Tulip I.T. Services Ltd. vs The Secretary (Labour) & Ors.
2009 Latest Caselaw 2019 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No. 15948/2006


                                      Date of Decision : 13.5.2009

Tulip I.T. Services Ltd.                       ...... Petitioner
                                    Through : Mr.Sandeep Banga,
                                    Adv.


                                Versus

The Secretary (Labour) & Ors.                ...... Respondents
                                    Through : Nemo


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. Nobody is present for the respondents. The petitioner M/s

Tulip IT Services Ltd. has filed the present writ petition against

the award dated 24th November, 2004 in case titled M/s Tulip

Software Ltd. Vs. Sh. Gaurav Kumar in ID No. 1/2000. By

virtue of the aforesaid ex-parte award the learned Labour Court

has held that the termination of the services of the

respondent/workman w.e.f. 09.4.1999 as illegal and unjustified,

and accordingly, it has directed the reinstatement with payment

of full back wages and continuity of service. The petitioner

feeling aggrieved by the aforesaid ex-parte award has preferred

the present writ petition on the ground that although the award

is against M/s Tulip Software Ltd. J-31, South Extension Part-I,

New Delhi but the recovery is sought to be made against M/s

Tulip IT Services Ltd. at C-160, Okhla Industrial Area, Phase-I,

New Delhi.

2. I have heard the learned counsel for the petitioner and

perused the record. The learned counsel for the petitioner has

contended that the petitioner/Company M/s Tulip IT Services

Ltd. has obviously nothing to do with M/s Tulip Software Ltd.

which was operating at J-31, South Extension, Part-I, New Delhi

but the respondent /workman after filing his statement of claim

against M/s Tulip Software Ltd. and obtaining an ex parte award

against the said company has curiously filed an affidavit with the

Secretary (Labour) intimating that the management of M/s Tulip

Software has shifted its operation from J-31, South Extension,

Part-I, New Delhi to C-160, Okhla Phase-I, New Delhi and that is

how the recovery notice has been issued to the petitioner while

as the petitioner/Company is under no obligation to implement

the order.

3. I have considered the submissions made by the learned

counsel for the petitioner and perused the record of the Labour

Court as well as the pleadings in the instant case.

4. The arguments of the learned counsel for the petitioner is

borne out from the Labour Court record that the original

statement of claim was filed by the respondent/workman against

M/s Tulip Software Ltd. having an address at J-31, South

Extension, Part-I, New Delhi. Even on one date the notice issued

to the said management was sent by registered A/D. Since there

was a report of refusal to accept the notice, the learned Labour

Court deemed it to be a valid service and proceeded to pass an

ex-parte award against M/s Tulip Software Ltd.

5. The services of M/s Tulip Software Ltd. was not carried out

by the learned Labour Court in accordance with law. Rule 18 of

the Industrial Disputes (Central) Rules, 1957 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.]"

6. A perusal of the aforesaid rule would clearly show that

notices have to be sent by ordinary process and /or by registered

A/D and in the event of refusal an obligation is cast on the

Labour Court to sent the notice under certificate of posting. A

perusal of the record shows that since there was a refusal. This

second step of sending the notice to M/s Tulip Software

Company Ltd. by certificate of posting was not complied with by

the learned Labour Court and on the basis of the report of

refusal itself, it was deemed to be a valid service and they were

proceeded ex-parte which cannot be said to be sustainable in the

eyes of law. Therefore, the service itself on the opposite was not

valid on this ground itself and the ex-parte award deserves to be

set aside and the matter deserves to be remanded back to the

learned Labour Court.

7. In addition to this, after having obtained the ex-parte award

against M/s Tulip Software Ltd. the respondent/workman has

filed an application before the Secretary (Labour) at the time of

the implementation of the award that the management has

shifted its area of operation to C-160, Okhla Phase-I, New Delhi

even if it is assumed that it was the management of the

respondent/workman namely M/s Tulip Software Ltd. then it

was the said company which had shifted area of operation from

J-31 South Extension, Part-I, New Delhi to C-160, Okhla Phase-

I, New Delhi . But the recovery notice ought to have been issued

in the name of M/s Tulip Software Ltd. while as the recovery

notice has been issued in the name of M/S Tulip IT Services Ltd.

It is not borne from the record of the learned Labour Court or

from the record of the present writ petition as to how the

recovery notice came to be issued against M/s Tulip IT Services

Ltd. Although they were operating at C-160, Okhla Phase-I, New

Delhi. The law does not permit an award passed against one

party to be executed against another party unless and until the

party against whom the award is sought to be executed succeeds

into the shoes of the first party or some camouflage is shown to

exist between the two companies in order to defeat the rights of

the respondent/workman.

8. In the instant case, on account of consistent non-

appearance of the respondent/workman as well as in the

absence that of the official respondents it is not possible to

adjudicate or see as to what connection was existing between the

aforesaid two companies, namely, M/s Tulip Software Ltd. and

M/s Tulip IT Services Ltd. Therefore, under these

circumstances, it would be in the interest of justice to set aside

the ex-parte award dated 24th November, 2004 in ID No. 1/2000

and remand the matter back to the learned Labour Court with

the direction that after issuing notice to the claimant, the learned

Labour Court should decide the matter afresh.

9. Parties are directed to appear before the learned Labour

Court on 2nd July, 2009. A copy of this order be sent to the

respondent/workman for intimation.

No order as to costs.

V.K. SHALI, J.

MAY 13, 2009 KP