L.S. DAVER & CO. Vs. SATYANARAIN RAI

JUDGEMENT

(1.) By the present petition the Petitioner impugns the ex-parte award dated 13th September, 2002 whereby the termination of the Respondent No.1 was held to be illegal, unjustified and in violation of Section 25F of the Industrial Disputes Act, 1947 (in short the ID Act) and was directed to be reinstated with full earned wages w.e.f. 12th May, 1997 to 12th June, 1997 and 40% back wages of the last drawn wages w.e.f. 13th June, 1997 onwards.

(2.) LEARNED counsel for the Petitioner contends that Respondent No. 1 was not the driver of the Petitioner firm but was the driver of one of its partner Shri G.S. Daver for his personal car at the residence. The name of Respondent No. 1 was not included in the list of employees of the firm. The case of the Petitioner even before the Assistant Labour Commissioner was that Respondent No. 1 was not an employee of the firm. The Respondent No. 1 clearly concealed his complaint written to the SHO, PS Greater Kailash dated 14th June, 1997 wherein he admitted that he was working in the house of Shri Daver. Reliance is placed on S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Others, II (1993) BC 546 (SC)=1994 (1) SCC 1 and North Eastern Railway Administration, Gorakhpur v.Bhagwan Das (D) by LRs., IV (2008) SLT 364=II (2008) CLT 272 (SC)=2008 (8) SCC 511. The Petitioner was proceeded ex-parte because Petitioner 's lawyer could not attend the proceedings due to the continuous confusion on account of the matter being transferred from Tis Hazari Court to Karkardooma Court. It is further stated that Respondent No. 1 was in domestic service and hence excluded from the definition of workman under the ID Act. The Petitioner has placed on record of this Court an additional affidavit with the documents to fortify his contention that the claim of Respondent No. 1 is without any basis. The certificate produced by the Respondent No. 1 purported to be signed by Shri R.P. Yadav, Advocate of the firm is a fabricated document and an affidavit of Shri R.P. Yadav, Advocate has been placed wherein it has been stated that he never issued this certificate to Respondent No. 1 however, he gave an experience certificate to the son of Respondent No.1 on his request in good faith keeping in view that his son may get a job somewhere as driver. Reliance is placed on Punjab National Bank v.Ghulam Dastagir, 1978 (2) SCC 358, Brijbhushan Yadav and Ors. v.Union of India (UOI) and Another, VIII (2007) SLT 342=2007 (7) SCC 794 and Santuram Yadav and Another v.Secretary, Krishi Upaj M.S. Bemetara and Another, 2010 (3) SCC 189. Thus the matter be remanded back and the Petitioner be permitted to place the evidence before the learned Labour Court so as to arrive at just conclusion. Since the Respondent No. 1 was not a workman, the impugned award passed by the learned Tribunal is a nullity and the same being without jurisdiction is required to be set aside. Reliance is placed on Kiran Singh and Ors. v.Chaman Paswan and Others, AIR 1954 SC 340.

(3.) I have heard learned counsel for the parties.