Delhi High Court - Orders
M/S Panex Overseas vs Rajesh Kumar on 22 March, 2021
Author: Jyoti Singh
Bench: Jyoti Singh
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3741/2021
M/S PANEX OVERSEAS ..... Petitioner
Through Mr. M.S. Nagar and Mr. Mohit
Nagar, Advocates.
versus
RAJESH KUMAR ..... Respondent
Through None.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 22.03.2021
CM No. 11280/2021 (Exemption)
Allowed, subject to all just exceptions.
Application is disposed of.
W.P.(C) 3741/2021 and CM No. 11279/2021 (Stay)
Present petition has been filed by the Petitioner herein assailing the order dated 29.01.2020 dismissing the application for setting aside the ex- parte order dated 11.09.2010 and the award dated 20.11.2018.
It is averred in the petition that the Petitioner is a partnership firm having its office at B-63, Okhla, Phase I, New Delhi and is engaged in the business of export of ready-made garments. Petitioner provides employment to number of employees directly and through contractor for ancillary works. Respondent/Workman started working with the Petitioner from 02.01.2015 and his last drawn salary was Rs. 9,568/- per month. On 31.07.2016 as per the Petitioner, Workman resigned voluntarily and his full and final dues were also settled. A receipt was also executed evidencing the settlement of his dues and it bears his signatures as well as a thumb impression.
Despite having settled his claims in full and final settlement, Respondent filed a claim before the Labour Court on 01.05.2018, wherein the Respondent prayed for reinstatement with full back wages and cost of Rs. 15,000/- as litigation expenses.
Labour Court issued notice on 09.05.2017 to the Workman and the matter was adjourned to 03.11.2017. On 03.11.2017, nobody appeared on behalf of the workman, however, Labour Court again issued notice to the workman and the matter was posted for 01.05.2018. On 01.05.2018, notices were issued to the Petitioner / Management through ordinary process, registered AD and speed post for 11.09.2018. However, notices were sent only through the Process Server by 'dasti mode' and were not sent through the other two modes of service i.e. Registered AD and Speed Post. Despite this the Labour Court proceeded ex-parte on 11.09.2018 and passed an ex-parte award on 20.11.2018, which is illegal and against the principles of natural justice.
Petitioners came to know about the ex-parte Award when they received notice from the Saket Court on 17.10.2019 in the Execution Proceedings. Thereafter, Petitioner filed an application for setting aside the ex-parte order and the ex-parte award which was dismissed vide order dated 29.01.2020. Learned counsel for the Petitioner contends that the notices sent to the Management vide order dated 01.05.2018 were never served upon the Management. Perusal of Service Report of the Process Server would indicate that service was effected on one, Mr. Subhash Chand, however, no employee by such name worked with the Management. There used to be one trainee with the firm by the said name but he had worked as trainee for a period of 90 days only after which his training came to an end in July, 2018 and he left. In view of the above, the Labour Court has erred in firstly, proceeding ex-parte and secondly, in not setting aside the ex-parte award. The Labour Court has failed to appreciate the law laid down in M/s. Shalimar Rope Works Ltd. Vs. Abdul Hussain (1980) 3 SCC 595 wherein it was held that when summons are served upon a person who has nothing to do with the legal matters of the party in question, it cannot be regarded as due service on the party / company.
Issue notice to the Respondent on the Petitioner taking requisite steps, through all permissible modes, returnable on 11.05.2021.
On the Petitioner depositing 50% of the awarded amount i.e. Rs. 2,81,632/- towards back wages, within a period of four weeks from today, operation of the Impugned Award is stayed till the next date of hearing. The amount so deposited shall be invested in an interest bearing Fixed Deposit in a Nationalised Bank with auto-renewal Clause.
JYOTI SINGH, J MARCH 22, 2021 yo