Tushar Enterprises vs Kamlesh Singh & Anr
2011 Latest Caselaw 1919 Del

                                                         UNREPORTABLE


*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                               WP (C) No.5610/2007


                                          Reserved on: March 17, 2011
                                          Date of Decision: April 01, 2011


         TUSHAR ENTERPRISES                     ..... Petitioner
                       through Mr. D.D.Saigal, petitioner in person.

                      versus


         KAMLESH SINGH & ANR                         ..... Respondents
                       through None

         CORAM:
         HON'BLE MISS JUSTICE REKHA SHARMA

1.       Whether the 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 in the „Digest‟? No

REKHA SHARMA, J.

The petitioner is the sole proprietor of M/s Tushar Enterprises.

He says that he started his business in the year 1998 on a small scale.

The business pertained to supply of mineral water to various parties in

Delhi. The manufacturing process was done by a firm which was

working under the trading style of "Freedom" and the petitioner was

the supplier of that mineral water for which he used to get commission

of ` 10/- per bottle. He had employed respondent No.1 for a certain

period for the delivery of bottles to his customers on a salary of

` 2,000/- per month. However, he suffered persistent losses in the

WP (C) No.5610/2007 Page 1 business and hence, he closed down the same in the year 1999.

Consequently, he dispensed with the services of respondent No.1.

Consequent upon the termination of service of respondent No.1,

he raised an industrial dispute which was referred to the Labour Court

with the following terms of reference:-

"Whether the services of Sh. Kamlesh Singh 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?"

The Labour Court issued summons to the petitioner which were

returned with the remark that the management refused to receive the

same. Acting upon the said report of the process-server, the

Labour Court proceeded ex-parte against the petitioner and proceeded

to record the evidence of respondent No.1 who examined himself and

also filed his affidavit along with documents. Relying upon the affidavit

and the documents which owing to the absence of the petitioner

remained unchallenged, the Labour Court passed an award dated

April 01, 2003 in favour of respondent No.1 holding that he was

entitled to reinstatement with full back-wages.

The petitioner has impugned the award on the sole ground that

he was never served with the summons and that the Labour Court

wrongly relied upon the report of the process-server that the

management refused to receive the summons. It is stated that the

report of the process-server is cryptic. It does not disclose, to whom in

the so-called management, the summons were sought to be served

and what was his identity. The report also does not indicate, whether

any attempt was made by the process-server to serve the summons

before any witness.

WP (C) No.5610/2007 Page 2 On a perusal of the report of the process-server, I feel that the

submission of the petitioner, who has appeared before me in person, is

not without merit. The report does not inspire confidence. As rightly

pointed out by the petitioner, it does not indicate to whom the

summons were sought to be served and who was that person who

refused to receive the said summons. It appears from the address on

the summons that the so-called management was located in the

Industrial Area and, therefore, if the process-server had really gone to

serve the petitioner at the said address, it would not have been

difficult for him to find a witness to the refusal but the report does not

indicate that any such effort was made by the process-server. In my

view, the Labour Court ought not to have believed such a report and

should have made another attempt to serve the petitioner.

For what has been noticed above, I set-aside the award dated

April 01, 2003 and remand the case back to the Labour Court to

proceed with the matter afresh after ensuring that both the petitioner

and respondent No.1 are duly served. The parties shall appear before

the concerned Labour Court on April 20, 2011.

The petitioner pursuant to an order passed by this Court on

August 10, 2007 had deposited 50% of the awarded amount in this

Court. The Registrar General is directed to refund the said amount to

the petitioner.

The writ-petition is disposed of.

REKHA SHARMA, J.

APRIL 01, 2011
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WP (C) No.5610/2007                                                  Page 3