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Judgment
Rajiv Sahai Endlaw, J.
The Counsels have been heard. The facts which emerge are as under:
Mr. Jai Prakash petitioner in WP(C) 6340/2002 raised an industrial dispute against "the Management of M/s. Wimpy Fast Food Pvt. Ltd., N-5, Janpath, Connaught Place, New Delhi". The same was referred to the Labour Court. The Labour Court rendered an award dated 15th September, 1993. In the said award it is mentioned that the management had before the Labour Court filed a written statement wherein they had admitted that the said Jai Prakash was employed with them w.e.f. 5th February, 1985 at a monthly salary of Rs. 450/- per month; however, on account of his misbehavior, his services were terminated after making inquiries on 31st August, 1988. It is further recorded in the award that the management did not come forward to lead any evidence to prove its defence. The Labour Court accordingly held the termination of services of the said Jai Prakash by "the Management of Wimpy Fast Food Pvt. Ltd." as illegal and directed reinstatement with full back wages and continuity in service.
The award remaining uncomplied, Jai Prakash initiated proceedings for its enforcement. It appears that Jai Prakash stated in the said enforcement proceedings that the name of M/s. Wimpy Fast Food Pvt. Ltd. against whom award had been made, stood changed to M/s. Goodwill Foods Pvt. Ltd. On the said statement of Jai Prakash, a recovery certificate for recovery of Rs. 46,620/- due till then under the award was issued by the Assistant Collector in the name of M/s. Goodwill Foods Pvt. Ltd. at the address of N-6, Janpath, Connaught Place, New Delhi. The said M/s. Goodwill Foods Pvt. Ltd. in their reply dated 20th March, 1995 sent by Col. Kalyan Singh as Director of M/s. Goodwill Foods Pvt. Ltd. contended before the Assistant Collector that they had never employed any Jai Prakash and the notice had been wrongly issued in their name.
M/s. Goodwill Foods Pvt. Ltd. then filed WP(C) 1222/1995 (supra) in this Court contending that notwithstanding their aforesaid reply, the office of the Assistant Collector was continuing to harass them. It is inter alia mentioned in the writ petition 1222/1995 that the said M/s. Goodwill Foods Pvt. Ltd. had been incorporated in the year 1988; that it was the authorized licensee of the trademark WIMPY; that Mr. K.S. Sidhu and Mr. K.S. Sandhu of U.K. had 95% share holding of the said M/s. Goodwill Foods Pvt. Ltd.; that after incorporation in 1988, the said M/s. Goodwill Foods Pvt. Ltd. had opened Wimpy Restaurant inter alia at N-6, Janpath, Connaught Place, New Delhi. It is their case in the petition that nothing is due from them to the said Jai Prakash. The writ petition was filed through the Director Col. Kalyan Singh. It is significant that though the name of the workman Jai Prakash at whose instance the recovery certificate had been issued against M/s. Goodwill Foods Pvt. Ltd. was known, but the said Jai Prakash was not impleaded as a party to this writ petition. This Court vide ex parte order dated 19th April, 1995 directed that no coercive steps shall be taken for recovery of Rs. 46,620/- from the said M/s. Goodwill Foods Pvt. Ltd. The said order remains in force.
The Assistant Collector in his counter affidavit to the writ petition took objection that Jai Prakash at whose instance the recovery certificate challenged in the writ petition has been issued had not been impleaded as a party. This Court vide order dated 13th February, 1996, finding Jai Prakash to be a necessary party directed M/s. Goodwill Foods Pvt. Ltd. to file amended memo of parties and further directed issuance of notice to the said Jai Prakash. However, the said Jai Prakash remained unserved and the matter was adjourned from time to time. Ultimately, vide order dated 7th February, 2000 the said Jai Prakash was directed to be served by publication. M/s. Goodwill Foods Pvt. Ltd. took repeated adjournments for publication. In the order dated 10th September, 2003 it is noted that M/s. Goodwill Foods Pvt. Ltd. had for three years not complied with the order of publication. This Court felt that the said Jai Prakash should be served personally. Jai Prakash was ultimately served as recorded in the order dated 9th July, 2004.
