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 ITO vs. Vikram A. Pradhan (ITAT Mumbai)

M/S EXPLICIT LEATHERS Vs. ARVIND KUMAR & ORS
April, 08th 2014
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment Reserved on March 28, 2014
                                       Judgment Delivered on April 02, 2014
+         W.P.(C) 1011/2014 & CM No. 2062/2014
          M/S EXPLICIT LEATHERS                      ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          ARVIND KUMAR & ORS                      ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
+         W.P.(C) 1013/2014 & CM No. 2064/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          KARAN SINGH & ORS                       ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
+         W.P.(C) 1014/2014 & CM No. 2067/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          SURESH CHAND & ORS                      ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
                                     Mr.Shoaib Haider, Advocate
                                     for GNCTD
+         W.P.(C) 1015/2014 & CM No. 2069/2014
          M/S EXPLICIT LEATHERS                   ..... Petitioner
                           Through: Mr.Sandeep Bajaj,

W.P.(C) 1011,1013-20,1109-10 of 2014                           Page 1 of 10
                                       Mr.Siddharth Jain,
                                       Mr.Sameer Jain, Advocates
                       versus
          PRATAP SINGH & ORS                      ..... Respondent
                       Through:      Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
                                     Ms.Raavi Birbal, Advocate
                                     for R2
+         W.P.(C) 1016/2014 & CM No. 2071/2014
          M/S EXPLICIT LEATHERS                   ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          ABDUL BARIK & ORS.                      ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
                                     Mr.Jayendra, Advocate for
                                     R2
+         W.P.(C) 1017/2014 & CM No. 2073/2014
          M/S EXPLICIT LEATHERS                   ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          MOHD. ASHFAQ KHAN & ORS.                ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
+         W.P.(C) 1018/2014 & CM No. 2075/2014
          M/S EXPLICIT LEATHERS                   ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          MOHD. HANIF & ORS.                      ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
W.P.(C) 1011,1013-20,1109-10 of 2014                       Page 2 of 10
+         W.P.(C) 1019/2014 & CM No. 2077/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          PHOOL BABU & ORS                        ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
                                     Mr. Shoaib Haider, Advocate
                                     for GNCTD
+         W.P.(C) 1020/2014 & CM No. 2079/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          LAL BAHADUR & ORS                       ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
+         W.P.(C) 1109/2014 & CM No. 2309/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          RAM PRAKASH & ORS.                      ..... Respondent
                           Through: Mr.Kartickay Mathur,
                                     Mr.S.Gupta, Advocates for
                                     R1
                                     Mr.Shoaib Haider, Advocate
                                     for GNCTD
+         W.P.(C) 1110/2014 & CM No. 2311/2014
          M/S EXPLICIT LEATHERS                    ..... Petitioner
                           Through: Mr.Sandeep Bajaj,
                                     Mr.Siddharth Jain,
                                     Mr.Sameer Jain, Advocates
                           versus
          SHARMA PRASAD & ORS                     ..... Respondent
W.P.(C) 1011,1013-20,1109-10 of 2014                        Page 3 of 10
                                       Through:   Mr.Kartickay Mathur,
                                                  Mr.S.Gupta, Advocate for R1

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO


V.KAMESWAR RAO, J.

1.        Since these batch of 11 petitions arise from separate but identical
orders dated January 18, 2010, ex-parte awards dated January 23, 2010
given by the Labour Court No. V in DID Nos. 904, 894, 897, 896, 901,
891, 905, 903, 899, 895 of 2008 & 893 of 2007 filed by the respondent
No.1 in each of the writ petition (referred as `claimants') before the
Labour Court alleging their termination by the petitioner without
complying the provisions of Section 25-F of the Industrial Disputes Act,
1947 (Act in short) whereby the Labour Court granted their
reinstatement with 50% back wages and also against orders dated March
23, 2013 on identical applications filed by the petitioner for setting aside
the ex parte awards, with the consent of the counsel for the parties, are
being disposed of together by this common order.
2.        Suffice to state that pursuant to filing of claim petitions by the
claimants before the Labour Court and thereby raising industrial
disputes, written statements to the claim petitions were filed by the
petitioner wherein they have taken the following objections:
          "(a) The workmen are not employees of the petitioner and
          the complaint is motivated by malafide.




