Nagar Nigam vs Sri Rajesh Kumar Rawat and Others

V.K. Shukla, J.—Nagar Nigam, Kanpur, through its Project Officer, has approached this Court questioning the validity of the award dated 28.10.1996 passed in Adjudication Case No. 160 of 1996 by Labour Court IV, Kanpur as well as subsequent subsequent order dated 04.04.1997 passed by Labour Court, Kanpur, wherein application for setting aside ex-parte award has been rejected.

Brief background of the case is that Rajesh Kumar Rawat has came up with claim that he had been engaged with the Petitioner''s establishment as supervisor-cum-clerk w.e.f. 10.09.1989 and he functioned in the said capacity till 05.03.1991, and thereafter without giving any notice, as was required u/s 6N of the U.P. Industrial Disputes Act, 1947, his services were disengaged. After the said disengagement, belated industrial dispute was sought to be raised, and then the State Government on 16.05.1996 proceeded to make reference u/s 4K of the U.P. Industrial Disputes Act, 1947; the term of the reference was as to whether the order disengaging services of Raj Kumar Rawat on 06.03.1991 was valid and in accordance with law, and in case it was found to be invalid, then the extent of relief which Raj Kumar Rawat was entitled to? After receipt of the aforesaid reference, it is reflected from the order-sheet starting with effect from 18.05.1996, wherein mention has been made that said reference in question had been received on 17.05.1996; same was directed to be registered and the concerned parties were directed to be informed by summons that they should appear on 28.06.1996. The order sheet further proceeds to mention that the employer''s side is absent and the Respondent workman had filed his written statement and his letter of authority, and the next date fixed in the case was 15.07.1996. Thereafter, the order sheet mentions that again employer be sent notice by registered post and the next date fixed was 01.08.1996. On 01.08.1996, it is noted in the order sheet that notice be sent; same be awaited and the next date fixed was 07.08.1996. On 07.08.1996 note had been made that the registered summon so sent, had not been returned back, as such service was presumed to be sufficient and the matter was directed to be taken up on 21.08.1996. on 21,.08.1996, next date fixed was 29.08.1996. On 29.08.1996, next date fixed was 06.09.1996, and on 06.09.1996, next date fixed was 21.09.1996, then on 21.09.1996 a note was made that the employer was not present, and further note was made with regard to filing of affidavit and documents by Rajesh Kumar Rawat. Thereafter on 28.10.1996 award in question had been passed and same has been published on 29.01.1997. After the said award had been passed, the Petitioner in its turn after acquiring knowledge of the aforesaid award on 22.02.1997, moved an application for restoration. Said application had been rejected on 04.04.1997. At the said juncture, present writ petition was filed.

Precise plea has been taken in the body of the writ petition is that entire proceedings before the Labour Court was exparte and further that at no point of time, Rajes Kumar Rawat had been engaged by Nagar Nigam, Kanpur, as supervisor-cum-clerk, and to the contrary, it has been stated that he had been engaged for specific purpose u/s 4(iv) of the Census Act, 1948 and even remuneration for carrying out census activity was paid from the head, which had been sanctioned by the Census Department directly as per directives issued by the Central Government. Petitioner has submitted that census work was carried out by Rajesh Kumar Rawat with effect from 10.09.1990 till 06.03.1991; thus his engagement was for a period of 177 days only, and in lieu of the census work being carried out by him, he was paid honorarium; and there existed no relationship of employer and employee, as such at no point of time there was any occasion of retrenchment, and further it has been stated that entire proceedings had been manipulated and were exparte.

From the side of Rajesh Kumar Rawat, it has been sought to be contended that he was appointed in Nagar Nigam, Kanpur on 10.09.1989 as supervisor-cum-clerk against clear vacancy and he continued to work till 05.03.1991, and further he had moved application for being appointed on the post of clerk. On the said application report was submitted by Up Nagar Adhikari and the said report contained the signature of Deputy Administrator, Nagar Nigam, Kanpur, in this background, it has been sought to be contended that he was illegally retrenched and thereafter, his services had been disengaged on 06.03.1991. It has also been sought to be contended that restoration application moved by the Petitioner had already been rejected for the simple reason that the same was moved beyond time even from the date of publication of the award and the award in question had become enforceable.

