* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) No. 6951/2005 % Date of Decision: 21st August, 2009 # M/S TRUTORN MACHINE (INDIA) LTD. ..... PETITIONER ! Through: Mr. Ajay Kumar, Advocate. VERSUS $ LABOUR COMMISSIONER AND ANOTHER .....RESPONDENTS ^ Through: Nemo. CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? YES 2. To be referred to the reporter or not?YES 3. Whether the judgment should be reported in the Digest?YES S.N.AGGARWAL, J (ORAL) The management of M/s Trutorn Machine (India) Ltd. (hereinafter to be referred as the petitioner) seeks to challenge an ex-parte award dated 15.05.2004 passed by the Industrial Adjudicator directing reinstatement of respondent No. 2 with full back wages. 2. In response to notice of this writ petition, the respondent No. 2 has filed his counter affidavit but after filing of counter affidavit, nobody has appeared on behalf of respondent No. 2 since 20.11.2006. Hence I have heard Mr. Ajay Kumar, learned counsel appearing on behalf of the petitioner, ex-parte. 3. The respondent No. 2 had set up a claim before the Labour Court that he was employed by the management of the petitioner about 14 W.P.(C) No.6951/2005 Page 1 of 4 years on the date his services were illegally terminated. The notice of the proceedings pending before the Labour Court was served through Process Server on one Ms. Kalpana, alleged to be an employee of the petitioner. Notice was not sent to the petitioner by Registered Post. The case of the petitioner management in the present writ petition is that it never received any notice from the Labour Court and, therefore, it could not defend the claim of respondent No. 2 filed by him before the Labour Court. 4. Further case of the petitioner is that the respondent No. 2 was never employed by the petitioner management and as such respondent No. 2 is not entitled to any relief whatsoever against the petitioner. It is stated by the petitioner that though respondent No. 2 claims to have worked for the petitioner for 14 years but according to the petitioner, the petitioner company was incorporated in the year 1998 and, therefore, according to the petitioner, it betrays one's imagination as to how can a person be employed in a company for 14 years which company came into existence only 4 years back from the date of the claim filed by respondent No. 2. The respondent No. 2 in response to the above pleading of the petitioner management has stated as follows: “That the deponent was employed with the petitioner/management since last 14 years firstly management worked under the name and style M/s Truturn Machine Works and M/s Truturn Machine Pvt. Ltd. and presently petitioner/management started work under the name & style M/s Truturn Machine (India) Ltd. even management also admitted before Labour Inspector that deponent was employed with the management annexure already annexed as Annexure B. III) That the management shifted workman from one unit to another unit but fresh ESI Card was not issued by the Petitioner/management.” The petitioner has taken a stand before this Court that it was not served with the notice of claim filed by respondent No. 2 before the W.P.(C) No.6951/2005 Page 2 of 4 Labour Court. I have perused the record of the Court below and on perusal of the same, it transpired that the notice of claim of respondent No. 2 sent at the address of the petitioner company through Process Server was received by one Ms. Kalpana. The learned counsel appearing on behalf of the petitioner contends that the service seems to have been manipulated by respondent No. 2 in collusion with Ms. Kalpana, who is now no more in the employment of the petitioner. The contention of the learned counsel appearing on behalf of the petitioner is that notice should have been sent by the Labour Court through Registered Post. The main contention of learned counsel appearing on behalf of the petitioner was that there was no relation of employer and employee between the parties and, therefore, the workman was not entitled to any relief in the matter. 5. In case, this contention is proved, then certainly the respondent No. 2, being the workman, will not be entitled to any relief. Since the impugned award is an ex-parte award, this Court is of the opinion that the interest of justice require an opportunity to be given to the petitioner management to establish its plea that there was no relationship of employer and employee between the parties. For that purpose, case is to be remanded back to the Labour Court for fresh decision after giving an opportunity of hearing to both the parties, as per law. 6. For the foregoing reasons, the impugned award is set aside. This writ petition is allowed. The case is remanded back to the concerned Labour Court/Successor Court for fresh decision after giving an opportunity of hearing to both the parties, as per law. The petitioner is directed to appear before the concerned Labour Court/Successor Court for further directions at 2:00 P.M. on 28.08.2009. The Labour Court should send a notice of fresh hearing to the workman and decide the W.P.(C) No.6951/2005 Page 3 of 4 case afresh after giving an opportunity of hearing to both the parties, as per law. In view of the above, this writ petition is disposed of. LCR along with copy of this order be sent back. Order dasti. AUGUST 21, 2009 S.N.AGGARWAL, J 'bsr' W.P.(C) No.6951/2005 Page 4 of 4