JUDGMENT
Hima Kohli, J.
1. The petitioner management has filed the present writ petition challenging the ex-parte award dated 17th November, 2004 passed by the Presiding Officer, Labour Court in ID No. 171/1997, whereunder the reference forwarded to the Labour Court was answered in favor of the respondent No. 2 workman (hereinafter referred to as `the workman’) and against the petitioner management and the petitioner management was directed to reinstate the workman with 75% back wages.
2. The facts of the case, as gleaned from the record are as follows. The case of the workman was that he was in the service of the petitioner management since 1986 as a Security Guard and his services were terminated illegally by the petitioner management on 19th June, 1996. As a result, he raised an industrial dispute. Vide order dated 17th January, 1997 the appropriate Government made a reference of the dispute to the Labour Court in the following terms:
Whether the service of Shri Man Raj Yadav have been terminated illegally and/or unjustifiably by the Management, and if so, to what relief is he entitled and what directions are necessary in the respect.
3. It is recorded in the impugned award that the petitioner management was called to appear but it did not appear despite service and as such was proceeded against ex-parte. Thereafter, the workman adduced evidence in support of his claim which in the absence of the petitioner management, remained unchallenged and unrebutted, leading to passing of the impugned award.
4. It is stated in the writ petition that the petitioner management had not terminated the services of the workman who was engaged by the petitioner management as a Security Guard in the year 1988. In fact, the workman had tendered his letter of resignation to the petitioner management on 19th June, 1996 on personal grounds, which was duly accepted and the workman was told to collect his final dues from the office of the petitioner management. As the workman did not collect his dues, a registered AD letter was sent by the petitioner to the workman calling upon him to collect his dues. However, the said letter was returned with the endorsement “refused”. Further attempts were made by the petitioner management to call the workman to collect his dues but to no avail. Counsel for the petitioner management stated that as a matter of fact, the workman had been running a Kiryana shop in his house, just adjacent to the establishment of the petitioner management and that the reason why the workman opted to resign was for doing his own business.
5. It was submitted by the counsel for the petitioner that the petitioner management received a copy of the impugned award dated 17th November, 2004 on 1st August, 2005 along with the publication report. Immediately thereafter, the petitioner management drafted an application on 5th August, 2005 for setting aside the ex-parte award. It was submitted that the said application was filed only on 12th August, 2005 along with a cheque of Rs. 10,000/- favoring the workman, as the petitioner management was orally advised to come prepared for paying the said amount, in case the said application was allowed. The application in question was therefore filed on 12th August, 2005 Along with a cheque of Rs. 10,000/- annexed with the said application, on which notice was issued to the workman. Vide order dated 19th October, 2005, the said application was rejected on the ground that once the award got published on 20th June, 2005, the Labour Court had become functus officio. Aggrieved by the aforesaid ex-parte award dated 17th November, 2004, the petitioner management has filed the present writ petition.
6. Counsel for the the petitioner management has placed on record a copy of the order sheet of the Labour Court to state that the petitioner management was proceeded against ex-parte on 1st May, 2001 on the basis of a manipulated service report obtained by the workman and that the fact of the matter is that the petitioner management was never served since the initials appearing on the AD card were not that of the petitioner management. He further stated that the petitioner management did not stand to gain by neglecting to contest the claim of the workman.
7. On merits, it was stated by the counsel for the petitioner that the petitioner management had ample evidence to prove that the workman had tendered his letter of resignation to the petitioner management in the year 1996, where after the workman was running a Kiryana shop adjacent to the establishment of the petitioner management and the refusal to set aside the ex-parte award would cause irreparable loss and injury to the petitioner management and would amount to ousting the case of the petitioner management on merits without even affording an opportunity of being heard.
8. On the other hand, counsel for the workman vehemently contested the claim of the petitioner management and submitted that the petitioner management having failed to take any steps whatsoever to enter appearance in the matter right from the beginning, and also having failed to prosecute its matter diligently, is not entitled to any relief in the writ petition. It was further stated that even otherwise the petition is not maintainable, as the Labour Court has rendered a categorical finding of fact in directing the petitioner management to reinstate the workman with continuity of service and 75% back wages and this Court ought not to interfere with the findings of facts arrived at by the Labour Court on mere grounds of technicality. It was also submitted that the Labour Court had issued notice to the petitioner management and that the process server did go to the office of the petitioner management where one of the officials of the petitioner management refused to receive the court summons. Thereafter, evidence of the process server was recorded to the said effect by the Labour Court and it was on account of the said conduct of the petitioner management that it was precluded from seeking setting aside of the ex-parte award.
