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2019 DIGILAW 1412 (HP)

Mayfair Biotech Pvt. Ltd. v. Sanjeev Kumar

2019-09-19

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, petitioner-Company has challenged the award dated 02.11.2010, passed against it by the Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala, H.P. in Reference No. 9/2010, titled as Shri Sanjeev Kumar versus Managing Director. 2. Brief facts necessary for the adjudication of the present petition are that following reference was sent to the learned Labour Court by the appropriate Government for adjudication:- "Whether termination of the services of Sh. Sanjeev Kumar alias Nathi S/o Shri Jeet Singh by the management of M/s Mayfair Biotech Pvt. Ltd. Industrial Area Mehatpur, Distt. Una, H.P. w.e.f. 23.2.2008 on the basis of alleged theft is legal and justified? If not, what relief of service benefits the above workman is entitled to?" 3. Vide an ex parte award dated 02.11.2010, while answering the said Reference, learned Labour Court granted the following relief in favour of the workman:- "Consequently the termination of the petitioner is set aside and quashed. He is ordered to be re-engaged forthwith at the same place and post. The petitioner has discharged his initial onus of proving that he was not a gainfully employed during his forced idleness. The petitioner is thus held entitled to 50% back wages from the date of his illegal termination on 23.2.2008 till his reinstatement. The petitioner shall also be entitled to continuity in service from the date of his illegal termination. The reference is disposed of in the aforesaid terms. A copy of this award be sent to the appropriate Govt. for publication in the official gazette and the file after completion consigned to the record room." 4. Feeling aggrieved, petitioner-Company/Employer has filed the present petition. 5. Mr. Sanjeev Bhushan, learned Senior Counsel appearing for the petitioner has argued that award per se is not sustainable in the eyes of law as the petitioner-Company was literally condemned unheard in the matter as it was wrongly ordered to be proceeded against ex parte because there was no valid service upon the Company by the learned Court below. In order to substantiate this fact, learned Senior Counsel has taken me through the record of the case and submitted that the notice issued to the Company by the learned Court below was served upon one Kabul Singh, a Clerk of the Petitioner-Company, who was not authorized to accept the notice on behalf of the Managing Director of the petitioner-Company. In order to substantiate this fact, learned Senior Counsel has taken me through the record of the case and submitted that the notice issued to the Company by the learned Court below was served upon one Kabul Singh, a Clerk of the Petitioner-Company, who was not authorized to accept the notice on behalf of the Managing Director of the petitioner-Company. Learned Senior Counsel has further argued that the services of the workman were never terminated by the Company. In fact what happened was that the workman was caught in the act of theft and thereafter, he left the job of his own. Had the Company been served properly before the learned Court below, it would have had proved this fact before the said Court. In the absence of proper service upon the Company, this opportunity stands denied to the Company. Mr. Bhushan has also drawn the attention of this Court to a document appended with the present petition as Annexure P-3, which document, according to learned Senior Counsel is the resignation so tendered by the workman. On these bases, Mr. Bhushan, has argued that in the interest of justice, the award be set aside and the matter be remanded to the learned Tribunal with the direction to adjudicate the Reference afresh after giving the opportunity to the petitioner-Company to put forth its evidence and also lead evidence in support of its case. 6. On the other hand, learned Counsel for the respondent-workman has argued that there was no infirmity with the award challenged by way of present petition because summon issued by the learned Court below was duly received by the authorized signatory of the Company as is evident from the perusal of the report on the summon. There is a stamp of the Company upon the summon which demonstrates that summon stood served upon the authorized signatory of the Company. He has denied that respondent was caught in the act of theft or he resigned from the job. On these grounds, he submitted that petition be dismissed. 7. I have heard learned Counsel for the parties and also gone through the impugned award as well as the documents appended with the petition as also the record of the case. 8. He has denied that respondent was caught in the act of theft or he resigned from the job. On these grounds, he submitted that petition be dismissed. 