M/S Crown Wheels (P) Ltd. vs The Presiding Officer, Labour ...
2011 Latest Caselaw 2798 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 25th May, 2011
+                                  W.P.(C) 1175/1996

         M/S CROWN WHEELS (P) LTD.               ..... Petitioner
                     Through: Mr. Ashutosh Dubey with Mr.
                               Rakesh Bhatnagar & Mr. L.K.
                               Sharma, Advocates
                                   Versus
         THE PRESIDING OFFICER, LABOUR
         COURT-I & ANR.                         ..... Respondents
                      Through: Mr. Saurabh Munjal, Advocate
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 writ petition was filed impugning the ex parte award dated 13th

December, 1994 of the Industrial Adjudicator directing the petitioner to

reinstate the respondent No.2 workman Sh. Birj Bihari with full back

wages and continuity of service. Notice of the writ petition was issued and

recovery pursuant to the award stayed. The respondent No.2 workman was

served with the notice of the petition only for 20th April, 2000 and filed

counter affidavit. The petitioner took several opportunities for filing

rejoinder and ultimately the writ petition was dismissed in default on 6 th

February, 2001.

2. After nearly nine years and to be precise after delay of 3350 days,

CM No.6975/2010 for restoration, CM No.6977/2010 for restoration of

stay and CM No.6978/2010 for condonation of delay were filed; the same

came up before this Court first on 20th May, 2010. Notice of the said

applications was issued subject to the petitioner depositing `1,50,000/- in

the Court by 30th May, 2010 and another sum of `1,50,000/- within six

weeks and the interim stay earlier in operation was restored. However,

even the sum of `1,50,000/- was not deposited by 30th May, 2010 as

directed and CM No.7754/2010 for extension of time was filed and which

was allowed on 4th June, 2010. The petitioner also did not deposit the sum

of `1,50,000/- directed to be deposited within six weeks and CM

No.9953/2010 was filed for modification of the order dated 20th May, 2010

(supra). The said application came up before this Court on 29 th July, 2010

when only extension of two weeks was granted to make the said deposit.

The amount was still not deposited and on 23rd September, 2010 assurance

was given to deposit the said amount within one week. The amount was

still not deposited and adjournments were sought by the petitioner for

arguing the applications. On 26th April, 2011 when also adjournment was

sought, the same was granted subject to payment of cost of `10,000/-. The

cost was not paid and another application was filed for recalling the cost

and which application was dismissed. Today the cost has been paid in

Court and the counsels have been heard on the applications.

3. The reasons given in the application for restoration of the writ

petition and for condonation of 3350 days in applying therefor are that

though the counsel engaged by the petitioner tried to contact the petitioner

on telephone but owing to the telephone numbers having changed and the

establishment of the petitioner having also closed down, was unable to;

that owing to financial crisis, no business activities were being carried on

by the petitioner since the year 2000; that only when in execution /

implementation of the award, a recovery certificate for `2,99,797/- was

issued in the name of Mr. Dev Arora being one of the Directors of the

petitioner did the petitioner learn of the dismissal of the writ petition as far

back as on 6th February, 2001.

4. It is also contended in the applications that the respondent No.2

workman is gainfully employed with M/s Bharat Litho, Najafgarh Road,

New Delhi where his date of appointment is shown as 1 st July, 1985. It is

contended that the respondent No.2 workman in his claim statement before

the Industrial Adjudicator showed his date of termination by the petitioner

to be 14th July, 1985. It is thus contended that the respondent No.2

workman filed a false affidavit before the Industrial Adjudicator.

5. The respondent No.2 workman has filed replies opposing the

applications. It is contended that the petitioner employer has tried every

trick to deny relief to the respondent No.2 workman as is evident from the

fact that the award dated 13th December, 1994 remains unexecuted even

after more than sixteen years. It is further contended that the reasons given

in the applications for restoration of the writ petition and for condonation

of 3350 days delay are vague; no particulars of the old and new telephone

numbers are stated, no proof of financial crisis or closure of business has

been filed; that there was no reason for the petitioner not contacting the

advocate engaged. The respondent No.2 workman has also denied the plea

that he is employed elsewhere as alleged by the petitioner.

6. The emphasis of the counsel for the petitioner applicant during the

hearing also is on the factum of the respondent No.2 workman having filed

a false affidavit before the Industrial Adjudicator and being employed

elsewhere with effect from 1st July, 1985. It is contended that the said fact

shows that the respondent No.2 workman had on his own left the

employment of the petitioner and was not terminated. The petitioner

applicant though has not filed any document in support of the above, has

however, given particulars of the Provident Fund Number of the

respondent No.2 workman with M/s Bharat Litho aforesaid.

7. There is however no explanation whatsoever by the petitioner as to

why the petitioner did not contact its advocate for the long span of nine

years during which time the petition remained dismissed in default. It is

not as if the writ petition had been admitted for hearing to be listed in the

category of "regulars", for the petitioner to lose contact with the advocate.

