C.W.P. No.6189 of 2001 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.6189 of 2001 (O&M) Date of Decision: 05.10.2009 Super Threading India Pvt. Ltd. .....Petitioner Versus Presiding Officer, Labour Court, Ludhiana and another ...Respondents Present: Mr. H.S. Dhandi, Advocate for the petitioner. Mr. Sukant Gupta, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the ex parte award passed by the Labour Court. The Labour Court had set the management ex parte on a finding that several notices issued through Registered Post had not been returned served or otherwise and proceeded to pass an award after examination of the workman alone. The award had been passed on 28.01.1997 and only when the award was put in execution, the objection came from the management that they had not been served and an application had been filed for setting aside the ex parte award on 31.03.2000. The Labour Court found that the award had in the meanwhile been notified in the gazette of the court and had become functus officio. The writ petition came to be filed under the circumstances by the management stating that they had not been served with notice in the proceeding before the Labour Court. To substantiate C.W.P. No.6189 of 2001 (O&M) -2- further that even the address mentioned in the summons was not correct, the management wanted to contend that correct address was C-138, Focal Point, Phase V, Ludhiana, while what was stated in the Court notice was without reference to the phase number. An Advocate Commissioner had been appointed by this Court to determine whether there were any other premises answering the same description of door number C-138 in Focal Point, Ludhiana. The Commissioner found that there was no other Phase except Phase-5 which had C-138. The Commissioner had also indicated in the report that the conduct of the persons representing the management was deprecatory. 2. Learned counsel appearing for the petitioner-management states that there had been no proof at all for actual service of notice from the Labour Court. I have gone through the file of the Labour Court and I find that there is no postal acknowledgment or any notice evidencing that there had been actual service. Learned counsel appearing for the workman, however, contends that a notice, if it is sent by registered post, there shall be a presumption of service of notice and refers to a decision of the Hon'ble Supreme Court in Attabira Regulated Market Committee Vs. Ganesh Rice Mills (1996) 9 SCC 471. The Hon'ble Supreme Court was dealing with the general presumption of law available under Section 27 of the General Clauses Act that when neither acknowledgment nor unserved envelope had been received back, the notice could be deemed to be served. In my view, this decision does not lend support to a proposition that in all cases where notice is not shown to have been actually served, the matter of presumption would extend to an extent that it could be used to defeat the claims of a person who contends specifically that notice was not served. Any presumption in the very C.W.P. No.6189 of 2001 (O&M) -3- nature of things only gives rise to a certain inference of facts which can be shown to be not correct. It is never inviolable. The Hon'ble Supreme Court itself has observed in Puwada Venkateswara Rao Vs. Chidamana Venkatoramana (1976) 2 SCC 409, that the presumption that is available under Section 27 of General Clauses Act will not apply when the addressee specifically denies receipt of a registered notice. The onus of proof in such case is indeed a light one. If a person complains that a registered notice was not served, the person who seeks to avail to himself the presumption must then prove that there had been actual service. Evidently there had been no definite evidence available and the Labour Court itself could not have gone to the issue at any length, in view of the fact that the award had been published in the gazette and the Labour Court did not have the jurisdiction to reopen the issue. A pure question of fact whether there had been due service or not is not a subject that could be undertaken in this jurisdiction in favour of the person who contends that there had been actual service. As I have already observed, the presumption under Section 27 is always rebuttable and when it was rebutted, in the absence of any material that is through affidavit or otherwise of the Postman that the notice had been actually served, it shall not be possible to uphold the contention that the notice was served. 3. Learned counsel appearing for the workman states that there are no bona fides in the contention of the management which did not take action within 30 days from the time when the award was passed. The time will have relevance if there was actual service. If there is no proof of service, it is the knowledg of proceedings that begins the starting point of limitation. Admittedly, in view of the pendency of the C.W.P. No.6189 of 2001 (O&M) -4- writ petition and the interim orders of stay granted by this Court, the workman has not been able to secure reinstatement. The management failed in its attempt before this Court to establish that there was any other building bearing the same number in Ludhiana. The Management shall, therefore, be put on terms before it seeks for reopening the matter and to obtain an adjudication. 4. The award of the Labour Court is under the circumstances set aside with a direction that the management deposits before the Labour Court Rs.2 lacs, which shall be kept by the Labour Court subject to the result of final adjudication. The deposit shall be made within eight weeks of receipt of the copy of this order, failing compliance of which, the award already passed shall be made absolute. The amount shall not be permitted to be withdrawn during the pendency of the proceedings and the payment or otherwise would depend on whether the workman is found entitled to reinstatement and back wages or not. The parties shall appear before the Labour Court on 08.12.2009. Having regard to the fact that the case relates to a reference of the year 1992, it is requested that the Labour Court disposes of the case on a priority basis as expeditiously as possible preferably within a period of six months from the date of receiving of the copy of the order. 5. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE October 05, 2009 Pankaj*