IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.7106 of 2011 Date of Decision : November 03, 2011. M/s Jay EMM Gases (P) Ltd. .....Petitioner versus Anup Kumar and another .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.A.P.Bhandari, Advocate, for the petitioner. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner-management is aggrieved by an ex-parte Award dated 5.10.2010 (Annexure P-1) passed by the Industrial Tribunal-cum- Labour Court-III, Faridabad answering the reference in favour of the respondent-workman and directing his reinstatement in service with 50% back wages. The petitioner is also aggrieved by the order dated 3.3.2011 (Annexure P-5) whereby its application to set-aside the ex-parte Award dated 5.10.2010 has been dismissed by the Labour Court. While examining the reference as to whether services of the workman were illegally terminated, the Labour Court, on consideration of the documentary as well as the oral evidence led by the workman, came to CWP No.7106 of 2011 [2] the conclusion that he was in regular employment of the petitioner- management and governed under the EPF and ESI Schemes. His services were terminated without paying compensation under Section 25-F of the Industrial Tribunal Act, 1947, though he served the petitioner-management as a driver w.e.f. 1.4.1999 till 28.3.2009. Since the evidence led by the workman went un-rebutted, the Labour Court directed his reinstatement with 50% back wages. The petitioner-management thereafter moved an application on 7.1.2011 to set-aside the ex-parte award solely on the plea that no notice was served upon it. The said plea has been turned down by the Labour Court holding as follows: “.......4. A perusal of record reveals that the notices of the reference No.R/233/2009 titled as Anup Kumar versus Manager, Jay EMM Gases Pvt. Limited had been sent to the workman as well as the management, i.e., the present applicant. Firstly, notice was issued through ordinary post for 3.5.2010. However, as the said notice had not been received back, therefore, fresh notice was ordered to be issued on 7.10.2010 through registered post. The said notice had been issued on 5.5.2010. The postal receipt had been placed on record. The said notice had also not been received by any form. As notice was issued to the present applicant through registered post and as period of more than 30 days had expired, therefore a presumption under the provisions of Civil Procedure Code had been drawn and it was presumed that the present applicant had received notice of reference. None had appeared on behalf of the present respondent and it had been proceeded against ex-parte. CWP No.7106 of 2011 [3] Thereafter, ex-parte evidence was recorded and award was passed in favour of workman on 5.10.2010. This award had been published by the office of Deputy Labour Commissioner on 26.10.2010. The present application had been filed on 7.1.2011 i.e., much beyond the period of 30 days after the date of publication of this award.......” Even if the observations made in the later part of the order dated 3.3.2011 to the effect that after the award become enforceable, the Labour Court/Tribunal becomes functus officio, are over-looked, no fault can be found with the said order to the extent of rejecting the management's application as it was proved that besides the ordinary mode of service, the management was duly served with registered notice also. The plea that no notice was received by the management is apparently an after-thought and baseless for the reasons that (i) it is not the case of the management that notice was sent at a wrong address; (ii) no proof has been brought on record to show that the letter/notice was delivered somewhere else and (iii) there is presumption in law of delivery of the registered letter. The reliance placed by learned counsel for the petitioner on a decision of the Hon'ble Supreme Court in “Anil Sood versus Presiding Officer, Labour Court-II, 2001(3) RSJ 12” also does not improve its case as the Tribunal has not shown any recklessness in entertaining the application, rather has dismissed it after giving a categoric finding of fact that the petitioner-management did not choose to appear despite having been served. No case to interference with the impugned award is made out CWP No.7106 of 2011 [4] by this Court in exercise of its writ jurisdiction. Dismissed. November 03, 2011 (SURYA KANT) Mohinder JUDGE