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Santosh Kumar vs M/S Retax Electricals Pvt.Ltd. on 5 July, 2012

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    IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER LABOUR 
              COURT ­IX, KARARDOOMA COURTS/DELHI

I.D No.90/11 Misc No.29/12
Santosh Kumar Vs M/s Retax Electricals Pvt.Ltd.

ORDER

5.7.2012 1 Vide my separate order, I shall dispose off the application of the management for setting aside award dt.1.9.2011.

2 Brief facts as stated by the management in its application are that Sh.S K Gupta, Director of the management received the summons on 28.3.2011 on behalf of the management and the said Sh.S K Gupta is under medical treatment due to certain acute family problems and he generally remains silent and prefers to conceal the facts. The other Director Sh.G.C Bansal/ the applicant is looking after the production, sales and finance although he was aware of the present dispute yet he never paid much attention as it was being dealt with by the other Director Sh.S K Gupta. It is further submitted that Sh.G.C Bansal came to know in second week of January, 2012 from one of his supervisor that some of the employees had filed certain cases against the management which had been decided against the management and after coming to the knowledge of this fact, he asked Sh.S K.Gupta, the other director about the present matter and then he came to know that the summons were duly received by Sh.S K Gupta earlier and it was Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

also informed by Sh.S K Gupta to Sh.G.C Bansal that one Sh.Pyare Lal Shrivastava, the Union's Representative for the workman had come to the office of the company after summons have already been received by Sh.S K Gupta and had talked with him and had assured the management that the said Union's Representative would extend his full co­ operation and no notice would be received by the management thereafter, which version was believed by Sh.S K Gupta and infact no notice has ever been received by the management thereafter. The applicant also talked with Sh.P.L Shrivastava, the Union's Representative who again tried to convince the applicant also, with the same reasoning as it was given to Sh.S K Gupta but the applicant thereafter contacted the counsel who made inquiries after inspecting the case file and found that the facts stated by Sh.P.L Shrivastava is not correct and it is further submitted that the said representative of the Union had filed 5 different cases against the management being I.D no.91/11, 87/11, 90/11, 89/11, 683/10 and all have been decided Ex.parte against the management. It is stated by the applicant that the management was misled by Sh.P L Shrivastava and it is also worth observing that the said representative of the Union crossed all the limits by filing unsigned written statement on behalf of the management in one of the claim i.e.I.D no.89/11 although the said written statement (in I.D no.89/11) was signed by one Sh.Ajay Sinha to whom the management never authorized to represent the matter. It is also informed that the said advocate is known to the Union's Representative and the management came in contact with the said advocate only through the said Union's Representative and from the bare look of the composition, typing , setting and language Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

of the written statement, it is very clear that the same was drafted by the Union Representative himself and even from the proceedings dt.2.6.2011, it is clear that the same was filed personally by Sh.P.L Shrivastava, Union Representative and he also filed rejoinder on the same day. The malafide intentions of the Union's Representative are reflected from his own conduct and behaviour and although the management admit its fault yet it is submitted that the said fault is only because of misguiding attitude of the Union's Representative and it is further submitted that the management regrets for its non appearance & the management tenders its apology. It is further submitted that the management has a very good case on merits as there existed no relationship of employer and employee between the parties and, therefore, balance of convenience lies in favour of the management and if the present application is not allowed, the management would suffer irreparable loss or injury. It is further submitted that the court is well within the power to dispose of the present application as award dt.1.9.2011 has not been published so far and, therefore, it is prayed that the management be allowed to defend the matter. Affidavit of Sh.G.C Bansal, Sh.S K Gupta and Sushil Kumar are filed on record. 3 The workman was served and he has filed reply to the application stating therein that the para no.1 to 13 of the application are wrong and concocted and have no relation with the truthfulness of the facts . The workman was terminated from his services when he demanded legal benefits on 29.11.10 & despite having received the demand notice by the management, the workman was not reinstated. The management despite having Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

received summons from the court did not appear and now on the pretext of illness , they are trying to further delay the legal entitlement of the workman and it is reiterated that no medical documents have been filed on court record regarding the alleged illness of the management and non appearance on the part of the management shows the callous attitude of the management towards court proceedings for which the management themselves are liable. It is further submitted that the award has been passed in accordance with law and in such circumstances, the workman can not be held to suffer and it is specifically denied that there is no relationship of employer and employee in between the parties and it is prayed that the application of the management be dismissed. 4 I have heard the arguments and perused the record.