Disputing the averments mentioned in the counter affidavit, and reiterating those in the writ petition, rejoinder affidavit has been filed. Supplementary affidavits, supplementary counter affidavits and supplementary rejoinder affidavits have also been filed. Apart from this relevant record, on the basis of which impugned award had been passed, has also been produced before the Court, and the same has been perused by the parties.

After nomination of this case by Hon''ble the Chief Justice, matter has been taken up by this Bench for final hearing and disposal.

Sri M.M. D. Agrawal, learned Counsel for the Petitioner, contended with vehemence that in the present case, circumstances speak for itself as at no point of time summons or notice had ever been served upon the Petitioner Corporation, and merely on surmises and conjectures, the service has been presumed to be sufficient and illegally without there being any material in support of the same, on the basis of the version set up by the Respondent-Rajesh Kumar Rawat, his view point has been accepted as gospel truth, without going into the question as to whether there existed any master-servant relationship or not, as such writ petition, as it has been framed and drawn, deserves to be allowed.

Sri S.D. Dubey, Advocate, appearing for Rajesh Kumar Rawat, on the other hand contended that in the facts of the case, application for recall was not maintainable, and rightly service of summons has been presumed to be sufficient, as the Petitioner had full knowledge of the proceedings, and as per the parameters provided for under the U.P. Industrial Disputes Act, 1947 as well as the Rules framed there under, namely, U.P. Industrial Disputes Rules, 1957, evidence and the affidavit filed by Rajesh Kumar Rawat were un-rebutted, as such they have been rightly found to be carrying correct statement, and accordingly, award had been passed, as such this Court should refuse to interfere with the award in question, and writ petition be dismissed.

After respective arguments have been advanced, the first question, which is to be adverted to by this Court is, as to whether in the present case application for recall was legally competent and maintainable or not, for setting aside the exparte award, when award became final. To proceed with the arguments so advanced on this score as to whether the application for recall was legally competent and maintainable or not for setting aside of the exparte award, when award became final, the relevant provisions of the U.P. Industrial Disputes Act, 1947 as well as U.P. Industrial Disputes Act, 1947 are being looked into. U.P. Industrial Disputes Act, 1947 has been introduced with the object to provide authority to prevent strikes and lock-outs, and for settlement of industrial disputes and other incidental matter. Section 2 of the aforesaid Act deals with the definitions of various terms. Section 2(c) defines ''award'' as an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court or Tribunal. Section 2 (l) defines ''industrial dispute'' as any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen connected with the employment or non-employment or the term of employment or with the conditions of labour. Section 2 (i) defines ''employer'' and 2 (z) defines ''workman''. In the event of there being any industrial dispute, it is industrial tribunal or labour Court, which has authority to decide the dispute. ''Labour Court'' has been defined u/s 4A of the Act and Industrial Tribunal has been defined u/s 4B of the Act. Section 4K of the Act deals with reference of disputes to Labour Court or Tribunal, by providing that where the State government is of the opinion that industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute to a labour court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication. Section 5C proceeds to mention that subject to any rules, Labour Court or Tribunal may follow such procedure as it may think fit. Section 6 deals with ''award'' and precisely proceeds to mention that where an industrial dispute has been referred to a Labour Court or or Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as practicable on the conclusion thereof, shall submit its report to the State Government. Sub-section (3) of Section 6 of the Act provides that subject to the provisions of Sub-section (4) every arbitration award and the award of a Labour Court or Tribunal, shall within a period of 30 days from the date of its receipt be published, and Sub-section (4) provides that before publication of an award of a Labour Court of Tribunal under Sub-section (3), the State Government is empowered, after giving reasonable opportunity of hearing to the parties concerned to reconsider and submit to the State Government, and thereafter the State Government has authority to publish the award in the manner as provided under Sub-section (3) of Section 6 of the Act. Sub-section (5) proceeds to mention that subject to the provisions of of Section 6A, an award published under Sub-section (3) shall be final and shall not be called in question in any Court. Section 6A deals with commencement of the award, by providing that award shall become enforceable on the expiry of 30 days from the date of its publication, and where State Government is of the opinion that publication of award is going to affect the National or State Economy or social justice, it can declare that the award shall not become enforceable on the expiry of the said period of 30 days.

