri P.C. Chaturvedi underwent some ophthalmological surgery. In consequence, he was unable to attend court for about a month. He sought an adjournment. There is a case pleaded that it was on account of the medical indisposition of their authorized representative that proceedings went ex parte. Evidence was recorded ex parte and an award was pronounced on 30.10.2009, that was published on 17.04.2010. By the said award the reference was answered in favour of the workman, ordering him to be reinstated with back wages and continuity in service. 15. Evidence was recorded ex parte and an award was pronounced on 30.10.2009, that was published on 17.04.2010. By the said award the reference was answered in favour of the workman, ordering him to be reinstated with back wages and continuity in service. 15. The petitioner made an application for recall and strongly made their point regarding non-maintainability of the reference which had not at all been decided by the ex parte award, as per the petitioners' case. The restoration application came to be rejected by the Labour Court on grounds that during the entire course of the case there were 101 adjournments, and, particularly, that the award was not ex parte but one on merits. 16. Before this Court, Sri Piyush Bhargav, learned counsel for the petitioner has been heard and nobody has appeared on behalf of the workman. The learned Standing Counsel has been heard on behalf of the State. 17. A perusal of the award impugned shows that it is indeed ex parte. The Tribunal has heard Sri K.K. Srivastava, who appeared as the workman's representative and considered documentary and oral evidence led on behalf of the workman. The award shows to its face that no evidence was led on behalf of the petitioner-employers. It is thus clearly an ex parte award. The award also shows that the very seminal issue which was framed as an issue to be determined as to whether reference to the Industrial Tribunal had been made by the Central Government, and if not, its effect, was not at all considered while passing the impugned award. 18. This Court finds that looking to the definition of a controlled industry under Section 2(ee) of the Central Act and declaration of cement industry under Section 2 read with Schedule 1, entry 35 of the Act of 1951 as a controlled industry, it is a jurisdictional issue to be determined whether the appropriate government to make a reference within the meaning of Section 2(a)(i) of the Central Act was the Central Government alone, and not the State Government. The Tribunal from a perusal of the award did not go into that question at all. 19. The petitioner made a restoration application that has come to be rejected by means of an order dated 24.09.2010, passed in Adjudication Case No. 9 of 2003. The Tribunal from a perusal of the award did not go into that question at all. 19. The petitioner made a restoration application that has come to be rejected by means of an order dated 24.09.2010, passed in Adjudication Case No. 9 of 2003. A perusal of the said order shows that the Tribunal has found the petitioner to be negligent in the prosecution of his case, and exhibitive of conduct deliberately designed to delay proceedings by making a show of a possible settlement. The Tribunal has recorded a finding that sufficient opportunity of hearing was given to the petitioner. Thereafter, while rejecting the application, the Industrial Tribunal has recorded two findings: 1. that sufficient opportunity was afforded to the petitioners to appear, and, therefore, their case that they were not given opportunity is incorrect and unbelievable; 2. the impugned award passed by the Tribunal is an award on merits, against which no restoration is possible or permissible in law. 20. So far as the finding of the Tribunal that sufficient opportunity was given is concerned, that has to be viewed in the background of the petitioner's explanation which appears to have been rejected by the Tribunal more out of indignation for the frequent adjournments, than the worth of the explanation itself. There was a background of adjournments on account of negotiations going on with the workman, and then the employers representative appears to have undergone a cataract surgery, which led to the petitioner loosing track of proceedings before the Tribunal. 21. This Court, thinks that the Tribunal should have granted one opportunity, particularly, when the petitioner applied for a restoration to be heard on merits of the matter. This is particularly so as there was a question about jurisdiction of the referring Government to make the reference, about which an issue had been framed. The issue has not at all been dealt with by the Tribunal in the ex parte award that it pronounced. This particular feature of the matter would be more in accord with law to favour a hearing on merits, than to throw out the restoration application because of the frequent adjournments considered by the Tribunal. 22. The other finding that the award was passed on merits, and, therefore, it was not open to reconsideration or restoration, in the opinion of this Court, is manifestly illegal. 22. The other finding that the award was passed on merits, and, therefore, it was not open to reconsideration or restoration, in the opinion of this Court, is manifestly illegal. It is one thing to say that there is no sufficient cause to grant restoration and quite another to say that the order sought to be recalled or set aside is not ex parte, but one made on merits, as already said hereinbefore. The impugned award is clearly one that has proceeded and ended ex parte with evidence of the workman alone being considered. It cannot be termed to be an award on merits. It is decidedly an ex parte award. An ex parte award can well be set aside, under Rule 16(2) of the U.P. Industrial Disputes Rules, 1957. 