JUDGMENT : Order on Civil Misc. Recall Application No.8 of 2019. 1. The present recall application has been preferred by the applicant/respondent, Manager M/S Milton Glass Industries, Girdhar Ganj, Firozabad in First Appeal From Order No.4007 of 2012 for recalling the order dated 17.05.2019. 2. The facts, in brief, are that the claimants/appellants have preferred the First Appeal From Order No.4007 of 2012 for quashing the order dated 10.09.2012 passed by the Commissioner, Employees Compensation Act, 1923/Assistant Labour Commissioner, Firozabad whereby the Commissioner has dismissed the claim petition of claimants/appellants. 3. The appeal was filed on 31.10.2012 and this Court issued notice to the applicant/respondent on 20.11.2012. The claimants/appellants took steps for service of notice on 04.12.2012. The Registry submitted a report on 04.03.2013/26.02.2014 that the notices have been sent on 04.12.2012 to the sole respondent by ordinary process fixing 15.03.2013 has not returned after service. 4. Subsequent thereto, this Court on 14.03.2014 passed an order directing the claimants/appellants to take fresh steps through registered post-A.D. for service of notice upon the respondent. The claimants/appellants have taken steps for service of notice upon the respondent by RPAD which was sent by the registered post to the applicant/respondent fixing 02.05.2014 on Appeal & Stay Application. Registry submitted a report dated 18.11.2014 in respect of service of notice that neither acknowledgment nor undelivered cover has returned after service of notice. 5. The Order-sheet also reveals that the Joint Registrar (J) (I) directed the Registry to place on record the postal receipt as proof of sending notice through the registered post within fifteen days and directed the matter to be listed thereafter. On the order of Joint Registrar (J) (I), the Registry submitted a report dated 19.11.2016/25.11.2016 that the postal receipts are not traceable. In such view of the fact, Registry requested the Court to issue a fresh notice if this Court may deem fit and proper in the facts and circumstances of the case. 6. This Court on 05.02.2018 again issued a fresh notice to M/s Milton Glass Industries, the sole respondent. Thereafter, the claimants/appellants took steps for service of notice by RP/AD. The Registry submitted a report dated 07.04.2018 that neither any undelivered cover nor acknowledgment due has returned after service and also no one has put an appearance on behalf of the applicant/respondent. 7. Thereafter, the claimants/appellants took steps for service of notice by RP/AD. The Registry submitted a report dated 07.04.2018 that neither any undelivered cover nor acknowledgment due has returned after service and also no one has put an appearance on behalf of the applicant/respondent. 7. As nobody has put an appearance on behalf of the applicant/respondent despite service of notice upon the applicant/respondent, therefore, in view of Explanation II to Rule 12 of Chapter VIII of High Court Rules, service of notice was deemed to be sufficient upon respondents. Accordingly, Court proceeded ex parte against the applicant/respondent and heard the appeal on 11.01.2019. Later on, the appeal of claimants/appellants was allowed by judgment dated 17.05.2019 holding that the deceased was employed with the applicant/respondent and died during the course of employment. This Court remanded the matter to the concerned Commissioner to quantify the compensation. 8. The present recall application has been filed by the respondent (hereinafter referred to as applicant/respondent) in the present appeal on 03.07.2019 to recall the ex parte judgement/order dated 17.05.2019. 9. It is stated that after the order dated 17.05.2019 passed by this Court, the claimant/appellant appeared before the Commissioner and submitted the order of this Court. It is averred in para 5 of the affidavit filed in support of the recall application that Surendra Sharma who is a practising Advocate at Firozabad and looks after miscellaneous legal works of many industries situated at Firozabad was, somehow, present before the concerned Commissioner when the order dated 17.05.2019 was produced before the concerned Commissioner. It is further averred that immediately thereafter Surendra Sharma, Advocate informed Smt. Raj Narang (one of the partners of the respondent firm) about the order dated 17.05.2019 passed by this Court and advised her to take appropriate legal recourse available in law. Smt. Raj Narang without wasting any further time instructed Rishabh Agrawal, Advocate to enquire about the present case and file an appropriate application to get an ex parte order dated 17.05.2019 recalled. 10. Further case of the applicant/respondent that no notice was ever served upon any of the partners/manager/employees of the applicant/respondent firm in respect to First Appeal From Order due to which the applicant/respondent could not appear before the Court to contest the appeal. 10. Further case of the applicant/respondent that no notice was ever served upon any of the partners/manager/employees of the applicant/respondent firm in respect to First Appeal From Order due to which the applicant/respondent could not appear before the Court to contest the appeal. Further averment made in the affidavit is that Smt. Archana Tiwari and Smt. Raj Narang were partners of the respondent firm and at no point in time, the husband of the two partners was ever involved in the operation of the firm. The firm came into existence in the year 1993 and was eventually dissolved in the year 2009 with effect from 31.03.2009. To demonstrate that the firm was dissolved, the applicant/respondent has enclosed a letter dated 01.04.2009 addressed to the Office of Assistant Commissioner, Sales Tax Part 2, Firozabad requesting him to cancel its Tin number which according to the applicant/respondent, has been cancelled as per the computer status of Sales Tax Department appearing on page 17 of the affidavit filed in support of recall application. The applicant/respondent has also enclosed a letter addressed to the Assistant Labour Commissioner, Firozabad by Smt. Raj Narang informing him about the dissolution of the firm. 11. In the aforesaid backdrop, it is stated in the affidavit that on account of the closure of the firm, notice was not served upon partners/agent/manager of the applicant/respondent firm in respect to the present appeal which resulted in the disposal of appeal ex parte. 