To carry out the aforementioned aims and objects, Rules have been framed under the aforesaid Act and they are known as U.P. Industrial Disputes Rules 1957. Rule 11 deals with service of summons or notice. Rule 12 deals with proceedings before the Labour Court or Tribunal. Rules 11, 12 and 16 of the aforesaid Rules being relevant are quoted below:

Service of summons or notice.-Any notice, summons, process or order issued by a Board, Labour Court or Tribunal or Arbitrator may be served either by personal delivery or by registered post or in any other manner prescribed in his behalf in the Code of Civil Procedure, 1908.

Proceedings before the Labour Court or Tribunal:- 1. Where the State Government refers an industrial dispute of adjudication to a Labour Court or Tribunal within two weeks of the date of receipt of order reference, the party representing, or in the case of individual workman, the workman himself and the employer involved in the dispute shall filed before the Labour Court or the Tribunal, as the case may be, a statement of the demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute:

Provided that where the Labour Court or Tribunal, as the case may be, considers it necessary, it may

(a) extend the time-limit for filing of such statement; or

(b) reduce the time-limit for filing of such statement to one week in emergent cases for reasons to be recorded in writing; or

(c) where both the parties agree, reduce the time-limit for filing of such statement as per agreement; or

(d) where both the parties agree dispense with the requirement of filing of such statement altogether; or

(e) allow at any stage of the proceedings, amendment of such statement to the ex tent as may be necessary for the purpose of determining the real issue included int he order of reference.

(2) Within two weeks of the receipt of this statement referred to in Sub-rule (1) above the opposite party shall file its rejoinder with the Labour Court or the Tribunal, as the case may be, and simultaneously forward a copy thereof to the other party:

Provided that such rejoinder shall relate only to such of the issues as are included in the order of reference:

Provided also that where the Labour Court or the Tribunal, as the case may be, considers it necessarily, it may

(a) extend the time-limit for filing of such a rejoinder or reduce the time-limit for filing of such rejoinder to one week in emergent cases for reasons to be recorded in writing;

(b) permit the workman to file reply to the said rejoinder on a date fixed by the Presiding Officer, and on such date the parties shall file their documents and issues, if any, arising out of the pleadings of the parties shall be framed;

(c) fix a date of filing documents and may on the same date frame such issues, if any, as may arise out of the pleadings of the parties after the written statements and rejoinders have been filed.

(3) The Labour Court or the Tribunal, as the case may be, shall ordinarily fix the date for the first hearing of the dispute within six weeks of the date on which it was referred for adjudication:

Provided that the Labour Court or the Tribunal, as the case may be, for reasons to be recorded in writing, fix a later date for the first hearing of the dispute.

(4) The hearing shall ordinarily be continued from day to day, and arguments shall follow immediately after the closing of evidence.

(5) The Labour Court or the Tribunal, as the case may be, shall not ordinarily grant an adjournment for a period exceeding one week at a time, and not more than three adjournments at the instance of any one of the parties to the dispute shall be granted.

Provided that in a very special case only the Labour Court of the Tribunal, as the case may, may for reasons to be recorded in writing, grant an adjournment exceeding a week, or more than three adjournments at the instance of any one of the parties to the dispute.

(6) At the first hearing of the Labour Court or the Tribunal, the Presiding Officer may call upon the parties to state their case in such order as it may think fit.

(7) Where reference is pending before the Labour Court or the Tribunal, the Labour Court or the Tribunal shall proceed to decide such dispute on a priority basis in which it has been brought to the notice of the said Court or the Tribunal that a strike or lock-out is pending or threatened in the establishment concerned.

(8) The written statement filed by the Union or the workmen shall state the grounds on which the claim of the concerned workman is based and the written statement shall be a accompanied by an affidavit in which the consents of the written statement are sworn to.

(9) If the affidavit accompanying the written statement of the Union or the workmen is not rebutted by the employers, the Labour Court or the Truibunal, as the case may be, shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement.

