Delhi High Court
M/S Plaza Plastics vs Govt. Of Nct & Anr. on 22 January, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO. 2736/2006
Date of decision: 22.01.2009
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M/S PLAZA PLASTICS .... Petitioner
Through Mr. Akash Singh, Advocate
Versus
GOVT. OF NCT & ANR. .... Respondent
Through Mr. D. N. Pandey, 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. The petitioner by virtue of the present writ petition has challenged
the ex-parte award dated 3rd January, 2002 passed in ID No. 115/1996
titled The Management of M/s Plaza Plastic Vs. its workman c/o Nav
Jagriti Krantikari Mazdoor Union passed by the Labour Court-IX,
Karkardooma Courts, Delhi which held the termination dated 10th
August, 1994 of the respondent/workman to be illegal and unjustified
as well as violating Section 25(F) of the Industrial Disputes Act, 1947.
Accordingly, the workman was directed to be reinstated with payment of
50 % of last drawn wages w.e.f. 10th August, 1994.
2. The award has been challenged primarily on the ground that the
petitioner was never served and consequently they went unrepresented
before the learned Labour Court. The respondent/workman has filed
the counter affidavit and contested the claim of the
petitioner/management about the service of the petitioner. It was
averred in the counter affidavit that the petitioner/management was
indulging in dilatory tactics and accordingly refused the registered cover
containing the notice at address M/s Plaza Plastic, A-313/37 Inderlok
Delhi-110035 which was returned back by the postal authorities with
the remarks that no such firm exists.
3. In this regard, it was further averred that it has come in the order
sheet dated 17th February, 2002 that the petitioner/management has
refused the service of summons. The petitioner/management has not
filed any rejoinder to this.
4. I have heard the learned counsel for the parties and perused the
record. Rule 18 of the Industrial Tribunal (Procedure) Rules, 1949 laid
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.]"
5. A perusal of the aforesaid rule shows that as far as possible, the
notice/summons must be served on the petitioner/management either
personally or by registered post and it is only in the event that if there is
a refusal that it ought to be sent by UPC where the Court may be raise
a presumption of fact of service in the event the letter is not received
back. In other words, dispatch of notice by registered post as well as
by UPC simultaneously would not be in consonance with the rule.
Further especially where there is no evidence of service of summons or
notice personally.
6. Certified photocopies of the order sheet of the learned Labour
Court-IX have been filed. The order sheet shows that on 12th October,
1999 summons on the petitioner/management were received back with
the report that there is no such firm is at the given address. The
address of the firm which was reflected on the registered cover is M/s
Plaza Plastic, A-313/37 Inderlok Delhi-110035. This is one of the
addresses shown in the Sales Tax record as well as in the memo of
parties of the petition, yet the report of the postal authorities is that
there is no such firm at the given address. Therefore, this report of the
postal authorities seems to be totally incorrect that the
petitioner/management firm is not having its works at the said address.
This seems to be a procured report. Thereafter, notices/summons
were ordered to be sent afresh on 12th October, 1999 and 17th February,
2000 wherein the report is that the management has refused the
summons and consequently the summons were affixed and that was
deemed to be a valid service and accordingly the
petitioner/management were proceeded ex-parte. The order sheet does
not show the statement of process server in whose presence the
summons are purported to have been refused or who had affixed the
summons on account of the refusal. No statement on account of this
has been recorded, therefore, the service of the summons on the
petitioner/management becomes doubtful.
7. Apart from this the Rule 18 of the Industrial Tribunal (Procedure)
Rules, 1949 specifically lays down that, in case, the summons are
refused or avoided a copy thereof is to be sent under postal certificate
which in the instant case has not been done. Since, the petitioner
learnt about the award only after publication they preferred this writ
petition for setting aside the ex-parte award.
8. Having regards to the aforesaid facts, I am of the opinion that the
service of the summons on the petitioner/management is doubtful. The
petitioner ought to be given a fair chance to defend and present their
case before the learned Labour Court as they were prevented by
sufficient cause from appearing in the matter. Accordingly, the ex-
parte award dated 3rd January, 2002 is set aside subject to the
petitioner/management paying a cost of Rs. 10,000/- to the
respondent/workman before the learned Labour Court. The learned
Labour Court after giving the opportunity to the petitioner/management
shall proceed to decide the reference on merit. Parties are directed to
appear before the learned Labour Court on 16th February, 2008.
JANUARY 22, 2009 V.K. SHALI, J.
KP/RN
