M/S Akbar Tourist & Anr. vs Kanwar Pal & Ors.
2010 Latest Caselaw 2816 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 7858/2002

%                                            Date of decision: 28th May, 2010

M/S AKBAR TOURIST & ANR.                     ..... Petitioners
                 Through: Mr. S.K. Duggal, Advocate.

                                    Versus
KANWAR PAL & 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. The petitioner employer had preferred the present writ petition to

challenge the award dated 4th February, 2002 of the Labour Court

holding the termination by the petitioner employer of the services of the

respondent no.1 workman to be illegal and directing the petitioner

employer to reinstate to respondent no.1 workman with full back wages

and continuity of service.

2. This Court while issuing notice of the petition, vide ex-parte order

dated 9th December, 2002 stayed the operation of the award. The

respondent no.1 workman appeared through counsel and contested the

petition and filed a counter affidavit (and to which rejoinder was filed by

the petitioner employer). The respondent no.1 workman also filed an

application under Section 17B of the ID Act. The said application was

allowed on 10th May, 2005. C.M. No.473/2006 was filed by the

petitioner employer thereafter stating that the petitioner employer

without prejudice to the respective rights and contentions was desirous

for the respondent no.1 workman to rejoin duties but the respondent no.1

workman was not available at his address. The petitioner employer in

these circumstances sought recall of the order under Section 17B of the

ID Act. Notice of the application was issued to the respondent no.1

workman. On 3rd April, 2008, the counsel for the petitioner employer

informed that the order under Section 17B could not be complied with

because of the respondent no.1 workman being untraceable. The counsel

who appeared for the respondent no.1 workman on that date stated that

correct address of the respondent no.1 workman shall be informed.

However, the counsel for the respondent no.1 workman stopped

appearing thereafter. The counsel for the petitioner employer informed

on 11th February, 2009 that inspite of best efforts, the respondent no.1

workman was not traceable. The counsel for the respondent no.1

workman again appeared on 10th September, 2009 but did not appear on

several dates thereafter also. On the last date i.e. 14th May, 2010 the said

counsel happened to be in the Court and was informed about the present

matter and took time to take instructions from the respondent no.1

workman. However, today again none appeared for the respondent no.1

workman inspite of passover.

3. Resultantly, the respondent no.1 workman is proceeded against

ex-parte. The counsel for the petitioner employer has been heard.

4. In the aforesaid circumstances, it is borne out that the award of

reinstatement cannot be enforced. The respondent no.1 workman has not

even come forward to receive the payment ordered to be made to him

under Section 17B of the ID Act.

5. The petition is therefore allowed. The award impugned in the writ

petition is set aside/quashed. The parties are left to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th May, 2010 bs