(10) As an when the application in Form 1 filed by the espousing Union before the Conciliation Officer is received by the Labour Court or the Tribunal, the Presiding Officer concerned shall place on record this document which shall be treated in the proceedings as document of the Union or the workman.

Labour Court or Tribunal or arbitrator may proceed exparte.-(1) If, on the date fixed or any other date to which the hearing may be adjourned, any party to the proceedings before Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of the date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper.

(2) The Labour Court, Tribunal or an arbitrator may set aside the order passed against the party in his absence, if within ten days of such order the party applies in writing for setting aside such order and show sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order.

A bare perusal of the above quoted Rules would go to show any notice, summons, process or order issued by a Board, Labour Court or Tribunal or Arbitrator may be served either by personal delivery or by registered post or in any other manner prescribed in his behalf in the Code of Civil Procedure, 1908. Rule 12 deals with full fledged procedure providing for way and manner in which proceedings have to be undertaken. The idea behind the above mentioned Rule is to ensure time frame for adjudication without granting unnecessary adjournment to the Petitioner. Labour Court and Tribunal are also entitled to proceed exparte in terms of Rule 16, where Labour Court or Tribunal is of the opinion that in spite of being duly served with summons or having knowledge of the date of hearing, the parties are absent. The Labour Court or Tribunal can set aside the order passed against the party in his absence, if within ten days of such order the party applies in writing for setting aside such order showing sufficient cause for his absence. The Labour Court, or Tribunal may require the party to file an affidavit stating the cause of absence, and it further obligates service of copy on the other side. In case where employer fails to turn up or file affidavit accompanying the written statement of the Union/Workman is not rebutted by the employers, the Labour Court or the Tribunal has to presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement.

In the State of U.P. for setting aside an exparte order, application for recall of the aforesaid order can be made within ten days from the date of publication of the order and further where final orders have been passed and published, then an application can be moved for setting aside exparte award within 30 days of the publication of the award in question. Hon''ble Apex Court in the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, has proceeded to mention that there is no finality attached to an exparte award as it is always subject to being set aside on sufficiency of cause being shown and the stage of enforcement of award does not reach until it becomes executable. In terms of the provisions award in question becomes executable only after 30 days of its publication, and in such a situation any application for setting aside of an award can be moved within a period of 30 days till the award in question becomes executable. Said judgment has been followed by Hon''ble Apex Court in the case of Satnam Verma Vs. Union of India (UOI), , and therein said provision of setting aside exparte award has been tested on the parameters of Order IX Rule 13 CPC View to the similar effect has been reiterated in the case of Anil Sood Vs. Presiding Officer, Labour Court II, wherein also same view has been reiterated that Tribunal has the power to entertain an application for setting aside an exparte award once sufficiency of cause is furnished in support of the same, and law on the subject holding the field is that even an exparte award may be set aside provided the application is moved within 30 days from the date of its publication.

A Full Bench of this Court also in the case of Badri Prasad Haridas v. Labour Court 1983 U.P.L.B.E.C. 56, relying on the judgment of Grind lays Bank Case (supra) has taken the view that Labour Court or Industrial Tribunal retains the power of setting aside exparte award till award is enforced after 30 days of the publication. This Court in the case of State of U.P. v. The Presiding Officer, Labour Court (2005) 2 UPLBEC 1751, has proceeded to take the following view:

This Court after discussing the case laws on the question of limitation for recall of the order of award to proceed ex-parte u/s 16(2) of the Industrial Disputes Act as well as the provisions of the Limitation Act held as under:

Limitation Act, 1963 provides for limitation for suits and applications. Section 29(2) of the Limitation Act, 1963 provides as under:

29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

Under entry 123 limitation for moving application for ex-parte decree is 30 days but in view of Section 29(1) the limitation of 30 days. It will have to be read as 10 days in cases governed by U.P. Industrial Disputes Act, which is a special Act. The provisions of Limitation Act have not been excluded by the U.P. Industrial Disputes Act. Hence Sections 4 to 24 of Limitation Act including Section 5 thereof applies to proceedings under U.P. Industrial Disputes Act also and a party can file application under Rule 16(2) of U.P. Industrial Disputes Rules with application u/s 5 of the Limitation Act explaining the delay in not filing application within 10 days and the Labour Court has full power to decide it providing of course the application is moved within 30 days of the publication of the ex-parte order or award. If application is filed after said 30 days the Labour Court cannot entertain it as it becomes functus officio on expiry of 30 days.

