Ranbaxy Laboratories Ltd. vs Himanshu Kr. Sharma

V.K. Shali, J.—By virtue of the present writ petition, the petitioner has challenged the ex-parte award dated 5th August, 2005 passed by Sh. D.K. Malhotra, Presiding Officer, Ld. Labour Court-IV, Karkardooma, Delhi titled Workman Sh. Himanshu Kumar Sharma v. Management of Ranbaxy. By the impugned award dated 5th August, 2005 the learned Labour Court had held the termination of the services of the respondent/workman on 26th June, 2002 as illegal and unjustified, accordingly, directed his reinstatement with full back wages, continuity of service and the grant of the ancillary benefits.

I have heard the learned Counsel for the petitioner/management. Nobody is present on behalf of the respondent/workman despite the service.

The learned Counsel for the petitioner/management has challenged the impugned award, mainly, on two grounds. First the award has been passed ex-parte despite the fact that no proper service has been effected on the petitioner/management. In this regard, the learned Counsel for the petitioner/management has drawn my attention to the Process Server report on the summon wherein it has been stated by the Process Server that he had gone to the Devika Tower on 13th August, 2004 where he met a person who disclosed his name as Vijay Kumar who was purportedly working as a Chowkidar. It is stated in the report that this man Vijay Kumar went inside the office and then told the Process Server that he is not accepting the service of the summon. Thereupon, the Process Server affixed the copy of the summon on the address given.

On the basis of this report, the learned Labour Court had proceeded ex-parte against the petitioner/management on 27th October, 2004.

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 shows that the purpose of service is to make the opposite side aware about the pendency of the claim before the learned Labour Court. There is a method provided in the Rule itself in case the service of notice of summons is refused. In such an eventuality the process is to be sent by certificate of posting.

In the instant case, the only evidence which has come up on the record is that the Process Server has taken the summon for the service on the petitioner/management on the address given that is 6, Devika Tower, Nehru Place, New Delhi. In the statement of claim the address given is Devika Tower, 11th Floor, 6, Nehru Place, New Delhi. As against this, the summon is purported to have been sent on 6, Devika Tower, Nehru Place, New Delhi. The floor number of the petitioner''s office on the summon have not been mentioned. The very fact that the office of the petitioner/management happens to be on the 11th Floor as reflected in the address in the statement of claim clearly shows that Devika Tower is a multistory building where there are number of offices. Therefore, the non mentioning of the floor gives a doubt as to the service of the petitioner/management because the process server has not specifically mentioned that he had given the summons or notice in the office of the petitioner/management on 11th Floor and that they were refused.

It is not clear whether Vijay Kumar to whom the Process Server met and offered summons, was an employee of the petitioner/management or not. The statement of the Process Server has not been recorded which would here clarified, as to whether, he went on the 11th Floor in order to effect the service on the petitioner/management or not. In the absence of this, the service on the petitioner/management becomes highly doubtful.

The Rule 18 lays down that in case there is a refusal to accept the summons/notices have to be sent by UPC. This has not been done in the instant case. On the contrary, a copy of the said summon has been affixed by the Process Server on the main building. Though Rule 18 does not provide for service by affixation, but even if it is assumed to be in-built in Rule 18 on the lines as provided under Order 5 Rule 17 CPC, even then there must be a prima facie finding that the party concerned cannot be served by ordinary means. No such finding has been recorded on the record. Therefore, service by affixation also does not in my view amount to the compliance of Rule 18. It is reasonable to assume that under the circumstances the petitioner/management was not served and did not know about the pendency of the matter before the learned Labour Court.

Second ground which has been raised by the learned Counsel for the petitioner/management is that the respondent was a trainee and not a worker, and therefore, did not fall within the ambit of definition of workman under Industrial Disputes Act, 1947. Even on merits the petitioner/management may have a plausible case that the respondent was only a trainee and therefore he could not be covered by the Industrial Disputes Act, 1947. Reliance in this regard is placed by the petitioner on Komal Kumar Vs. J.P.S. Malik and Others, and Management of OTIS Elevator Co. (India) Ltd. Vs. Presiding Officer, Industrial Tribunal-III and Another,

For the foregoing, reasons, the ex-parte award dated 5th August, 2008 against the petitioner/management is set aside, however, the same will be subject to the payment of cost of Rs. 20,000/- to the respondent/workman before the Ld. Labour Court. Accordingly, the matter is remanded back to the learned Labour Court which may proceed with the matter afresh after giving an opportunity to the petitioner/management to file its written statement.

So far as the amount of Rs. 5000/- which has been deposited as litigation expenses shall be released to the respondent/workman. The petitioner/management is directed to appear before the Ld. Labour Court is 26th February, 2009. A copy of this order be sent to the respondent/workman for information.