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Delhi High Court

Sher Singh Dagar vs Secretary Labour Gnct Of Delhi And Anr. on 5 May, 2015

Author: V.P.Vaish

Bench: Ved Prakash Vaish

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: 05th May, 2015

+      W.P.(C) No. 4573/2011

SHER SINGH DAGAR                                            ..... Petitioner
                                Through:   Mr. Naresh Kaushik with Mr.
                                           Manoj Joshi, Advocates.

                       versus

SECRETARY LABOUR GNCT OF DELHI AND ANR. ..Respondent
                Through: Dr. Jogendra Samal with Mr.
                          S.K. Jenamani, Advocates.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. The present petition under Articles 226 and 227 of the Constitution of India lays a challenge to the award dated 02.06.2009 passed by the learned Presiding Officer, Labour Court, Karkardooma Courts, Delhi in I.D. No.85/07 wherein the workman, respondent No.2 was granted the relief of reinstatement with 50% back wages and continuity of service.

2. Briefly stating the facts emerging from the present petition are that the petitioner has a patch of agricultural land in village Chandan Hulla, Mehrauli where he grows some vegetables, fruits, etc. for his personal usage and the said enclosure of the farm land for the purpose of identification is named as Dagar Udyan Farm House. The petitioner had given the agricultural land to respondent No.2 on batai an ancient W.P.(C) No.4573/2011 Page 1 of 7 agricultural system in which the land owner permits another farmer to grow agricultural produce and in return he pays a fixed amount as mutually agreeable between the parties to the land owner towards the lease/ license/ share in the produce. The cost of seeds, fertilizers, water and pesticides is borne by the land owner. The tiller provides labour and in lieu thereof he receives nearly 50% of the proceeds of the Farm. In the first half of September, 2010 a letter in the form of notice bearing No.F23/DLC/ST/IMP/Lab/97/10/12207 dated 08.09.2010 was received by the petitioner from the Assistant Labour Commissioner (South). Vide this letter, the Assistant Labour Commissioner had given notice to the petitioner for implementation of the impugned award dated 02.06.2009. The said notice was addressed to Dagar Udyan Farm House No.6, Shahurpur Club Road, Chandan Hulla, Mehrauli, New Delhi - 110030. Through this notice the Assistant Labour Commissioner had called the parties in his office on 24.09.2010 at 11:00 a.m. for further proceedings. It is only through this letter that the petitioner had come to know that the matter was pending before the Presiding Officer, Labour Court. Prior to this letter, the petitioner had no knowledge of the pendency of this matter before any Court, Tribunal or any authority.

3. That after receiving information about the aforesaid matter the petitioner arranged for the services of a counsel and moved an appropriate application dated 11.10.2010 for inspection of the file. Thereafter, the petitioner moved an application for obtaining certified copies of documents from the judicial file which were received on 29.10.2010. From the perusal of these documents the petitioner came W.P.(C) No.4573/2011 Page 2 of 7 to know that respondent No.2 had approached the office of Deputy Labour Commissioner (South) and had raised an industrial dispute claiming that he was the workman of the Dagar Udyan Farm and alleging that his services were terminated illegally by the Management.

4. During the entire proceedings the petitioner was not served with any legal notice at his residential address. Hence, the petitioner neither himself nor through his representative could participate in the conciliation proceedings nor could he present his case before the Labour-cum-Conciliation Officer, Office of Deputy Labour Commissioner (South), New Delhi.

5. Vide order No. F.24(937)/06/Lab./5844-48 dated 08.08.2007, the matter was eventually referred by the appropriate Government through Secretary, Labour, Govt. of NCT of Delhi to the Labour Court under the following terms of reference:-

―Whether there existed an employer employee relationship between the management and Sh. Mohd. Isa, S/o. Sh. Suleman and if so, whether services of said Sh. Mohd. Isa have been terminated illegally and/ or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/ Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?‖

6. Subsequently, an ex-parte award dated 02.06.2009 was passed which is impugned in the present petition.

7. Learned counsel for the petitioner contends that the petitioner does not own any factory as defined under the Factories Act, 1948 or W.P.(C) No.4573/2011 Page 3 of 7 shop, establishment or commercial establishment as defined under the Shop and Establishment Act, 1954, therefore, the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the ‗ID Act') are not attracted to the present case. The petitioner only owns an agricultural land on which he carries out cultivation of vegetables, cereals and fruits and, therefore, the provisions of Labour Law are not applicable. There is no employer and employee relationship between the petitioner and respondent No.2. The respondent No.2 does not work under the directions, supervision or control of the petitioner.

