Delhi High Court
M/S Nabi Rasool @ Hafiz Ji Bindi ... vs Gnct Of Delhi And Anr. on 19 December, 2011
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 2866/2011
+ Date of Decision: 19th December, 2011
# M/S NABI RASOOL @
HAFIZ JI BINDI WALE ....Petitioner
! Through: Mr. Kumar Sushobhan, Advocate
Versus
$ GNCT OF DELHI AND ANR. .....Respondents
Through: Mr. H.S. Sachdeva, Adv. for R-1
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner-management, a proprietor firm of Nabi Rasool, is
aggrieved by the award dated 30th August, 2008 passed by the learned
Labour Court whereby the termination of services of the respondent
no. 2-workman by the petitioner-management has been held to be
illegal and he has been directed to be reinstated in service with
continuity but with payment of only 25% of the back wages.
2. The respondent no.2-workman was employed with the
petitioner as a karigar from 1st May, 2000 and as per his case his
services were terminated by the petitioner-management on 2nd May,
2004, which action of the petitioner-management was claimed by him
to be illegal and unjustified. So, he approached the Labour Court
directly by filing a claim statement under Section 10(4A) of the
Industrial Disputes Act. The petitioner-management had contested the
claim of the respondent no. 2-workman by filing its written statement
on 9th December, 2005 in which it denied the very relationship of
employer-employee with the respondent no.2. The pleadings of the
parties had led to the framing of the following issues by the Labour
Court for trial:
1. Whether there existed any relationship of employer
and employee between the parties?
2. Whether the respondent is not running an industry
within the ambit of I.D. Act?
3. Whether the services of the workman were
terminated illegally and/or unjustifiably by the
management w.e.f. 2.5.2004?
4. Relief.
3. Thereafter, respondent no. 2-workman had submitted his
affidavit before the Labour Court to be read as his examination-in-
chief but he was not cross-examined on behalf of the management as
its authorized representative had stopped appearing in the matter and
consequently the management was proceeded against ex-parte on 15th
January, 2008. The workman's evidence thus remained unchallenged
and there being no evidence in rebuttal of the petitioner-management
the learned Labour Court accepted the workman's claim that he was
employed with the petitioner-management and that his services had
been illegally terminated and consequently vide impugned award
dated 30th August, 2008 ordered his reinstatement in service.
4. The petitioner-management moved an application sometime in
February, 2010 for setting aside the ex-parte award but the same was
rejected since by the time it came to be filed the award had been
published and became enforceable. While rejecting that application
the Labour Court had relied upon the judgment of the Supreme Court
in "M/s Sangham Tape Company Vs. Hans Raj", 2004 Labour Law
Reporter 1098 in which it was held that after the expiry of period of
thirty days from the date of publication of the award the Labour Court
becomes functus officio and so cannot entertain an application under
Order IX Rule 13 of the Code of Civil Procedure.
5. In the present writ petition, it is stated that after the written
statement had been filed on behalf of the petitioner-management
before the Labour Court the father of the proprietor expired at his
native place in Balia District (U.P.) and so the proprietor Nabi Rasool
had to go there. Nabi Rasool himself also fell sick there and so he had
to remain there. On coming back to Delhi Nabi Rasool contacted his
counsel but he did not give any proper information about the case and
so another counsel was engaged who then came to know about the
passing of the ex-parte impugned award.
6. I do not consider the reason given by the petitioner-management
for not contesting its case before the Labour Court to be sufficient
justifying setting aside of the award which the respondent no. 2-
workman had got in his favour. As noticed already, the petitioner-
management has simply pleaded that after the filing of written
statement on 9th December, 2005 the proprietor Nabi Rasool had to go
to his native place due to the death of his father there and he had to
remain there for quite some time. However, no details were given as to
when Nabi Rasool went there and when he came back to Delhi and
why he could not remain in touch with his counsel for about three
years. Nabi Rasool not contacting his counsel for about three years
shows gross negligence on his part and so I am not inclined to set
aside the impugned award. Since there was no evidence adduced by
the petitioner-management before the Labour Court in support of its
case that there was no employer-employee relationship between the
parties the learned Labour Court was fully justified in passing the
impugned award in favour of the respondent no. 2-workman. This writ
petition being devoid of any merit is dismissed.
P.K. BHASIN, J
DECEMBER 19, 2011/pg
