Kardio Control Company vs Jitender Singh & Anr.
2009 Latest Caselaw 444 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) NO. 14236/2006

%                            Dated: 09.02.2009

KARDIO CONTROL COMPANY                                 .... Petitioner

                       Through Mr. Saurabh, Advocate

                                 Versus

JITENDER SINGH & ANR.                                  .... Respondents

                       Through Mr. A. K. Srivastava, Advocate


HON'BLE MR. JUSTICE V.K. SHALI

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


V. K. SHALI, J. (Oral)

*

1. This is a writ petition filed by the petitioner challenging the ex-

parte award dated 20th May, 2005 passed by the Ld. Labour Court-II,

Karkardooma, New Delhi in I.D. No. 115/2003 titled M/s Inter Cardio

(P) Ltd. (ii) M/s Kardio Control Co. Vs. Jitender Singh. By virtue of the

impugned award the Ld. Labour Court held that the services of the

respondent/workman were illegally and unjustifiably terminated from

September, 2001 without payment of his dues or any notice, and

accordingly, he was directed to be reinstated with 50% of back wages

along with the continuity of service and other legal benefits. The award

had been published and became enforceable w.e.f. 28th April, 2006.

The petitioner learnt about the award only when the recovery notice was

served on them and have accordingly challenged the said award by

filing the writ petition before the High Court of Delhi on 7th September,

2006.

2. The petitioner/management in the writ petition had essentially

challenged the award on two grounds. Firstly, on the ground that the

services of the respondent/workman were never terminated. It is

alleged that he had in fact taken a loan of Rs. 15,000/- on 9th April,

2001 and thereafter he had voluntarily tendered his resignation to the

petitioner/management w.e.f. 21st September, 2001 as he had failed to

repay the loan amount.

3. The second ground on which the award was challenged, is that

the petitioner/management was never served, and therefore, they could

not contest the matter. The respondent/workman has not chosen to

file any counter affidavit despite service.

4. I have heard the learned counsel for the parties and perused the

record. The statement of claim is purported to have been filed by the

respondent/workman on 28th August, 2003 and the notice of the

statement of claim was issued to the petitioner/management through

Process Server and RC cover returnable on 13th January, 2004. On

13th January, 2004 a report was filed by the Process Server and on the

basis of the said report the petitioner/management was taken to have

been served by affixation and as nobody had appeared on behalf of the

petitioner/management, accordingly, they were proceeded ex-parte.

Thereafter, the ex-parte evidence against the petitioner/management

was recorded.

5. The photo copy of the report of the Process Server on summons

has also been placed on record. A perusal of the said report on the

process sent to the petitioner/management, it is indicated that on 18th

December, 2003 after reaching address No. F 22 South Extension Part-

I, New Delhi which was address given in the statement of claim, a copy

of the said notice was affixed on the gate and no witness was available

at the spot whose statement could have been recorded. On this basis,

the petitioner/management has been assumed to have been served and

proceeded ex-parte.

6. Rule 18 of the Industrial Tribunal (Procedure) Rules, 1949 lay

down as under:

"18. Service of summons or notice- Subject to the provisions contained in rule 20, any notice, summons, process or order issued by a Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator empowered to issue such notice, summons, process or order, may be served either personally or by registered post [and in the event of refusal by the party concerned to accept the said notice, summons, process or order, the same shall be sent again under certificate of posting.]"

7. A perusal of the aforesaid Rule clearly shows that the notice is to

be sent by the Industrial Tribunal or the Ld. Labour Court by ordinary

process and at the discretion of the learned Labour Court by the

registered cover as well. That means that both the modes of service

may be invoked simultaneously or alternatively. It has been further

stated in the same Rule that in the event of notice being refused, a copy

of the fresh notice is to be sent by certificate of posting.

8. Although, there is no provision in the said Rule for service of

affixation, but that does not mean that service by affixation cannot be

done but such service will be in the nature of substituted of service.

However, this method for substituted service can be invoked only if it is

not possible to serve a party by ordinary means and statement in this

regard from the Process Server is also recorded or the Court has in a

given facts and circumstances forms a view that the petitioner cannot

be served by ordinary means. In the instant case, neither the statement

of the Process Server nor of the respondent/workman has been

recorded.

9. In the instant case, as a matter of fact, there is no report of

refusal even given by the Process Server. The report of the Process

Server is simply that on the date when he had gone to the address in

question he simply affixed the notice on the gate as the gate was lying

locked, without making any effort to serve the petitioner/management

personally.

10. This in my view would not constitute a valid service so far as the

petitioner/management is concerned, more so when the statement of

the Process Server has not been recorded by the learned Labour Court.

Under these circumstances, I feel that as the petitioner/management

was not served validly in accordance with law. It could not be assumed

that the petitioner/management had knowledge about the pendency of

the proceedings. Thus, non service of the petitioner/management in my

view constitute a „sufficient cause‟ which prevented the

petitioner/management in contesting the claim before the Ld. Labour

Court which warrants setting aside the ex-parte award passed against

the petitioner/management. For these reasons, I set aside the ex-parte

award passed against the petitioner/management. However, this shall

be subject to payment of costs of Rs. 15,000/- to the

respondent/workman before the Ld. Labour Court. The interim order

passed on 11.9.2006 is vacated. The parties are directed to appear

before the Ld. Labour Court on 7th March, 2009.

No order as to costs.

FEBRUARY 09, 2009                                              V.K. SHALI, J.
KP