In the meanwhile Jai Prakash filed WP (C)6340/2002 impleading therein M/s. Wimpy Fast Food Pvt. Ltd., M/s. Wimpy Goodwill Fast Food Pvt. Ltd, M/s. Wimpy International Limited, Mr. Kanwaljit Singh Sidhu, Col. Kalyan Singh, Mr. Charanjit Singh, Assistant Labour Commissioner and Delhi Administration as respondents. Jai Prakash by the said writ petition sought enforcement of the award of the Labour Court in his favour. Jai Prakash in his writ petition also mentioned that Wimpy Goodwill Fast Food Pvt. Ltd and Wimpy International Ltd were the sister concerns of Wimpy Fast Food Pvt. Ltd. and Mr. Kanwaljit Singh Sidhu, Col. Kalyan Singh, Mr. Charanjit Singh were the owners or the Directors and office bearers of the said companies and collectively responsible for the conduct of business of the said companies. It is further mentioned in the said writ petition that in the termination letter issued to Jai Prakash the registered office of Wimpy Fast Food Pvt Ltd. was shown as B-8A Kailash Colony, New Delhi. At this stage it may be stated that Goodwill Foods Pvt. Ltd. also in the memo of parties in WP(C)1222/1995 has given its address as that of B-8A, Kailash Colony, New Delhi. Jai Prakash alongwith his writ petition has also filed
i. certified copy of the records of Registrar of Companies of Wimpy International Limited showing the registered office of the said company at B-8A, Kailash Colony, New Delhi and showing Shri Kanwaljit Singh, Shri Charantjit Singh, Col. Kalyan Singh, Smt. Sukriti Kumari, Shri G.S. Khatara and Dr. Sukhvender Kaur as the Directors/shareholders of the said company.
ii. certified copy from the Office of the Registrar of Companies of Wimpy Fast Food Pvt. Ltd. showing Shri Kanwaljit Singh Sidhu, Kewal Singh Sandhu, A.S. Selhi and Mr. Dharam Singh as the Directors of Wimpy Fast Food Pvt. Ltd.
Notice of WP(C) 6340/2002 was also issued. The counsel Mr. Girdhar Govind, Advocate who has filed WP(C)1222/1995 on behalf of the Goodwill Foods Pvt. Ltd. appeared and has filed counter affidavit on behalf of the Wimpy International Limited. In the said counter affidavit it is inter alia stated that Wimpy International Limited was formerly known as Goodwill Foods Pvt. Ltd.; that Wimpy International Limited was incorporated in 1988 and was carrying on business of fast food restaurant in the name of Wimpy; that on receipt of notice from the Assistant Collector WP(C) 1222/1995 (supra) had been filed. It is reiterated that the said company does not owe anything to Jai Prakash.
Jai Prakash has also filed a counter affidavit in WP(C)1222/1995 filed by Goodwill Foods Pvt. Ltd. Along with the said affidavit also photocopies of records of the Registrar of Companies with respect to Wimpy Fast Food Pvt. Ltd. (against whom award was made by the Labour Court) have been filed and which also show Mr. Kanwaljit Singh Sidhu, Mr. Kewal Singh Sandhu, Mr. A.S. Selhi as Director of Wimpy Fast Food Pvt. Ltd.
Mr. Girdhar Govind, Advocate for Goodwill Foods Pvt. Ltd. has contended that the award is against Wimpy Fast Food Pvt. Ltd. and thus Goodwill Foods Pvt. Ltd has no concern with the award. On inquiry as to whether Goodwill Foods Pvt. Ltd. has challenged the award, Mr. Govind Advocate states that Goodwill Foods Pvt. Ltd. being not a party to the dispute before the Labour Court is not required to challenge the award and is entitled to only challenge the recovery certificate wrongly issued against it. He contends that since Goodwill Foods Pvt. Ltd. came into existence in 1988, the question of Jai Prakash, who as per the award was employed in 1985, being an employee of Goodwill Foods Pvt. Ltd. does not arise.