12. In the aforesaid factual backdrop, learned counsel for the applicant/respondent has urged that the firm was being run on a rented property and was dissolved in the year 2009. It is submitted that the appeal was preferred in the year 2012 and the notices were sent to the firm's address since there was no firm on the date of issue of notice by this Court on the said address, therefore, no notice was served upon applicant/respondent and in such view of the fact, the applicant/respondent did not know of the pendency of the appeal, and thus, the non-appearance of applicant/respondent was bona fide and beyond the control of applicant/respondent. Thus, it is contended that the applicant/respondent has made out a case for recall of the order of this Court dated 17.05.2019. 13. Per contra, learned counsel for the claimants/appellants has contended that the averments contained in the affidavit, on the face of the record are incorrect and false. Thus, it is contended that the applicant/respondent has made out a case for recall of the order of this Court dated 17.05.2019. 13. Per contra, learned counsel for the claimants/appellants has contended that the averments contained in the affidavit, on the face of the record are incorrect and false. He submits that in para 5 of the affidavit, it has been averred that Surendra Sharma, a practising lawyer at Firozabad informed the applicant/respondent about the judgement/order of this Court dated 17.05.2019 as he was, somehow, present on the date fixed in the court of Commissioner when the order passed by this Court was produced before the Commissioner. He submits that such an averment is false inasmuch as no document namely registration details of Surendra Sharma with the Bar Council and Bar Association of which he is a member was brought on record to establish the identity of Surendra Sharma nor any affidavit of Surendra Sharma, Advocate to the effect that he is an Advocate and he was present in the court of Commissioner when the order of this Court was presented before the Court and he informed the order of the High Court to the applicant was filed on record. 14. He further submits that there is no averment in the affidavit filed in support of the recall application that Surendra Sharma, Advocate was also a counsel of the applicant/respondent. Accordingly, it is submitted that it is highly improbable that an Advocate who was said to be present in the Court and has no relation with the applicant/respondent would inform Smt. Raj Narang, one of the partners of the respondent firm, about the order dated 17.05.2019. 15. He submits that in the appeal, notice has been served upon the applicant/respondent on the same address which has been mentioned in the claim petition filed before the concerned Commissioner, and thus, no fault can be attributed to the appellant for non-service of notice upon the applicant/respondent. It is submitted that the fault was of the applicant/respondent inasmuch as if the applicant/respondent had dissolved the firm, it was the duty of the partners of the firm to have given postal address to the concerned Post Office where any letter of the firm could be forwarded. In support of said contention, he has relied upon the judgement of the Apex Court in the case of M/s Madan and Co. Vs. In support of said contention, he has relied upon the judgement of the Apex Court in the case of M/s Madan and Co. Vs. Wazir Jaivir Chand, 1989 AIR (SC) 630. 16. He further submits that the story of the dissolution of the firm as stated in the affidavit has been made only to get the order dated 17.05.2019 recalled inasmuch as no document was brought on record evidencing that the firm has been dissolved with effect from 31.03.2009. He further submits that the letter appearing on page 17 of the affidavit filed in support of the recall application and status report from the website of the office of the Sales Tax Department stating that the registration has been cancelled is not conclusive proof to demonstrate that the firm has been closed. It is further submitted that no order of the Assistant Labour Commissioner, Firozabad has been brought on record acknowledging the closure of the firm. Thus, it is contended that the recall application is misconceived and no case for recall of the order dated 17.05.2019 has been made out. 17. I have heard learned counsel for the parties and perused the record. 18. The claim petition has been instituted in the year 1998 for the death of the deceased S.L. Sharma who died on 01.07.1998. The claimants/appellants contested the claim petition for 14 long years to get compensation. However, the claim petition was rejected, and the claimants/appellants preferred the present appeal challenging the order of Commissioner in the year 2012. 