M/S Trutorn Machine (India) ... vs Labour Commissioner And Another
2009 Latest Caselaw 3313 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 6951/2005

%                  Date of Decision: 21st August, 2009


# M/S TRUTORN MACHINE (INDIA) LTD.
                                                  ..... PETITIONER
!                  Through: Mr. Ajay Kumar, Advocate.

                                  VERSUS

$ LABOUR COMMISSIONER AND ANOTHER
                                                     .....RESPONDENTS

^                  Through: Nemo.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

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

S.N.AGGARWAL, J (ORAL) The management of M/s Trutorn Machine (India) Ltd. (hereinafter to

be referred as the petitioner) seeks to challenge an ex-parte award dated

15.05.2004 passed by the Industrial Adjudicator directing reinstatement

of respondent No. 2 with full back wages.

2. In response to notice of this writ petition, the respondent No. 2 has

filed his counter affidavit but after filing of counter affidavit, nobody has

appeared on behalf of respondent No. 2 since 20.11.2006. Hence I have

heard Mr. Ajay Kumar, learned counsel appearing on behalf of the

petitioner, ex-parte.

3. The respondent No. 2 had set up a claim before the Labour Court

that he was employed by the management of the petitioner about 14

years on the date his services were illegally terminated. The notice of

the proceedings pending before the Labour Court was served through

Process Server on one Ms. Kalpana, alleged to be an employee of the

petitioner. Notice was not sent to the petitioner by Registered Post. The

case of the petitioner management in the present writ petition is that it

never received any notice from the Labour Court and, therefore, it could

not defend the claim of respondent No. 2 filed by him before the Labour

Court.

4. Further case of the petitioner is that the respondent No. 2 was

never employed by the petitioner management and as such respondent

No. 2 is not entitled to any relief whatsoever against the petitioner. It is

stated by the petitioner that though respondent No. 2 claims to have

worked for the petitioner for 14 years but according to the petitioner, the

petitioner company was incorporated in the year 1998 and, therefore,

according to the petitioner, it betrays one's imagination as to how can a

person be employed in a company for 14 years which company came into

existence only 4 years back from the date of the claim filed by

respondent No. 2. The respondent No. 2 in response to the above

pleading of the petitioner management has stated as follows:

"That the deponent was employed with the petitioner/management since last 14 years firstly management worked under the name and style M/s Truturn Machine Works and M/s Truturn Machine Pvt. Ltd. and presently petitioner/management started work under the name & style M/s Truturn Machine (India) Ltd. even management also admitted before Labour Inspector that deponent was employed with the management annexure already annexed as Annexure B.

III) That the management shifted workman from one unit to another unit but fresh ESI Card was not issued by the Petitioner/management."

The petitioner has taken a stand before this Court that it was not

served with the notice of claim filed by respondent No. 2 before the

Labour Court. I have perused the record of the Court below and on

perusal of the same, it transpired that the notice of claim of respondent

No. 2 sent at the address of the petitioner company through Process

Server was received by one Ms. Kalpana. The learned counsel appearing

on behalf of the petitioner contends that the service seems to have been

manipulated by respondent No. 2 in collusion with Ms. Kalpana, who is

now no more in the employment of the petitioner. The contention of the

learned counsel appearing on behalf of the petitioner is that notice

should have been sent by the Labour Court through Registered Post. The

main contention of learned counsel appearing on behalf of the petitioner

was that there was no relation of employer and employee between the

parties and, therefore, the workman was not entitled to any relief in the

matter.

5. In case, this contention is proved, then certainly the respondent No.

2, being the workman, will not be entitled to any relief. Since the

impugned award is an ex-parte award, this Court is of the opinion that

the interest of justice require an opportunity to be given to the petitioner

management to establish its plea that there was no relationship of

employer and employee between the parties. For that purpose, case is

to be remanded back to the Labour Court for fresh decision after giving

an opportunity of hearing to both the parties, as per law.

6. For the foregoing reasons, the impugned award is set aside. This

writ petition is allowed. The case is remanded back to the concerned

Labour Court/Successor Court for fresh decision after giving an

opportunity of hearing to both the parties, as per law. The petitioner is

directed to appear before the concerned Labour Court/Successor Court

for further directions at 2:00 P.M. on 28.08.2009. The Labour Court

should send a notice of fresh hearing to the workman and decide the

case afresh after giving an opportunity of hearing to both the parties, as

per law.

In view of the above, this writ petition is disposed of.

LCR along with copy of this order be sent back.

Order dasti.

AUGUST 21, 2009                                            S.N.AGGARWAL, J
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