M/S. Panorama Exports Pvt. Ltd. vs Nandu Bhardwaj And Ors.
2014 Latest Caselaw 5970 Del

$~R84

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment delivered on: 19th November, 2014


+       W.P.(C) 1577/2013
M/S. PANORAMA EXPORTS PVT. LTD.                   ..... Petitioner
                  Represented by: Mr. A.K. Singla, Sr. Adv.
                  with Mr. Deepak R.Dahiya, Adv.
             Versus
NANDU BHARDWAJ AND ORS.                     ..... Respondents
                  Represented by: Mr. Yogesh Saini, Amicus
                  Curiae.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide present petition, the petitioner seeks directions for setting aside the orders dated 31.05.2008, whereby the petitioner Management was proceeded ex-parte; accordingly award dated 29.09.2009 passed by the Labour Court in ID No. 138/2007.

2. Also seeks directions for initiating proceedings against respondent nos. 1 to 4, for the abuse of procedure.

3. Perusal of the order sheets reveal that notice in the instant petition was issued vide order dated 08.03.2013. Since the petitioner failed to serve the respondent nos. 1 to 4 by ordinary process, they filed CM. No. 15526/2013 seeking substituted service. Same was allowed vide order dated 19.11.2013. Accordingly, respondent nos. 1 to 4 /

workmen have been served through substituted service. Despite, appeared none on their behalf.

4. Mr. Yogesh Saini, Advocate who is present in the Court has been requested to appear as an Amicus in the present petition and argue the case on behalf of the respondents / workmen. The case file is given to him for his perusal and thereafter the matter is taken up for hearing.

5. Mr. A.K. Singla, ld. Sr. Counsel appearing on behalf of the petitioner submits that as per the muster roll Annexure-B, all the respondents were employed with the petitioner up to 16.08.2005 and thereafter they abandoned their services. However, they settled their dispute on 14.09.2005 by receiving their salary, ex-gratia and bonus amount. The details of the same are at pages 52 - 66 of the instant petition.

6. Ld. Sr. Counsel further submits that respondent no. 1 was appointed on 01.09.2004, respondent no. 2 on 01.10.2004, respondent no. 3 on 31.12.2004 and respondent no. 4 on 02.05.2005. The aforesaid respondents stopped coming since 16.08.2005 and thereafter on 14.09.2005, the said respondents settled all their dues with the petitioner, however, they approached the Conciliation Officer by giving wrong address of the petitioner Establishment as B-146, Okhla Industrial Area, Phase-I, New Delhi. The petitioner never received any intimation of the conciliation proceedings. Since the conciliation proceedings fails, the Government sent a reference vide order dated

31.05.2007 to the Labour Court for adjudicating the claim of the respondents.

7. Mr. Singla, further submits that the petitioner / establishment was running at B-188, Okhla Industrial Area, Phase-I, New Delhi and its registered Office is at Gurgaon, Haryana. However, on both the addresses, the petitioner has never been served.

8. Mr. Singla has drawn the attention of this Court to the report of the process server, who visited the alleged Office of the petitioner / establishment at B-146, Okhla Exports Pvt. Ltd. New Delhi - 20 on 08.02.2008 and the report is as under:

"Sentinels Security present on the spot told his name as Ajay Singh. He told that the Head Office of Panorama Exports is in Gurgaon. The labour of the Contractor works here. The summon will be received in Gurgaon. Told verbally. The report is submitted."

9. Ld. Sr. Counsel submits that since the report has not been accepted by the Tribunal, the service was again affected at the same address on 22.04.2008. The report of the process server to this effect is as under:

"I visited the place of M/s Panorama Exports Pvt. Ltd. A person present there after reading the summons refused to receive it. He has not told his name even."

10. Mr. Singla, ld. Sr. Counsel submits that the Labour Court did not accept the first report, however, accepted the report of subsequent service alleged to have been affected upon the petitioner at the same address as was allegedly served on 08.02.2008.

11. Accordingly, the petitioner was proceeded ex-parte vide order dated 31.05.2008 and thereafter award was passed on 29.09.2009, whereby the respondents / workmen were directed to be reinstated in service with 40% back wages.

12. Ld. Sr. Counsel submits that the petitioner came to know about the award dated 29.09.2009 from the Court, however, the respondents / workmen filed execution petition by mentioning the address of the petitioner as B-188, Okhla Industrial Area, Phase-1, New Delhi. Accordingly, the petitioner appeared before the executing Court and apprised the facts narrated above. However, having no option, the petitioner filed the present petition.

13. On the other hand, Mr. Yogesh Saini, ld. Amicus appearing on behalf of the respondent nos. 1 to 4 / workmen after going through the record produced by the petitioner submits that it is not established whether the petitioner / establishment was running at B-146, Okhla Industrial Area, Phase-I, New Delhi or at B-188, Okhla Industrial Area, Phase-1, New Delhi. However, this issue can be settled only by leading the evidence before the ld. Tribunal.

14. The fact remains that till date, after issuing the notice and after affecting substituted service upon the respondents, appeared none on their behalf. Moreover, the respondents have not pursued their case to get the award dated 29.09.2009 executed which has been passed in their favour.

15. Moreover, as stated by Mr. Singla, ld. Sr. Counsel at bar that the respondents never approached the petitioner / Establishment to join the service after passing the award.

16. Keeping in view the facts recorded above and submission of ld. Sr. Counsel for the petitioner, I am of the prima facie view that the petitioner did not receive notice of the proceedings before the Conciliation Officer or the proceedings before the Labour Court.

17. In view of above, ex-parte award dated 29.09.2009 is hereby set aside. Respondent nos. 1 to 4 / workmen are at liberty to approach the concerned Labour Court / Industrial Tribunal after serving advance notice upon the petitioner at B-188, Okhla, Industrial Area, Phase-I, New Delhi or at Z-1, Palam Vihar, Gurgaon, Haryana.

18. Accordingly, the petition is allowed with no order as to costs.

19. I note, vide order dated 08.03.2013, operation of the impugned award dated 29.09.2009 was directed to be stayed subject to petitioner's depositing 50% of the award amount in this Court.

20. Since the award dated 29.09.2009 has been set aside, the Registrar General of this Court is directed to release the amount in favour of the petitioner, which was deposited pursuant to order dated 08.03.2013 with interest accrued thereon on taking steps by the petitioner.

SURESH KAIT, J NOVEMBER 19, 2014 jg