Delhi District Court
M/S. Checkmate Services Pvt. Ltd. vs . Shyam Singh M.A No. 16/14 on 3 January, 2015
M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
M.A No. 16/14
UNIQUE CASE IDENTIFICATION NO. 02402C0314762014
(Arising out of REFRENCE CASE (ID) NO. 214/14
UNIQUE CASE IDENTIFICATION NO. 02402C0293022013)
In the matter of :
M/s. Checkmate Services Pvt. Ltd.,
58/61, Vashish Park, Pankha Road,
New Delhi110059. ..........Applicant/Management
Vs.
Shyam Singh s/o. Sh. Raghuraj Singh,
R/o. C160, Munirika Village,
New Delhi110067,
through Sh. I.S.Mudgil, AP Checkmate Services Karamchari Sangh,
48/3, Bangalore Road, Kamla Nagar, Delhi110007 ......... Workman
Date of Institution : 01.10.2014
Date of reserving for award : 15.11.2014
Date of award : 03.01.2015
ORDER:
1. TERMS OF REFERENCE Vide Order No. F.24(139)13/SWD/Lab./57855787 dated 03/07/14 Deputy Labour Commissioner (South West District), Labour Department, Government of N.C.T. Of Delhi referred following dispute between workman Shyam Singh s/o. Sh. Page 1 of 9 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 Raghuraj Singh, R/o. C160, Munirka Village, New Delhi110067 through Sh. I.S.Mudgil, AP Checkmate Services Karamchari Sangh, 48/3, Bangalore Road, Kamla Nagar, Delhi110007 and management M/s. Checkmate Services Pvt. Ltd., 58/61, Vashish Park, Pankha Road, New Delhi110059 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F. 1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by Labour Court No. XIX, Karkardooma Courts, Shahdara, Delhi32: ''Whether the services of Sh. Shyam Singh S/o Sh. Raghuraj Singh have been terminated illegally and or/ unjustifiably by the management and if so, to what relief is he entitled?"
2. Management contested the claim of the workman by filing written statement of defence. To the written statement of defence, workman filed rejoinder and issues were framed on 24.07.2014 and case was adjourned to 27.08.2014 for W.E. On 27.08.2014, none appeared for management; workman examined himself as WW1 Shyam Singh and closed the WE. Due to the nonappearance on behalf of management on 27.08.2014, management was proceeded exparte. On 27.08.2014 case was adjourned to 01.09.2014 for final arguments. On 01.09.2014, final arguments were heard and award was passed on 02.09.2014.
3. On 01.10.2014 management/applicant moved an application for setting aside the exparte order dated 27.08.2014 and exparte award dated 02.09.2014 which was ordered to be put up with file on 07.10.2014 at 2.00 p.m. On 07.10.2014, Sh. Jitender Nagar Adv. for management appeared with Sh. Dinesh Kumar Sharma, DGM. Ld. counsel for the management was heard partly and matter was adjourned to 15.11.2014 for remaining arguments regarding maintainability of this application in view of provisio to rule 10 B(9) the Industrial Disputes (Central) Rules, 1957. On 15.11.2014, Page 2 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 ld. counsel for management/applicant was heard. Ld. counsel for the management relied upon case laws reported as Radhakrishana Mani Tripathi Vs. L.H.Patel & Anr. 2009 LLR 133 and Management of DDA through its Executive Engineer Vs. Presiding Officer/Industrial Tribunal1 & Anr. 2001 LLR 634.
4. In the application in hand, applicant/management alleged that on 24.07.2014 Mr. Gaurav Bakshi appeared before the court as a proxy counsel and the case was adjourned to 27.08.2014 but due to some inadvertent bonafide mistake and confusion he (Mr. Gaurav Bakshi) informed the date fixed to Mr. Jitender Nagar Adv. for management as 27.09.2014 and, thus, neither the management nor their authorized representative Mr. Jitender Nagar could appear before the court on 27.08.2014 when management was proceeded exparte or on 02.09.2014 when exparte award was passed by the court. It is alleged in the application that management came to know about the exparte proceedings on 27.09.2014 when their authorized representative did not find the case listed in the cause list and on inquiry it was revealed that case has already been proceeded as exparte. Application in hand is supported by affidavit of Mr. Jitender Nagar, Authorized Representative of M/s. Checkmate Services Pvt. Ltd.