19. This Court issued notices to the applicant/respondent first by ordinary post on 20.11.2012 and when the service of notice was not found to be sufficient, this Court vide order dated 14.03.2014 directed the learned counsel for the claimants/appellants to take steps for service of notice upon applicant/respondent by registered post. The claimants/appellants took steps for service of notice upon applicant/respondent by registered post. The Registry, thereafter, submitted a report that neither the notice sent by the registered post-AD returned nor the acknowledgment due has been received back. 20. As the postal receipt sending notice by registered post was not traceable, therefore, in the interest of justice, this Court again directed the claimants/appellants to take fresh steps for service of notice. The claimants/appellants took fresh steps by registered post AD. 20. As the postal receipt sending notice by registered post was not traceable, therefore, in the interest of justice, this Court again directed the claimants/appellants to take fresh steps for service of notice. The claimants/appellants took fresh steps by registered post AD. Thereafter, the Registry submitted a report that neither acknowledgment due has returned after service of notice nor anybody has put an appearance on behalf of the applicant/respondent, therefore, this Court in view of Explanation 2 to Rule 12 of Chapter VIII of High Court Rules passed an order holding service of notice upon applicant/respondent deemed to be sufficient. The said process had taken about 7 years in this Court when this Court proceeded to hear the appeal ex parte and decided the appeal vide judgement and order dated 17.05.2019 and remanded the matter back to the concerned Commissioner to determine the compensation. So a poor litigant for getting his rightful claim contested the matter for about 20 years. After remand, the Commissioner by order dated 16.10.2019 awarded Rs.1,49,360/- along with 12% as compensation. 21. At this point, the Court proceeds to analyze the averments made in the affidavit filed in support of the recall application to find out whether the non-appearance of the respondent was bona fide and was for reasons beyond his control. In this respect, it would be apt to reproduce paragraphs 5, 6 & 7 of the affidavit:- "5.That Shri Surendra Sharma who is a practising advocate at Firozabad and also looks after miscellaneous legal works of quite a number of industries situated at Firozabad was somehow present before the concerned Commissioner when the order dated 17.05.2019 was produced before the concerned Commissioner. 6. That, immediately thereafter, Shri Surendra Sharma, Advocate informed Smt. Raj Narang (one of the partner of the respondent firm) about the order dated 17.05.2019 passed by this Court and advised her to espouse and undertake appropriate legal recourse. 7. That without wasting any further time, Smt. Raj Narang instructed Shri Rishabh Agrawal, Advocate, High Court, Allahabad to find out the proceedings related to Case No.W.C.15 of 98 and file appropriate application to get the ex-parte order dated 17.05.2019 recalled." 22. Perusal of paragraphs 5 & 6 of the affidavit reveals that averments made therein are vague and cannot be said to be correct, trustworthy, and honest for the following reasons:- (i). Perusal of paragraphs 5 & 6 of the affidavit reveals that averments made therein are vague and cannot be said to be correct, trustworthy, and honest for the following reasons:- (i). The applicant/respondent in the aforesaid paragraph has only stated the name of the Advocate Surendra Sharma but has not disclosed his identity. If the applicant/respondent had been serious, he would have at least given the registration number of the advocate with the Bar Council and Bar Association or could have filed a document indicating that Surendra Sharma is a practising advocate; (ii) averments made in paragraph 5 are also vague since it does not disclose as to in which case Surendra Sharma was present in the court of Commissioner when the order of this Court was presented before the Commissioner; (iii) Further, averments in the paragraph does not disclose that Surendra Sharma was a counsel of the applicant/respondent and had appeared in any of the cases of the applicant/respondent, this reflects that the averments contained in the affidavit are not honest and reliable as it is highly improbable that an advocate who has no concern with the applicant/respondent would find out the details of the applicant/respondent and would inform him about the order which is against him. 23. In such view of the fact, this Court finds that the averments contained in paragraphs 5, 6 & 7 are not trustworthy and have been made only to make out a case for recall of the order. 24. Further, it is pertinent to note that it is stated in the affidavit that there were two partners of the firm namely, Smt. Raj Narang and Smt. Archana Tiwari and the firm had been constituted in the year 1993 and subsequently, reconstituted in the year 1997 consisting of aforesaid two partners, but the applicant/respondent has not placed on record any document entered into between two partners dissolving the firm in the year 2009. In this regard, only a letter addressed to the Assistant Labour Commissioner, Firozabad dated 07.12.2010 and the status report from the Sales Tax Department has been filed to demonstrate that the Tin number of the firm has been cancelled but these documents are not the conclusive proof of evidence to prove that the firm has been closed in the year 2009. In the absence of any document or resolution between the two partners namely, Smt. Raj Narang and Smt. Archana Tiwari agreeing to dissolve the firm on record, it cannot be concluded that the applicant's firm was dissolved. Even the letters addressed to the Assistant Sales Tax Officer, and the Assistant Labour Commissioner, Firozabad does not enclose any resolution between partners namely Smt. Raj Narang and Smt. Archana Tiwari dissolving the firm. Therefore, this Court is of the view that the averment regarding the dissolution of the firm is misleading and has been made to set out a case for recall of the order. 