ORDER A.K. Sikri, J.
1. Petitioner has filed this writ petition in which he challenges the award as well as making of reference order dated 11.1.1993 whereby Secretary, Labour made the reference.
"Whether Shri Sushil Sharma has abandoned his services or his services have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this regard?"
It was mentioned in the reference order that the dispute was between management of 'M/s Essee Courier (formerly known as M/s Saico Enterprises and Co.), LB-35, Tolstoy Marg, 17 Tolstoy Marg New Delhi-1, and its workman Shri Sushil Sharma C/o Mazdoor Vikas Morcha, 100 Foot a Road, 28/15-F, Chhajjur Colony, Indra Marg, Shahdara, Delhi.'
2. After the receipt of the reference order, notices were issued by the Labour Court and it was duly received by the petitioner M/s Essee Courier as well. Petitioner filed the written statement. Thereafter, it stopped appearing. Ultimately exparte award dated 15.10.1998 was passed. Petitioner filed an application before the labour Court for setting aside the exparte award which was dismissed. Petitioner thereafter filed CM(Main) No. 296/99 challenging the order of the Labour Court dismissing the application of the petitioner for setting aside the exparte by this Court vide order dated 1.9.1999. It means that petitioner could not show sufficient cause for non-appearance before Labour Court and the impugned award was maintained as petitioners could not get the same set aside.
3. Petitioner has filed the instant petition in which he challenges the impugned award dated 15.10.1998 as well as reference order dated 11.1.1993 mainly on the ground that respondent NO. 1 was not the employee of M/s Essee Courier i.e. the petitioner and he was the employee of M/s Saico Enterprises & Co. with which M/s Essee Courier has no connection. This disputed question of fact cannot be gone into in this petition under Article 226 of the Constitution. When the petitioner was served with the notice by the Labour Court, it was for the petitioner to participate in the proceedings and adduce proper evidence to prove its contention that there was no employer and employee relationship between the petitioner and Shri Sushil Sharma respondent No. 1. Petitioner failed to do so and as it did not appear before the Labour Court, exparte award was passed on the basis of material produced before the Labour Court. Petitioner even moved application for setting aside the exparte award and then petition under Article 227 of the Constitution of India for the same purpose but failed in its attempt.
4. The present petition also nothing but an indirect attempt to achieve the same result in which the petitioner was not successful in its earlier attempt. The matter can be looked into from another angle also. Once the earlier petition of the petitioner i.e. CM (Main) 296/99 was dismissed, it means that the ex-parte proceedings were rightly held against the petitioner. Thus even if the present petition is treated to be maintainable, it has to be decided on the basis of record/material which was produced before the Labour Court. Petitioner cannot be permitted to place fresh material in this Court to argue that there was no relationship of employer and employee between the petitioner and Shri Sushil Sharma. If the material which sought to be produced now and which cannot be permitted to be produced for the first time before this Court is excluded it cannot be said that findings of the Labour Court are improper or perverse as Labour Court returned the findings on the basis of material available before it.
5. In these circumstances, the present petition filed by the petitioner under Article 226 is neither maintainable nor has it any merit.
Accordingly this writ petition is dismissed. Rule is discharged.
6. No order as to costs.