Delhi High Court
Vinod Kumar Aggarwal vs Poonam Mishra on 21 October, 2019
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision :- 21.10.2019
+ W.P.(C) 2620/2016
VINOD KUMAR AGGARWAL ..... Petitioner
Through: Ms.Tanisha Setia, Adv.
Versus
POONAM MISHRA .... Respondent
Through: none.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. None appears for the respondent despite passover. In these
circumstances, the petition is taken up for final hearing.
2. The present writ petition filed by one of the partners of the erstwhile
M/s. G.S. Apparels (hereinafter referred to as 'the Employer') assails
the Award dated 24.11.2014 passed by the learned Labour Court-
XIX, Karkardooma Courts, Delhi in LIR No.876/11. Under the
impugned Award the learned Labour Court has, after holding that the
respondent's termination from service was in violation of Section 25F
of the Industrial Disputes Act, 1947 ('the Act' for short), directed the
Employer to pay her a lump sum compensation of Rs.40,000/-.
3. Claiming to have been appointed as a Thread Cutter with the
Employer in January, 2007, the respondent/workman complaining of
WP (C) No.2620/2016 Page 1 of 4
having been illegally terminated, raised an industrial dispute on
26.03.2009 challenging her termination from service. Upon a
reference being made, the respondent on 22.02.2010 filed her
statement of claim before the Labour Court, in response whereto the
Employer, on 24.09.2010, filed its written statement. The primary
stand taken by the Employer was that the respondent had not
completed 240 days of service and, therefore, she could not be stated
to be in continuous service in terms of Section 25B of the Act. It was
further claimed that as the respondent had left the services of the
Employer of her own accord, the industrial dispute itself was not
maintainable. It appears that after filing the written statement, the
Employer remained unrepresented before the learned Labour Court
and, therefore, the Court by relying on the unrebutted testimony of the
respondent, allowed her claim and directed the Employer to pay her a
lump sum compensation of Rs.40,000/-.
4. Assailing this Award, the present petition has been filed by one of the
partners of the Employer.
5. Learned counsel for the petitioner submits that the Employer, which
was a partnership firm, itself stood dissolved on 31.08.2010 and the
Award came to be passed against the said firm on 24.11.2014, on
which date it already stood dissolved and the Award, therefore, was
not sustainable. She submits that it is only because of the dissolution
of the firm that the Employer remained unrepresented before the
Labour Court leading to the ex-parte Award. She contends that even if
the Employer remained unrepresented, the learned Labour Court
could not have ignored the Employer's assertion that the workman
WP (C) No.2620/2016 Page 2 of 4
had not been in employment for more than 240 days and was,
therefore, not entitled to any benefit under the Act. By placing
reliance on the decision of the Supreme Court in C.N. Ramappa
Gowda vs C.C. Chandergowda (dead) by LRs. & Anr., AIR 2012 SC
2528, she contends that even in the Employer's absence, the Labour
Court could not have passed an Award in such a mechanical manner
without determining as to whether the workman had discharged the
onus to prove that she had worked for more than 240 days. She,
therefore, prays that the writ petition be allowed.
6. I have considered the submissions of the learned counsel for the
petitioner and with her assistance perused the record.
7. In the light of the admitted position that despite the respondent's
categorical assertion, both in her claim statement and in her evidence,
that she had worked with the Employer for more than 240 days, the
Employer failed to produce the relevant records which were in its
exclusive possession to rebut her assertion. In these circumstances,
the trial Court was justified in drawing an adverse inference against
the Employer and relying on the respondent's unrebutted testimony to
hold that she had been able to establish that she had rendered her
services to the Employer for more than 240 days. In exercise of my
writ jurisdiction, I see no reason to interfere with this finding of fact
by the Labour Court, which is based on an appreciation of the
evidence led before it by the respondent.
8. The petitioner has sought to explain the absence of the Employer
before the Labour Court by contending that the firm already stood
dissolved on 31.08.2010. However, a perusal of the written statement
WP (C) No.2620/2016 Page 3 of 4
filed by the Employer on 24.09.2010 shows that no such plea was
taken by it before the Labour Court. In these circumstances, this plea
taken by the petitioner cannot be accepted at this stage. Even
otherwise, notwithstanding the petitioner's assertion that the
partnership firm stood dissolved, the onus of discharging the
liabilities of the partnership firm rested on its partners. It was,
therefore, incumbent upon the partners of the erstwhile firm,
including the petitioner, to defend the proceedings pending before the
Labour Court, which it failed to do. I, therefore, see no reason to
interfere with the well-reasoned Award passed by the learned Labour
Court
9. The petition, being meritless, is dismissed along with the pending
applications.
10. In view of the writ petition being dismissed, the Registry is directed to
release the amount deposited by the petitioner in favour of the
respondent with the interest accrued thereon.
REKHA PALLI, J.
OCTOBER 21, 2019
gm
