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HIGH COURT OF DELHI
W.P.(C) 15694/2022
G4S SECURE SOLUTIONS (I) PVT. LTD. ..... Petitioner
Through: Mr. Gulshan Chawla with Mr. Krishnadas Marar, Advocates.
Through: Mr. Ganesh Singh, Advocate.
Date of Decision: 15th November, 2022
JUDGMENT
Exemptions allowed subject to all just exceptions.
1. Present writ petition has been filed challenging the orders dated 17.07.2018, 27.10.2018 and 13.10.2022. The petitioner was proceeded exparte vide order dated 17.07.2018 by the learned POLC-V, Dwarka Courts, Delhi. Thereafter, vide the impugned order dated 27.10.2018, the award was passed by the learned Labour Court. Thereafter, an application was moved by the petitioner for setting aside the order dated 27.10.2018. The said application was dismissed by the learned POLC-V vide order dated 13.10.2022. The petitioner has challenged these orders on the ground that the learned Labour Court has passed the impugned Award dated 27.10.2018 without giving any reasons. Even the award is silent about any discussion on the alleged termination of the workman.
2. Learned counsel for the petitioner has further submitted that admittedly, summon was received by one Sh. Himanshu, who was the clerk in the company of the petitioner. Learned counsel for the petitioner submits that Sh. Himanshu was not an authorized representative of the Company and therefore, it cannot be taken as a proper service. Reliance has been placed upon M/s. Shalimar Rope Works Ltd. vs. M/s. Abdul Hussain: AIR 1980 SC 1163.
3. Learned counsel for the petitioner submits that Order XXIX of CPC lays down the procedure for service of summons in case of the Corporation. Learned counsel for the petitioner submits that in case of service of the summons, it has to be served on the Secretary or any Director or other Principal Officer of the Corporation.
4. Learned counsel for the petitioner submits that in M/s. Shalimar Rope Works Ltd. (supra) also the summons were allegedly served on one of the employees of the Company, who was merely an Office Assistant in the Sales Department of the Company. In that case also the said employee did not bring the fact of the receipt of the summons by him to the knowledge of any responsible officer of the Company. It has been submitted that the High Court took the view that since the said person was an employee of the Company sitting in its registered office in Calcutta, the summons will be deemed to have been duly served on the Company within the meaning of first part of clause (b) of Order 29, Rule 2 of the Code.
5. However, the Supreme Court did not agree with the view of the High Court and inter alia held as under:-
8. Learned counsel for the petitioner submits that in these facts and circumstances of the case, the ex-parte order dated 17.07.2018 may be set aside and the Labour Court may be directed to adjudicate the matter on merits.
9. Issue notice. Mr. Ganesh Singh, Advocate, who appears through video conferencing, accepts notice on behalf of the respondent/workman. Since the short point is involved, I propose to dispose of the writ petition on merits, with the consent of the parties.
10. Learned counsel for the respondent/workman has vehemently opposed the present writ petition. Learned counsel submits that there is no ground to set aside the order dated 13.10.2022, whereby the application for setting aside the order dated 27.10.2018 has been rejected by the learned Labour Court. Learned counsel submits that the petitioner has failed to fulfill any of the conditions as prescribed under Order IX Rule 13 CPC. It has been submitted that the application for setting aside the order has also not been moved within one month of passing of the Award.
11. It has further been submitted that admittedly the summons were served on Sh. Himanshu, who was in HR(Lead) Department of the petitioner Company. Learned counsel for the respondent/workman submits that the learned Trial Court has rightly reached to the conclusion that the petitioner Company was duly served. Learned counsel for the respondent has further submitted that Sh. Himanshu had also appeared before the Labour Commissioner during the conciliation proceedings.
12. Learned counsel for the respondent submits that the present petition filed by the petitioner is merely a delaying tactic. Learned counsel submits that the respondent/workman was illegally removed in the year 2016 and for the last 6 years, the respondent/workman is without any work and in acute financial crisis. Learned counsel for the respondent/workman submits that therefore the present petition may be dismissed.
13. I have considered the submissions of the learned counsel for the parties. Before taking into account the grounds for setting aside the ex-parte order, it is necessary to look into the impugned award. The finding/conclusion, as recorded by the learned Labour Court, in the impugned order dated 27.10.2018, is as follows:-
15. A bare perusal of this finding/conclusion makes it clear that the learned Labour Court has passed the award mechanically even without looking into the fact as to whether the respondent/workman had brought sufficient material on record for passing the award in his favour. Labour Courts are not supposed to pass the order mechanically. Even if the petitioner/management was ex-parte, the learned Labour Court was wrong to see that whether the statutory requirement for passing the award is fulfilled or not.
16. In the case titled Ramesh Chand Ardawatiya vs. Anil Panjwani: AIR 2003 SC 2508, the Supreme Court has inter alia held that even if the defendant is ex-parte, the Courts are under the duty to see that the plaintiff has proved his case to the satisfaction of the Court. Though the burden of proof may not be very heavy but a prima facie proof of the relevant facts constituting the cause of action should be there. It is also settled proposition that ordinarily litigation should be adjudicated on merits and it should not be terminated by default either of the plaintiff or the defendant. Reliance may be placed on Robin Thapa vs. Rohit Dora: (2019) 7 SCC 359.
17. I consider that while setting aside the ex-parte order dated 17.07.2018, the learned labour Court should have looked at least into the statutory requirements. The award under challenge is totally non-speaking. The petitioner has come with clean hands and has not denied the service of summons of one of his employees but has taken a plea that the employee never informed the authorized officer of the Company. Even the affidavit of Sh. Himanshu has been filed during the proceedings for setting aside exparte order dated 17.07.2018 where he has admitted that though he received the summons but never brought it to the notice of the authorised representative of the Company.
18. I consider that taking into account the totality of facts and circumstances of the case and for adjudication of the claim on merits, the exparte order dated 17.07.2018 may be set aside. However, in order to balance the interest of the respondent/workman, the amount deposited by the petitioner/management before the learned Labour Court in the sum of Rs.2,65,200/- and Rs.91,800/- be released to the respondent/workman. However, such release shall be subject to the final adjudication of the disputes on merits. The respondent/workman shall file an indemnity bond before the learned Labour Court that in case the petitioner/management succeeds before the learned Labour Court, the amount shall be refunded back to the petitioner/management. The petitioner/management is further burdened with a cost of Rs.25,000/- in the form of litigation expenses in addition to whatever has been paid earlier.
19. Parties are directed to appear before the learned Labour Court on 02nd December, 2022.
20. With these observations, the present petition along with the pending application stands disposed of.
DINESH KUMAR SHARMA, J NOVEMBER 15, 2022