9. On merits, it was submitted by the counsel for the respondent that the claim of the petitioner management to the effect that the workman had tendered his resignation, is wrong and in fact, the said resignation was obtained under duress and coercion from the workman, who subsequently made a complaint in this regard with the police station. The Kiryana shop referred to by the petitioner management was claimed to be run by the wife of the workman and not by the workman himself. Counsel for the workman relied upon the judgment of this Court in the case of Nai Dunia Urdu Weekly Newspaper v. Presiding Officer, Labour Court No. X, and Ors. reported as 2007 LLR 274, to state that mere denial of the signatures on the summons is not enough to rebut the presumption of proper service, particularly when all earlier notices were duly received by the petitioner.
10. I have heard the rival contention of the counsels for the parties. I have also perused the records, particularly the order sheet of the Labour Court in the context of the ex-parte award passed against the petitioner management.
11. A perusal of the order sheet of the Labour Court shows that when the reference was received by the Labour Court, notice was issued to the workman who filed his statement of claim on 4th August, 1997. Thereafter, notice was issued to the petitioner management for 13th January, 1998. As the notice was not received by the petitioner management on the said date, fresh notice was issued to the petitioner management for 24th July, 1998. On 24th July, 1998, the statement of the process server was recorded to the effect that when he approached the petitioner management for delivering the court summons, one Sh.B.P.Gupta informed him that the person named in the summons was not a worker with the petitioner management and due to the said fact they could not accept the court summons. After recording the statement of the process server, the Labour Court expressed its satisfaction that the petitioner management had been properly served and since none was present on its behalf, it was proceeded against ex-parte. Thereafter, the matter was adjourned to 15th January, 1999 for recording the ex-parte evidence. On 18th January, 2000, however, it came to the notice of the Labour court upon perusing the file that while the name of the workman was Man Raj Yadav, notice was issued to the petitioner management in the name of Raj Yadav. Under these circumstances, fresh notice was directed to be served to the petitioner management for 15th March, 2000. Vide order dated 1st May, 2001, it was recorded that though the petitioner management was served through registered AD, none appeared on its behalf and thus the petitioner management was proceeded against ex-parte.
12. A perusal of the aforesaid order sheet shows that the claim of the workman that the petitioner management was avoiding to receive the summons is belied as it has been recorded in the order sheet dated 18th January, 2000 that the summons were issued to the petitioner management in a wrong name and, therefore, the previous order dated 24th June, 1998 could not stand. The subsequent notice issued to the petitioner management by registered AD post has, however, been relied on to pass order dated 1st May 2001 whereby it was held that the petitioner management be proceeded against ex-parte.
13. A perusal of the order sheet also shows that even the workman was not vigilant in prosecuting his claim before the Labour Court. It is recorded by the Labour Court in the order dated 26th September, 2003 that the workman stopped contacting his counsel due to which the counsel sought discharge from the case. His request for being discharged was allowed by the Labour Court and notice was issued directly to the workman. Thereafter, four dates were taken by the workman to appear and file his affidavit by way of evidence which was done only on 21st July, 2004 i.e. after three years of the petitioner management being proceeded ex-parte. It can thus be seen that while the petitioner management was undoubtedly negligent in appearing before the Labour Court and in contesting the claim of the workman, the conduct of the workman is no better as he also seems to have taken the pending litigation very lightly and was quite lax in prosecuting his case. Even on merits, the petitioner management has made out a prima facie case which needs consideration and further examination by the Labour Court before arriving at any conclusion.
