Delhi High Court
M/S Explicit Leathers vs Arvind Kumar & Ors on 2 April, 2014
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on March 28, 2014
Judgment Delivered on April 02, 2014
+ W.P.(C) 1011/2014 & CM No. 2062/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
ARVIND KUMAR & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
+ W.P.(C) 1013/2014 & CM No. 2064/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
KARAN SINGH & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
+ W.P.(C) 1014/2014 & CM No. 2067/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
SURESH CHAND & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
Mr.Shoaib Haider, Advocate
for GNCTD
+ W.P.(C) 1015/2014 & CM No. 2069/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
W.P.(C) 1011,1013-20,1109-10 of 2014 Page 1 of 10
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
PRATAP SINGH & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
Ms.Raavi Birbal, Advocate
for R2
+ W.P.(C) 1016/2014 & CM No. 2071/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
ABDUL BARIK & ORS. ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
Mr.Jayendra, Advocate for
R2
+ W.P.(C) 1017/2014 & CM No. 2073/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
MOHD. ASHFAQ KHAN & ORS. ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
+ W.P.(C) 1018/2014 & CM No. 2075/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
MOHD. HANIF & ORS. ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
W.P.(C) 1011,1013-20,1109-10 of 2014 Page 2 of 10
+ W.P.(C) 1019/2014 & CM No. 2077/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
PHOOL BABU & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
Mr. Shoaib Haider, Advocate
for GNCTD
+ W.P.(C) 1020/2014 & CM No. 2079/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
LAL BAHADUR & ORS ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
+ W.P.(C) 1109/2014 & CM No. 2309/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
RAM PRAKASH & ORS. ..... Respondent
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocates for
R1
Mr.Shoaib Haider, Advocate
for GNCTD
+ W.P.(C) 1110/2014 & CM No. 2311/2014
M/S EXPLICIT LEATHERS ..... Petitioner
Through: Mr.Sandeep Bajaj,
Mr.Siddharth Jain,
Mr.Sameer Jain, Advocates
versus
SHARMA PRASAD & ORS ..... Respondent
W.P.(C) 1011,1013-20,1109-10 of 2014 Page 3 of 10
Through: Mr.Kartickay Mathur,
Mr.S.Gupta, Advocate for R1
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. Since these batch of 11 petitions arise from separate but identical
orders dated January 18, 2010, ex-parte awards dated January 23, 2010
given by the Labour Court No. V in DID Nos. 904, 894, 897, 896, 901,
891, 905, 903, 899, 895 of 2008 & 893 of 2007 filed by the respondent
No.1 in each of the writ petition (referred as 'claimants') before the
Labour Court alleging their termination by the petitioner without
complying the provisions of Section 25-F of the Industrial Disputes Act,
1947 (Act in short) whereby the Labour Court granted their
reinstatement with 50% back wages and also against orders dated March
23, 2013 on identical applications filed by the petitioner for setting aside
the ex parte awards, with the consent of the counsel for the parties, are
being disposed of together by this common order.
2. Suffice to state that pursuant to filing of claim petitions by the
claimants before the Labour Court and thereby raising industrial
disputes, written statements to the claim petitions were filed by the
petitioner wherein they have taken the following objections:
"(a) The workmen are not employees of the petitioner and
the complaint is motivated by malafide.
(b) The list of workmen, as was stated to have been
annexed in the complaint, has not been provided to the
petitioner.
(c) No notice has ever been received by the petitioner and
no inspection was ever conducted at the petitioner's
premises.
3. Based on the pleadings of the parties, issues were framed by the
Labour Court which are as under:
(a) Whether there exist any employee employer
relationship between workmen and management.
(b) Whether workmen were illegally terminated by the
management.
(c) Relief.
4. It is noted, after the framing of the issues, the petitioner was
proceeded ex-parte on January 18, 2010. Based on the affidavit filed by
the claimant, the Labour Court gave the award dated January 23, 2010.
5. The Labour Court relied upon the documents which were
exhibited as Ex.WW1/1 to Ex.WW1/6 and further observing that there is
nothing on record which shows the testimony of the respondent No.1 can
be disbelieved, granted reinstatement of respondent No.1 with 50% back
wages with continuity of service with the petitioner organization.
6. Pursuant to the awards, the petitioner filed applications for setting
aside of the ex-parte awards on February 07, 2011 in each of the
Industrial Dispute. In para Nos.4 to 7, the petitioner has averred as
under:
"4. That the Hon'ble Court proceeded the said case as ex-
parte against the Management as nobody appeared before
the Hon'ble Court for and on behalf of the Management.
5. That the Management came to know on 22.01.2011 only
that the Management have been proceeded as against ex-
parte.
6. That the Counsels were appointed and were authorized
to contest the said case, through Mr.S.Mitra, HR Manager
and neither Mr.S.Mitra nor their Counsels informed the
date to the Management.
7. That absence of the Management before the Hon'ble
Court was not intentional but due to unavoidable
circumstances. As the Management had no information
about the date fixed. The Management only came to know
on 22.01.2011 that the case is proceeded as against ex-
parte and ex-parte award against the Management has
been passed. When the Management received notice from
the Hon'ble Court which was for the next date of hearing
in application LCA No.102/10. The notice was received by
the Management only on 22.01.2011.
