Shri Kartar Singh vs Shri Narayan
2009 Latest Caselaw 810 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) NO.22206/2005

%                                           Date of Decision : 13.03.2009

SHRI KARTAR SINGH                            .... Petitioner
                Through Mr.V.K.Kalra, Advocate

                                   Versus

SHRI NARAYAN                                          .... Respondent
                          Through Mr.J.N.Verma, Advocate


HON'BLE MR. JUSTICE V.K. SHALI

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


V. K. SHALI, J.(Oral)
*

1. I have heard the learned counsel for the parties and gone through

the record.

2. By virtue of the present writ petition, the petitioner has

challenged the ex parte award dated 20th September, 2004 by virtue of

which the learned Labour Court has directed the reinstatement of the

respondent/workman from 11th September, 1992 and payment of back

wages @ 30% of the last drawn wages.

3. Briefly stated the facts leading to the filing of the present writ

petition are that the Government of Delhi made a reference on 10th

April, 1995 in the following terms to the learned Labour Court:-

"Whether the services of Shri Narayan have been terminated illegally and/or

unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

4. After receiving the reference, notices were issued to both the

parties. The respondent /workman through its Trade Union filed a

statement of claim on 15th March, 1996 wherein it was alleged that he

had been working with the petitioner /Management as a Driver w.e.f.

16th August, 1983 and his last drawn wages were @Rs.1,500/- per

month. It was alleged by the respondent /workman that as unjustified

deductions were being made from his wages for the period from 15th

May, 1992 to 11th September, 1992, he protested to the same because

of which the petitioner /Management became revengeful and

terminated the services of the respondent/workman w.e.f. 11th

September, 1992. The respondent /workman in the statement of claim

gave a tabulation form of his statement of claim wherein the following

amounts were claimed:-

"i) Earned wages from 15.5.92 to 11.9.92, 4 months wages Rs.6,000/-

ii) Weekly off, 1983 to 9.11.92 total : Rs.23,300/-

iii)    National holidays from 1983 to 1992
                                      40 days   Rs.2,000/-
iv)     Unemployment wages 12.9.92 to 30.12.92 Rs.22,190/-
                                      Total:     Rs.53,490/-"

5. The learned Labour Court on the basis of a report of pasting of

notice at the address of the petitioner /Management for appearance

before the learned Labour Court on 21st January, 2000 proceeded ex

parte against the petitioner /Management on the ground that the

petitioner /Management has been duly served.

6. The Labour Court proceeded to record the ex parte evidence on

behalf of the respondent /workman who was examined as WW-1 and

proved his affidavit Ex.WW1/A and the other connected documents like

copy of demand notice, report of the labour inspection, copy of the

compliant, etc. On the basis of unrebutted testimony of the

respondent/workman, the learned Labour Court arrived at a finding

that the services of the workman were terminated illegally and

unjustifiably on 11th September, 1992 in violation of provision of

Section 25 of the Industrial Disputes Act, 1947 and therefore, directed

reinstatement of the respondent. However, as regards the question of

payment of back wages, the learned Labour Court was of the opinion

that as the respondent/workman himself was responsible for the delay

in disposal of the matter, therefore, he was awarded only 30% back

wages.

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

record. The learned counsel for the petitioner had very fairly conceded

that although the respondent/workman was working as a Driver on the

truck bearing No.DIG2452 but he denied that his services were illegally

and unjustifiably terminated. On the contrary, it was contended that

the truck had to be taken off the road on account of the judgment of the

Supreme Court that it was more than 15 years old and a certificate of

fitness was not granted by the Motor Licensing Officer. It has also come

in evidence that in addition to the aforesaid, the services of the

respondent/workman was also at some point of time being utilized as a

Driver of another truck bearing registration No.HRW2435 also but that

is besides the point that the learned counsel in order to settle the

matter had offered a sum of Rs.50,000/- without prejudice to the rights

and contentions of his case on merits. The proposal though was

acceptable to the learned counsel for the respondent but on account of

obstinate conduct of the respondent/workman, he did not accept this

proposal and desired that the Court may decide the matter on merit.

8. It was next urged by the learned counsel for the petitioner that

this is an ex parte award and as a matter of fact the petitioner

/Management was never served by the Labour Court and accordingly,

they did not get a fair opportunity to participate in the proceedings

before the learned Labour Court. They only learnt about the ex parte

award having been passed on 20th September, 2004 and immediately

thereafter they filed an application under Order IX Rule 13 read with

Section 151 of the CPC before the Labour Court but as the Labour

Court-XII had become functus officio, therefore, the said application

was dismissed vide order dated 27th July, 2005. It is in this

background that the present petition as been filed.

9. Rule 18 of the Industrial Disputes (Central) Rules, 1957, lays

down the detailed procedure as to how the services of the parties is to

be effected in respect of proceedings which are conducted before the

Industrial Tribunal from the Labour Court. The relevant Rule 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.]"

10. A perusal of the aforesaid Rule would show that the service is to

be effected either by ordinary process or registered A/D and in the

event of refusal by the party concerned, notices are to be sent by

certificate of posting. There is no provision under the said Rule for

effecting services by pasting which will be in the nature of substituted

service. Even if it is assumed that the services by pasting is to be

effected but that enjoins that the learned Labour Court must record

some finding that steps have been taken to effect service in accordance

with Rule 18 of the Industrial Disputes Act by trying to effect service by

ordinary process and by registered A/D and then by certificate of

posting and yet the service could not be effected on the party

concerned. In the instant case from the impugned award, there is not

even an iota of discussion as to whether such compliance thereof was

ever done by the learned Labour Court. Only one sentence has been

recorded that notice was served by pasting for 21st January, 2000

whereupon because of the absence of the petitioner/Management before

the learned Labour Court, they were proceeded ex parte. This in my

view, does not constitute a valid service in accordance with law and

accordingly, the ex parte proceedings deserves to be set aside against

the petitioner /Management as it has deprived of right to participate in

the proceedings before the learned Labour Court which has resulted in

denial of principles of natural justice.

11. Even otherwise, a perusal of the statement of claim dated 8th

May, 1995 filed by the respondent/workman would show that the total

amount which was claimed by the respondent/workman was

Rs.53,490/- under various heads and consequently, there was no

prayer for reinstatement by the respondent/workman. It was so

because the respondent/workman was himself aware that the truck of

the petitioner /Management being more than 15 years old could not

have plied in the city of Delhi. It is very curious to see that though

there was no prayer by the respondent/workman in the statement of

claim for reinstatement but the learned Labour Court went far ahead

and grant the benefit of reinstatement. To that extent also, I feel that

this award is not sustainable in the eyes of law.

12. For the reasons mentioned above, I set aside the ex parte award

dated 20th September, 2004 passed by the learned Labour Court &

remand the matter back to the learned Labour Court-XII to decide the

same afresh after giving an opportunity to the petitioner /management

to file its written statement to the statement of claim. Needless to say

that any expression of opinion hereinbefore will not be treated as an

expression on merits of the case and the learned Labour Court shall

endeavour to decide the matter as expeditiously as possible.

13. So far as the amount of Rs.39,000/- along with interest is

concerned, the same shall be refunded back to the petitioner

/Management. The petitioner /Management shall also pay cost of

Rs.10,000/- for setting aside the ex parte proceedings to the

respondent/workman before the learned Labour Court at the time of

filing of the written statement.

14. With these directions, the writ petition stands disposed of.

Parties are directed to appear before the learned Labour Court on 2nd

April, 2009.

MARCH 13, 2009                                           V.K. SHALI, J.
RN