Ajay Service Station vs Its Workman Sh. Dilgabh Singh & 7 ...
2009 Latest Caselaw 551 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) NO. 10894/2006

%                               Date of Decision: 16.02.2009


AJAY SERVICE STATION                           .... Petitioner
                Through : Mr. Harvinder Singh with Ms. Bhawana
                          Chopra Rustagi, Advocates

                                 Versus

ITS WORKMAN SH. DILGABH SINGH & 7 ORS.                .... Respondents

                       Through : None.

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?  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/management against

the award dated 15th January, 2005 passed by the Industrial Tribunal

No.-I in ID No. 34/2004 in the case titled The Management of M/s

Ajay Service Station Vs. Its Workman Sh. Dilgabh Singh & 7

Others. By virtue of the impugned award the learned Tribunal had

held the termination of services of all the respondent/workmen except

one Sh. Mahesh Mishra as illegal and unjustified and accordingly

directed their reinstatement with payment of full back wages. So far as

Sh. Mahesh Mishra is concerned, a perusal of the award shows that he

had not filed his statement of claim as such no relief of reinstatement

was directed in his case.

2. A perusal of the award also shows that the learned Tribunal has

observed that the petitioner/management avoided service of the notices

which were sent in pursuance to the claim having been filed. It is

observed in the record that as the petitioner/management was avoiding

service, accordingly, the notice was directed to be served by affixation

on the petitioner/management and since it failed to appear,

accordingly, they were proceeded ex-parte on 6th July, 2004.

3. The respondent/workman has not appeared despite service and

has not chosen to file the counter affidavit to the writ petition.

4. I have heard the learned counsel for the petitioner/management

and perused the record. The main argument which has been advanced

by the learned counsel for the petitioner/management is that it was not

served in accordance with law and there was „sufficient cause‟ to set

aside the ex-parte proceedings. For the purpose of establishing that

the petitioner/management was not served, it was urged by the learned

counsel for the petitioner/management that a perusal of the order sheet

dated 5th April, 2004 records that none was present on behalf of the

petitioner/management despite the service, yet fresh notice is purported

to have been issued to the petitioner/management. The next order is

dated 11th May, 2004 on account of the fact that on 10th May, 2004 was

a holiday. This order again shows that the petitioner/management is

purported to have been served for 10th May, 2004, yet fresh service is

ordered. The order dated 25th May, 2005 records that as per report of

the Process Server the manager of the petitioner/management had

refused to accept the summons on the ground that he is not competent

to receive the same. It is also recorded in this order sheet that the

petitioner/management was earlier served before filing of statement of

claim. Despite these recordings in the order sheets a fresh notice was

ordered to be issued again to the petitioner/management for 6th July,

2004. This time also it was stated by the Process Server in his report

that the petitioner/management has refused to accept the service on

the ground that no responsible person is available at the spot,

accordingly, the petitioner/management was proceeded ex-parte.

5. On the basis of the aforesaid reports and the order sheets it was

contended by the learned counsel for the petitioner/management that

as a matter of fact the petitioner/management was never served

actually. It was urged that it is not stated in the order sheet dated 5th

April, 2004 as to how and on what basis the service is assumed to have

taken place on the petitioner/management. In the order sheet dated

11th May, 2004 it has been recorded that the summons received by the

Clerk, however, if one peruses the record filed by the petitioner, there is

no such report on the summons that it having been received by the

Clerk. Further, the order sheet does not show that the

petitioner/management was ever served by affixation while as in the

impugned award it has been stated by the learned Tribunal that it had

ordered service of the petitioner/management by affixation. On couple

of occasions, it has been observed that the petitioner/Management has

been served yet notices have been issued again and again which clearly

shows that even the Court entertained some doubts against the service

on the petitioner.

