M/S Gati Limited vs Dy. Labour Commissioner & Ors.
2009 Latest Caselaw 1443 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.16664/2006

                                    Date of Decision : 17.4.2009

M/S GATI LIMITED                                 ......Petitioner
                                  Through : Mr.Jitendra Kumar
                                  Jha, Advocate.


                              Versus

DY. LABOUR COMMISSIONER & ORS.      ...... Respondents
                         Through : Mr.Rakesh Mehta,
                         Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                YES
2.    To be referred to the Reporter or not ?     NO
3.    Whether the judgment should be reported
      in the Digest ?                             NO

V.K. SHALI, J. (Oral)

1. The petitioner in this writ petition has challenged the ex

parte order dated 20.5.2005 passed by the Deputy Labour

Commissioner, an authority constituted under Minimum Wages

Act in case titled Sh.Jagdish Paswan Vs. M/s Gati bearing

No.MW/SD/81/04/7358-59 dated 20.5.2005. By the aforesaid

order, the claim of the claimant /respondent Sh.Jagdish Paswan

for payment of minimum wages for the period from 1st April,

1995 to 30th November, 2004 was allowed and the petitioner was

directed to make the payment of Rs.10,860/- to the respondent

/workman being the difference of the wages between the wages

paid to the respondent/workman and the minimum wages,

which was admissible to him at the relevant period of time. The

detailed analysis and the forms as to how the aforesaid

differential amount has been arrived at is given in the impugned

order. The aforesaid order has been challenged by the petitioner

primarily on the ground that the petitioner was not properly

served and therefore, it did not get an opportunity to contest the

claim of the respondent/workman on merits. An argument

subsidiary to this was that the name of the petitioner/Company

which is M/s GATI Ltd. was shown to be as M/s Gati simplicitor.

It was alleged that the report of refusal is purported to have been

obtained by the respondent was not a genuine report and also

that the respondent/workman was an employee of the petitioner.

2. I have heard the learned counsel for the parties and

perused the record. There is no dispute about the fact that if a

party is not served or if it is served but is prevented by 'sufficient

cause' to appear in Court, the ex parte proceedings against a

party deserves to be set aside. In the present case, the main

contention of the petitioner/Company is that it has not been

served. This submission has been made by the

petitioner/Company on the ground that it is a Limited Company

known as M/s GATI Ltd. while as the notices which have been

issued either through the process server or even by the courier

have shown the name of the petitioner/Company as M/s Gati. It

was also urged that the report of refusal dated 23 rd February,

2005 was a procured report and therefore, could not form a basis

of setting the petitioner ex parte.

3. I have considered the submission of the learned counsel for

the petitioner and gone through the record of the Deputy Labour

Commissioner who was acting as an authority under the

Minimum Wages Act. I have also gone through the impugned

order. The impugned order clearly shows that not once but

thrice notices have been sent on address C-40, Okhla Indl. Area,

Phase-II, New Delhi-20 in the name of M/s GATI and the courier

has also not been received back. These summons through

courier were sent on 7.12.2004, 5.1.2005, 12.1.2005 and also on

9th March, 2005. It is admittedly not the case where the courier

has been received back unserved. Merely because the name of

the petitioner /Company is M/s GATI Ltd. and couriers have

been sent or the notices have been sent in the name of M/s GATI

does not mean that it has not been served. The denial of service

by the petitioner in the writ petition of the notices does not

inspire any confidence for the simple reason that there is not an

iota of averment made by the petitioner in the writ petition that

at the relevant time, it was not having its office at C-40, Okhla

Indl. Area, Phase-II, New Delhi-20. On the contrary, the

addresses which have been furnished by the petitioner in the

memo of parties are of Mahatma Gandhi Road, Sickandarabad,

Andhra Pradesh and having its Zonal office at 14/19/2, Old

Delhi Gurgaon Road, Samalka, New Delhi. This clearly shows

that the conduct of the petitioner/Company is not truthful even

in revealing that at the relevant time, it was having its address or

business operations at C-40, Okhla Indl. Area, Phase-II, New

Delhi-20. The entire purpose seems to be to avoid the service or

deny the service of summons. This is further fortified from the

fact that the Dy. Labour Commissioner had also directed the

summons to be sent through process server and the same were

given dasti to the respondent /workman. On the summons being

served by the process server also there was a report of refusal

given by the process server. The report of the refusal by the

process server has been said to be a procured report but in the

light of the facts as have been stated hereinabove, there is no

reason as to why the Court should not believe that the report,

which has been furnished by the process server is not a correct

one given in the ordinary discharge of his duties by the process

server. The process server has obviously no animus or malafides

qua the petitioner to furnish a false report moreover he is a

public servant and there is presumption that a public servant

will discharge his duties in the normal course of business and

the assumption of genuineness of the report furnished by him

would attach to the same unless something tangible to the

contrary is shown which the petitioner has failed to do.

Therefore, this plea of the petitioner that it was not served must

necessarily fail.

4. The Court would have considered even in all fairness to give

an opportunity to the petitioner to contest the matter also if the

stake in the matter would have been high. A perusal of the

record shows that the total amount of differential between the

minimum wages and the actual wages which have been paid to

the respondent/workman and which have been awarded by the

impugned order comes to only Rs.10,568/- which has been

granted. Even for such paltry amount, the contest has been

made although the learned counsel for the respondent had given

a suggestion to settle the amount after negotiations. This

observation is being passed by the Court on account of the fact

that even during the pendency of the matter, the learned counsel

for the respondent had suggested that he is not averse to the

idea of settlement of the matter. The petitioner did not respond

positively.

5. For the reasons mentioned above, I am of the considered

opinion that this is a case where the petitioner had been actually

served and if the petitioner has chosen not to appear despite the

service, there is no sufficient ground for setting aside the ex parte

order against the petitioner which has been passed by the Dy.

Labour Commissioner in the capacity of authority constituted

under Minimum Wages Act on 20th May, 2009.

6. Accordingly, the writ petition of the petitioner is without

any merit and the same is dismissed.

The file be consigned to the record room.

V.K. SHALI, J.

APRIL 17, 2009 RN