Punjab-Haryana High Court
M/S Negi Precision Press Tools vs The Presiding Officer on 21 August, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 16992 of 2000
DATE OF DECISION : 21.08.2013
M/s Negi Precision Press Tools, Faridabad
.... PETITIONER
Versus
The Presiding Officer, Labour Court-II, Faridabad and another
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Mr. Rohit Ahuja, Advocate,
for the petitioner.
Mr. G.P. Singh, Advocate,
for respondent No.2.
***
SATISH KUMAR MITTAL, J.
1. The petitioner company has filed the instant writ petition seeking quashing of the ex-parte award dated 31.8.2000 (Annexure P-1) passed by the Presiding Officer, Labour Court - II, Faridabad, whereby termination of services of workman Madan Singh - respondent No.2 (hereinafter referred to as `the respondent-workman) was held to be illegal and unjustified, and he was ordered to be reinstated into service with full back wages. It is the case of the petitioner company that the Labour Court has passed the ex-parte award without effecting any service upon it and without giving an opportunity of hearing to it.
2. In the present case, it has been alleged by the respondent - Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -2- workman that he was working with the petitioner company since 19.1.1996 as a Helper on monthly wages of ` 1,600/-. It has been alleged that his services were illegally terminated on 11.3.1998 by the petitioner company without assigning any reason. Thereafter, he served a legal notice upon the petitioner company on 16.3.1998. On 21.5.1999, the appropriate Government referred the industrial dispute to the Labour Court for its adjudication. The Labour Court sent registered notices to the petitioner - management for four times, but when it did not appear before the Labour Court, the ex-parte proceedings were initiated against it and ultimately, after recording evidence of the respondent - workman, vide the impugned award dated 31.8.2000, the reference was decided in his favour. The said award was published in the official Gazette on 4.10.2000. On 30.10.2000, the Labour Inspector, Circle-4, Faridabad, issued letter (Annexure P-3) to the petitioner company for implementing the award. It is the case of the petitioner company that when the said letter was received by it on 6.11.2000, it came to know about the ex-parte award. Since the award was already notified in the official Gazette and in view of the decision of the Hon'ble Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others, AIR 1981 SC 606, after 30 days of publication of the award, the Labour Court becomes functus officio, the petitioner company filed the instant petition for setting aside the ex-parte award.
Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -3-
3. The petition was admitted on 16.4.2001 and operation of the impugned award was stayed.
4. I have heard learned counsel for the parties and gone through the impugned award as well as the original record of the Labour Court.
5. Learned counsel for the petitioner company argued that in the present case, service of the notices sent by the Labour Court was never effected on the petitioner company, and no opportunity of hearing was provided to it. Therefore, the ex-parte award passed by the Labour Court is liable to be set aside. Learned counsel further argued that in the present case, the Labour Court did not record in its order that the notices issued to the management vide registered post have been duly served. Without making such observation in the order dated 27.4.2000, the petitioner company was ordered to be proceeded against ex-parte by observing that "Case called several times, none is present on behalf of the management. It is 11.35 A.M. Hence the ex-parte proceedings taken against the management." In view of this, learned counsel argued that the ex-parte proceedings against the petitioner company were illegal and the ex-parte award made against it is liable to be set aside. Learned counsel for the petitioner company further argued that none of the four registered notices sent by the Labour Court, was received by the petitioner company, therefore, no presumption of service can be raised against it. As such, the petitioner company is not required to rebut any such presumption. In support of this Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -4- contention, learned counsel relied upon Division Bench decisions of this Court in Devinder Kumar v. Presiding Officer, Labour Court, Gurgaon and others, 2000 LLR 179 and Adarsh Foundry and Engineering Works v. Presiding Officer and another, 1994 (3) Recent Services Judgments 417. On merits, learned counsel argued that the respondent - workman was not an employee of the petitioner company and at the relevant time, he was working with another company, namely M/s K.K. Press Tools, Dabu Colony, Faridabad.
6. On the other hand, learned counsel for the respondent - workman argued that in the present case, the petitioner company is presumed to have been served through notices sent to it through registered post on the correct address, and when no one appeared on its behalf, it was rightly proceeded against ex-parte. Thus, there is no ground to set aside the ex-parte award passed by the Labour Court.
7. After considering the submissions made by learned counsel for the parties and perusing the record of the case, I do not find any ground to set aside the ex-parte award passed by the Labour Court.
8. A perusal of the original record reveals that notices were sent to the petitioner company for four times through registered post, intimating it the date of hearing in the case. Those notices were sent at the following address :
M/s Negi Precisiion Press Tools, Plot No. 40, Ram Sawroop Colony, Mujesar, Sector 24, Faridabad.
Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -5- The original receipt issued by the postal authorities for sending the said notice by the Labour Court to the petitioner company is also available on record. In the said receipt, the aforesaid address has been mentioned, which indicates that the registered notice was sent at the said address. None of the registered notices sent to the petitioner company was ever received back unserved by the Labour Court. In these facts, as per Section 27 of the General Clauses Act, 1897 and the law laid down by the Hon'ble Supreme Court in Attabira Regulated Market Committee v. Ganesh Rice Mills, (1996) 9 SCC 471, notice sent on the correct address by registered post, if not received back unserved, could be deemed to be served. There is general presumption in this regard, until and unless it is rebutted. It is correct that onus of proof to rebut the presumption in such cases on the addressee is indeed a light one. However, in the present case, there is nothing, even lightest one, to rebut the presumption with regard to service of the registered notice on the addressee at the given address. Even in the petition itself, the petitioner company has not made any averment that it never received any of the four registered notices sent by the Labour Court. Only in sub-para (ii) of para 10 of the petition, where the grounds to challenge the ex-parte award have been set up, it has been stated that "4 times on different dates, the registered notices were ordered to be issued but actually only one or two times the registered notices were issued/sent to the management, which were never received by the petitioner Co." This para of the petition has not been Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -6- verified to be true and correct to the knowledge of the petitioner company as required by Order VI of the Civil Procedure Code. According to the verification made in the petition, it is stated that the contents of this para are believed to be correct as per advice of the counsel. Thus, in the petition, there is no averment on affidavit that the registered notices sent by the Labour Court for four times were never received by the petitioner company.
It has not been averred that as per record and knowledge of the petitioner company, the registered notices sent by the Labour Court were never received by it. Hence, the basic ingredient for setting aside the ex-parte award has not been pleaded in this petition. If this averment would have been made on affidavit, it could have been taken that the petitioner company has rebutted the presumption, though in some cases such averment without any further proof is not sufficient for rebutting the presumption.
9. There is another important fact on the file, which clearly indicates that all the four registered notices sent to the petitioner company were duly received by it. When the Labour Inspector, Circle - 4, Faridabad, issued letter dated 30.10.2000 to the petitioner company at the same address, at which the registered notices were sent by the Labour Court, it was received by the petitioner company on 6.11.2000. If the petitioner company immediately received the said notice, there was no reason that it would not have received all the four registered notices sent by the Labour Court, which were sent on the same address. It is not the case of the petitioner company at Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -7- all that the address given in the registered notices was incorrect or vague. It has further come on record that during the reconciliation proceedings, notices to the petitioner company were sent on the same address, which were again duly received by it. Therefore, in my opinion, the petitioner company has miserably failed to rebut the presumption of service through registered post, raised against it under Section 27 of the General Clauses Act, 1897.
10. Learned counsel for the petitioner put much emphasis on the argument that the Labour Court, while proceeding ex-parte against the petitioner company on 27.4.2000, did not record in the zimni order that the registered notice was duly served upon the petitioner company. Thus, in view of the aforesaid two decisions of this Court, the ex-parte proceedings are liable to be set aside. I have gone through the judgment in Devinder Kumar's case (supra), relied upon by learned counsel for the petitioner in this regard. The facts of the said case are entirely different. In that case, the Labour Court itself had set aside the ex-parte award after coming to the conclusion that no notice was served upon the management for the date, on which it was proceeded against ex-parte. In that judgment, it was observed that there was no reason for setting aside the order of the Labour Court setting aside the ex-parte award only on the technical ground that after passing of the award, the Labour Court had become functus offiicio, particularly when the award was not notified in the official Gazette, when Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -8- the application for setting aside the ex-parte award was filed. In Adarsh Foundry and Engineering Works's case (supra), the ex-parte award was set aside by this court after reversing the order of the Labour Court, and recording the finding that the summons were not served upon the management through registered post. In that case, in the application for setting aside the ex-parte award, it was specifically pleaded that the management never received any summon or information for appearing in the case. In these circumstances, it was observed that in view of the said averments, onus was on the other side to establish that the registered notices were duly served upon the management. But facts of the present case are entirely different, as in this case, even there is no averment in the petition that the notices sent to the petitioner company by registered post on its correct address were not received by it. Thus, the presumption raised against the petitioner company has not been rebutted by it. Since this court has examined the original record to deal with the prayer of the petitioner company for setting aside the ex-parte award, what is not recorded in the zimni order is not material. In these circumstances, particularly I do not find any ground to set aside the ex-parte award passed by the Labour Court.
11. As far as merits of the case are concerned, the Labour Court, after relying upon the statement of the respondent - workman, has held the termination of services of the workman as illegal and unjustified, and ordered his reinstatement into service with full back wages. In the petition, a Dass Narotam 2013.09.04 13:54 I attest to the accuracy and integrity of this document CWP No. 16992 of 2000 -9- ground has been set up that on merits, the ex-parte award is not sustainable, as the respondent - workman was not at all an employee of the petitioner company and at the relevant time, he was working with another company, namely M/s K.K. Press Tools, Dabu Colony, Faridabad. In this regard, not even an iota of evidence/document to remotely indicate the said fact is available on the record. Therefore, this contention is also not sustainable.0
12. In view of the above, there is no merit in the instant petition and the same is, accordingly, dismissed.
August 21, 2013 ( SATISH KUMAR MITTAL )
ndj JUDGE
Dass Narotam
2013.09.04 13:54
I attest to the accuracy and
integrity of this document