14. In this view of the matter, in the interest of justice, the writ petition is allowed and the ex-parte award dated 17th November, 2004 is set aside, subject to the petitioner management paying a sum of Rs. 10,000/- to the workman as costs within 3 weeks, and in any case on or before 11.4.2007, when the parties are directed to appear before the Labour Court. On the said date, the petitioner management shall file its written statement to the statement of claim filed by the respondent workman. No further opportunity shall be granted to the petitioner management for this purpose. Keeping in view the fact that the reference was made by the appropriate authority in the year 1997, the Labour Court is directed to make an endeavor to dispose of the case preferably within a period of six months from the date of filing of the written statement by the petitioner management.
CM No. 15764/2005
This is an application filed by the respondent workman under Section 17B of the Industrial Disputes Act, 1947. The writ petition was preferred by the petitioner management on 1.12.2005, against an ex-parte award dated 17th November, 2004 passed by the Labour Court in ID No. 171/1997 directing the petitioner management to reinstate the workman with 75% back wages. The operation of the aforesaid award was stayed vide order dated 5th December, 2005. This application was filed by the workman on 9th December, 2005. In the application, the workman has stated that he is unemployed and has not been able to get employment anywhere despite his best efforts, as a result of which, he is facing immense financial crisis. The application is duly supported by an affidavit of the respondent workman.
Reply to the aforesaid application was filed by the petitioner management wherein it was stated that the services of the workman were not terminated but that he had tendered his letter of resignation himself and had left the services of the petitioner management. It was further denied that the workman was financially hard up as it was stated that he was running a Kiryana shop adjacent to the establishment of the petitioner management. In support of the said claim, a photograph has been annexed to the writ petition showing a shop stated to be the one being run by the workman. It was therefore contended that the workman was gainfully employed throughout and was therefore disentitled from claiming any benefit under Section 17B of the Industrial Disputes Act, 1947.
A rejoinder was filed by the respondent workman to the aforesaid reply, wherein averments of the petitioner management were specifically rebutted. It was stated that in so far as the `Kiryana’ shop is concerned, the same was being run by the wife of the workman for a long time and not by the workman himself and that he was surviving on his wife’s income which was received by running the said shop. In support of his claim that the shop was in the name of his wife, the respondent workman not only enclosed verification certificates dated 24th March, 1988, 10th May, 1996 and 21st October, 2004 issued from the office of the Controller of Legal Metrology, in the name of the wife of the workman but even an affidavit has been filed by his wife reiterating the fact that the shop in question was being run by her. An additional affidavit was also filed by the workman on 27th November, 2006 reiterating the contents of the earlier application.
In the course of arguments, counsel for the workman has relied on a judgment rendered by a Division Bench of this Court in LPA No. 1902/2006 entitled Shri Iklash Hussain v. Delhi Transport Corporation’ decided on 18th October, 2006, to state that self employment or assistance rendered by relatives for sustenance and survival cannot be termed as employment in any establishment, so as to disentitle the workman from the emoluments payable under Section 17B of the Industrial Disputes Act, 1947. In the said judgment, reliance has been placed by the Division Bench on various judgments of the Supreme Court and this Court, including the following:
(i) Rajender Kumar Kindra v. Delhi Administration .
(ii) Dena Bank v. Kirti Kumar T. Patel .
(iii) Taj Services Limited v. Industrial Tribunal -I and Ors. 2000 Vol.I LLJ 1012.
(iv) Delhi Transport Corporation v. The Presiding Officer, Labour Court No. 1, Delhi and Ors. 2002 II AD (DELHI) 112.
(v) G.G. Fashion and Ors. v. Smt. Jayanti Negi .
(vi) Food Craft Institute and Ors. v. Rameshwar Sharma and Anr. 2006 VI AD (DELHI) 189.
In view of the fact that the petitioner management has failed to show that the workman was gainfully employed in an establishment, the workman is entitled to the relief under Section 17B of the Industrial Disputes Act, 1947. Thus the petitioner management is directed to pay the respondent workman, his last drawn wages or the minimum wages whichever is higher, as may be payable from time to time from the date of the institution of the present writ petition till its disposal. The petitioner management is directed to calculate the said amount and pay the entire arrears to the workman within three weeks and in any case on or before 11.4.2007, the date fixed for hearing before the Labour Court in terms of the judgment passed in the main writ petition.
The application stands disposed of.