IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3816 of 2009 Date of decision : 16.11.2009 Virender Singh ...Petitioner Versus Ram Mehar Singh etc. ....Respondents CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL ..... Present : Mr. Hari Om Sharma, Advocate, for the petitioner. Mr.D.S.Nain, Advocate, for respondent No.1. AJAY KUMAR MITTAL, J.(Oral) The Contractor - petitioner has approached this Court for setting aside the order dated 4.6.2009 passed by the authority under the Payment of Wages Act, 1936 (in short the 'Act') whereby the application filed by him for setting aside the ex -parte order dated 20.11.2008 was rejected. Learned counsel for the petitioner has referred to the Zimni orders as reproduced in para 13 of the petition and submitted that the authority under the Act was not right in ordering for service of the petitioner by publication in the newspaper on 6.11.2008. According to the learned counsel, the authority ought to have required the claimant-workman to submit the correct address of the respondent – Contractor. In such a situation, he submitted that Order 5 Rule 20 of the Code of Civil Procedure (in short “Code”) has not been complied with and the ex-parte order dated 20.11.2008 passed against him and the subsequent order dated 4.6.2009 Civil Revision No.3816 of 2009 -2- declining the application for setting aside the ex-parte order dated 20.11.2008 are not sustainable in the eyes of law. Learned counsel for the petitioner has placed reliance on a judgment of this Court in “Gian Kaur Versus Amrit Singh, 1996(2) P.L.R. 447” in support of his submission. On the other hand learned counsel for the workman - respondent No.1 supported the order passed by the authority under the Act. I have heard learned counsel for the parties and perused the record. Order 5 Rule 20 of the Code reads as under:- “20. Substituted service – (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in Civil Revision No.3816 of 2009 -3- the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substitute service – Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed – Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.” A plain reading of the aforesaid provision shows that the Court can order substituted service where the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service or for any other reason the summons cannot be served in the ordinary way and in that situation, summons can be served by affixing a copy thereof in some conspicuous place in the Court- house, or on the last given address of the defendant where he resided or carried on business as the Court deems fit. The Court under Rule 20 is required to record its satisfaction in terms thereof and thereafter order substituted service. It would be relevant to refer to Zimini orders passed by the authority which are reproduced in the petition and read thus:- “Peshi 24.07.08 Ram Mehar Vs. Virender Singh” Present: Sh. Jit Pal Adv. for the applicant. Notice sent to the respondent received Civil Revision No.3816 of 2009 -4- undelivered with remarks that sector is not mentioned. Applicant to submit correct address within 3 days. Notice be issued accordingly for 4.9.08 for appearance of respondent. Sd/-APWA 4.9.08 Present: Jitpal Adv. None for the respondent. Today the case is fixed for appearance of respondent Sh.Virender Kumar Cont. of H.S.E.B but Regd. Notice received undelivered back. Next notice be issued for 6.11.08. Sd/-APWA 6.11.08 Present: Sh.Jit Pal Adv. for the applicant. None for the respondent. To effect service on the respondents Regd. Letter sent could not be served. The applicant is directed to submit fresh Talwana for the service of Respondent No.2 and notice for publication in the press for Respondent No.1. Now to come up on 20.11.08 for appearance of the parties. Sd/-APWA 20.11.08 Present: Sh.Jit Pal Adv. for the applicant. Sh.Jaswant Singh Adv. for resp No.2. None for the resp. No.1. Civil Revision No.3816 of 2009 -5- Regd. Notices were issued to the respondent No.1 for appearance in this matter. Thereafter, notice through press was also issued for appearance on 20.11.08. Notice published in the Tribune, Chandigarh. Copy placed on file. However, none appeared on behalf of the respondent No.1. He is proceeded exparte today. Now to come up on 18.12.08 for W/S by respondent No.1. Sd/-APWA” A perusal of the aforesaid Zimini orders clearly spells out that on 4.9.2008, the registered notice sent to the petitioner- Contractor had been received back undelivered whereupon fresh notice was issued for 6.11.2008. As the petitioner could not be served for 6.11.2008, the authority had directed respondent- workman to submit fresh Talwana and to serve petitioner – Contractor through publication in the Press for 20.11.2008 on which date without service of notice only on the basis of publication in the Press, petitioner – Contractor was proceeded ex-parte. The authority nowhere had recorded any satisfaction that the petitioner - Contractor was avoiding service in any manner at any stage before ordering for service by publication. The authority was, therefore, not correct in passing the order dated 20.11.2008 whereby the petitioner was proceeded against ex-parte and also the order dated 4.6.2009 declining to set aside the said ex-parte order. This Court in Gian Kaur's case (supra) while adjudicating Civil Revision No.3816 of 2009 -6- under similar circumstances, had in paras 7 to 9 recorded as under:- “7. The civil suit was registered on 4.11.1980. Defendant- respondents were ordered to be summoned for 2.12.1980 on which date it was reported by the process serving agency that they were not served on the given addresses. Respondents were ordered to be summoned for 13.1.1981 on filing of process fee, correct addresses and registered covers. 13.1.1981 was declared holiday and respondents were then ordered to be summoned for 16.2.1981, on which date registered covers were received back undelivered with the report that the addresses given were not correct. On the report of the Ahlmad, trial Court instead of insisting on giving of correct addresses and effecting personal service on the respondents recorded its satisfaction that the respondents could not be served in the ordinary way and ordered that they be served through substituted service by publication in Punjabi newspaper Chardi Kalan, Patiala, for 16.3.1981. Nobody appeared after publication of the notice. Trial Court proceeded against the respondents ex-parte and ultimately on 25.7.1981 passed the ex-parte decree. 8. Admittedly, no newspaper in the name of Civil Revision No.3816 of 2009 -7- Chardi Kalan is published at Ludhiana. Rather the same is published from Patiala. In the publication in Chardi Kalan addresses given to the respondents were the same as given in the plaint. Earlier report of the process-serving agency was that the addresses given were not correct. Instead of giving correct addresses of the respondents and fresh process fee for effecting service, petitioner repeated the same addresses and thereafter notices were ordered to be served on the same addresses in the ordinary way as well as by registered covers. Registered covers sent to Sharanjit Kaur and Avtar Singh were returned with the report that no house bearing No.1122, Sector 22- B, Chandigarh, exists at Chandigarh. Amrit Singh at the relevant time was posted as S.D.O. at Beas in P.W.D. (B&R). Thus, the respondents were not properly served at any stage of the proceedings. Addresses given of the respondents were incorrect as per report of the process-serving agency. Service by way of substitute means by giving the same incorrect addresses would be no service in the eyes of law. The satisfaction recorded by the trial Court that respondents could not be served through ordinary process was also not justified. There was no reason to order service through publication in newspaper. Civil Revision No.3816 of 2009 -8- 9. From the above discussion, I am satisfied that order taking ex parte proceedings against the respondents was neither legal nor justified and the respondents were condemned unheard without affording due opportunity to them.” In view of the above, orders dated 20.11.2008 and 4.6.2009 are legally unsustainable. Accordingly, the present petition is allowed and the orders dated 20.11.2008 whereby ex parte proceedings were initiated against the petitioner and dated 4.6.2009 dismissing the application filed by the petitioner for setting aside ex-parte order are set aside. The authority under the Payment of Wages Act, 1936, shall now proceed further in accordance with law. 16.11.2009 (AJAY KUMAR MITTAL) poonam JUDGE