Sh. Kamal Kalra vs Sh. Ramdev

S.N. Aggarwal, J.—The petitioner, in this writ petition, seeks to challenge an ex-parte award dated 17.02.1997 in I.D. No. 5/1991 directing reinstatement of the respondent with full back wages and continuity of service.

The impugned ex-parte award is sought to be set aside by the petitioner mainly on two grounds. The first ground is that the petitioner''s firm M/s Jatin Sales Corporation never existed at C-28, Gupta Colony, Vijay Nagar, Delhi � 110009; where it was purportedly served by way of pasting. The second ground is that the respondent never worked with the petitioner in any capacity. In fact, the relationship of employer and employee is denied by the petitioner management.

Ms. Pinki Anand, learned senior Counsel appearing on behalf of the respondent workman, has contended that the petitioner is a proprietorship firm and he was duly served with the notice of the proceedings pending before the Labour Court through his brother Shri Vijay Kumar and since he refused to receive the notice, the service was effected on the respondent through pasting. She has referred to the report of the Process Server (which is at page 48 in the file of the Lower Court). The learned senior Counsel appearing on behalf of the respondent has contended that the respondent workman had worked as Machine-man with the petitioner firm for about eight years before termination of his services. She has also submitted that demand notice was also sent by the respondent to the petitioner firm at the same address, i.e., C-28, Gupta Colony, Vijay Nagar, Delhi � 110009 by registered post as well as by U.P.C. Post. The contention of Ms. Pinki Anand is that the service on the brother of proprietor of the management firm is a valid service and this Court in exercise of its writ jurisdiction under Article 226 of the Constitution cannot go into the question of service which, according to her, has been duly considered before the Labour Court by proceeding ex-parte against the petitioner firm.

The learned senior Counsel appearing on behalf of the workman has further argued that the Labour Court has passed the impugned ex-parte award after taking into account all the relevant facts regarding employment of the respondent with the petitioner firm and also the fact that the petitioner had not appeared to defend the proceedings despite deemed service.

I have given my anxious consideration to all the above arguments advanced by the learned senior Counsel appearing on behalf of the respondent but I could not persuade myself to agree with any one of them. I have also gone through the record of the Court below. On going through the said record I am of the opinion that no effort was made by the Labour court for serving the petitioner with the notice of the proceedings pending before it by Registered A.D. Post. This service was effected on the petitioner by pasting without there being any order from the Court. The Process Server who went to effect the service allegedly pasted the notice without their being any order from the Court for the same. The Process Server was not justified in pasting the notice merely on purported refusal of the brother of the proprietor of the management firm. This aspect of the matter has been completely ignored by the Court below. From the record, it cannot be said that the petitioner was served with the notice of statement of claim filed by the respondent workman before the Labour Court. In that view of the matter the impugned ex-parte award cannot be sustained in law.

I would also like to note that on being repeatedly asked, the learned senior Counsel appearing on behalf of the workman could not show the existence of the petitioner firm at the address at which notice was pasted by the Process Server. The only document relied upon by the learned senior Counsel appearing on behalf of the respondent is a letter that was received by the respondent at the address of C-28, Gupta Colony, Vijay Nagar, Delhi � 110009 and this letter, by no means, proves the existence of the petitioner firm at the said address.

The petitioner has denied the relationship of employer and employee between the parties. It was not serviced with the notice of the claim of the respondent workman. Hence, this Court is of the opinion that the impugned ex-parte award is liable to be set aside and an opportunity need be given to the petitioner management to prove its defense in response to the claim of the respondent workman.

In view of the foregoing, the impugned ex-parte award is hereby set aside. This writ petition is allowed. The case is remanded back to the concerned Labour Court/Successor Court for fresh decision after giving an opportunity of hearing to both the parties as per law. The concerned Labour Court/Successor Court is directed to decide the reference afresh as expeditiously as possible preferably within eight months to be reckoned from the date to be fixed for appearance of the parties before the Labour Court. The parties are directed to appear before the concerned Labour Court/Successor Court for directions on 02:00 PM on 29.10.2009.

Needless to say that any observations made in this order will not influence the fresh decision of the case by the Court below.

A copy of this order along with LCR be sent back to the concerned Labour Court/Successor Court for information and necessary compliance.