8. Learned counsel for the petitioner further submits that that the notice/summons of the statement of claim was never served on the petitioner. The petitioner never refused to accept the summons sent by learned Labour Court. He has also pointed out that the respondent No.2 herein did not mention the correct address of petitioner, which was mentioned in the notice dated 08.09.2005 allegedly sent by respondent.

9. Per contra, learned counsel for respondent No.2 urges that the petitioner has approached this Court after several years of the passing of impugned award. The notice was duly served on the petitioner, but despite service of the summons, the petitioner did not appear before the Labour Court.

10. I have heard learned counsel for the parties and have perused the material on record.

11. At the outset it may be mentioned that the procedure for service of summons, notice, process or order issued by a Labour Court is W.P.(C) No.4573/2011 Page 4 of 7 prescribed under Rule 18 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as the ‗ID Rules'), which reads as under: -

―18. Service of summons or notice. -- Subject to the provisions contained in rule 20, any notice, summons, process or order issued by a Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator empowered to issue such notice, summons, process or order, may be served either personally or by registered post and in the event of refusal by the party concerned to accept the said notice, summons, process or order, the same shall be sent again under certificate of posting.‖

12. On a bare perusal of aforesaid Rule 18 of the ID Rules it is manifestly clear that the notice/summons can be served either personally or by registered post and in the event of refusal by the party concerned, the summons shall be sent against certificate of posting.

13. In the instant case, the statement of claim was filed by respondent No.2 on 17.11.2007 and notice was issued to petitioner/ Management for 11.12.2007. The report of process server on the summons goes to show that a guard was found present at the address mentioned on the notice who stated that the owner had gone out of Delhi and would return back after one or two months. On the basis of the said report of process server the petitioner herein was proceeded ex-parte. Vide order dated 11.12.2007, learned Labour Court passed the following order: -

―From the report of the Process Server on the notice to the management I presume it to be proper service. It is 2:30 p.m. Since morning no one has appeared for the management. I proceed ex-parte against the management. Put up for ex-parte evidence on 07.01.2008‖.

14. The report of process server does not show that the petitioner herein was found present on the address mentioned on the summons or that he had refused to accept the summons. Moreover, the summons were never sent by registered post or under certificate of posting as required by Rule 18 of the ID Rules. Even the name of guard is not mentioned in the report of the process server.

15. It is pertinent to mention here that respondent No.2 sent a notice dated 08.09.2005 (Ex. WW-1/1) and on the said notice the respondent No.2 has mentioned the address of the head office of the petitioner as A-47, South Ex. Part-II, New Delhi. But the petitioner has not mentioned the said address on the statement of claim. No notice was ever issued to the petitioner management at the said address.

16. In these circumstances, it is clear that the notice was never served on the petitioner in accordance with Rule 18 of the ID Rules. Accordingly, the impugned award dated 02.06.2009 passed by learned Presiding Officer, Labour Court-V, Delhi is set aside. The matter is remanded back to the concerned Labour Court to adjudicate and decide the matter after affording reasonable opportunity to both the parties in accordance with law expeditiously and preferably within a period of six months from the next date of hearing.

17. With the aforesaid observations, the petition stands disposed of. Both the parties are directed to appear before the concerned Labour Court on 18.05.2015 at 10:00 a.m. The petitioner is directed to file written statement/ reply on the said date.

18. The Trial Court record be sent back forthwith.

This is an application under Section 17-B of the ID Act whereby the workman seeks payment of wages during the pendency of the present proceedings.

Since, the ex-parte award itself has been set aside and the matter is being remanded back to the Labour Court for adjudication on merits, therefore, no separate order is called for on this application as it has become infructuous.

The application stands disposed of accordingly.

The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE MAY 05th, 2015 hs W.P.(C) No.4573/2011 Page 7 of 7