          (b) The list of workmen, as was stated to have been
          annexed in the complaint, has not been provided to the
          petitioner.

          (c) No notice has ever been received by the petitioner and

W.P.(C) 1011,1013-20,1109-10 of 2014                                  Page 4 of 10
          no inspection was ever conducted at the petitioner's
          premises.

3.        Based on the pleadings of the parties, issues were framed by the
Labour Court which are as under:
          (a) Whether there exist any employee employer
          relationship between workmen and management.

          (b) Whether workmen were illegally terminated by the
          management.

          (c) Relief.
4.        It is noted, after the framing of the issues, the petitioner was
proceeded ex-parte on January 18, 2010. Based on the affidavit filed by
the claimant, the Labour Court gave the award dated January 23, 2010.
5.        The Labour Court relied upon the documents which were
exhibited as Ex.WW1/1 to Ex.WW1/6 and further observing that there is
nothing on record which shows the testimony of the respondent No.1 can
be disbelieved, granted reinstatement of respondent No.1 with 50% back
wages with continuity of service with the petitioner organization.
6.        Pursuant to the awards, the petitioner filed applications for setting
aside of the ex-parte awards on February 07, 2011 in each of the
Industrial Dispute. In para Nos.4 to 7, the petitioner has averred as
under:
          "4. That the Hon'ble Court proceeded the said case as ex -
          parte against the Management as nobody appeared before
          the Hon'ble Court for and on behalf of the Management.

          5. That the Management came to know on 22.01.2011 only
          that the Management have been proceeded as against ex-
          parte.

          6. That the Counsels were appointed and were authorized

W.P.(C) 1011,1013-20,1109-10 of 2014                             Page 5 of 10
          to contest the said case, through Mr.S.Mitra, HR Manager
          and neither Mr.S.Mitra nor their Counsels informed the
          date to the Management.

          7. That absence of the Management before the Hon'ble
          Court was not intentional but due to unavoidable
          circumstances. As the Management had no information
          about the date fixed. The Management only came to know
          on 22.01.2011 that the case is proceeded as against ex-
          parte and ex-parte award against the Management has
          been passed. When the Management received notice from
          the Hon'ble Court which was for the next date of hearing
          in application LCA No.102/10. The notice was received by
          the Management only on 22.01.2011.

7.        The applications were contested on behalf of the claimants. The
Labour Court while dismissing the applications was of the following
view:
          "Ld. Counsel for the workman submitted that the ex-parte
          award was in execution proceedings and a notice was
          issued to the management from the SDM office and the
          management had appeared there even, prior to
          22.01.2011. It is observed that on 04.01.2012 permission
          was sought by Ld. Counsel of the workman to file certified
          copy of the relevant order sheet from the office of the SDM
          to show that management was having knowledge that an
          ex-parte award has been passed against it even prior to
          22.01.2011 but the workman has not filed the certified
          copy of the relevant record.

          It is further observed that on 04.01.2012 itself direction
          was given to the management to produce the original
          notice which is stated to be received in LCA No.102/10 by
          the management on 22.01.2011 to show that the
          management came to know about the fact that matter has
          been proceeded ex-parte against it, but the management
          has also not complied the said direction. It is observed that
          it was the duty of the management to prove the facts as
          stated in the application. Since the management has failed

W.P.(C) 1011,1013-20,1109-10 of 2014                             Page 6 of 10
          prove the fact that it came to the notice of the management
          only on 22.01.2011 when the management received notice
          in LCA No.102/11 therefore, it seems that it is not in the
          interest of justice application filed by the management is
          dismissed and disposed off accordingly.
8.        Learned counsel for the petitioner would urge that the petitioner
did not have any information regarding the passing of the award because
of collusion of Mr.S.Mitra, Manager (HR) with the claimants. According
to the petitioner, Mr.S.Mitra had subsequently left the company without
any intimation. It is also alleged that the claimants deliberately did not
provide the correct address of the petitioner and in all probability it was
sent to the address mentioned which never belonged to the petitioner. It
is also the stand of the petitioner that the ex-parte awards came to the
notice of the petitioner only when notice in LCA No.102/10 was
received by the petitioner on January 22, 2011. He would state that the
claimants before the Labour Court had failed to discharge the onus of
proving the employer employee relationship between the petitioner and
themselves. He would further state that none of the notices sent by them
before they raised the industrial disputes were sent to the petitioner. He
has referred to pages 34 to 44 of the paper book. He relied upon the
judgment of the Supreme Court in the case reported as 2006 (1) SCC 106
R.M.Yellatti vs. Assistant Executive Engineer in support of his
contentions.
9.        On the other hand, learned counsel for the claimants would urge
that the only ground urged by the petitioner in these petitions is totally a
false inasmuch as the petitioner had failed to produce the relevant notice
which is stated to have been received in LCA No.102/2010 on January
22, 2011. In other words, the very ground on which it had sought the