6. On the basis of the aforesaid record it was contended by the

learned counsel for the petitioner/management that there are contrary

facts emerging from the record which make any reasonable person draw

an inference that the petitioner/management was actually not served,

and accordingly, this non service of the petitioner/management

constituted a sufficient cause in the eyes of law which prevented the

petitioner/management from contesting the claim. It was also

contended that this fact has been averred on oath in the petition yet no

counter has been filed in this regard by the workman and therefore, the

service becomes doubtful.

7. Rule 18 of the Industrial Disputes (Central) Rules, 1957 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.]"

8. A perusal of the aforesaid Rule would clearly shows that not only

the notice is to be issued personally to the party but it can also be sent

through registered cover. In the instant case, there is no evidence

emerging from the record or from the order sheet that the notice has

ever been sent to the petitioner/management by the registered cover.

It has also been envisaged that in the same Rule that in the event of a

party refuses to accept the service of summons/notice in such

eventuality summons/notice is to be sent under postal certificate.

Obviously, once a summon/notice is shown to have been dispatched

under postal certificate a presumption of fact can be conveniently

drawn against the petitioner/management that it has been served and

the onus is on the petitioner/management to show that it has not been

served. In the instant case, the order sheet does not show that the

notice was ever sent under postal certificate even if we assume the

report of the Process Server regarding refusal to be correct.

9. The petitioner/management is assumed to have been served on

the basis of the Process Server report. I have seen the Process Server

report, they are very vague and does not make a mention of the name of

the person who represented himself to be the Manager and refused to

receive the summon/notice on the ground of any responsible person not

being present at the petrol pump. It has also not been stated by the

Process Server in his report in whose presence he has offered

summon/notice to the Manager nor his name of such a person given.

The time has also not been given. The statement of the Process Server

who is purported to have taken the notice, his statement has also not

been recorded. Normally, if there is a report of refusal, the learned

Labour Court ought to have recorded the statement of the Process

Server especially when the refusal is purported to have taken place

twice. The earlier service report could not have been relied upon by the

Labour Court because no reference is made in the order sheet about

them.

10. Accordingly, once it becomes doubtful, as to whether, the service

of summons/notice have been effected on the petitioner/management

the benefit of the same has to be given to the petitioner/management by

setting aside the ex-parte decree.

11. The learned counsel for the petitioner/management has also

placed reliance on a Division Bench judgment of this Hon‟ble High

Court in case titled Hydrotech Engg. Co. and another Vs. NCT of

Delhi and others, 2006 LLR 482 wherein a similar contingency our

own Court has observed that the report of the Process Server was

absolutely vague and it did not mention the name of the so called

master/owner or whom process server had contacted or even the time

when he served the summons/notice is not mentioned in the

summons/notice. The report of the Process Server cannot be relied

upon, and accordingly, the impugned ex parte award was set aside in

the said case.

12. Similarly, in the instant case, also the report of the Process Server

seems to be doubtful. Even if the report of the Process Server is to be

relied upon the learned Tribunal ought to have recorded the statement

of the Process Server before proceeding the petitioner/management ex-

parte. On the contrary, I feel that the provisions of Rule 18 of the

Industrial Disputes Act, 1947 were not followed by the learned Tribunal

both in letter and spirit. No summon/notice were sent by registered

cover. At a later date on account of refusal of summon/notice, notice

was not even sent under postal certificate, therefore, the service report

of the petitioner/management becomes doubtful.

13. For the reasons mentioned above, I am of the view that the

service on the petitioner/management it is doubtful, and accordingly,

they were prevented by „sufficient cause‟ to contest the claim of the

respondent/workman. Accordingly, the ex-parte award dated 15th

January, 2005 passed by the learned Tribunal against the

petitioner/management is set aside, subject to payment of cost of Rs.

25,000/-. The matter is remanded back to the learned Industrial

Tribunal to decide the matter after giving an opportunity to file the reply

to the statement of claim. Parties are directed to appear before the

Industrial Tribunal No-I, Karkardooma Courts, Delhi on 3rd March,

2009.

February 16, 2009                                            V.K.SHALI, J.
KP/RN