Delhi High Court
Shri Kamal Kalra vs Shri Ramdev on 14 October, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 9304/2007
% Date of Decision: 14th October, 2009
# SH. KAMAL KALRA ..... PETITIONER
! Through: Mr. Vineet Mehta, Advocate.
VERSUS
$ SH. RAMDEV ....RESPONDENT
^ Through: Ms. Pinky Anand, Sr. Advocate with
Ms. Aakanksha Munjhal, Advocate.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper 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
S.N.AGGARWAL, J (ORAL)
The petitioner, in this writ petition, seeks to challenge an ex-parte
award dated 17.02.1997 in I.D. No. 5/1991 directing reinstatement of the
respondent with full back wages and continuity of service.
2. The impugned ex-parte award is sought to be set aside by the
petitioner mainly on two grounds. The first ground is that the petitioner's
firm M/s Jatin Sales Corporation never existed at C-28, Gupta Colony,
Vijay Nagar, Delhi - 110009; where it was purportedly served by way of
pasting. The second ground is that the respondent never worked with
the petitioner in any capacity. In fact, the relationship of employer and
employee is denied by the petitioner management.
3. Ms. Pinki Anand, learned senior counsel appearing on behalf of the
respondent workman, has contended that the petitioner is a
proprietorship firm and he was duly served with the notice of the
proceedings pending before the Labour Court through his brother Shri
Vijay Kumar and since he refused to receive the notice, the service was
effected on the respondent through pasting. She has referred to the
report of the Process Server (which is at page 48 in the file of the Lower
Court). The learned senior counsel appearing on behalf of the
respondent has contended that the respondent workman had worked as
Machine-man with the petitioner firm for about eight years before
termination of his services. She has also submitted that demand notice
was also sent by the respondent to the petitioner firm at the same
address, i.e., C-28, Gupta Colony, Vijay Nagar, Delhi - 110009 by
registered post as well as by U.P.C. Post. The contention of Ms. Pinki
Anand is that the service on the brother of proprietor of the management
firm is a valid service and this Court in exercise of its writ jurisdiction
under Article 226 of the Constitution cannot go into the question of
service which, according to her, has been duly considered before the
Labour Court by proceeding ex-parte against the petitioner firm.
4. The learned senior counsel appearing on behalf of the workman has
further argued that the Labour Court has passed the impugned ex-parte
award after taking into account all the relevant facts regarding
employment of the respondent with the petitioner firm and also the fact
that the petitioner had not appeared to defend the proceedings despite
deemed service.
5. I have given my anxious consideration to all the above arguments
advanced by the learned senior counsel appearing on behalf of the
respondent but I could not persuade myself to agree with any one of
them. I have also gone through the record of the Court below. On going
through the said record I am of the opinion that no effort was made by
the Labour court for serving the petitioner with the notice of the
proceedings pending before it by Registered A.D. Post. This service was
effected on the petitioner by pasting without there being any order from
the Court. The Process Server who went to effect the service allegedly
pasted the notice without their being any order from the Court for the
same. The Process Server was not justified in pasting the notice merely
on purported refusal of the brother of the proprietor of the management
firm. This aspect of the matter has been completely ignored by the Court
below. From the record, it cannot be said that the petitioner was served
with the notice of statement of claim filed by the respondent workman
before the Labour Court. In that view of the matter the impugned ex-
parte award cannot be sustained in law.
6. I would also like to note that on being repeatedly asked, the
learned senior counsel appearing on behalf of the workman could not
show the existence of the petitioner firm at the address at which notice
was pasted by the Process Server. The only document relied upon by the
learned senior counsel appearing on behalf of the respondent is a letter
that was received by the respondent at the address of C-28, Gupta
Colony, Vijay Nagar, Delhi - 110009 and this letter, by no means, proves
the existence of the petitioner firm at the said address.
7. The petitioner has denied the relationship of employer and
employee between the parties. It was not serviced with the notice of the
claim of the respondent workman. Hence, this Court is of the opinion
that the impugned ex-parte award is liable to be set aside and an
opportunity need be given to the petitioner management to prove its
defense in response to the claim of the respondent workman.
8. In view of the foregoing, the impugned ex-parte award is hereby
set aside. This writ petition is allowed. The case is remanded back to the
concerned Labour Court/Successor Court for fresh decision after giving an
opportunity of hearing to both the parties as per law. The concerned
Labour Court/Successor Court is directed to decide the reference afresh
as expeditiously as possible preferably within eight months to be
reckoned from the date to be fixed for appearance of the parties before
the Labour Court. The parties are directed to appear before the
concerned Labour Court/Successor Court for directions on 02:00 PM on
29.10.2009.
9. Needless to say that any observations made in this order will not
influence the fresh decision of the case by the Court below.
10. A copy of this order along with LCR be sent back to the concerned
Labour Court/Successor Court for information and necessary compliance.
OCTOBER 14, 2009 S.N.AGGARWAL, J
'BSR'