It is to be noted that alongwith the application in hand neither the affidavit of Mr. Gaurav Bakshi Adv. proxy counsel for Mr. Jitender Nagar Adv. for management deposing that Mr. Gaurav Bakshi Adv. had informed the next date of hearing as 27.09.2014 instead of 27.08.2014 to Mr. Jitender Nagar Adv. for management in terms of depositions made by Mr. Jitender Nagar, Authorized Representative of M/s. Checkmate Services Pvt. Limited in his affidavit filed alongwith application in hand nor any documentary proof (such as copies of relevant extract from the record/case diary maintained by/file cover mentioning the date of hearing kept by ld. counsel for the management for recording the next date of hearing of the matter) has been filed on Page 3 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 record to substantiate the stand taken in the application in hand/affidavit of Mr. Jitender Nagar, Authorized Representative of M/s. Checkmate Services Pvt. Ltd. In the absence of affidavit of Mr. Gaurav Bakshi Adv. and supporting documentary proof as abovesaid it can be said that management has failed to show that management could not attend the court proceedings on 27.08.2014 or thereafter till 02.09.2014 due to justifiable grounds or sufficient cause. Hence, in my considered opinion, application in hand merits dismissal without issuing any notice to the other party.
5. Now coming to the aspect of maintainability of application in hand in view of provisio to rule 10 B (9) Industrial Disputes (Central) Rules, 1957. Rule 10B Industrial Disputes (Central) Rules, 1957 reads as under:
''Rule 10B. Proceedings before the Labour Court, Tribunal or National Tribunal. (1). While referring an industrial dispute for adjudication to a Labour Court, Tribunal or National Tribunal, the Central Government shall direct the party raising the dispute to file a statement of claim complete with relevant documents, list of reliance and witnesses with the Labour Court, Tribunal or National Tribunal within fifteen days of the receipt of the order of reference and also forward a copy of such statement to each one of the opposite parties involved in the dispute.
(2). The Labour Court, Tribunal or National Tribunal after ascertaining that copies of statement of claim are furnished to the other side by party raising the dispute shall fix the first hearing on a date not beyond one month from the date of receipt of the order of reference and the opposite party or parties shall file their written statement together with documents, list of reliance and witnesses within a period of 15 days from the date of first bearing and simultaneously forward a copy thereof to the other party.
(3). Where the Labour Court, Tribunal or National Tribunal, as the case may be, finds that the party raising the dispute though directed did not forward the copy of the statement of claim to the opposite party or parties, it shall give direction to the concerned party to furnish the copy of the statement of the statement to the opposite party or parties and for the said purpose or for any other sufficient cause, extend the time limit for filing the statement under subrule (1) or written statement under subrule (2) by an additional period of 15 days. (4). The party raising a dispute may submit a rejoinder if it chooses to do so, to the written statement (s) by the appropriate party or parties within a period of fifteen days from the filing of written statement by the latter.
(5) The Labour Court, Tribunal or National Tribunal, as the case may be, shall fix a date Page 4 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 for evidence within one month from the date of receipt of the statements, documents, list of witnesses, etc., which shall be ordinarily within sixty days of the date on which the dispute was referred for adjudication.
(6) Evidence shall be recorded either in court or on affidavit but in the case of affidavit the opposite party shall have the right to crossexamine each of the deponents filing the affidavit. As the oral examination of each witness proceeds, the Labour Court, Tribunal or National Tribunal shall make a memorandum of the substance of what is being deposed. While recording the evidence the Labour Court, Tribunal or National Tribunal shall follow the procedure laid down in rule 5 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(7) On completion of evidence either arguments shall be heard immediately or a date shall be fixed for arguments/oral hearing which shall not be beyond a period of fifteen days from the close of evidence.
(8) The Labour Court, Tribunal or National Tribunal, as the case may be, shall not ordinarily grant an adjournment for a period exceeding a week at a time but in any case not more than three adjournments in all at the instance of the parties to the dispute:
Provided that the Labour Court, Tribunal or National Tribunal, as the case may be, for reasons to be recorded in writing, grant an adjournment exceeding a week at a time but in any case not more than three adjournments at the instance of any one of the parties to the dispute. (9) In case any party defaults or fails to appear at any stage the Labour Court, Tribunal or National Tribunal, as the case may be, may proceed with the reference ex parte and decide the reference application in the absence of the defaulting party:
Provided that the Labour Court, Tribunal or National Tribunal, as the case may be, may on the application of either party filed before the submission of the award revoke the order that the case shall proceed ex parte, if it is satisfied that the absence of the party was on justifiable grounds.
