WP(C) No.15948/2006 Page 1 of 5 * THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) No. 15948/2006 Date of Decision : 13.5.2009 Tulip I.T. Services Ltd. …… Petitioner Through : Mr.Sandeep Banga, Adv. Versus The Secretary (Labour) & Ors. …… Respondents Through : Nemo CORAM : HON’BLE MR. JUSTICE V.K. SHALI 1. Whether Reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the Reporter or not ? NO 3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. (Oral) 1. Nobody is present for the respondents. The petitioner M/s Tulip IT Services Ltd. has filed the present writ petition against the award dated 24th November, 2004 in case titled M/s Tulip Software Ltd. Vs. Sh. Gaurav Kumar in ID No. 1/2000. By virtue of the aforesaid ex-parte award the learned Labour Court has held that the termination of the services of the respondent/workman w.e.f. 09.4.1999 as illegal and unjustified, and accordingly, it has directed the reinstatement with payment of full back wages and continuity of service. The petitioner feeling aggrieved by the aforesaid ex-parte award has preferred WP(C) No.15948/2006 Page 2 of 5 the present writ petition on the ground that although the award is against M/s Tulip Software Ltd. J-31, South Extension Part-I, New Delhi but the recovery is sought to be made against M/s Tulip IT Services Ltd. at C-160, Okhla Industrial Area, Phase-I, New Delhi. 2. I have heard the learned counsel for the petitioner and perused the record. The learned counsel for the petitioner has contended that the petitioner/Company M/s Tulip IT Services Ltd. has obviously nothing to do with M/s Tulip Software Ltd. which was operating at J-31, South Extension, Part-I, New Delhi but the respondent /workman after filing his statement of claim against M/s Tulip Software Ltd. and obtaining an ex parte award against the said company has curiously filed an affidavit with the Secretary (Labour) intimating that the management of M/s Tulip Software has shifted its operation from J-31, South Extension, Part-I, New Delhi to C-160, Okhla Phase-I, New Delhi and that is how the recovery notice has been issued to the petitioner while as the petitioner/Company is under no obligation to implement the order. 3. I have considered the submissions made by the learned counsel for the petitioner and perused the record of the Labour Court as well as the pleadings in the instant case. 4. The arguments of the learned counsel for the petitioner is borne out from the Labour Court record that the original statement of claim was filed by the respondent/workman against M/s Tulip Software Ltd. having an address at J-31, South WP(C) No.15948/2006 Page 3 of 5 Extension, Part-I, New Delhi. Even on one date the notice issued to the said management was sent by registered A/D. Since there was a report of refusal to accept the notice, the learned Labour Court deemed it to be a valid service and proceeded to pass an ex-parte award against M/s Tulip Software Ltd. 5. The services of M/s Tulip Software Ltd. was not carried out by the learned Labour Court in accordance with law. Rule 18 of the Industrial Disputes (Central) Rules, 1957 reads as under: “[18. Service of summons or notice.-- Subject to the provisions contained in rule 20, any notice, summons, process or order issued by a Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator empowered to issue such notice, summons, process or order, may be served either personally or by registered post and in the event of refusal by the party concerned to accept the said notice, summons, process or order, the same shall be sent again under certificate of posting.]” 6. A perusal of the aforesaid rule would clearly show that notices have to be sent by ordinary process and /or by registered A/D and in the event of refusal an obligation is cast on the Labour Court to sent the notice under certificate of posting. A perusal of the record shows that since there was a refusal. This second step of sending the notice to M/s Tulip Software Company Ltd. by certificate of posting was not complied with by the learned Labour Court and on the basis of the report of refusal itself, it was deemed to be a valid service and they were proceeded ex-parte which cannot be said to be sustainable in the eyes of law. Therefore, the service itself on the opposite was not valid on this ground itself and the ex-parte award deserves to be WP(C) No.15948/2006 Page 4 of 5 set aside and the matter deserves to be remanded back to the learned Labour Court. 7. In addition to this, after having obtained the ex-parte award against M/s Tulip Software Ltd. the respondent/workman has filed an application before the Secretary (Labour) at the time of the implementation of the award that the management has shifted its area of operation to C-160, Okhla Phase-I, New Delhi even if it is assumed that it was the management of the respondent/workman namely M/s Tulip Software Ltd. then it was the said company which had shifted area of operation from J-31 South Extension, Part-I, New Delhi to C-160, Okhla Phase- I, New Delhi . But the recovery notice ought to have been issued in the name of M/s Tulip Software Ltd. while as the recovery notice has been issued in the name of M/S Tulip IT Services Ltd. It is not borne from the record of the learned Labour Court or from the record of the present writ petition as to how the recovery notice came to be issued against M/s Tulip IT Services Ltd. Although they were operating at C-160, Okhla Phase-I, New Delhi. The law does not permit an award passed against one party to be executed against another party unless and until the party against whom the award is sought to be executed succeeds into the shoes of the first party or some camouflage is shown to exist between the two companies in order to defeat the rights of the respondent/workman. 8. In the instant case, on account of consistent non- appearance of the respondent/workman as well as in the WP(C) No.15948/2006 Page 5 of 5 absence that of the official respondents it is not possible to adjudicate or see as to what connection was existing between the aforesaid two companies, namely, M/s Tulip Software Ltd. and M/s Tulip IT Services Ltd. Therefore, under these circumstances, it would be in the interest of justice to set aside the ex-parte award dated 24th November, 2004 in ID No. 1/2000 and remand the matter back to the learned Labour Court with the direction that after issuing notice to the claimant, the learned Labour Court should decide the matter afresh. 9. Parties are directed to appear before the learned Labour Court on 2nd July, 2009. A copy of this order be sent to the respondent/workman for intimation. No order as to costs. V.K. SHALI, J. MAY 13, 2009 KP