25. This Court may note that it is averred in the affidavit that the firm was being run in a rented accommodation, but no document was filed on record to demonstrate that the accommodation in which the firm was being run, was a rented accommodation. Therefore, this Court is of the view that such an averment has been made to make out a case for recall of the ex-parte order. It is worth noting that if the applicant had vacated the firm's premises, it was the applicant's responsibility to file an application with the Commissioner to record the correct address so that the claimant/appellant was aware of the address of communication and notices could have been sent to the applicant/respondent at the correct address, as the appellant had no way of knowing the whereabouts of the applicant/respondent. 26. Even otherwise, if the office of the firm had been vacated as alleged in the affidavit, then in such an event, it was the duty of the applicant/respondent to give the address to the concerned post office so that any communication to the applicant may be forwarded by the concerned post office to the partners on the address given by them. There is no averment in the affidavit that any such intimation was given by the partners of the firm to the post office. In this respect, it would be apt to refer to paragraph 6 of the judgement of the Apex Court in the case of M/s Madan (supra) which reads as under:- "6. We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to (i) of section 11(1) and the proviso to section 12(3) are intended for the protection of the tenant. We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to (i) of section 11(1) and the proviso to section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order 5 of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has been gone or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant." 27. This Court is also aware of its prime duty to do substantial justice and the technicalities should not come in the way of the court in disseminating the substantial justice. If in a given case, 'sufficient cause' is made out for the non-appearance of plaintiffs/appellants, the court should take a liberal view and recall the order dismissing the appeal in default. In doing so, the courts have wide discretion in determining the 'sufficient cause' keeping in view the peculiar facts and circumstances. 28. It is also a well-established principle of law that in a case where a party approaches the court immediately and within the statutory time specified for filing the application, the discretion is normally exercised in his favour provided the absence was not mala fide or intentional as the absence of a party in case otherwise shall be compensated by heavy cost and a lis be decided on merit. 29. But it is also settled in law that where a party does not approach the court with clean hand or with true facts and files an application before the court to get the ex parte order set aside on a ground which was not made out from the record, and the ground has been set up to befool or defraud the court to get the ex parte order set aside, the court should not come in aid to such a party to allow him to reap the fruits of false and frivolous explanation to get the ex parte order set aside. The present case is one such case inasmuch as the applicant/respondent has approached the court on the ground which is false on the face of the record. 30. The present case is one such case inasmuch as the applicant/respondent has approached the court on the ground which is false on the face of the record. 30. The counsel for the applicant/respondent also urged that in the absence of any counter affidavit by the claimant/appellant to the recall application, the averments made therein are treated to be correct and admitted by the claimant/appellant. True, in the absence of any rebuttal, the averments may be treated as correct if the applicant/respondent case is made out from the record. The Court is not a passive observer and accepts every explanation or reason for non-appearance as genuine and correct, even if the reasons stated for the recall of the order are not supported by the record. This Court has ample power to ascertain whether the reasons stated in the recall application are made out from the record and whether the reasons for the applicant's/respondent's non-appearance were bona fide and genuine. If the Court concludes that the reasons stated in the recall application are frivolous and not supported by the record, the Court is obligated to reject the recall application, even if the claimant/appellant has not filed any counter-affidavit to the recall application rebutting the averments of the recall application. It is pertinent to mention that first, the applicant/respondent has to establish that his non-appearance was bona fide and genuine and only then does the burden shift to the claimant/appellant to prove that the applicant's/ respondent's non-appearance was not bona fide and genuine. The applicant must stand on his own two feet and make out a case for recall of the order, and he cannot take advantage of the claimant/appellant's weakness. 31. From the facts delineated above, this Court finds that the averments made in the affidavit filed in support of the recall application are not trustworthy and have been made mala fidely to make out a case for recall of the order of this Court dated 17.05.2019. Since the reasons assigned in the affidavit do not disclose that the non-appearance of the applicant/respondent was bona fide before this Court, this Court is not inclined to recall the order of this Court dated 17.05.2019. 32. Thus, the recall application lacks merit and is hereby, rejected with no order as to cost. 33. Besides the above, no other point has been urged by the learned counsel for the applicant/respondent.