M/S Five Dimensions Computers (P) ... vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 1795 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


        +         LPA No. 189/ 2009 & C.M. No. 6153/2009

        M/S FIVE DIMENSIONS COMPUTERS (P) LTD. ..... Appellant
                      Through:  Mr. G. C.Sharma, Advocate.

                                 versus

        GOVT. OF NCT OF DELHI & ORS.             ..... Respondents
                       Through:  Mr. Rajeshwar Kumar Gupta,
                                 Advocate No. 2.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
                   ORDER

% 01.05.2009

1. The present appeal arises out of the impugned order dated 8th

April, 2009 passed by the learned Single Judge.

2. The respondent No. 2/Workman (original respondent No. 2 in

the Writ Petition) was employed with the appellant-Management

(original petitioner in the Writ Petition). As per the respondent No. 2,

the Management illegally terminated his services. Since the

Management did not make any payment pursuant to the demand

notice sent by respondent No. 2, therefore, the application under

Section 33C(2) of the Industrial Disputes Act, 1947 was filed before

the Labour Court. The notice of the application was served by way of

affixation but nobody appeared on behalf of the appellant-

Management before the Labour Court. The appellant-Management

was proceeded ex parte and the Award was passed against the

appellant-Management.

3. Learned counsel for the appellant submitted before the learned

Single Judge that no notice was ever served upon the appellant and

the Labour Court wrongly passed the ex parte order. As per the

appellant-Management, it is nowhere recorded in the statement of the

Process Server that he had affixed the summons after the same was

refused by any representative of the appellant-Management and thus,

the affixation was not as per the provisions of Order V Rule 20 of the

Code of Civil Procedure, 1908.

4. The respondent, on the other hand, pointed out before the

learned Single Judge that the appellant-Management was throughout

aware of the proceedings before the Labour Court and deliberately

chose not to appear. As per respondent No. 2, the Labour Court also

recorded the statement of Process Server to satisfy itself whether the

Process Server had visited the premises of the appellant-Management

or not so as to affect the service. The counsel for the respondent No.

2 further submitted before the learned Single Judge that as per the

appellant it had come to know about the Award through notice dated

6th February, 2008 then how could the appellant have obtained a

certified copy of the Award earlier from the Copying Agency on 31st

October, 2007. The respondent No. 2 pointed out the said date from

the certified copy placed on record by the appellant where the seal of

the Copying Agency was affixed. It was then contended by

respondent No. 2 that the appellant had deliberately tried to mislead

the Court that it came to know about the ex parte Award only

through the office of Labour Commissioner or through the office of

Assistant Collector.

5. The learned Single Judge has rightly held that the appellant

was well aware of the ex parte Award at least when it had applied for

certified copy and since the appellant had suppressed these facts by

not mentioning the same in the petition, the Court would not exercise

its extraordinary jurisdiction under Article 226 of the Constitution of

India in favour of the appellant who had not approached the Court

with clean hands. It is a fundamental principle of law that a person

invoking the jurisdiction of the Court must come with clean hands

and must make a full and complete disclosure of the facts to the

Court.

6. The learned Single Judge has rightly dismissed the writ

petition and directed the amount deposited by the appellant

pursuant to the direction given by the Court to be released in favour

of respondent No. 2 along with interest, if any accrued thereupon.

7. In view of what has been stated hereinabove, we see no

infirmity in the order passed by the learned Single Judge. The appeal

is accordingly dismissed. The pending application also stands

disposed of.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J May 01, 2009 sb