Thus, consistent view has been that an application moved within 30 days from the date of its publication of award before the Labour Court becomes functus officio, is competent and maintainable and the award can certainly be set aside on sufficiency of cause being furnished. Hon''ble Apex Court in the case of M/S Nahar Enterprises v. AIR 2007 SC 1021 has taken the view that limitation starts running from the knowledge of exparte order. It is true that under the provisions Rule 16 (2) of the U.P. Industrial Disputes Rules, 1957 an exparte order can be set aside, if application is made within ten days of the order showing sufficiency of cause. This Court in the case of State of U.P. v. Presiding Officer Labour Court (supra), as quoted above, has tried to salvage the situation by providing that the provisions of the Limitation Act are applicable and if an application is moved after 10 days, then an application u/s 5 of the Limitation Act is to be moved, whereas, as per the judgment of Hon''ble Apex Court, limitation would start running from the knowledge of the ex parte order. It is true that the language of the Rules is precise that, within ten days of such an order, the party has to apply in writing for setting aside such an order. A party cannot be asked to perform an impossible task that is that even if party is unaware of the order, even then he is obliged to move application within ten days of the said order. In order to make the aforesaid provision more meaningful and purposeful, it is to be read that an application for setting aside exparte order can be moved within ten days from the date of knowledge of the exparte order. If the said provision is read accordingly, the irresistible conclusion would be that on sufficiency of cause being furnished, it is always open to the Labour Court or the Tribunal to set aside the ex-parte order/award vis-a-vis sufficiency of cause being furnished on satisfaction being accorded on the said score.

Judgments in the cases of M/S Uptron Powertronics Employees'' Union v. Presiding Officer, Labour Court 2008 (118) F.L.R. and State of U.P. v. The Presiding Officer, Labour Court, (2005) 2 UPLBEC 1751 also provide that an application for setting aside of exparte order or award can be moved within 30 days, but after 30 days when award becomes executable, restoration application could not be entertained.

On the aforesaid parameters, the facts of the present case are being examined, as to whether the application in question was legally competent and maintainable or not. Ex-parte award in the present case had been passed on 28.10.1996, same had been published on 29.01.1997, and the Petitioners in their turn have come up with specific case that they acquired knowledge of the aforesaid award on 22.02.1997. The award in question became executable on 28.02.1997, and it has to be be ascertained as to whether the application for setting aside the ex-parte award was moved before expiry of 30 days of the publication of the ex-parte award or not. As limitation would start running from the date of knowledge of the ex-parte award and there is nothing on record that Petitioners, in fact, had knowledge and factum of no knowledge is mere pretense, and the Petitioners have come up with specific case that after they acquired knowledge of the ex-parte award on 22.02.1997 and thereafter, application for restoration was moved on 04.03.1997, in this background the application was well within ten days in terms of Rule 16 of of 1957 Rules on the premises that the limitation would start running from the date of the knowledge of the ex-parte award. Consequently, in the facts of the case, the submissions made by the Respondents before this Court that the application for setting aside the ex-parte award was not competent and maintainable, cannot be accepted, as on this score, the application for setting aside ex-parte award was competent and maintainable, as it had been moved within ten days from the date of acquiring knowledge of the ex-parte award and further within 30 days from the date of its publication. In such a situation and in this background, the objection raised that the award in question became executable and the application was not competent and maintainable is not being accepted, rather the same is turned down.

