Kardio Control Company vs Jitender Singh and Another

V.K. Shali, J.—This is a writ petition filed by the petitioner challenging the ex- parte award dated 20th May, 2005 passed by the Ld. Labour Court-II, Karkardooma, New Delhi in I.D. No. 115/2003 titled Inter Cardio (P) Ltd. (ii) Kardio Control Co. v. Jitender Singh. By virtue of the impugned award the Ld. Labour Court held that the services of the respondent/workman were illegally and unjustifiably terminated from September, 2001 without payment of his dues or any notice, and accordingly, he was directed to be reinstated with 50% of back wages along with the continuity of service and other legal benefits. The award had been published and became enforceable w.e.f. 28th April, 2006. The petitioner learnt about the award only when the recovery notice was served on them and have accordingly challenged the said award by filing the writ petition before the High Court of Delhi on 7th September, 2006.

The petitioner/management in the writ petition had essentially challenged the award on two grounds. Firstly, on the ground that the services of the respondent/workman were never terminated. It is alleged that he had in fact taken a loan of Rs. 15,000/- on 9th April, 2001 and thereafter he had voluntarily tendered his resignation to the petitioner/management w.e.f. 21st September, 2001 as he had failed to repay the loan amount.

The second ground on which the award was challenged, is that the petitioner/management was never served, and therefore, they could not contest the matter. The respondent/workman has not chosen to file any counter affidavit despite service.

I have heard the learned Counsel for the parties and perused the record. The statement of claim is purported to have been filed by the respondent/workman on 28th August, 2003 and the notice of the statement of claim was issued to the petitioner/management through Process Server and RC cover returnable on 13th January, 2004. On 13th January, 2004 a report was filed by the Process Server and on the basis of the said report the petitioner/management was taken to have been served by affixation and as nobody had appeared on behalf of the petitioner/management, accordingly, they were proceeded ex-parte. Thereafter, the ex-parte evidence against the petitioner/management was recorded.

The photo copy of the report of the Process Server on summons has also been placed on record. A perusal of the said report on the process sent to the petitioner/management, it is indicated that on 18th December, 2003 after reaching address No. F 22 South Extension Part- I, New Delhi which was address given in the statement of claim, a copy of the said notice was affixed on the gate and no witness was available at the spot whose statement could have been recorded. On this basis, the petitioner/management has been assumed to have been served and proceeded ex-parte.

Rule 18 of the Industrial Tribunal (Procedure) Rules, 1949 lay down as under:

Service of summons or notice- Subject to the provisions contained in rule 20, any notice, summons, process or order issued by a Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator empowered to issue such notice, summons, process or order, may be served either personally or by registered post [and in the event of refusal by the party concerned to accept the said notice, summons, process or order, the same shall be sent again under certificate of posting.]

A perusal of the aforesaid Rule clearly shows that the notice is to be sent by the Industrial Tribunal or the Ld. Labour Court by ordinary process and at the discretion of the learned Labour Court by the registered cover as well. That means that both the modes of service may be invoked simultaneously or alternatively. It has been further stated in the same Rule that in the event of notice being refused, a copy of the fresh notice is to be sent by certificate of posting.

Although, there is no provision in the said Rule for service of affixation, but that does not mean that service by affixation cannot be done but such service will be in the nature of substituted of service. However, this method for substituted service can be invoked only if it is not possible to serve a party by ordinary means and statement in this regard from the Process Server is also recorded or the Court has in a given facts and circumstances forms a view that the petitioner cannot be served by ordinary means. In the instant case, neither the statement of the Process Server nor of the respondent/workman has been recorded.

In the instant case, as a matter of fact, there is no report of refusal even given by the Process Server. The report of the Process Server is simply that on the date when he had gone to the address in question he simply affixed the notice on the gate as the gate was lying locked, without making any effort to serve the petitioner/management personally.

This in my view would not constitute a valid service so far as the petitioner/management is concerned, more so when the statement of the Process Server has not been recorded by the learned Labour Court. Under these circumstances, I feel that as the petitioner/management was not served validly in accordance with law. It could not be assumed that the petitioner/management had knowledge about the pendency of the proceedings. Thus, non service of the petitioner/management in my view constitute a ''sufficient cause'' which prevented the petitioner/management in contesting the claim before the Ld. Labour Court which warrants setting aside the ex-parte award passed against the petitioner/management. For these reasons, I set aside the ex-parte award passed against the petitioner/management. However, this shall be subject to payment of costs of Rs. 15,000/- to the respondent/workman before the Ld. Labour Court. The interim order passed on 11.9.2006 is vacated. The parties are directed to appear before the Ld. Labour Court on 7th March, 2009. No order as to costs.