Spencer And Black Smith vs Government Of N.C.T. Of Delhi
2003 Latest Caselaw 1205 Del

JUDGMENT

MUKUL MUDGAL, J.

1. Rule.

2. With the consent of the counsel for the parties, the writ petition is taken up today for final hearing.

3. This writ petition challenges the Order dated May 15, 2000 of the Labour Court No. V which set aside the ex parte Award dated August 17, 1999 against the petitioner but directed the payment of Rs. 40,000/- which was to be adjusted against the amount which may be awarded to the workman respondent No. 3 herein upon the final disposal of the dispute pending before the Labour Court. The amount was to be refunded to the petitioner in the event of the respondent No. 3, failing in his claim.

4. The petitioner is only aggrieved by that portion of the Order dated May 15, 2000 which directs the payment of Rs. 40,000/- to the workman as it has already deposited the sum of Rs. 40,000/-in this Court. The main contention of the learned counsel for the petitioner, Shri Kalra is that in case the petitioner succeeds in the dispute pending before the Labour Court, the petitioner will not be in a position to get the amount refunded from the respondent No. 3/ workman.

5. Before considering the merits of this matter, it is necessary to peruse the findings recorded by the Labour Court for arriving at a finding that the application of the petitioner deserves to be allowed. The relevant finding which is to be found in the impugned order dated May 15, 2000 is as under:

"The Process server had reported on the summon for the date September 23, 1994 that the manager of the firm Sh. B.C. Sharma had received the summons. Signature of Sh. B.C. Sharma also appears on the summons below the expression "Receiver". Therefore, the summons was duly served upon the manager of the firm, Sh. B.C. Sharma. There is no contention of the management that Sh. B.C. Sharma was not the manager of the firm. The management has also argued that the workman had settled his dispute fully and finally and has placed on record the photocopy of the settlement deed dated June 17, 1992. It is apparent from the bare perusal of this document that vide this receipt, which bears the signatures of the workman, he was paid a sum of Rs. 839/-, balance of his salary for the month of May 1992 and rest of the settlement deed was fabricated subsequently. This payment was made in the presence of Labour Inspector Sh. V.K. Gupta and in his noting he has also mentioned on the document that the salary for the month of May 1992 had been paid and the balance amount was paid in his presence. Therefore, the management had fabricated the expression "towards full and final settlement of all dues" in this settlement. This shows that the management can go up to any length to defeat the claim of the workman. The document, has on the face of it fabricated in order to convert it into a full and final settlement of all dues, although, only balance amount of the salary of May 1992 was paid to the workman vide this document in the presence of Labour Inspector. This depicts the conduct of the management."

6. In view of this finding the Labour Court could have been even justified in dismissing the petitioner's application for setting aside the ex pane Award dated August 17, 1999, nevertheless in the interest of justice the Labour Court has permitted the matter to be adjudicated on merits afresh.

7. Mr. Kalra has further submitted that the finding of fabrication could not have been recorded without recording the evidence of the parties. In my view, sufficient reasons have been given by the Labour Court, particularly the noting of the Labour Inspector who recorded that the payment was part-payment of the salary for the month of May, 1992. Accordingly, I am satisfied that the impugned Order dated May 15, 2000 does not suffer from any legal infirmity warranting interference of this Court under Article 226 of the Constitution of India as the interests of justice are fully met by the impugned order. Accordingly, the writ petition is dismissed. However, the respondent No. 3/workman will be allowed to withdraw the sum of Rs. 35,000/- (along with interest, if any, accrued thereon) plus Rs. 5,000/- towards litigation expenses already deposited by the petitioner in this Court, only upon his furnishing an undertaking on affidavit to this Court to refund the amount of Rs. 35,000/- to the petitioner in case the petitioner succeeds in the dispute between the parties, pending before the Labour Court No. 5. If such an affidavit of undertaking is furnished by the respondent No. 37 workman within 3 weeks from today, the registry will release the said sum of Rs. 35,000/- along with costs of Rs. 5,000/- on or before December 17, 2003.

8. The writ petition stands dismissed accordingly. The parties to appear before the Labour Court No. 5, Karkardooma Courts, Delhi on January 7, 2004 for directions. Records, if any, summoned in this Court shall be sent back to the Labour Court forthwith.