M/S United Engineers Service ... vs Akhil Bhartiya Krantikari
2009 Latest Caselaw 476 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.21510/2005

%                          Dated: 10.02.2009

M/s United Engineers Service Station                .... Petitioner

                      Through Mr. Kamal Mehta with Mr. Rajesh
                              Sachdeva & Mr. Sudeep Singh,
                              Advocates

                               Versus

Akhil Bhartiya Krantikari
Mazdoor Union & Ors.                         .... Respondents
                  Through Mr. N.A. Sabastian, Advocate for
                          respondent No.1.
                          Mr. Mohd. Nadeem Khan for Ms.
                          Sujata Kashyap, Advocate for
                          respondents No.2 & 3.

CORAM
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? NO
3.    Whether the judgment should be reported
      in the Digest?                        NO

V. K. SHALI, J. (Oral)

*

1. I have heard the learned counsel for the parties and with

their consent, I proceed to dispose of the writ petition on merits.

2. The petitioner in the instant writ petition has challenged an

ex-parte award dated 27th June, 2003 in ID No.357/1999 titled

M/s United Engineering Service Station Vs. Shri Doodh Nath &

Ors. by virtue of which the Ld. Labour Court-IX, Karkardooma,

Delhi had held the termination of services of Doodh Nath Tewari,

Kuldip Singh, Jai Ram, Kamal Pandey, Roshan Lal, Gulab Singh,

Sanjeev Kumar, Chaman Singh, Mastu Singh, Vipin Saxena &

Surender Singh as illegal and unjustified and accordingly directed

reinstatement of the 11 workers with continuity of service and

other consequential benefits.

3. One of the grounds on which the award has been challenged

is that the petitioner management was never served and

accordingly they did not get an opportunity to present their stand

before the learned Labour Court in opposition to the statement of

claim filed by the respondents/workmen.

4. Only one counter affidavit on behalf of Doodh Nath Tewari

has been to the writ petition on filed wherein it has been stated

that the petitioner/management having participated in the

conciliation proceedings was fully aware of the pendency of the

proceedings before the Labour Court and thus there is no ground

for setting ex parte proceedings.

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

record. There is no dispute about the fact that the

respondents/workmen were employed on the petrol pump which

was being run by M/s United Engineering Service Station near

Bus Depot. Nehru Place, Kalkaji, New Delhi-19. On 21st July,

1999, the dealership of the petitioner company was terminated

and the possession of the petrol pump was taken by the Indian Oil

Corporation. On account of this fact, it seems that the services of

the respondents/workmen were dispensed with which resulted in

making a reference to the Labour Court-IX, Tis Hazari, Delhi by

the Secretary(Labour), Govt. of NCT of Delhi on 8th September,

1999. On 20th September, 1999, the Presiding Officer of the

Labour Court-IX, Karkardooma Delhi registered the reference and

invited the statement of claim by issuing notices to the workmen.

6. The petitioner herein has placed on record the photocopies

of the order sheets of the learned Labour Court which show that

on 18th April, 2000 one, Sh. Uday Pratap, authorized

representative of the workmen had appeared and filed the

statement of claim. Simultaneously he also filed an application

for issuing the summons in the name of Indian Oil Auto Centre. It

will be pertinent here to mention that the reference was made to

the Labour Court against M/s United Engineering Service Station

and so was the statement of claim filed by the

respondents/workmen against the said company. An application

regarding issuance of summons in the name of Indian Oil Auto

Centre was filed by the respondent/workman, Doodh Nath Tewari

wherein he had admitted that the dealership of Rajesh Sachdeva

was terminated by the Indian Oil Corporation, but M/s United

Engineering Service Station, was alleged to be running petrol

pump under the name of Indian Oil Auto Centre and therefore it

was prayed that summons be issued in the name of M/s United

Engineering Service Station C/o Indian Oil Auto Centre. The

supporting affidavit to this shows that the summons itself were

prayed to be issued against Indian Oil Auto Centre as against

United Engineering Service Station.

7. The order sheet shows that instead of issuing the summons

in the name of M/s United Engineering Service Station C/o Indian

Oil Auto Centre, the summons itself were issued in the name of

Indian Oil Auto Centre which are purported to have been received

by them and on account of this, the learned Presiding Officer on

14th August, 2000 has proceeded ex-parte against M/s United

Engineering Service Station.

8. It may be pertinent here to refer to Rule 18 of the Industrial

Disputes (Central) Rules, 1957 which reads 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."

9. A perusal of the aforesaid rules will clearly show that the

service has to be effected personally or by registered A.D. by the

Labour Court. In the instant case, admittedly the statement of

claim was filed against M/s United Engineering Service Station

and therefore the summons ought to have been issued against

M/s United Engineering Service Station only. The summons itself

have been issued through registered A.D. in the name of Indian

Oil Auto Centre because the postal receipt and the A.D. card

which have been filed by the petitioner indicates so. The learned

Labour Court without any application of mind, has on the basis of

the said service of registered A.D. letter assumed that M/s United

Engineering Service Station has been served and accordingly

proceeded ex-parte against them, whereas the fact of the matter is

that no valid service was ever effected on M/s United Engineering

Service Station and accordingly they did not come to know about

the proceedings pending against them before the Labour Court.

The ex-parte award was passed against the petitioner on 27th

June, 2003.

10. The petitioner has contended that they learnt about the ex-

parte award only on receipt of a recovery certificate dated 19 th

April, 2004 when a demand for approximately Rs.16.00 lakhs was

made whereupon they got activated and they filed an application

under Order 9 Rule 13 of the CPC for setting aside ex-parte award

which was dismissed and consequently they chose to file the

present writ petition.

11. From the aforesaid facts, it is clear that no valid service was

ever effected on the petitioner and therefore they could not have

been assumed to have been served much less proceeded ex-parte

by the learned Labour Court. This, in my view, constitutes a

sufficient cause which prevented the petitioner management for

being able to attend the proceedings before the Labour Court.

12. The contention of the learned counsel for the respondent

that the petitioner participated in the conciliation proceedings and

therefore they were aware of the pendency of the proceedings

before the Labour Court is of no consequence because they have

to be served according to law at least once by the learned Labour

Court after receipt of reference. Even if the petitioner had the

knowledge of the pendency of the matter and are observing the

proceedings from the sidelines, it will not absolve the Labour

Court from serving them in accordance with Rule 18 at least once

before proceeding ex parte against them.

13. Accordingly the ex-parte award of the Labour Court is set

aside and the matter is remanded back, however this shall be

subject to a payment of costs of Rs.5,000/- to each of the

workmen before the learned Labour Court.

14. It is contended by the learned counsel for the petitioner that

the workmen may take the costs personally to which the learned

counsel for the respondents has no objection. Parties are directed

to appear before the learned Labour Court No.IX, Karkardooma,

Delhi on 3rd March, 2009 and it is hoped that the learned Labour

Court shall proceed with the matter after obtaining the reply of the

petitioner management as expeditiously as possible and decide the

same.

CM Nos.8912-17/2008

15. These are the applications filed under Section 17-B of the

Industrial Disputes Act. Since the ex-parte award itself has been

set aside and the matter is being remanded back to the learned

Labour Court for adjudication on merits, therefore no separate

order is called for on these applications as they have become

infructuous.

16. The applications are disposed of accordingly as having

become infructuous.

No order as to costs.

FEBRUARY 10, 2009                                 V.K. SHALI, J.
skw