Jai Prakash vs M/S.Wimpy Fast Food P.Ltd.& Ors
2010 Latest Caselaw 2148 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C)6340/2002

%                                               Date of decision: 23rd April, 2010

       JAI PRAKASH                                               ..... Petitioner
                            Through:      Mr. Vijay Sharma & Mr. N.K. Vuttsya,
                                          Advocate.

                                       versus

       M/S.WIMPY FAST FOOD P.LTD.& ORS.              ..... Respondents
                     Through:  Mr. Girdhar Govind & Ms. Noorun
                               Nahar Firdausi, Advocates.
                               Ms. Mamta Tandon for Mr. V.K.
                               Tandon, Advocate for R-8.

                                        AND

+                              W.P.(C) 1222/1995

       M/S.GOODWILL FOOD PVT.LTD.                      ..... Petitioner
                    Through:  Mr. Girdhar Govind & Ms. Noorun
                              Nahar Firdausi, Advocates.

                                       versus

       COMMISSIONER OF LABOUR & ORS.              ..... Respondents
                    Through: Mr. Vijay Sharma & Mr. N.K. Vuttsya,
                             Advocates for R-3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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          No
       in the Digest?

RAJIV SAHAI ENDLAW, J.

The Counsels have been heard. The facts which emerge are as under:

1. Mr. Jai Prakash petitioner in WP(C) 6340/2002 raised an industrial dispute

against "the Management of M/s Wimpy Fast Food Pvt. Ltd, N-5, Janpath,

Connaught Place, New Delhi". The same was referred to the Labour Court. The

Labour Court rendered an award dated 15th September, 1993. In the said award it is

mentioned that the management had before the Labour Court filed a written

statement wherein they had admitted that the said Jai Prakash was employed with

them w.e.f. 5th February, 1985 at a monthly salary of Rs.450/- per month; however,

on account of his misbehavior, his services were terminated after making inquiries on

31st August, 1988. It is further recorded in the award that the management did not

come forward to lead any evidence to prove its defence. The Labour Court

accordingly held the termination of services of the said Jai Prakash by "the

Management of Wimpy Fast Food Pvt. Ltd" as illegal and directed reinstatement

with full back wages and continuity in service.

2. The award remaining uncomplied, Jai Prakash initiated proceedings for its

enforcement. It appears that Jai Prakash stated in the said enforcement proceedings

that the name of M/s Wimpy Fast Food Pvt. Ltd. against whom award had been

made, stood changed to M/s Goodwill Foods Pvt. Ltd. On the said statement of Jai

Prakash, a recovery certificate for recovery of Rs.46,620/- due till then under the

award was issued by the Assistant Collector in the name of M/s Goodwill Foods Pvt.

Ltd. at the address of N-6, Janpath, Connaught Place, New Delhi. The said M/s

Goodwill Foods Pvt. Ltd. in their reply dated 20th March, 1995 sent by Col. Kalyan

Singh as Director of M/s Goodwill Foods Pvt. Ltd. contended before the Assistant

Collector that they had never employed any Jai Prakash and the notice had been

wrongly issued in their name.

3. M/s Goodwill Foods Pvt. Ltd. then filed WP(C) 1222/1995 (supra) in this

court contending that notwithstanding their aforesaid reply, the office of the Assistant

Collector was continuing to harass them. It is inter alia mentioned in the writ

petition 1222/1995 that the said M/s Goodwill Foods Pvt. Ltd. had been incorporated

in the year 1988; that it was the authorized licensee of the trademark WIMPY; that

Mr. K.S. Sidhu and Mr. K.S. Sandhu of U.K. had 95% share holding of the said M/s

Goodwill Foods Pvt. Ltd.; that after incorporation in 1988, the said M/s Goodwill

Foods Pvt. Ltd. had opened Wimpy Restaurant inter alia at N-6, Janpath, Connaught

Place, New Delhi. It is their case in the petition that nothing is due from them to the

said Jai Prakash. The writ petition was filed through the Director Col. Kalyan Singh.

It is significant that though the name of the workman Jai Prakash at whose instance

the recovery certificate had been issued against M/s Goodwill Foods Pvt. Ltd. was

known, but the said Jai Prakash was not impleaded as a party to this writ petition.

This court vide ex parte order dated 19th April, 1995 directed that no coercive steps

shall be taken for recovery of Rs.46,620/- from the said M/s Goodwill Foods Pvt.

Ltd. The said order remains in force.

