M/S Datamation Consultant Pvt. ... vs Shri Ranjit Kumar
2009 Latest Caselaw 985 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.2394/2006

                                       Date of Decision : 25.03.2009

M/s Datamation Consultant Pvt. Ltd.       ......Petitioner
                        Through: Mr. Gagan Mathur,
                                    Advocate

                                  Versus

Shri Ranjit Kumar                                  ...... Respondent
                                 Through:    Mr. M.M. Kashyap,
                                             Advocate

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. The challenge in this writ petition by the petitioner is to the

ex-parte award dated 17th November, 2004 passed by the learned

Labour Court No.II in ID No. 311/2002 in the case titled M/s

Datamation Consultants Pvt. Ltd Vs. Sh. Ranjit Kumar.

2. By virtue of the aforesaid award the learned Labour Court

has come to a finding that the dismissal of the

respondent/workman w.e.f 12th January, 2001 was illegal and

unjustified, and accordingly, it directed the reinstatement of the

respondent/workman with 50% of the back wages and all other

legal benefits.

3. The contention of the learned counsel for the petitioner is

that the petitioner was not served in accordance with law, and

therefore, he did not get a reasonable opportunity to represent

their case before the learned Labour Court. It is contended by

the learned counsel for the petitioner that they learnt about the

ex-parte award in the month of October, 2005 after its

publication, whereupon they obtained a certified copy on 19th

October, 2005, and thereafter filed the instant writ petition in the

month of February, 2006. It was contended that after obtaining

the certified copies, it transpired from the record that summons

were purported to have been issued to the petitioner/

management on 20th February, 2003 for their appearance on 4th

April, 2003 and these summons are reported to have been served

by the Process Server on the petitioner/company on 2nd April,

2003 whereas the summons were never received in their office as

would be evident from the fact that neither the name of the

person who is purported to have received the summons nor the

seal of the petitioner/company is reflected on the summons.

4. On 4th April, 2003 on account of their non appearance they

were proceeded ex-parte and the aforesaid award has been

passed. The learned counsel for the petitioner, in order to

substantiate his point that they were not served, and were

therefore prevented to contest the matter on merits, relied upon

the judgment in the case titled M/s Shalimar Rope Works Ltd.

Vs. M/s Abdul Hussain H. M. Hasan Bhai Rassiwala & Ors.

AIR 1980 SC 1163.

5. As against this, the learned counsel for the respondent has

vehemently contended that the petitioner were aware and they

were duly served as is reflected from the report of the Process

Server who has no reason to give a incorrect and false report,

and therefore, the report must be presumed to be correct with

regard to the service of the petitioner/management. It is further

urged by the learned counsel for the respondent that the service

of the respondent/workman have been terminated on 12th

January, 2001 and till date neither the award has been

implemented nor his application under Section 17-B of the

Industrial Disputes Act, 1947 which was filed as early as in

January 2007 has been decided, and therefore, the

respondent/workman is left at the stage of starvation.

6. I have carefully considered the submission of the respective

sides. I have gone through the record also. I find substance in

the submission made by the learned counsel for the

petitioner/management that they have not been served in

accordance with law, and therefore, they have been deprived of

the opportunity to represent their case before the learned Labour

Court. This view I am forming on the basis of the report of the

Process Server on the summons that neither the name of the

person to whom the summons having been served nor does it

bear the seal of the petitioner/company. In the absence of these

two facts it cannot be assumed by any stretch of imagination

that the Process Server has served on the right person who was

duly authorized on behalf of the petitioner/management. In the

case of M/s Shalimar (supra) cited by the learned counsel for the

petitioner though while dealing with Order 29 Rule 2 sub clause

(b) of the CPC, has held that simply leaving, the summons at the

address of the company could not be treated to be as a valid

service though Order 29 Rule 2 sub clause (b) is not strictly

applicable to the facts of the present case because under the

Industrial Tribunal (Central) Rules, 1957 there is a specific Rule

18 which deals with service, but the wider principle is applicable.

This principle has not been adhered to. It therefore supports the

point that the petitioners were not duly served and accordingly,

the ex parte award deserves to be set aside and the matter

remanded back to the learned Labour Court to be decided afresh

after giving an opportunity to the petitioner/Management to file

their written statement and adduce their evidence.

7. As regards the question of the petitioner's application

under Section 17-B of the Act which was filed as early as on

2007, the said application ought to have been decided much

earlier but the said application cannot be considered today as the

main matter itself is being disposed of on merits. However,

keeping in view the fact that the petitioner is alleged to have been

dismissed in 2001, the award has been passed on 17th

November, 2004 and was challenged in 2006 by the petitioner

and the fact that his application under Section 17-B of the Act

remained pending and thereby depriving him of the statutory

benefit to which he was entitled otherwise, I feel the interest of

justice would be sub-served in case the amount of Rs.30,000/-

which stands deposited with the learned Registrar General of this

Court by the petitioner in pursuance to the order dated 21 st

February, 2006 is released to the respondent/workman by way of

costs for setting aside the ex parte award.

8. For the forgoing reasons, I accordingly set aside the ex

parte award dated 17th November, 2004 subject to the amount of

Rs.30,000/- deposited by the petitioner with the learned

Registrar General of this Court, to be released to the

respondent/workman by way of costs along with interest accrued

thereon and remand the mater back to the learned Labour Court

with the direction that the same shall be decided afresh after

giving an opportunity to the petitioner/Management to file

written statement and contest the matter.

9. Needless to say that the learned Labour Court shall

endeavour to dispose of the matter as expeditiously as possible.

10. Parties are directed to appear before the learned Labour

Court on 15th April, 2009.

V.K. SHALI, J.

March 25, 2009 KP