The petition, when it was dismissed in default was being listed for filing of

rejoinder by the petitioner to the counter affidavit of the respondent No.2

workman. There is no explanation whatsoever as to why the petitioner did

not contact its advocate for preparation of the rejoinder. Even the ex parte

interim order of stay of operation of the award obtained by the petitioner

had not been confirmed till then. In these circumstances, the plea of the

petitioner that its advocate inspite of efforts could not contact, cannot be

said to be constituting sufficient cause for non appearance on 6 th February,

2001 when the writ petition was dismissed in default. Significantly, the

petitioner has not stated that there was any change of address. Though

there is no proof of change of telephone numbers, even if the same were to

be believed, an advocate in the ordinary course would write a letter to the

client asking the client to get in touch. Even if the advocate for the

petitioner was not able to contact the petitioner telephonically, he could

have very well mentioned so before the Court and sought adjournment on

the said ground. The petitioner has not averred that any attempt was made

to contact the same advocate when it learnt of dismissal of the writ

petition.

8. I am of the view that if such neglect and callousness is condoned,

there would never be any finality of decisions and the litigants / legal

practitioners would not bother to pursue the cases resting in the belief that

the same will be restored on mere lip service. The petitioner is found

guilty of gross neglect and callousness not capable of condonation.

9. As far as the ground taken by the petitioner of the employment of

the respondent No.2 workman elsewhere is concerned, in the face of the

denial of the respondent No.2 workman, this Court cannot commence an

inquiry in that regard. This writ petition was concerned only with judicial

review of the award of the Industrial Adjudicator and if the petitioner has

any grievance of the respondent No.2 workman having filed a false

affidavit, the petitioner is free to ventilate the same by taking appropriate

proceedings against the respondent No.2 workman for filing a false

affidavit. However, the same cannot be relevant for condoning the gross

neglect and callousness aforesaid of the petitioner.

10. To satisfy the judicial conscience, I have also considered the matter

on merits. As aforesaid, the award impugned is ex parte. The petitioner

filed an application before the Industrial Adjudicator for setting aside of

the ex parte award. The same was dismissed vide order dated 28th

November, 1995 also impugned in this writ petition. A perusal thereof

shows that the petitioner did not controvert service of notice of the

proceedings before the Industrial Adjudicator. The reason given for being

proceeded against ex parte was that the authorized representative of the

petitioner had left the employment. The Industrial Adjudicator also found

that there was no explanation for the petitioner sleeping over the matter for

two years without any inquiry from its authorized representative especially

when the application was filed through the same authorized representative.

The same would show that the petitioner was guilty before the Industrial

Adjudicator also of the same lapses as before this Court. The petitioner

does not appear to have learnt its lesson and the only conclusion therefrom

is that the petitioner is only interested in delaying the matter. As aforesaid,

the petitioner took nearly four years in serving the respondent No.2

workman with the notice of the writ petition.

11. Even otherwise, the plea of the petitioner in the writ petition is that it

was the respondent No.2 workman who had left the employment of the

petitioner. It is not the case of the petitioner that the petitioner conducted

any inquiry into such abandonment of employment by the respondent No.2

workman. It is settled position in law that abandonment of employment is

a misconduct and to be actionable requires an inquiry to be held. Reference

in this regard may be made to Anil Chuttani Vs. ONGC 2010 (117) DRJ

433. Admittedly, no such inquiry was held by the petitioner. Thus the

plea of the petitioner of abandonment of employment by the respondent

No.2 workman is even otherwise unacceptable.

12. Else, no error is found in the order of the Industrial Adjudicator

proceeding ex parte against the petitioner and / or in dismissing the

application of the petitioner for setting aside of the ex parte award.

13. There is thus no merit in the applications for condonation of delay of

3350 days in applying for restoration of the writ petition or in the

application for restoration of the writ petition or even in the writ petition.

14. However, since the award was for reinstatement also, it was put to

the counsel for the respondent No.2 workman, whether the respondent

No.2 workman would accept the amounts got deposited from the petitioner

in this Court together with interest accrued thereon in full and final

settlement of the award. The counsel for the respondent No.2 workman,

without prejudice to the rights and contentions of the respondent No.2

workman and for the sake of settlement, has agreed to the said proposal. I

am of the opinion that it would be just and equitable to dispose of the writ

petition by providing that the said amount of `3,00,000/- with interest shall

be received by the respondent No.2 workman in full and final settlement.

This is more so because, even if the delay in applying for restoration of the

writ petition is condoned and the writ petition is restored to its original

position, the award under challenge being for reinstatement, the respondent

No.2 workman may be entitled to wages under Section 17B of the

Industrial Disputes Act, 1947 and which wages alone may be in excess of

the said sum of `3,00,000/-.

15. Accordingly, while dismissing the writ petition and the applications,

it is directed:

(i) That the amount of `3,00,000/- deposited by the petitioner in

this Court together with interest accrued thereon be released in

favour of the respondent No.2 workman.

(ii) Upon receipt of the aforesaid amount, the respondent No.2

workman would be left with no other claim whatsoever

against the petitioner. However, if the petitioner chooses to

pursue its remedies against this judgment / order, the

respondent No.2 workman shall not be bound by the statement

aforesaid of its counsel and would be free to seek enforcement

and implementation of the award in toto.

RAJIV SAHAI ENDLAW (JUDGE) MAY 25, 2011 „gsr‟..

(corrected & released on 10th June, 2011)