Apollo Hospital Enterpreises ... vs Sh. Suresh Mallik & Ors.
2009 Latest Caselaw 1065 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.10307/2006

                                      Date of Decision : 31.03.2009

APOLLO HOSPITAL ENTERPREISES LTD. ......Petitioner
                 Through: Mr. Neeraj Gupta, Advocate

                                 Versus

SH. SURESH MALLIK & ORS.                        ...... Respondents
                 Through:             Mr. Prashant Jain, Advocate
                                      for R-1 & R-2.

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.

1. This is a writ petition for setting aside ex parte award dated

10.2.2006 passed by the Labour Court II in ID 54/2004 titled Suresh

Malik and Vineet Chawla vs. the Management of Apollo Hospital. By

virtue of aforesaid ex parte award the termination of both the

respondents on 28.5.2003 was held to be illegal and unjustified and in

contravention of Section 25 (F) of the Industrial Disputes Act and

consequently the same was set aside with the direction of

reinstatement and 50% of the backwages. The respondent workman

was also given the benefit of continuity of service.

2. The case of the petitioner management is that they were never

served the summons and consequently they could not appear before

the learned Labour Court and the principles of natural justice were not

adhered to before passing of the ex parte award. It has been

accordingly prayed that the ex parte award be set aside.

3. The respondent workman has filed their counter affidavit and

contested the claim of the petitioners for setting aside the ex parte

award. It has been stated by them that the services of Suresh Malik

and Vineet Chawla were illegally and unjustifiably terminated by the

petitioner management which necessitated the making of a reference

to the learned Labour Court by the appropriate government. The

learned Labour Court after effecting service on the petitioner

management proceeded ex parte as the petitioner despite service failed

to appear in the matter.

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

record of the ID No.54/2004.

5. There is no dispute about the fact of the respondents having

been employed with the petitioner. The reference which has been

made by the appropriate Government is also not disputed but it is the

contention of the petitioner that the respondent are not workmen

within the definition of Section 25 (s) of the Industrial Disputes Act. It

was also contended by learned counsel for the petitioner management

because of the fact that they could not appear before the Court below

and were deprived of the right of hearing and contesting the case

before the learned Labour Court for adjudication of the matter on

merits. It is alleged by them that it was only after the award was

published on 4.5.2006 when they learnt about the award that they

filed an application under Order 9 Rule 13 read with Section 151 CPC

for setting aside the ex parte award which was not allowed on account

of the fact that the learned Labour Court has become functus officio.

Thereafter the petitioner has filed the present writ petition.

6. The record of the learned Labour Court has been also

summoned. The photo copies of the summons and the report of the

process server has been filed along with the writ. I have seen the

original record including the order sheets.

7. The reference was made to the learned Labour Court on

4.2.2004 when notices were directed to be issued to the management

through process server (recorded as PS), RC and dasti and a

preemptory direction was given that in case of avoidance, refusal and

the premises having been found locked or out of station summons,

notices shall be served by affixation and the next date was given as

6.8.2004.

8. On 06.8.2004 despite waiting till 11:30 a.m. none of the parties

were present. The learned Labour court recorded that as nobody has

appeared on behalf of the petitioner management despite having been

served by affixation and matter was adjourned with the direction to

the process server to be present on 21.8.2004.

9. On the said date of 21.8.2004 the statement of process server

Shivkanth Sharma was recorded. He stated that on 15.7.2004 he had

met the Clerk of the Administration Branch who advised him to deliver

the summons in the MRD Section (Basement). On visit to MRD

Section by the process server he stated to have refused to accept the

summons and on the basis of this report of the process server the

learned presiding officer of the Labour Court assumed that the

petitioner management was duly served and since nobody had

appeared on their behalf they were proceeded ex parte.

10. The petitioner learnt about the ex parte award having been

passed only after the publication of the award whereupon they filed an

application under Order 9 Rule 13 before the learned Labour Court

which was also dismissed on account of the presiding officer having

become functus officio. That is how the present writ petition has been

filed.

11. In the present writ petition the only point which has been urged

by the learned counsel for the petitioner is that the petitioner

management not having been served in accordance with law, therefore,

the ex parte order be set aside and the matter be remanded back to

the learned Labour Court. The learned counsel for the respondent has

contested this issue.

12. Rule 18 of the Industrial Disputes (Central) Rules, 1957 lay

down as under:-

"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.]"

13. A perusal of the Rule 18 shows that summons of the notices

have to be served by ordinary process or by RC. In the instant case on

the very first date i.e. on 4.2.2004 there is an order that notice be

issued to the petitioner management by process server, RC and dasti

but no RC cover seems to have been filed or sent to the petitioner

management. Only process server is purported to have gone and

furnished a report with regard to the refusal of the clerk in the

administration block and then refusal by the clerk in the MRD Section.

It has been infact stated by the petitioner that there is no section in

the Apollo Hospital by the name of MRD Section or Department.

14. It has been stated that in the order dated 4.2.2004 that in case

of avoidance, refusal or premises being locked the service had to be

effected by affixation. The date of service on which the respondent

workman was required to appear before the court was given 6.8.2004.

Since on 6.8.2004 nobody appeared the matter was proceeded ex parte

against the respondent at about 11.30 p.m. A perusal of the order

sheets of the learned Labour Court clearly shows that the petitioner

has not been served validly in accordance with law which is envisaged

in Rule 18 inasmuch as no notice by RC cover has been sent and even

in cases where there is a refusal by the petitioner management or any

other party the Rule 18 specifically lays down that notices must be

sent by UPC. No notice or summon by UPC was sent in the instant

case on the contrary a preemptory order was passed on 4.2.2004

because of avoidance, refusal or premises being locked etc., the

notices be served through affixation. This direction of service of

summons or notice by affixation on the very first date was totally

inappropriate on the part of the learned Labour Court inasmuch as

the effecting of service is not to be treated as empty formality but it is

only a notice or intimation given to the party to make him aware that

he or it may take steps to defend its interest in respect of the

statement of claim. The casual approach in which the service of

affixation has been taken to be as valid service is not only in violation

of the principles of natural justice but also in violation of Rule 18 of

the Industrial Disputes (Central) Rules, 1957.

15. For these reasons I feel that the petitioner was absolutely right

in contending that no proper and valid service is effected on the

petitioner management. I accordingly set aside the ex parte award

passed against the petitioner management and remand the matter

back for Labour Court-II.

16. But while the parting, it is stated that the respondent workman

has filed application under Section 17B of the Industrial Disputes Act

for grant of maintenance to enable them to survive. These

applications were filed in the month of August, 2006 and the other is

in September, 2006 but despite the fact that more than two years have

passed, yet reply to the said applications has still not been filed and

therefore the averments made by the petitioner in the said application

remain unrebutted. I accordingly impose a costs of Rs.20,000/- to be

paid by the petitioner to the respondent workman in equal proportion

before the learned Labour Court for setting aside this ex-parte award.

17. With these directions, the parties are directed to appear before

the learned Labour Court on 01.5.2009 and the learned Labour Court

shall give an opportunity to the petitioner management to file its

response to the statement of claims and thereafter proceed to decide

the matter on merits as expeditiously as possible.

V.K. SHALI, J.

March 31, 2009 mm