Being a native of the city and being prima facie of the opinion that Wimpy Restaurant in N Block, Connaught Place has been continuously in existence since prior to 1985, it was inquired from Mr. Girdhar Govind, Advocate whether it was not so. Mr. Girdhar Govind, Advocate tentatively states that Wimpy Restaurant may have been in existence at the same place since then. It was then inquired from him as to what was Wimpy Fast Foods Pvt. Ltd. He vehemently argued that there is no company by the said name. It was then that the counsel for Jai Prakash drew attention to the documents from the Registrar of Companies filed by him as aforesaid showing the existence of Wimpy Fast Foods Pvt. Ltd. and reference whereto has been made in the counter affidavit in WP(C)1222/1995 also. It was enquired from Mr. Girdhar Govind, Advocate whether any rejoinder has been filed to the said counter affidavit. Mr. Girdhar Govind, Advocate states that the rejoinder has been filed. However, the same is not found on record. It was enquired from Mr. Girdhar Govind, Advocate whether he has a copy of the said rejoinder, inasmuch as it was felt that from the said rejoinder the stand of M/s. Goodwill Foods Pvt. Ltd. qua Wimpy Fast Food Pvt. Ltd would be known. The order sheet dated 1st December, 2004 also records that the rejoinder was stated to have been filed. Mr. Girdhar Govind, Advocate has handed over a copy of the rejoinder from his file. The same though unattested bear the signature of Col. Kalyan Singh on the rejoinder as well as the affidavit as also of Mr. Girdhar Govind, Advocate. A perusal of the said rejoinder does not show that Goodwill Foods Pvt. Ltd. in the said rejoinder has denied the existence of Wimpy Fast Food Pvt. Ltd. In fact, Goodwill Foods Pvt. Ltd. chose to ignore to deal with the averment in the counter affidavit with respect to the Wimpy Fast Food Pvt. Ltd. At this stage Mr. Girdhar Govind, Advocate strongly objects to this Court taking on record a copy of the aforesaid rejoinder. However, the same having come from proper source, the same is taken on record.
It has been again enquired from Mr. Girdhar Govind, Advocate as to what was the relationship between Goodwill Foods Pvt. Ltd. and Wimpy Fast Food Pvt. Ltd. The counsel does not want to answer. He only states that both are independent companies. Mr. Girdhar Govind was asked as to how Wimpy Restaurant being run by Wimpy Fast Food Pvt. Ltd., can also be run by Ms/ Goodwill Foods Pvt. Ltd. Mr. Govind informs that one Mr. A.S. Selhi and his wife Mrs. Raj Selhi were the franchisees of M/s. Wimpy International, a foreign company and were running the restaurant as such and states that there is no contract between the said Selhis and M/s. Goodwill Foods Pvt. Ltd.
The entire aforesaid record and conduct prima facie shows that M/s. Goodwill Foods Pvt. Ltd. has not made a clean statement before this Court. Mr. Jai Prakash was an employee of Wimpy Restaurant and Wimpy Fast Food Pvt. Ltd. then running Wimpy Restaurant had admitted before the Labour Court that he was their employee. The termination of services of Jai Prakash was on 31st August, 1988 by when M/s. Goodwill Foods Pvt. Ltd. had been incorporated. The reply before the Labour Court was filed even thereafter. It is not known, by whom. The award of the Labour Court has attained finality.
A petty worker as Jai Prakash has remained without the benefits of the award for the last over 17 years. From the documents of the Registrar of Companies filed before this Court it appears that both Wimpy Fast Food Pvt. Ltd. against whom the award was made and Goodwill Food Pvt. Ltd which has filed WP(C) 1222/1995 not only were running the restaurant in the same name and at the same place but also had their registered office at the same address and also had common Directors. Cloak / veil of a private limited company cannot be used to deprive the benefits of an award under the Industrial Disputes Act which is a social welfare legislation. The process of this Court is found to have been abused.
It was inquired from Mr. Girdhar Govind, Advocate as to who are the Directors/responsible officers of M/s. Goodwill Food Pvt. Ltd. It is informed that Col. Kalyan Singh who had filed the petition has died. The counsel states that he is unable to give names of the Directors or any other officers except that one Mr. Rai who has been coming to him. In all these aforesaid circumstances it is deemed appropriate that a Director of M/s. Goodwill Food Pvt. Ltd. competent to answer the questions appears before this Court.
List on 26th April, 2010. It is made clear that if any attempt is found to be made to avoid appearance before the court, the presence shall be enforced coercively.