SHRI HARIKISHAN JEE INDUSTRIES Vs. HARENDER YADAV

JUDGEMENT

(1.) Prayer in the present petition is for issuance of a writ in the nature of Certiorari for quashing ex parte award dated 23.1.2009 (Annexure P-5) and also order dated 22.10.2009 (Annexure P-11) vide which the application for setting aside the ex parte award preferred by the petitioner has been dismissed by the Presiding Officer, Industrial Tribunal-cum- Labour Court, Circle -I, Faridabad .

(2.) Counsel for the petitioner submits that in the proceedings before the Industrial Tribunal-cum-Labour Court, due service was not effected upon the petitioner in accordance with the provisions of Order V Rule 18 CPC as neither the date nor the time and the presence of the witness has been mentioned in the summons showing service upon the petitioner. He contends that no stamp of the company has been put on the summons and mere signatures of one of the employees, namely, Hardeep Singh had been obtained by the process server which does not amount to proper service. Since the petitioner was not duly served in accordance with law, the initiation of the ex parte proceedings against it and thereafter the passing of the ex parte award dated 23.1.2009 (Annexure P-5) deserve to be set aside. His further contention is that the report of the process server with regard to service of summons finds initials of the employee of the petitioner-company and that of the respondent- workman on the same summons whereas separate summons should have been issued to effect service on the petitioner as well as the workman upon the reference of the dispute having been made by the Government to the Industrial Tribunal- cum-Labour Court. He contends that the learned Court below has proceeded to reject the application of the petitioner for setting aside the ex parte award primarily on two grounds i.e. (i) the service has been duly effected and (ii) that the Labour Court after 30 days of publication of the award has become functus officio as the award dated 23.1.2009 was published on 17.3.2009 and the application was preferred by the petitioner on 10.7.2009. He contends that the petitioner came to know of the passing of the award only on receipt of the notice from the Labour Inspector, Circle -II, Faridabad for appearance before him on 15.6.2009 at 11.00 A.M. Counsel, therefore, contends that the application was within time and, thus, order dated 22.10.2009 (Annexure P-11) passed by the Industrial Tribunal- cum-Labour Court, Circle-I, Faridabad deserves to be set aside. He further submits that the petitioner-company M/s. Shri Harikishan Jee Industries, came to be closed on 31.3.2007 and an intimation to this effect was sent by the petitioner to the Excise and Taxation Department, Faridabad, Sales Tax Department, Faridabad and the Regional Director, ESI, Punch Deep Bhawan, Sector 16, Faridabad. He, on this basis, contends that the firm having been closed with effect from 31.3.2007, the reinstatement of the workman cannot be ordered nor can he be granted the back- wages beyond the period of closure of the petitioner-firm. He lastly contends that the ex parte proceedings may be set aside subject to payment of some costs. I have heard counsel for the petitioner and have gone through the records of the case. It is an admitted position that notice was served upon the petitioner through Hardeep Singh on 7.1.2008 as is apparent from the certified copy of the summons produced by the counsel for the petitioner in Court. It is also an admitted position that Hardeep Singh has concern with the petitioner-firm. It has come on record as is apparent from the order dated 22.10.2009 that Hardeep Singh upon whom summons had been served, is none else than the son of the proprietor of the factory. Nothing has been brought on record as proof in regard to closure of the factory. What has come on record is that the name of the factory has been changed from M/s.Shri Harikishan Jee Industries to M/s. Guru Nanak Industries. The proprietors are the same and the location is also the same but still the petitioner-firm has tried to impress upon that the notice had not been served upon it in accordance with the provisions of the Code of Civil Procedure. It would not be out of way to mention here that the strict procedure of Civil Procedure Code is not applicable to the proceedings under the Industrial Disputes Act. The intent and purpose of issuing summons upon the parties is to bring to notice the pendency of the dispute under the Industrial Disputes Act, which purpose had been duly served as the summons were signed by the son of the proprietor of the factory. The finding as recorded by the Labour Court vide its order dated 22.10.2009 (Annexure P-11) is based upon the evidence on record and is fully justified which goes beyond doubt to show that ex parte proceedings against the petitioner vide order dated 2.4.2008 by the Industrial Tribunal-cum-Labour Court, Circle-I Faridabad were fully justified and in accordance with law. Merely because the signatures of Hardeep Singh son of the proprietor of the petitioner- company and Harinder Yadav-workman-respondent find incorporated on the same summons, does not in any way indicate non-service of summons upon the petitioner-company. The purpose for issuing of summons having been duly achieved, the contention as raised by the counsel for the petitioner-company with regard to initiation of ex parte proceedings against it, cannot be sustained. The contention of the counsel for the petitioner that the petitioner-company was closed since 31.3.2007, also does not inspire any confidence as the communications on which the petitioner has placed reliance, were not addressed to the competent Authority under the Industrial Disputes Act. It is not the case of the petitioner that the dues in accordance with the provisions of Industrial Disputes Act were paid to the respondent-workman. The intimation with regard to the closure of the factory to the competent Authority has also not been sent by the petitioner. Mere assertion in this regard by the petitioner cannot be accepted in the absence of any documentary proof to substantiate the contention as has been raised by the petitioner in the present petition. It is not in dispute that the award was passed on 23.1.2009 and published on 17.3.2009 and the application for setting aside the ex parte award was filed on 10.7.2009 which is well beyond the 30 days' period after the publication of the award and, thus, the finding recorded by the learned Labour Court-I, Faridabad that the Court had become functus officio after the expiry of 30 days from the publication of the award, is fully justified. Counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Anil Sood vs. Presiding Officer, Labour Court II 2001 (3) R.S.J. 12 to contend that the Labour Court had ample powers under Section 11 of the Industrial Disputes Act to set aside the ex parte award. There can be no dispute with regard to the said proposition but in the present case, after having come to a conclusion that the petitioner had been duly served in the proceedings before the Industrial Tribunal-cum-Labour Court and the petitioner having sufficient knowledge of the case and intentionally having not appeared in the case, there was no reason or justification for the Court below to have exercised the extraordinary power of setting aside the ex parte award. The equity not being in favour of the petitioner, the exercise of this discretionary power in the present case by the High Court also would not be called for.

(3.) There being no evidence on record which would substantiate the contention with regard to non-service of notice upon the petitioner or with regard to closure of the factory with effect from 31.3.2007, no interference in the award dated 23.1.2009 (Annexure P-5) and the order dated 22.10.2009 (Annexure P-11) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Circle I, Faridabad (respondent No.2) is called for.