W.P.(C) 1011,1013-20,1109-10 of 2014                           Page 7 of 10
setting aside of the ex-parte award could not be proved and the Labour
Court had rightly rejected the application.
10.       Having heard the learned counsel for the parties, insofar as the
submission of learned counsel for the petitioner that the petitioner went
unrepresented because of collusion between Mr.S.Mitra, the then
Manager (HR) of the petitioner organization with the claimants, I find,
no such averment made in the applications for setting aside the ex-parte
order, except stating "that the counsels were appointed and were
authorized to contest the said case through Mr.S.Mitra, Manager (HR)
and neither Mr.S.Mitra nor their counsels informed the date to the
management". The plea is clearly an afterthought and such a plea cannot
be accepted. Insofar as the contention that the petitioner came to know
about the passing of the ex parte award only when a notice in LCA No.
102/2010 was received by the petitioner on January 22, 2011 is
concerned, the same also could not be proved by the petitioner before the
Labour Court. The relevant observation of the Labour Court has already
been reproduced in para 7 above.              This ground is not only an
afterthought but a false one.          Lastly, on the plea that none of the
documents relied upon by the claimants in support of their case has been
addressed to the petitioner is concerned, I note that the communication
dated March 26, 2007 Annexure B at Page 35 was addressed to the
petitioner company at A-279, OIA (which meant Okhla Industrial Area),
Phase-I, New Delhi wherein the Union has complained to the petitioner
of the illegal termination of one of the claimants namely Mr. Arvind
Kumar w.e.f. March 26, 2007 and called upon the petitioner to reinstate
him with full back wages. It appears that no reply has been sent by the
petitioner to this notice given by the Union. Surely, if the petitioner




W.P.(C) 1011,1013-20,1109-10 of 2014                           Page 8 of 10
disputes the relationship of employer-employee between the claimants
and the petitioner, it should have replied to such a notice. In the absence
of any reply, surely, the contents have not been controverted. Be that as
it may, it is the case of the petitioner that no demand notice was sent by
the Union complaining the termination of the claimants and requesting
for their reinstatement, which is falsified. Insofar as the reliance on
behalf of the petitioner on the case of R.M.Yellatti (supra) is concerned,
the ratio of the said judgment is not applicable in the facts of this case for
the reason that in the present case, the claimants could able to discharge
the onus of proving the employer- employee relationship inasmuch they
have placed before the Labour Court the communications sent on their
behalf to the petitioner, complaining about the termination and
requesting the petitioner to reinstate the claimants. No other evidence
like appointment letters, wage register, being available with the
claimants the same could not be produced. There is some basis for the
Labour Court to arrive at the conclusion, which in this Court's view is
not, at least, a perverse finding.
11.       In the last, the learned counsel for the petitioner has sought the
remand of the cases back to the Labour Court after setting the ex parte
awards, subject to such conditions this Court may impose. I may state
here that such a proposal was put to the learned counsel for claimants,
who, on instructions, has refused to accept.
12.       In view of the above conclusion, I do not think that the petitioner
has made out any case for interference in the impugned awards. The writ
petitions are dismissed with no order as to costs.
CM Nos. 2062, 2064, 2067, 2069, 2071, 2073, 2075, 2077, 2079, 2309
& 2311 of 2014


W.P.(C) 1011,1013-20,1109-10 of 2014                            Page 9 of 10
          In view of the dismissal of the writ petitions, the present
applications are also dismissed.

                                              (V.KAMESWAR RAO)
                                                   JUDGE

APRIL 02, 2014
akb




W.P.(C) 1011,1013-20,1109-10 of 2014                     Page 10 of 10

 
 
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