Delhi High Court
M/S Hemkunt Service Station Pvt ... vs Labour Commissioner (Delhi) & Ors on 24 February, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.4236/1994
% Date of decision: 24th February, 2010
M/S HEMKUNT SERVICE STATION PVT LTD ..... Petitioner
Through: Mr. Syed Hasan Isfahani, Advocate
Versus
LABOUR COMMISSIONER (DELHI) & ORS ..... Respondents
Through: None.
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.
1. This writ petition seeks quashing of the ex parte award dated 24 th
February, 1993 of the Labour Court holding the termination of the service of
the respondent No.4/workman by the petitioner to be illegal and unjustified
and directing the petitioner to reinstate the respondent No.4/workman with
full back wages and continuity in service.
2. It was the case of the respondent No.4/workman that he was appointed
as a Dentor with the petitioner on 10th May, 1988 on a monthly salary of
Rs.1,400/-; that on completion of the period of probation he was treated as a
permanent employee, that on 23rd August, 1989 the petitioner illegally and
under coercion obtained signatures of the respondent No.4/workman on a
letter of registration and terminated his services. The following reference
was made to the Labour Court:
"Whether the services of Shri Suresh Parshad Podder have
been terminated illegally and/or unjustifiably by the
management and if so, to what relief is he entitled and
what directions are necessary in this respect?"
3. Upon the failure of the petitioner to appear before the Labour Court
inspite of service, the Labour Court on the basis of the ex parte evidence of
the respondent No.4/workman, made the award aforesaid.
4. It is the plea of the petitioner that the performance of the respondent
No.4/workman was not satisfactory and as such he was not confirmed and
continued to be on probation and on 26th August, 1989 he had voluntarily
resigned from employment but subsequently sought to retract the
resignation; that the respondent No.4/workman thereafter raised an industrial
dispute and proceedings before the conciliation officer were underway;
however, during the pendency of the said proceedings, the petitioner also
received a notice from the authority under the Payment of Wages Act which
had also been approached by the respondent No.4/workman; that on 3rd
August, 1990 the respondent No.4/workman accepted monies in full and
final settlement of his account towards salary etc. from the petitioner in the
presence of the said authority and the proceedings before the authority under
the Payment of Wages Act were closed and the petitioner believed that the
labour dispute also stood resolved. It was further the case of the petitioner
that the petitioner was never served with any notice from the Labour Court
and it appeared that the respondent No.4/workman had manipulated the
report of service.
5. This court vide ex parte order dated 6th October, 1994, on the basis of
documents produced by the petitioner in support of its plea, issued rule and
also stayed the operation of the ex parte award and the recovery proceedings
in pursuance thereto. The respondent No.4/workman appeared in response
to the notice issued to him and sought time for filing the reply but failed to
file reply inspite of repeated opportunities. In the circumstances, vide order
dated 29th August, 1996 in the presence of the counsel for the respondent
No.4/workman, the interim order was made absolute during the pendency of
the writ petition and the writ petition was posted for hearing in regular
course. When the petition ripened for hearing, the respondent
No.4/workman failed to appear and notice was again ordered to be issued to
him but was received back with the report that no such person was residing
at the address of the respondent on record. Ultimately, the respondent
No.4/workman was ordered to be served by publication and was so served
and has failed to appear. The respondent No.4 / workman was on 13th
October, 2009 proceeded against ex parte. He fails to appear even today.
6. The documents filed by the petitioner before this court show that the
respondent No.4/workman had approached the petitioner for taking back his
resignation letter. The respondent No.4/workman in the letter of withdrawal
of resignation did not state that he had been coerced to resign. On the
contrary, he sought to retract the resignation owing to change in his family
circumstances. In the first legal notice got issued by the respondent
No.4/workman also no such plea of coercion was taken. The receipt of
Rs.1538.50 signed by the respondent No.4/workman is also of full and final
settlement. The same is of a date after the raising of the labour dispute by
the respondent No.4/workman.
7. Moreover, the failure of the respondent No.4/workman to appear
before this court also indicates that the respondent No.4/workman is no
longer interested in his reinstatement or any other relief granted to him under
the ex parte award. The respondent No.4/workman not only failed to file
the counter affidavit but during the pendency of the petition, has also not
made any application under Section 17B of the Industrial Disputes Act.
8. For all the aforesaid reasons, I find that the petition is entitled to
succeed. Though the petitioner had sought the relief of remanding the matter
to the Labour Court but in the absence of respondent No.4/workman, no
purpose would be served therefrom. Accordingly, the award dated 24 th
February, 1993 and the proceedings, if any, for enforcement thereof are
quashed and the petition is disposed of. The rule is made absolute. No order
as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
February 24, 2010
M
