M/S Hemkunt Service Station Pvt Ltd v. Labour Commissioner (Delhi) & Ors

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. This writ petition seeks quashing of the ex parte award dated 24th February, 1993 of the Labour Court holding the termination of the service of the respondent No.4/workman by the petitioner to be illegal and unjustified and directing the petitioner to reinstate the respondent No.4/workman with full back wages and continuity in service.

2. It was the case of the respondent No.4/workman that he was appointed as a Dentor with the petitioner on 10th May, 1988 on a monthly salary of Rs.1,400/-; that on completion of the period of probation he was treated as a permanent employee, that on 23rd August, 1989 the petitioner illegally and under coercion obtained signatures of the respondent No.4/workman on a 2010:DHC:1133 letter of registration and terminated his services. The following reference was made to the Labour Court: “Whether the services of Shri Suresh Parshad Podder 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 this respect?”

3. Upon the failure of the petitioner to appear before the Labour Court inspite of service, the Labour Court on the basis of the ex parte evidence of the respondent No.4/workman, made the award aforesaid.

4. It is the plea of the petitioner that the performance of the respondent No.4/workman was not satisfactory and as such he was not confirmed and continued to be on probation and on 26th August, 1989 he had voluntarily resigned from employment but subsequently sought to retract the resignation; that the respondent No.4/workman thereafter raised an industrial dispute and proceedings before the conciliation officer were underway; however, during the pendency of the said proceedings, the petitioner also received a notice from the authority under the Payment of Wages Act which had also been approached by the respondent No.4/workman; that on 3rd August, 1990 the respondent No.4/workman accepted monies in full and final settlement of his account towards salary etc. from the petitioner in the presence of the said authority and the proceedings before the authority under the Payment of Wages Act were closed and the petitioner believed that the labour dispute also stood resolved. It was further the case of the petitioner that the petitioner was never served with any notice from the Labour Court and it appeared that the respondent No.4/workman had manipulated the report of service.

5. This court vide ex parte order dated 6th October, 1994, on the basis of documents produced by the petitioner in support of its plea, issued rule and also stayed the operation of the ex parte award and the recovery proceedings in pursuance thereto. The respondent No.4/workman appeared in response to the notice issued to him and sought time for filing the reply but failed to file reply inspite of repeated opportunities. In the circumstances, vide order dated 29th August, 1996 in the presence of the counsel for the respondent No.4/workman, the interim order was made absolute during the pendency of the writ petition and the writ petition was posted for hearing in regular course. When the petition ripened for hearing, the respondent No.4/workman failed to appear and notice was again ordered to be issued to him but was received back with the report that no such person was residing at the address of the respondent on record. Ultimately, the respondent No.4/workman was ordered to be served by publication and was so served and has failed to appear. The respondent No.4 / workman was on 13th October, 2009 proceeded against ex parte. He fails to appear even today.

6. The documents filed by the petitioner before this court show that the respondent No.4/workman had approached the petitioner for taking back his resignation letter. The respondent No.4/workman in the letter of withdrawal of resignation did not state that he had been coerced to resign. On the contrary, he sought to retract the resignation owing to change in his family circumstances. In the first legal notice got issued by the respondent No.4/workman also no such plea of coercion was taken. The receipt of Rs.1538.50 signed by the respondent No.4/workman is also of full and final settlement. The same is of a date after the raising of the labour dispute by the respondent No.4/workman.

7. Moreover, the failure of the respondent No.4/workman to appear before this court also indicates that the respondent No.4/workman is no longer interested in his reinstatement or any other relief granted to him under the ex parte award. The respondent No.4/workman not only failed to file the counter affidavit but during the pendency of the petition, has also not made any application under Section 17B of the Industrial Disputes Act.

8. For all the aforesaid reasons, I find that the petition is entitled to succeed. Though the petitioner had sought the relief of remanding the matter to the Labour Court but in the absence of respondent No.4/workman, no purpose would be served therefrom. Accordingly, the award dated 24th February, 1993 and the proceedings, if any, for enforcement thereof are quashed and the petition is disposed of. The rule is made absolute. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) February 24, 2010 M