S.R Singh, J.:— Heard Sri P.N Pandey learned counsel appearing for the petitioner and Sri R.C Shukla counsel appearing for respondent No. 2 and Standing Counsel for the Respondents 1 and 3.
2. The petition is directed against the award dated 23.9.1994 given by the Labour Court, Meerut in Adjudication Case No. 74 of 1994 and the order dated 6.7.1995 whereby the Court has rejected the application moved on behalf of the petitioner for setting aside the award dated 23.9.1994 which was admittedly given ex-parte.
3. Rule 16(2) of the U.P Industrial Disputes Rules, 1957 provides that the Labour Court, Tribunal or an Arbitrator, as the case may be, may set aside the order passed against a 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.
4. Thus the proposition that the Labour Court has power to set aside the ex-parte award can not be doubted in view of the provisions of Rule 16(2) of the U.P Industrial Disputes Rules, 1957. Even otherwise it has been ruled by the Supreme Court in Satnam Verma v. Union Of India of India,1 that the Labour Court has jurisdiction to set aside an ex-parte order or award.
5. The Labour Court while rejecting the application moved on behalf of the petitioner for setting aside the ex-parte award dated 23.9.1994 has not recorded any categorical finding as to whether summons were served upon the petitioner-Society in accordance with law. It cannot be gainsaid that if summons were not duly served upon the petitioner then that by itself would constitute sufficient cause for non-appearance of the petitioner on the date fixed for hearing. It is therefore, to be seen whether summons were duly served on petitioner.
6. It is evident from Rule 11 of the U.P Industrial Disputes Rules, 1957 that any notice, summons, process or order issued by a Labour Court may be served either by personal delivery or by registered post or in any other manner prescribed in this behalf in the Code of Civil Procedure, 1908. Order 5 of the Code of Civil Procedure prescribes the manner of service of summons. According to Rule 19-A of Order 5 of the Code, the Court is required to direct the summons to be served by registered post acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive). Sub-rule (2) of Rule 19-A, provides that when an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. It is evident that the declaration is to be made only where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due. Rule 238 of the U.P Co-operative Societies Rules, 1968 which provides that the service of summons on the Chairman or Secretary of the Co-operative Society shall be deemed to be the service on Society too is relevant to the question as to due service of summons on the petitioner and therefore it has to be read along with the related provisions contained in Order 5 of the Code and Rule 11 of the U.P Industrial Disputes Rules, 1957. No categorical finding has been recorded by the Labour Court as to whether the service of summons was effected upon the petitioner in the manner indicated in Rule 238 of the Rules aforestated. On the contrary the Labour Court has taken a view that since the Society was not impleaded through its Chairman or Secretary the notice could not have been issued to the Society on the Chairman or Secretary. In my opinion, the Labour Court has rejected the application for setting aside ex-parte award without proper self-direction to the relevant issues. The order dated 6.7.1995, therefore, cannot be allowed to be sustained. The application for setting aside the ex-parte award has to be re-examined by the Labour Court in accordance with law and in the light of the observation made in the body of judgment.
7. Accordingly the order dated 6.7.1995 is quashed. The Labour Court is directed to dispose of the application for setting aside the Ex-parte award afresh in accordance with law and in the light of the observations made in the body of the judgment.
8. Parties are directed to bear their own costs.
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