4. The Assistant Collector in his counter affidavit to the writ petition took

objection that Jai Prakash at whose instance the recovery certificate challenged in the

writ petition has been issued had not been impleaded as a party. This court vide

order dated 13th February, 1996, finding Jai Prakash to be a necessary party directed

M/s Goodwill Foods Pvt. Ltd. to file amended memo of parties and further directed

issuance of notice to the said Jai Prakash. However, the said Jai Prakash remained

unserved and the matter was adjourned from time to time. Ultimately, vide order

dated 7th February, 2000 the said Jai Prakash was directed to be served by

publication. M/s Goodwill Foods Pvt. Ltd. took repeated adjournments for

publication. In the order dated 10th September, 2003 it is noted that M/s Goodwill

Foods Pvt. Ltd. had for three years not complied with the order of publication. This

court felt that the said Jai Prakash should be served personally. Jai Prakash was

ultimately served as recorded in the order dated 9th July, 2004.

5. In the meanwhile Jai Prakash filed WP (C)6340/2002 impleading therein M/s

Wimpy Fast Food Pvt. Ltd., M/s Wimpy Goodwill Fast Food Pvt. Ltd, M/s Wimpy

International Limited, Mr. Kanwaljit Singh Sidhu, Col. Kalyan Singh, Mr. Charanjit

Singh, Assistant Labour Commissioner and Delhi Administration as respondents.

Jai Prakash by the said writ petition sought enforcement of the award of the Labour

Court in his favour. Jai Prakash in his writ petition also mentioned that Wimpy

Goodwill Fast Food Pvt. Ltd and Wimpy International Ltd were the sister concerns

of Wimpy Fast Food Pvt. Ltd. and Mr. Kanwaljit Singh Sidhu, Col. Kalyan Singh,

Mr. Charanjit Singh were the owners or the Directors and office bearers of the said

companies and collectively responsible for the conduct of business of the said

companies. It is further mentioned in the said writ petition that in the termination

letter issued to Jai Prakash the registered office of Wimpy Fast Food Pvt Ltd. was

shown as B-8A Kailash Colony, New Delhi. At this stage it may be stated that

Goodwill Foods Pvt. Ltd. also in the memo of parties in WP(C)1222/1995 has given

its address as that of B-8A, Kailash Colony, New Delhi. Jai Prakash alongwith his

writ petition has also filed :-

i. certified copy of the records of Registrar of Companies of Wimpy International Limited showing the registered office of the said company at B- 8A, Kailash Colony, New Delhi and showing Shri Kanwaljit Singh, Shri Charantjit Singh, Col. Kalyan Singh, Smt. Sukriti Kumari, Shri G.S. Khatara and Dr. Sukhvender Kaur as the Directors/shareholders of the said company.

ii. certified copy from the Office of the Registrar of Companies of Wimpy Fast Food Pvt. Ltd. showing Shri Kanwaljit Singh Sidhu, Kewal Singh Sandhu, A.S. Selhi and Mr. Dharam Singh as the Directors of Wimpy Fast Food Pvt. Ltd.

6. Notice of WP(C) 6340/2002 was also issued. The counsel Mr. Girdhar

Govind, Advocate who has filed WP(C)1222/1995 on behalf of the Goodwill Foods

Pvt. Ltd. appeared and has filed counter affidavit on behalf of the Wimpy

International Limited. In the said counter affidavit it is inter alia stated that Wimpy

International Limited was formerly known as Goodwill Foods Pvt. Ltd.; that Wimpy

International Limited was incorporated in 1988 and was carrying on business of fast

food restaurant in the name of Wimpy; that on receipt of notice from the Assistant

Collector WP(C) 1222/1995 (supra) had been filed. It is reiterated that the said

company does not owe anything to Jai Prakash.

7. Jai Prakash has also filed a counter affidavit in WP(C)1222/1995 filed by

Goodwill Foods Pvt. Ltd. Alongwith the said affidavit also photocopies of records of

the Registrar of Companies with respect to Wimpy Fast Food Pvt. Ltd. (against

whom award was made by the Labour Court) have been filed and which also show

Mr. Kanwaljit Singh Sidhu, Mr. Kewal Singh Sandhu, Mr. A.S. Selhi as Director of

Wimpy Fast Food Pvt. Ltd.

8. Mr. Girdhar Govind, Advocate for Goodwill Foods Pvt. Ltd. has contended

that the award is against Wimpy Fast Food Pvt. Ltd. and thus Goodwill Foods Pvt.

Ltd has no concern with the award. On inquiry as to whether Goodwill Foods Pvt.

Ltd. has challenged the award, Mr. Govind Advocate states that Goodwill Foods Pvt.

Ltd. being not a party to the dispute before the Labour Court is not required to

challenge the award and is entitled to only challenge the recovery certificate wrongly

issued against it. He contends that since Goodwill Foods Pvt. Ltd. came into

existence in 1988, the question of Jai Prakash, who as per the award was employed in

1985, being an employee of Goodwill Foods Pvt. Ltd. does not arise.