5 Present claim was filed by the workman directly u/s 10(4) A of the I.D Act on 7.2.2011 and the notice was ordered to be served upon the management which was duly served upon the management and the matter was fixed for 18.4.2011 but the management was not present on that date and the matter was fixed for filing the WS on 10.6.2011 and on the said date, none was present on behalf of both the parties and the matter was fixed for filing the WS on 30.6.2011 . On 30.6.2011, again none has appeared on behalf of the management and the matter was fixed for filing the WS on 5.8.2011 and on the said date, since none was present on behalf of the management , the management was proceeded Ex.parte and the matter thereafter was fixed for Ex.parte Evidence and the workman examined himself as WW­1 on 1.9.2011 and has closed his evidence. Since none was Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

appearing on behalf of the management, the court had passed the award on 1.9.2011. 6 Ground taken by the management in the present application is that Sh.S K Gupta was under depression for the last 4 years on account of certain family problems and he did not divulge the information of having received the notice to other Directors and Sh.G.C Bansal, the other Director/applicant came to know the information only through one of the Supervisor and thereafter he had interaction with Sh.S.K Gupta and took all the information regarding the present proceedings, engaged the counsel and came to know that the management has been misguided by the Union's Representative. 7 The Union Representative is definitely representing the workman and if he is being interacted by the management, the court is of the opinion that the management would be calling such union's representative at its own risk and consequences. The management has to defend its own case on the basis of facts which are within the knowledge of the management and once the management is served with the summons then it is the settled proposition of procedural law that no second time notice is served upon the management. As far as fact that the Union's Representative misinformed the management that it would not receive any further summons from the court, the said fact is otherwise factually correct and is as per the procedure.

8 Now, coming to the fact of sufficient cause. Once the management has admittedly Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

been served, the onus of showing of sufficient cause or reasonable cause falls upon the management and it becomes very difficult and the same can only be justified on the ground of mis­representation . From the contention of the applicant, it appears that the management itself is trying to take the service of the union's representative for its benefits knowingly well that Sh.P.L Srivastava is representing the workman. Here is the management who is first trying to have an interaction with the representative of the Union, trying to impress him for its favour, appoints an advocate of the choice of the Union's representative, prepares WS and then hands over the WS to the said representative(not in this case but in ID no.683/10) and when the matter has been decided against the management, they are trying to impress that they have been misrepresented by the union's representative. Court is of the opinion that such conduct on the part of the management can not be appreciated and the management itself is responsible for getting misled in the efforts of colluding with the union's representative and now the management can not blame if the representative of the Union has not acted upon the way, the management intended. Therefore, the theory with respect to mis­ representation or advice given by the union representative does not appear to be reasonable one, nor the same is corroborating with the court proceedings. 10 As far as the fact that the Ld.ARW in I.D no.89/11 has crossed all the limits by filing unsigned written statement on behalf of the management is concerned, the same is not correct. It is observed that in I.D no.89/11, the WS has been filed through Ld.ARW Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

but the court has also perused all the I.Ds as mentioned by the Ld.ARM & in I.D no. 683/10, the said advocate Sh.Ajay Sinha did appear in that case, got the statement of claim from the court against his signatures, got the WS filed and then did not appear and in that case also it has been specifically observed by the court that the management never disputed the appointment of Sh.Ajay Sinha as its A.R and it is also worth observing that application in that matter has also been dismissed. 11 As far as the ground that Sh.S K Gupta is under depression because of certain family problems is concerned, no medical document has been filed in support of this averment and in any case this plea can not be accepted at all as for all other practical purposes, Sh.S K Gupta is still working as a director of the management and is having interaction with Sh.G.C Bansal who is attending the affairs of the company and he has informed all the facts to the other director with respect to having received the summons or with respect to having talked with union representative. Therefore, this ground taken by the management is also not well found.

12 Further, it is also observed by the court that the management is a private limited company and in such cases services of summons upon the management is sufficient even if the summons is served to any of the employee of the company. Here, the management has been served through Sh.S K Gupta who is Director of the company and and in such cases if the Directors are taking court proceedings casually then the court is Santosh Kumar V M/s Retax Electricals Pvt.Ltd.

of the opinion that they can not merely accuse the union's representative for its mis representation.

13 Keeping in view the discussions made hereinabove, the court is of the opinion that the management has been miserably failed to show any sufficient reason for their non­ appearance in the court . Although the strict rule of evidence & procedures are not applicable to the inquiry proceedings under the I.D Act but the minimum rule of procedure do apply in all the proceedings and this court is of the considered opinion that the management atleast was required to file such document on record, which would have helped the court to appreciate the facts so stated in the application. In the present case, no such documents have been filed on record upon which the court may form its opinion. Therefore, the application of the management for setting aide the award dt. 1.9.2011 is dismissed.

ANNOUNCED IN OPEN                                 (S.S.MALHOTRA)
          th
COURT ON 5  JULY, 2012                          PRESIDING OFFICER
                                       LABOUR COURT­IX/ KKD COURTS/  DELHI




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      Santosh Kumar V M/s Retax Electricals Pvt.Ltd.