Civil Writ Petition No.14251 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14251 of 2010 Date of decision:-29.08.2011 Sarvesh Kumar ...Petitioner Versus The Presiding Officer, Industrial Tribunal-cum-Labour Court-II, Faridabad and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mrs. Abha Rathore, Advocate for the petitioner. Mr. Mohak Bhadana, Advocate for respondent No.2. RITU BAHRI J. The petitioner has challenged the Award dated 27.2.2007 (Annexure P-2) passed by the Industrial Tribunal-cum-Labour Court, Faridabad and the order dated 28.8.2009 (Annexure P-5) whereby the reference has been answered against the respondent-workman on the ground that no claim statement was filed and the claimant had not chosen to appear, order dated 28.8.2009 (Annexure P-5) whereby the application filed by the workman has been dismissed by the Labour Court. The undisputed facts are that the petitioner joined the company of respondent No.2 M/s Faridabad Metal Udyog (P) Limited, 15/4, Mathura Road, Faridabad on 27.7.1993 and his services were terminated on 08.11.2000. He was taken back on duty on 20.11.2000. Thereafter, on 18.12.2000 he was beaten up in the factory. After that on 04.6.2004 he raised a demand notice and Civil Writ Petition No.14251 of 2010 -2- the matter was referred to the Labour Court. Award dated 27.2.2007 was answered against the workman as he has chosen not to file any claim statement. The application for setting aside the ex-parte award had been filed beyond the period of 30 days beyond the period of publication of award i.e. 23.3.2007. Application was filed on 23.8.2007 after a period of 30 days. On this ground the Labour Court has dismissed the application vide order dated 28.8.2009 (Annexure P-5). Mrs. Abha Rathore, counsel for the workman has argued that the workman had left Faridabad for his native village and could not get any information regarding the reference pending in the Labour Court. The original landlord of the workman had sold away his house after departure of the workman from Faridabad. Before leaving the services on 18.12.2000 petitioner was beaten up by the employees of the Management. He was treated in the E.S.I. Hospital and was not taken back on duty after recovery. Mr. Mohak Bhadana, counsel for respondent No.2 has argued that once the workman had engaged a lawyer to represent the case in the Labour Court, he cannot be allowed to take the plea that he was not properly represented before the Labour Court. While dismissing the application for setting aside the ex-parte award, the Labour Court observed that the petitioner was not available at the given address in the demand notice. Therefore, the order suffers from no infirmity and the award is liable to be upheld. In the facts of the present case, it is not disputed that the petitioner has worked for almost seven years i.e. from 23.7.1993 till 08.11.2000 and on 20.11.2000 he was taken back on duty again. He has been terminated on 18.12.2000. He could not file claim statement as he had gone back to his village at Farukhabad (U.P.) because he was unable to earn his daily livelihood. As per the application, he has informed the authorized representative before leaving Civil Writ Petition No.14251 of 2010 -3- Faridabad. His original land owner sold his house. He was not aware of the proceedings as he was not available at the given address in the demand notice. The Supreme Court in Harjinder Singh versus Punjab State Warehousing Corporation 2010(0) AIJEL-SC 47996 has held that the Courts are to infer that the workman who had not been found guilty cannot be deprived of and what he is entitled to get. The workman has been illegally deprived of his employment i.e. a misconduct on the part of employer and the employer cannot be permitted to deprive of a person what is due to him. In the facts of the present case, the petitioner has put in seven years of service and was not allowed to join back work after 18.12.2000. The writ petition is being allowed and the ex-parte award dated 27.2.2007 (Annexure P-2) and order dated 28.8.2009 (Annexure P-5) are set aside. The matter is remanded back to the Labour Court enabling the petitioner to lead his evidence and then pass final order. August 29, 2011 ( RITU BAHRI ) Vijay Asija JUDGE