7. I have heard learned Counsel for the parties and also gone through the impugned award as well as the documents appended with the petition as also the record of the case. 8. A perusal of the record of the learned Court below reveals that the case was listed before the learned Court below on 20.03.2010, on which date, the case was ordered to be listed for proper orders at Dharamshala for 27.4.2010 with the report that Presiding Officer had retired from service. Thereafter, on 27.4.2010, fresh notice was issued to the Company returnable for 01.06.2010. On 01.06.2010, when the matter was taken up by the Court, the petitioner-Company was ordered to be proceeded against ex parte with the observation that Company stood duly served, yet none had put in appearance on its behalf. The summon which was issued to the company for 01.06.2010 demonstrates that there is report of the Process Server to the effect that copy of the same was got served upon the company by him. It is also borne out from the perusal of the summon that the signatory, who received the said summon, had appended his signatures alongwith the stamp which read as "for Mayfair Biotech Pvt. Ltd Authorized Signatory". Because it is the contention of the petitioner herein that respondent had voluntarily left the job after he was caught in an act of theft, in my considered view, in the peculiar facts of the case, it will be in the interest of justice in case this petition is remanded back by setting aside the impugned award with the direction to the learned Tribunal to decide the same afresh after giving an opportunity to the present petitioner to put forth its version before it, in accordance with law by compensating the respondent with cost. This I say so for the following reasons. Though, it appears from the record that the summons issued to the petitioner-Company were received by its employee, yet, fact of the matter remains that because the Company for one reason or the other did not appear before the learned Court below, the award was passed by learned Tribunal on the basis of material placed before it by the workman. Though, it appears from the record that the summons issued to the petitioner-Company were received by its employee, yet, fact of the matter remains that because the Company for one reason or the other did not appear before the learned Court below, the award was passed by learned Tribunal on the basis of material placed before it by the workman. This Court does not finds anything primarily wrong with the same because in case there is report before the Court that a party has been duly served and yet it does not appears, then, but obvious, the only option left with the Court is to proceed that party as ex parte. However, in this case, because there is a specific stand taken by the petitioner-Company that neither it was served properly nor the workman was terminated in violation of provisions of the Industrial Disputes Act, as the workman had voluntarily abandoned the job by way of resignation after he was caught in the act of theft, it is necessary that these facts should be gone into by the learned Court below to determine as to whether the version of the workman is correct or that of the employer is correct. In case, after hearing the parties, the Court comes to the conclusion that the version of the workman is correct, then appropriate orders can be passed by the learned Court below by reiterating the relief granted to the workman by the learned Court. However, if the Company is able to prove that workman in fact had voluntarily abandoned the job by way of resignation after he was caught in an act of theft, then, in view of this Court, the workman does not deserves any undue enrichment simply because of the fact that the employer-Company has not been able to put forth its version before the learned Court below. 9. Accordingly, this petition is disposed of by setting aside the ex parte award passed by learned Tribunal against the present petitioner dated 02.11.2010, in Reference No. 9/2010, titled as Shri Sanjeev Kumar versus Managing Director. Matter is remanded back to the learned Labour Court-cum-Industrial Tribunal, Dharamshala, with the direction that it will decide the Reference afresh after affording the opportunity to the petitioner-Company to put forth its case. Matter is remanded back to the learned Labour Court-cum-Industrial Tribunal, Dharamshala, with the direction that it will decide the Reference afresh after affording the opportunity to the petitioner-Company to put forth its case. It is clarified that thereafter in case the workman is desirous, he will be given opportunity to rebut the stand of the Company and also to lead evidence/additional evidence, if any, and same opportunity may be granted to the petitioner-Company also and thereafter, the matter shall be decided, in accordance with law. Parties through their respective learned Counsel are directed to appear before the learned Court below on 04.11.2019 and as this Court has fixed a date in the matter for appearance before the learned Court below, no fresh process shall be issued to either of the parties by the learned Court below. Petitioner shall pay the cost of Rs.7,500/- to the respondent herein. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.