M/S Five Dimensions Computers (P) ... vs Govt. Of Nct Of Delhi & Others
2009 Latest Caselaw 1233 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 WP (C) Nos. 7244/2008

%                             Judgment delivered on: 08.04.2009

M/s Five Dimensions Computers (P) Ltd.       ...... Petitioner
                    Through: Mr. G.C. Sharma, Advocate

                  versus

Govt. of NCT of Delhi & others             ..... Respondents
                      Through: Mr. Rajeshwar Kumar Gupta,
                      Advocate for R-2.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may          Yes
     be allowed to see the judgment?

2.   To be referred to Reporter or not?                 Yes

3.   Whether the judgment should be reported            Yes
     in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. By way of this petition filed under Article 226 of the

Constitution of India the petitioner seeks to challenge the

impugned ex-parte award dated 4.10.2006.

2. Brief facts relevant for deciding the present petition

are as under:-

The respondent/workman was employed with the

petitioner management since 3.8.2004 as a Computer

Engineer/Operator on the monthly salary of Rs.8000/-. The

petitioner management changed its name and address. It is

stated that management illegally terminated the services of the

respondent/workman with effect from 18.5.2005. Demand

notice was sent by the petitioner to the management but no

payment was made by the management, therefore the

application under Section 33 C(2) of the I.D. Act was filed before

the Labour Court. The notice of the application was served by

way of affixation but nobody appeared on behalf of the petitioner

management before the Labour Court. As a result of non-

appearance, the petitioner was proceeded ex-parte and the

impugned award was passed against the petitioner management.

3. Counsel for the petitioner submits that no notice was

ever served upon the petitioner by the Labour Court and

wrongly the Labour Court passed ex-parte order against the

petitioner. On perusal of order dated 19.5.2006 counsel

submits that nowhere in the statement of the process serves it is

recorded that he had affixed the summons after the same was

refused by any of the representatives of the petitioner. Counsel

thus submits that the affixation as per the provision of Order 5

rule 20 CPC could have been only after the summons were

refused by the petitioner and not in normal circumstances.

Counsel for the petitioner further submits that the petitioner

came to know about passing of the said ex-parte award when the

petitioner was called by the Office of the Labour Commissioner

and prior to that the petitioner was not aware about the said

award. Counsel thus submits that the matter be remitted back

to the Labour Court for giving an opportunity to the petitioner to

contest the statement of claim of the respondent on its merits.

4. Refuting the said submissions of the counsel for the

petitioner, Mr. Rajeshwar Kumar Gupta counsel for the

respondent submits that the petitioner was throughout aware of

the proceedings before the Labour Court and deliberately it did

not choose to appear. Counsel further submits that the Labour

Court had taken due caution before passing an ex-parte order

against the petitioner. Even a statement of the process server

was recorded by the Labour Court to satisfy itself whether the

process server had visited the premises of the petitioner or not

so as to effect the service. Counsel for the respondent further

points out that the ex-parte order was passed on 4.10.2006 and

the petitioner had received the notice from the office of the

Assistant Collector vide notice dated 6.2.2008. Counsel for the

respondent further submits that as per the petitioner it came to

know about the award through notice dated 6.2.2008, then how

the petitioner could have obtained the certified copies of the

award earlier from the copying agency i.e. on 31.10.2007.

Counsel has pointed out the said date from the certified copy

placed on record by the petitioner where the seal of the copying

agency is affixed. Counsel thus states that the petitioner has

deliberately tried to mislead this court that it came to know

about the said ex-parte award only through the office of the

Labour Commissioner or through the office of the Assistant

Collector.

5. I have heard counsel for the parties and perused the

record.

6. To invoke the writ jurisdiction under article 226 of

the Constitution of India, the first and foremost thing is that the

party should approach the court with clean hands. In this

regard in Raj Kumar Soni Vs. State of U.P. - (2007) 10 SCC

635; the Hon'ble Apex Court observed as under:-

It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High

Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinise the nature and content of the right alleged to have been violated by the authority.

7. Perusal of the certified copy of the judgment clearly

shows that the same was ready on 22.10.2007 and accordingly

delivered on 31.10.2007 to the petitioner. It is also evident that

the petitioner must have applied to obtain the certified copy

even prior to the said date. In the petition the petitioner no

where has stated that the petitioner was called by the office of

the Labour Commissioner after passing of the ex-parte award.

The petitioner, however, has placed on record the copy of the

notice issued by the office of the Assistant Collector which

clearly gives the date of 6.2.2008 and which must have been

received by the petitioner within a period of one week or 10

days. It is thus apparent that the petitioner was well aware of

the ex-parte award at least when it had applied for certified

copy. Since the petitioner has suppressed these facts by not

mentioning the same in the present petition, therefore, this

court is not inclined to exercise equitable jurisdiction under

Article 226 of the Constitution of India in favour of the

petitioner, who has not approached this court with clean hands.

The present petition is accordingly dismissed.

8. Since the present petition has been dismissed,

therefore, at the oral request of the counsel for the respondent,

the amount of Rs.46,156/- which was deposited by the petitioner

pursuant to the direction given by this court be released in

favour of the respondent, along with interest, if any, accrued

thereupon.

April 08, 2009                         KAILASH GAMBHIR, J.
pkv