Indian Hydraulic Industries Pvt. ... vs Shyam Lal & Ors.
2010 Latest Caselaw 4224 Del

*      HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment delivered on: 13th September, 2010


+                    W.P.(C) 22474/2005

INDIAN HYDRAULIC INDUSTRIES PVT. LTD.     ..... Petitioner
                      Through:    Mr. P.K. Malik with Mr. M.P.
                                  Joshi, Advs.

                     versus

SHYAM LAL & ORS.                                  ..... Respondents
                           Through:      None


CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL


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

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in Digest?


Veena Birbal, J.

1. By way of present petition under Article 226 of the Constitution

of India, petitioner has prayed for quashing of impugned ex parte

award dated 14.08.2001 in I.D. No. 632/1999 as well as order dated

11.05.2005 by which learned Presiding Officer of Labour Court has

dismissed the application of petitioner/management for setting aside

of ex parte award.

2. The facts leading to the filing of present petition are as under:-

Respondent/workman had raised an industrial dispute about his

alleged illegal termination which was referred by the Secretary

(Labour) Government of NCT of Delhi to Labour Court vide reference

no. F.24(2792)/99 Lab. /37193-97 dated 09.09.1999 to Smt. Deepa

Sharma, Presiding Officer, Labour Court-V, Delhi for adjudication. On

21.09.1999, the said dispute was registered vide I.D. No. 632/1999 and

notice was issued to the parties. Petitioner has alleged that he was not

served with any notice/summons in the said case for appearance on

21.03.2000 or for any other date. It is stated that on 21.03.2000, the

Ld. Presiding Officer was on leave and the matter was adjourned to

26.04.2000 for further proceedings. On the said date, due to non-

appearance, petitioner/management was proceeded ex parte. The ex

parte evidence of the respondent/workman was recorded and on

14.08.2001, the impugned ex parte award was passed against the

petitioner/management. It is alleged that petitioner had no knowledge

of the entire proceedings. The said award was published on

15.06.2002. Thereafter, on 26.06.2002, respondent/workman made a

claim vide letter dated 26.06.2002 of ` 1,33,640.04 paise and

petitioner/management responded vide letter dated 27.07.2002 that

the same was not maintainable. It is stated that prior to above

reference, vide reference no. F.24(5866)/98-Lab./540-44 dated

06.01.1999, the Secretary (Labour) Government of NCT of Delhi had

referred the dispute about alleged illegal termination of respondent for

adjudication to the court of Sh. Mahavir Singhal, Presiding Officer,

Labour Court-VI, Delhi wherein petitioner did not appear and no

dispute award was passed in the matter on 26.11.1999. It is alleged

that the petitioner was under the impression that the matter has

already been disposed of. Thereafter, on enquiry it was revealed that

impugned ex parte award is made in another reference. It is alleged

that petitioner has concealed the fact of earlier reference and passing

of „no dispute‟ award therein from the Labour Court which passed the

impugned ex parte award in the present case.

Aggrieved with the impugned ex parte award dated 14.08.2001,

petitioner had earlier filed the petition for setting aside of ex parte

award by filing W.P.(C) No. 2389/2004 wherein the following order was

passed:-

"Learned counsel for the Petitioner says that his

client was not served in I.D. No. 632/99 and was, therefore, proceeded against ex parte. He further says that he could not move an application under Order 9 Rule 13 of the CPC since a recovery certificate had already been received by his client.

Learned counsel for the Petitioner says that he will move an application under Order 9 Rule 13 of the CPC within one month before the learned Labour Court to have the ex parte order and the ex parte Award passed in ID No. 632/00 set aside.

Learned counsel wants to withdraw this writ petition with liberty to move an application under Order 9 Rule 13 of the CPC. Leave and liberty granted.

Dismissed as withdrawn.

CM 2228/2004, CM 2229/2004 & CM 6395/2004 also stand disposed of."

It is stated that thereafter petitioner moved the Labour Court by

moving an application for setting aside of impugned ex parte award

dated 14.08.2001. However, the said application was dismissed by the

Presiding Officer, Labour Court vide impugned order dated 11.05.2005

on the ground that the application was moved after 30 days of

publication of the award as such the Labour Court had become functus

officio and as such dismissed the application.

3. Aggrieved with the same, the present petition is filed.

4. Notice of the petition was sent to respondent. Initially, counsel

for respondent no. 1 had appeared. However, at the time of

arguments, no one appeared to assist the court on behalf of

respondent no. 1. However, there is a counter affidavit of respondent

no. 1 wherein it is stated that the petitioner had earlier filed writ

petition being W.P.(C) No. 2389/2004.

5. Counsel for petitioner has contended that

petitioner/management was never served in the matter before the

Labour Court and an ex parte award has been passed without any

notice being served on petitioner as such same is liable to be set aside.

It is further contended that the impugned award is obtained by

respondent no. 1 by concealing material fact that there was earlier

reference also about the alleged illegal termination by appropriate

Government which was registered vide I.D. No. 44/1999 before the

Presiding Officer, Labour Court, Delhi wherein no dispute award was

passed as such respondent is not entitled for any relief.

6. I have heard the submissions made.

7. Perusal of trial court record shows that the terms of reference

made by Secretary (Labour) Government of NCT of Delhi about

referring the dispute to the Labour Court was registered before the

Labour Court on 21.09.1999 and notice was issued to both the parties

for 21.03.2000. On the said date, learned Presiding Officer of the

Labour Court was on leave and the reader of the court had adjourned

the matter for further proceedings on 26.04.2000 and on the said date,

it is noted that the petitioner/management is served for 21.03.2000. I

have perused the service report also.

The summons have been sent through ordinary process. The

signatures on the summons are not legible as to who had received the

same on behalf of the management. Even the process server has not

stated the name of the person whom he had been allegedly served i.e.

whether it was served on the responsible officer of the company or not.

Under these circumstances, the Labour Court ought not have accepted

the alleged service report of the process server of having served

petitioner/management for 21.03.2000. There is no clear service on

the petitioner/management. The Ld. Presiding Officer ought to have

issued fresh notice to respondent for the next date which has not been

done in the present case. Rather, the court has taken the

petitioner/management as having been served and proceeded ex parte

against it on 26.04.2000. The impugned ex parte award dated

14.08.2001 has been passed without respondent having been served

in the matter. Further, there is also a concealment of fact of earlier

reference to the Labour Court wherein no dispute award has been

passed in the matter. I, accordingly, set aside the impugned award

dated 14.08.2001 as well as order dated 11.05.2005. Petitioner will be

at liberty to raise maintainability of the second reference by taking a

preliminary objection in the written statement and the Labour Court

shall deal with the same in accordance with law.

The writ petition stands allowed.

Trial Court Record be sent back forthwith with copy of this order.

Parties to appear before the Labour Court on 20.09.2010.

VEENA BIRBAL, J SEPTEMBER 13th, 2010 kks