23. This Court has chosen to refer to the power under Rule 16(2) as the Tribunal has exercised jurisdiction under the State Act on a reference under Section 2(k) of that Act, and not under the Central Act. The award that was made on 30.10.2009 and published on 17.04.2010 was sought to be set aside by an application made on 11.05.2010. The application made, has been made beyond 10 days or 30 days of publication of the award. But to decide an application to set aside an ex parte award, the Labour Court is no longer held functus officio, going by the law laid down by their Lordships of the Supreme Court in Haryana Suraj Malting Ltd. vs. Phool Chand, 2018 (16) SCC 567 . The Labour Court can well act beyond the period of ten days or thirty days under the State Act, so long as sufficient cause is shown to set aside the award. In this connection, paragraphs 34, 35 and 37 of the report in Haryana Suraj Malting Ltd (Supra) may be gainfully referred to, which read thus:- "34. In case a party is in a position to show sufficient cause for its absence before the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal, in exercise of its ancillary or incidental powers, is competent to entertain such an application. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal. 35. That power cannot be circumscribed by limitation. What is the sufficient cause and whether its jurisdiction is invoked within a reasonable time should be left to the judicious discretion of the Labour Court/Tribunal. 35. It is a matter of natural justice that any party to the judicial proceedings should get an opportunity of being heard, and if such an opportunity has been denied for want of sufficient reason, the Labour Court/Tribunal which denied such an opportunity, being satisfied of the sufficient cause and within a reasonable time, should be in a position to set right its own procedure. Otherwise, as held in Grindlays [Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 : 1981 SCC (L&S) 309] , an award which may be a nullity will have to be technically enforced. It is difficult to comprehend such a situation under law. 37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its nonappearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent." 24. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent." 24. The Industrial Tribunal was, therefore, not short of authority to recall the order passed ex parte or does this Court lack jurisdiction to correct an error committed by the Tribunal in refusing restoration, in an appropriate case. In the present case, this Court finds for all that has been said above there was sufficient cause shown by the petitioner for their absence, and the application to set aside the impugned award, that is clearly ex parte ought to have been allowed by the Tribunal. 25. Sri Bhargava at this stage, has impressed upon this Court that the question involved is purely one of law and the matter ought not to be remitted to the Tribunal for decision afresh. He has placed reliance in support of his submission that the appropriate Government in relation to the cement industry is the Central Government, upon a decision of the Bombay High Court in Ultra Tech Cement Ltd. vs. S.N. Moharil 2010-III-LLJ-224 (Bom), where the High Court after a copious review of the authority of the Supreme Court and other High Courts held that the appropriate Government to refer an Industrial Dispute relating to the Cement Industry is the Central Government, and to such an industry the provisions of the Central Act alone would apply and not those of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, that may be regarded as the State enactment pari materia to the State Act here. 26. This Court does not think that it should venture to examine and decide the question in the state of proceedings as they stand in this writ petition. This is for the reason that the point was not only raised before the Tribunal consistently but an issue about it was framed, that was not answered by the Tribunal while passing the ex parte award. This Court thinks that the Tribunal must examine this issue as a preliminary, before it proceeds to decide the reference on merits afresh. This is for the reason that the point was not only raised before the Tribunal consistently but an issue about it was framed, that was not answered by the Tribunal while passing the ex parte award. This Court thinks that the Tribunal must examine this issue as a preliminary, before it proceeds to decide the reference on merits afresh. Also, this Court is reluctant to examine the issue here straightway, as the workman has not appeared at the hearing of this writ petition. 27. In the result, this petition succeeds and is allowed. The impugned award dated 30.10.2009, Annexure 3 to the writ petition, passed by the Industrial Tribunal (I), U.P., Allahabad in Adjudication Case No. 2003 and the impugned order dated 24.09.2010, Annexure 4 to the writ petition, are hereby quashed. The Adjudication Case shall stand restored to the file of the Industrial Tribunal for decision afresh in accordance with law, which the Industrial Tribunal is requested to do early, preferably within a period of six months from the date of production of a certified copy of this order. Costs easy.