7. The applications were contested on behalf of the claimants. The
Labour Court while dismissing the applications was of the following
view:
"Ld. Counsel for the workman submitted that the ex-parte
award was in execution proceedings and a notice was
issued to the management from the SDM office and the
management had appeared there even, prior to
22.01.2011. It is observed that on 04.01.2012 permission
was sought by Ld. Counsel of the workman to file certified
copy of the relevant order sheet from the office of the SDM
to show that management was having knowledge that an
ex-parte award has been passed against it even prior to
22.01.2011 but the workman has not filed the certified
copy of the relevant record.
It is further observed that on 04.01.2012 itself direction
was given to the management to produce the original
notice which is stated to be received in LCA No.102/10 by
the management on 22.01.2011 to show that the
management came to know about the fact that matter has
been proceeded ex-parte against it, but the management
has also not complied the said direction. It is observed that
it was the duty of the management to prove the facts as
stated in the application. Since the management has failed
prove the fact that it came to the notice of the management
only on 22.01.2011 when the management received notice
in LCA No.102/11 therefore, it seems that it is not in the
interest of justice application filed by the management is
dismissed and disposed off accordingly.
8. Learned counsel for the petitioner would urge that the petitioner
did not have any information regarding the passing of the award because
of collusion of Mr.S.Mitra, Manager (HR) with the claimants. According
to the petitioner, Mr.S.Mitra had subsequently left the company without
any intimation. It is also alleged that the claimants deliberately did not
provide the correct address of the petitioner and in all probability it was
sent to the address mentioned which never belonged to the petitioner. It
is also the stand of the petitioner that the ex-parte awards came to the
notice of the petitioner only when notice in LCA No.102/10 was
received by the petitioner on January 22, 2011. He would state that the
claimants before the Labour Court had failed to discharge the onus of
proving the employer employee relationship between the petitioner and
themselves. He would further state that none of the notices sent by them
before they raised the industrial disputes were sent to the petitioner. He
has referred to pages 34 to 44 of the paper book. He relied upon the
judgment of the Supreme Court in the case reported as 2006 (1) SCC 106
R.M.Yellatti vs. Assistant Executive Engineer in support of his
contentions.
9. On the other hand, learned counsel for the claimants would urge
that the only ground urged by the petitioner in these petitions is totally a
false inasmuch as the petitioner had failed to produce the relevant notice
which is stated to have been received in LCA No.102/2010 on January
22, 2011. In other words, the very ground on which it had sought the
setting aside of the ex-parte award could not be proved and the Labour
Court had rightly rejected the application.
10. Having heard the learned counsel for the parties, insofar as the
submission of learned counsel for the petitioner that the petitioner went
unrepresented because of collusion between Mr.S.Mitra, the then
Manager (HR) of the petitioner organization with the claimants, I find,
no such averment made in the applications for setting aside the ex-parte
order, except stating "that the counsels were appointed and were
authorized to contest the said case through Mr.S.Mitra, Manager (HR)
and neither Mr.S.Mitra nor their counsels informed the date to the
management". The plea is clearly an afterthought and such a plea cannot
be accepted. Insofar as the contention that the petitioner came to know
about the passing of the ex parte award only when a notice in LCA No.
102/2010 was received by the petitioner on January 22, 2011 is
concerned, the same also could not be proved by the petitioner before the
Labour Court. The relevant observation of the Labour Court has already
been reproduced in para 7 above. This ground is not only an
afterthought but a false one. Lastly, on the plea that none of the
documents relied upon by the claimants in support of their case has been
addressed to the petitioner is concerned, I note that the communication
dated March 26, 2007 Annexure B at Page 35 was addressed to the
petitioner company at A-279, OIA (which meant Okhla Industrial Area),
Phase-I, New Delhi wherein the Union has complained to the petitioner
of the illegal termination of one of the claimants namely Mr. Arvind
Kumar w.e.f. March 26, 2007 and called upon the petitioner to reinstate
him with full back wages. It appears that no reply has been sent by the
petitioner to this notice given by the Union. Surely, if the petitioner
disputes the relationship of employer-employee between the claimants
and the petitioner, it should have replied to such a notice. In the absence
of any reply, surely, the contents have not been controverted. Be that as
it may, it is the case of the petitioner that no demand notice was sent by
the Union complaining the termination of the claimants and requesting
for their reinstatement, which is falsified. Insofar as the reliance on
behalf of the petitioner on the case of R.M.Yellatti (supra) is concerned,
the ratio of the said judgment is not applicable in the facts of this case for
the reason that in the present case, the claimants could able to discharge
the onus of proving the employer- employee relationship inasmuch they
have placed before the Labour Court the communications sent on their
behalf to the petitioner, complaining about the termination and
requesting the petitioner to reinstate the claimants. No other evidence
like appointment letters, wage register, being available with the
claimants the same could not be produced. There is some basis for the
Labour Court to arrive at the conclusion, which in this Court's view is
not, at least, a perverse finding.
11. In the last, the learned counsel for the petitioner has sought the
remand of the cases back to the Labour Court after setting the ex parte
awards, subject to such conditions this Court may impose. I may state
here that such a proposal was put to the learned counsel for claimants,
who, on instructions, has refused to accept.
12. In view of the above conclusion, I do not think that the petitioner
has made out any case for interference in the impugned awards. The writ
petitions are dismissed with no order as to costs.
CM Nos. 2062, 2064, 2067, 2069, 2071, 2073, 2075, 2077, 2079, 2309
& 2311 of 2014
In view of the dismissal of the writ petitions, the present
applications are also dismissed.
(V.KAMESWAR RAO)
JUDGE
APRIL 02, 2014
akb
