M/S Crown Wheels (P) Ltd. v. The Presiding Officer, Labour Court-I & Anr.

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 2011:DHC:2949 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 6th 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 29th 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 1st 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 6th 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.