M/S. Preetam Singh & Sons. vs Sh. Chotey Lal & Others.
2010 Latest Caselaw 4897 Del

 *         IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     W.P.(C) No. 3594/1996

 %                                            25th October, 2010

 M/S. PREETAM SINGH & SONS.                        .... Petitioner

                            Through:    None.

                       VERSUS

 SH. CHOTEY LAL & OTHERS.                          ....Respondents

                            Through:    None.


 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?

 2.   To be referred to the Reporter or not? Yes


 3.   Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (Oral)

1.    This case is fixed for regular hearing, but no one has appeared on

behalf of the parties although it is 12.30 PM.        Respondent no.1

workman was served of this petition after admission by means of

publication and still he has not appeared. I have therefore perused the

records and I am proceeding to disposing of the petition.

2.    Challenge has been laid by this petition under Article 226 of the

Constitution of India for setting aside the ex parte Award dated

1.8.1994 and the order dated 13.9.1996 dismissing the application

under Order 9 Rule 13 CPC on behalf of the petitioner on the ground


WPC 3594/1996                                                    Page 1 of 5
 that the Labour Court had no jurisdiction to entertain such an

application after 30 days of the publication of the Award.

3.   The facts of the case are that the respondent no.1 was under the

employment of the petitioner sole proprietor concern and he resigned

on 26.9.1991. The application for resignation is dated 19.9.1991 and is

filed as Annexure P-1. Resignation letter and voucher of full and final

settlement signed by the workman respondent no.1 are annexed as

Annexures P-2 and P-3.

4.   In spite of the full and final settlement, the workman still

approached the Labour Court and when the complete facts were not

brought to the notice to the Labour Court, the petition was dismissed

as per order dated 22.4.1993 which reads as under:-

        "ORDER 22.4.93.
            Pt. Shri Balbir Singh for the Mgt. Shri Parey Lal
        Srivastava for workman. The management has filed a
        photo copies of the settlement of the receipt of the amount
        paid to the workman. Statement to be recorded.
            Statement of Sh. Parey Lal Srivastava, A.R. of the
        workman.
            The workman has settled his case with the
        management in full and final settlement. Now nothing is
        left to adjudicate in this case. The case be dismissed as
        satisfied.
        RO AC.                                Sd/-
                                              L.C.II
            In view of the above statement of representative of the
        workman the case is dismissed as settled.            File be
        consigned to record room.
                                              Sd/-
                                              POLC-II
                                              22.4.93."

5.   It appears that the workman had filed another case and this was

pursued by him and Award passed by the presiding officer Labour

WPC 3594/1996                                                  Page 2 of 5
 Court ordering reinstatement of the workman with back wages. The

Award dated 1.8.1994 does not take note of the aforesaid order dated

22.4.1993 which records that the workman has entered into a full and

final settlement with the management and nothing remained to be

adjudicated as the case had been satisfied.

6.   The case of the petitioner further is that it received another

notice from the Labour Court in case No. 429/1992 where it was told to

him by the authorized representatives of the workman that in view of

the settlement, the case would be withdrawn and thereafter no one

appeared for the petitioner in the case. On 2.9.1996, a person from

the Collectors Office, Recovery Cell, left a message asking the

petitioner to deposit a sum of Rs.40,120/-.   The petitioner thereafter

inspected the court file and found that the second case was not

withdrawn by the authorized representative of the workman and an

exparte order was thereafter passed overlooking the previous order

dated 22.4.1993.

7.   The petitioner has also stated in the petition that inspection of

the file of the court shows that the there is a difference in the

signatures of the workman as the signatures of the workman on the

statement of the claim in the second case are entirely different from

those of the affidavit by way of evidence.

8.   The first issue to be decided by this court is whether the

application under Order 9 rule 13 has been rightly dismissed by the

order dated 13.9.1996 holding the court had no jurisdiction. This issue

WPC 3594/1996                                                  Page 3 of 5
 is no longer res integra and the Supreme Court in the case of Anil

Sood Vs. Presiding Officer Labour Court 2001 (10) SCC 534 has

held that the Industrial Tribunal/Labour Court has jurisdiction to decide

an application under Order 9 Rule 13 CPC and it cannot be said that the

Industrial Tribunal /Labour Court has no jurisdiction after 30 days of

publication of the Award on the ground that it is functus officio. The

decision in the case of Anil Sood (supra) has also been confirmed in

the cases of Radha Krishna Mani Tripathi Vs. L.H.Patel and

Anr.(2009) 2 SCC 81 and Kendriya Vidhyalaya Sangathan Vs.

R.V.Palde & others (2008) 17 SCC 683.            It is quite clear there

therefore that the order dated 13.9.1996 dismissing the application

under Order 9 Rule 13 CPC which was moved within 30 days from the

date of the knowledge of the award has been wrongly dismissed on the

ground that the Labour Court had no jurisdiction.

9.   Ordinarily, I would have remanded the case back to the Labour

Court for a fresh decision on merits, however, I find that the present is

a fit case for exercising jurisdiction under Article 226 and 227 of the

Constitution of India on account of fraud having been played by the

respondent no.1 workman on the petitioner. The fraud is an ex facie

fraud because in one case namely LCA 615/1992, it was clearly

recorded that the workman has settled his case with the management

in full and final settlement and therefore there is nothing left to

adjudicate in the case which was dismissed as satisfied.      In spite of

this, the respondent no.1 pursued another case and in which ex parte

WPC 3594/1996                                                   Page 4 of 5
 Award was passed on 1.8.1994. This clearly amounts to abuse of the

process of law and overreaching the court. An act of fraud can create

no rights. A fraud vitiates everything and Award on the basis of the

same is nullity-vide Section 44 of The Evidence Act, 1872. No rights are

therefore created in favour of respondent no.1 workman by virtue of

the Award dated 1.8.1994 in view of the settlement between the

parties already recorded on 22.4.1993 in LCA 615/1992.

10.   I have already noticed that no one appeared for the respondent

no.1 workman after this petition was admitted and the respondent no.1

had to be thereafter served by publication.

11.   In view of the aforesaid, I accept the petition on account of

illegality in dismissing the application under Order 9 Rule 13 CPC and

also the ex facie perversity and fraud as played by the respondent no.1

upon the petitioner in seeking an Award in spite of full and final

settlement amount which he received at the time of his resignation and

also so duly confirmed once again in LCA 615/1992 on 22.4.1993.

12.   The petition is therefore accepted and the Award dated 1.8.1994

is therefore set aside leaving the parties to bear their own costs.

      The petition stands disposed of accordingly.




                                               VALMIKI J. MEHTA, J.

OCTOBER 25, 2010 ib