Delhi High Court
Delhi Transport Corporation vs Presiding Officer, Labour Court ... on 24 April, 2003
Author: M Mudgal
Bench: M Mudgal
JUDGMENT
Mukul Mudgal, J.
1. This writ petition by the management, Delhi Transport Corporation, challenges the award dated 1st September 1998 disposing of a reference under Section 10 of the Industrial Disputes Act by which the Labour Court reinstated the services of the petitioner with 50 per cent backwages and continuity of service. The principal ground of challenge canvassed by the learned counsel for the petitioner in assailing the award is that the matter proceeded ex parte in contravention of the principles of natural justice and no service was effected on the management. The learned counsel for the petitioner, Shri Vinay Sabharwal, has relied upon the order sheets of the Labour Court, from 1st September 1996 to 16th October 1996 which are extracted below:
:1.9.95
Ld. P.O. Is on leave today. Pr. Workman in person. Statement of claim filed. Copy given.
None for Management. Issue notice to Management for 14.2.96 for further proceedings.
At this stage ARM. Pr. Copy given.
STENO.
14.2.96
Pr. A.R. For both parties.
W/S not filed.
Adj. Is sought.
Put up on 12.4.95 for W/S
POLC X 14.2.96
12.4.96
Pr. Workman in person.
Sh. J.S. Gaur on behalf of the Management. Adj sought for
W/S as advocates are on strike.
Put up on 23.7.96.
PO LC X 12.4.96
23.7.96
Pr. AR for both parties.
W/S not filed. Adj sought & Adj granted subject to cost of Rs.250/-. Adj to 16.10.96 for W/S and payment of costs.
POLC X 23.7.96
16.10.96
Pr. Workman in person
AR for Mgt W.S not filed
Adj is sought. No sufficient ground. Cost also not paid.
defense of Mgt is struck off.
Adj. To 12.2.97 for W.E.
POLC X
16.10.96
2. The learned counsel for the respondent has averred that the petitioner was served as is evident from the presence of the authorized representative of the management (ARM) recorded in the order. The learned counsel for the respondent in reply has also averred that the notice from the Labour Court was duly served on the office of the petitioner corporation and since the petitioner choose not to file any written statement or lead any evidence, the matter was proceeded ex-parte. It is further stated that on 12th April 1996 in fact the name of the representative of the management, Shri J.S.Gaur was also recorded. He has relied on the fact that even on 23rd July, 1996 and 16th October, 1996 the said representative was present but the written statement was not filed which led to the defense of the management being struck off and costs being imposed. The costs directed to be paid on 23rd July, 1996 were also not paid. Thus, he submits that the plea that the proceedings were ex parte is unsustainable and the petitioner has participated in the proceedings but in an indifferent and cavalier manner.
3. Mr. Sabharwal has sought to submit that even though ARM of the petitioner may have been present but he did not have any letter of authority. It is further submitted that the petitioner was not aware as to who the ARM concerned appearing in this case was . He further submitted that there was no authority even in favor of Shri J.S.Gaur whose presence was recorded on 12th April, 1996.
4. In so far the ex parte proceedings pleaded by the petitioner are concerned, there is merit in the plea of the learned counsel for the respondent. There is no averment in the entire writ petition which has been pointed out by the counsel to the effect that Shri J.S.Gaur for the petitioner is not connected with the petitioner, Delhi Transport Corporation at all and was not even the representative of the management in any case. The presence of Shri J.S.Gaur for the petitioner could not have been there except for service of notice on the petitioner. Thereafter, both prior to and subsequent to 12th April, 1996 presence of the representative of management had been shown. Obviously, the appearance of the representative of Management; ARM would not have been there if the service had not been affected on the petitioner corporation. Consequently, the plea of there being no service on the petitioner corporation cannot be accepted. On several hearings time was granted to file the written statement to the management which was eventually not filed leading to the striking off the right to file the written statement and no justification can be found nor cause advocated for the petitioner's default in spite of service.
5. The fact the plea that there was no authority letter by the petitioner in favor of Shri J.S. Gaur cannot lead to the setting aside of the award against the petitioner once its authorized representative has been found to appear after notice. In fact this is a factor which is against the petitioner as its representative has appeared and obtained time before the Labour Court on several dates and still not chosen to file its authority letter. The petitioner cannot on one hand derive benefit from the presence of its ARM so as to seek benefit to seek extension of time and then seek to disown the said ARM on the ground that no letter of authority in favor of Shri J.S. Gaur was found on record.
6. The learned counsel for the petitioner submitted that the Tribunal in any event was not justified in refusing to set aside the order dated 1st September 1998 on the ground that it had become functus officio in view of the law laid down by the Hon'ble Supreme Court in Satnam Verma vs. Union of India reported as 1995(1) LLJ 79.
7. This plea of the erroneous view of the Tribunal finding itself to functus offico is not necessary to be decided as I have myself considered the application for setting aside the ex parte award by the petitioner corporation and found that the main reason advanced in the said application was lack of service and the non availability of the letter of authority in favor of the representative which pleas have already been held against the petitioner. Thus, there is no merit in the application seeking to set aside the ex parte award.
8. The learned counsel for the petitioner has also sought to challenge the award on merits by stating that no reasons have been given in the award which proceeded on the assumption that there was automatic retrenchment Under Section 25F of the Act.
9. I have gone through the award even on merits where reasons have clearly been given. It has inter alia been found that the management has not examined any witness to prove that the inquiry was conducted against the workman in accordance with the principle of natural justice. The non consideration of the medical certificates furnished by the respondents by the inquiry officer had also been adversely commented upon the Labour Court which also found that the removal of service of the workman was too harsh only for availing 27 days leave without permission.
10. I am, therefore, satisfied that the award by the Labour Court is sustainable even on merits.
11. Accordingly the writ petition is dismissed with costs quantified at Rs.5,000/- payable within 6 weeks from today.