(10) The Labour Court, Tribunal or National Tribunal, as the case may be, shall submit its award to the Central Government within one month from the date of arguments oral hearing or within the period mentioned in the order of reference whichever is earlier. (11) In respect of reference under section 2A, the Labour Court or Tribunal, National Tribunal, as the case may be, shall ordinarily submit its awards within a period of three months:
Provided that the Labour Court, Tribunal or National Tribunal, may, as and when necessary, extend the period of three months and shall record its reasons in writing to extend the time for submission of the award for another specified period.'' Page 5 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 The rule 10 B Industrial Disputes (Central) Rules, 1957 prescribes the entire procedure to be followed by Labour Court in deciding a 'reference' made to it by appropriate government. It deals from the stage from which Industrial Dispute is referred for adjudication to a Labour Court till the stage of submission of award by the Labour Court. Award stands submitted with the appropriate government on the date on which it is passed. As per provisio to rule 10 B (9) Industrial Disputes (Central) Rules, 1957 an application for revoking an exparte order can be filed before the Labour Court before submission of award. Labour Court being the creation of a statute namely Industrial Disputes Act, 1947 has to exercise of its powers/jurisdiction in strict terms of provisions of Industrial Disputes Act, 1947 or the rules made under the provisions of Industrial Disputes Act, 1947 by the appropriate government. When the provisio to rule 10 B (9) Industrial Disputes (Central) Rules, 1957 specifically provides that an application for revoking an exparte order has to be moved before the submission of the award, such an application moved thereafter deserves to be held to not maintainable. Thus, it is observed that, firstly, the application in hand is not maintainable in view of provisio to rule 10 B (9) Industrial Disputes (Central) Rules, 1957 in as much as application has been moved after the submission of the award and, secondly, even if it is taken to be maintainable the same merits dismissal in as much as management has failed to satisfy the court that its absence was on justifiable grounds. Powers vested in this court u/s 11 (1) of the Industrial Disputes Act, 1947 cannot come to the help of the management/applicant in as much as this court cannot exercise that power in violation of the Industrial Disputes (Central) Rules, 1957. Section 11 (1) itself reads that ''........Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedures as the arbitrator or other authority concerned may think fit.'' Section 11 (3) of the Page 6 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 Industrial Disputes Act, 1947 does not confer powers of a Civil Court under the provisions of Order IX rule 13 CPC upon a Labour Court. Rule 22 of the Industrial Disputes (Central) Rules, 1957, which is similar to rule 10 B (9) Industrial Disputes (Central) Rules, 1957, appears to be meant to be applicable to the proceedings before the Labour Court under the Industrial Disputes Act, 1947 which proceedings are not covered under rule 10 B Industrial Disputes (Central) Rules, 1957. None of the case laws relied upon by ld. counsel for the management/application is of any help to the management in the totality of facts and circumstances of this case in as much as application has been found to be deserving dismissal on merits as well as on the aspect of maintainability.
Also it is pertinent to note that in case law reported as Deepak Mohan Sethi Vs. BSES Rajdhani Power Ltd. 210 (2014) DLT 470 (DB) it has been observed as under:
''26. It is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without regard to the factual situation and circumstances of the two cases. In Bharat Petroleum Ltd. v. N.R. Vairamani, VI (2004) SLT 586=(2004) 8 SCC 579, the Supreme Court had held that a decision cannot be relied on without considering the factual situation. The Supreme Court observed as under:
''9. Courts should not place reliance on decisions without discussing as Page 7 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton, 1951 AC 737 : (1951) 2 AII ER 1 (HL) (AC at p. 761) Lord Mac Dermott observed: (All ER p. 14 CD) ''The matter cannot, of course, be settled merely be treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.....'' This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
10. In Home Office vs. Dorset Yacht Co., (1970) 2 All ER 294 : 1970 AC 1004:
(1970) 2 WLR 1140 (HL) (All ER p. 297 gh) Lord Reid said, ''Lord Atkin's speech.....
is not to be treated as if it were a statutory definition. It will require qualification in new circumstances''. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed: ''One must not, of course, construe even a reserved judgment of Russell, L.J. As if it were an Act of Parliament. ''And, in Herrington v. British Railways Board, (1972) 2 WLR 537: (1972) 1 All ER 749 (HL) Lord Morris said: (All ER p. 761c) ''There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.'' Page 8 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015 M/s. Checkmate Services Pvt. Ltd. Vs. Shyam Singh M.A No. 16/14 This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
''Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.'' Further Hon'ble Supreme Court of India in the case law reported as Union of India & Anr. Vs. Manik Lal Banerjee AIR 2006 SC 2844 has observed that, ''.......... It is now well settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent........''
6. Accordingly, application is hereby dismissed.
7. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 03.01.2015.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi Page 9 of 9 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /03.01.2015