9. Being a native of the city and being prima facie of the opinion that Wimpy

Restaurant in N Block, Connaught Place has been continuously in existence since

prior to 1985, it was inquired from Mr. Girdhar Govind, Advocate whether it was not

so. Mr. Girdhar Govind, Advocate tentatively states that Wimpy Restaurant may

have been in existence at the same place since then. It was then inquired from him

as to what was Wimpy Fast Foods Pvt. Ltd. He vehemently argued that there is no

company by the said name. It was then that the counsel for Jai Prakash drew

attention to the documents from the Registrar of Companies filed by him as aforesaid

showing the existence of Wimpy Fast Foods Pvt. Ltd. and reference whereto has

been made in the counter affidavit in WP(C)1222/1995 also. It was enquired from

Mr. Girdhar Govind, Advocate whether any rejoinder has been filed to the said

counter affidavit. Mr. Girdhar Govind, Advocate states that the rejoinder has been

filed. However, the same is not found on record. It was enquired from Mr. Girdhar

Govind, Advocate whether he has a copy of the said rejoinder, inasmuch as it was

felt that from the said rejoinder the stand of M/s Goodwill Foods Pvt. Ltd. qua

Wimpy Fast Food Pvt. Ltd would be known. The order sheet dated 1st December,

2004 also records that the rejoinder was stated to have been filed. Mr. Girdhar

Govind, Advocate has handed over a copy of the rejoinder from his file. The same

though unattested bear the signature of Col. Kalyan Singh on the rejoinder as well as

the affidavit as also of Mr. Girdhar Govind, Advocate. A perusal of the said

rejoinder does not show that Goodwill Foods Pvt. Ltd. in the said rejoinder has

denied the existence of Wimpy Fast Food Pvt. Ltd. In fact, Goodwill Foods Pvt. Ltd.

chose to ignore to deal with the averment in the counter affidavit with respect to the

Wimpy Fast Food Pvt. Ltd. At this stage Mr. Girdhar Govind, Advocate strongly

objects to this court taking on record a copy of the aforesaid rejoinder. However, the

same having come from proper source, the same is taken on record.

10. It has been again enquired from Mr. Girdhar Govind, Advocate as to what was

the relationship between Goodwill Foods Pvt. Ltd. and Wimpy Fast Food Pvt. Ltd.

The counsel does not want to answer. He only states that both are independent

companies. Mr. Girdhar Govind was asked as to how Wimpy Restaurant being run

by Wimpy Fast Food Pvt. Ltd., can also be run by Ms/ Goodwill Foods Pvt. Ltd.

Mr. Govind informs that one Mr. A.S. Selhi and his wife Mrs. Raj Selhi were the

franchisees of M/s Wimpy International, a foreign company and were running the

restaurant as such and states that there is no contract between the said Selhis and M/s

Goodwill Foods Pvt. Ltd.

11. The entire aforesaid record and conduct prima facie shows that M/s Goodwill

Foods Pvt. Ltd. has not made a clean statement before this court. Mr. Jai Prakash

was an employee of Wimpy Restaurant and Wimpy Fast Food Pvt. Ltd. then running

Wimpy Restaurant had admitted before the Labour Court that he was their employee.

The termination of services of Jai Prakash was on 31st August, 1988 by when M/s

Goodwill Foods Pvt. Ltd. had been incorporated. The reply before the Labour Court

was filed even thereafter. It is not known, by whom. The award of the Labour Court

has attained finality.

12. A petty worker as Jai Prakash has remained without the benefits of the award

for the last over 17 years. From the documents of the Registrar of Companies filed

before this court it appears that both Wimpy Fast Food Pvt. Ltd. against whom the

award was made and Goodwill Food Pvt. Ltd which has filed WP(C) 1222/1995 not

only were running the restaurant in the same name and at the same place but also had

their registered office at the same address and also had common Directors. Cloak /

veil of a private limited company cannot be used to deprive the benefits of an award

under the Industrial Disputes Act which is a social welfare legislation. The process

of this court is found to have been abused.

13. It was inquired from Mr. Girdhar Govind, Advocate as to who are the

Directors/ responsible officers of M/s Goodwill Food Pvt. Ltd. It is informed that

Col. Kalyan Singh who had filed the petition has died. The counsel states that he is

unable to give names of the Directors or any other officers except that one Mr. Rai

who has been coming to him. In all these aforesaid circumstances it is deemed

appropriate that a Director of M/s Goodwill Food Pvt. Ltd. competent to answer the

questions appears before this court.

14. List on 26th April, 2010. It is made clear that if any attempt is found to be

made to avoid appearance before the court, the presence shall be enforced coercively.

RAJIV SAHAI ENDLAW (JUDGE) 23rd April, 2010 m