The next question to be considered is as to whether it can be said that the Petitioner had been duly served and the Presiding Officer of the Labour Court had rightly proceeded to pass award on exparte basis by presuming the service of notice on the Petitioner to be sufficient. The Presiding Officer in his award has noted in detail various dates when the matter had been taken up. The reference in question dated 16.05.1996 was received by Labour Court, and on 18.05.1996 directives were issued for registering the case and for issuing summons to the parties concerned, asking them to submit their written statements by 28.06.1996. After the said summons had been issued, it is reflected from the record that process server submitted his report 4D that he went to the Petitioner''s establishment on 01.06.1996 and 14.06.1996 and at the said point of time summons were refused to be accepted. Most surprising feature of the report of the process server is that he has not disclosed as to at what point of time he visited the Petitioner''s establishment, and who was the responsible official/officer, who refused to accept the summons in question. The process server was duty bound to record the time, the manner in which summons were sought to be served and the name and address of the officer/official to whom he tried to serve the summons as well as the name of the witness before whom said incumbent refused to accept the summons. Original record reveals that there is overwriting by process server qua both the dates mentioned. In the present case, Presiding Officer of the Labour Court proceeds on this assumption that the Petitioner had refused to accept the summons and then he proceeded to send the same by registered post, and thereafter summons was sent to the Petitioner by registered post. Since the said registered document did not return back, it was presumed that the Petitioners had full knowledge of the proceedings in question, and as far as Petitioners are concerned, the moment they acquired knowledge, restoration application was moved by them, precisely taking stand that at no point of time any summons had been served, and at no point of time, same had been refused, and further it was precisely mentioned that the Petitioners had acquired knowledge of the award on 22.02.1997. Thereafter restoration application had been moved, which was dismissed on 04.04.1997. The question in the facts of the case is, can it be presumed that the Petitioners had been duly served, and they avoided to contest the proceedings in spite of full knowledge.

In the present case, Respondent workman has placed reliance on the judgment of Hon''ble Apex Court in the cases of Adavala Sathaiah v. Special Deputy Collector (Land Acquisition) 1997 SCC (1) 130 , Shimla Development Authority and others Vs. Smt. Santosh Sharma and another, and Chief Commissioner of Income Tax (Administration), Bangalore Vs. V.K. Gururaj and Others, for contending that in the present case neither un-served cover nor acknowledgment cards have been received back, as such rightly service has been presumed to be sufficient, and in this background, opinion which has been formed on deemed service should not be interfered with.

In order to appreciate the respective arguments, the provisions of Section 27 of the General Clauses Act as well as Section 114 of the Indian Evidence Act are to be looked into.

Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ''''serve'' or either of the expressions ''''give'' or ''''send'' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Section 114 of the Indian Evidence Act, 1872, in so far as is relevant, provides as follows:

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

Illustrations.

The Court may presume-....

(e)that judicial and official acts have been regularly performed;(f)that the common course of business has been followed in particular cases....

In view of the aforesaid provisions, if a notice is duly dispatched through the Post Office to the correct address of the addressee, a presumption about due service of the notice would arise u/s 27 of the General Clauses Act as well as u/s 114, Illustrations (e) and (f) of the Indian Evidence Act. Such presumption is further strengthened in case the Registered Post is returned back with the endorsement of "refusal" by the Post Man. The presumption raised in view of the aforesaid provisions is rebuttable.

Whether the presumption raised in view of the aforesaid provisions would arise in a case or not, would depend on the facts and circumstances of the case. Similarly, whether the presumption raised in view of the aforesaid provisions has been rebutted would again depend on the facts and circumstances of the case.

Said provisions have subject matter of consideration by a Full Bench of this Court in the case of Ganga Ram v. Smt. Phulwati 1970 AWR 198 (F.B.), wherein this Court held as under: Relevant paragraphs 10,12,15, 21 are being quoted below:

When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases letters or articles received by the post office are duly, regularly and properly taken to the addressee. Consequently as a proposition, it cannot be disputed that when a letter is delivered to an accepting or receiving post office it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office.

Taking into consideration the manner in which the post office deals with registered letters, the endorsement on the notice "Refused" strengthens the presumption that an attempt was made to deliver the notice to the addressee.

S. 106 of the Transfer of Property Act provides for a mode of service of the notice and, therefore, the provisions of S. 27 of the General Clauses Act, shall apply, and once it is established that a registered notice was delivered at the receiving post office containing the correct address of the tenant, a presumption of law can be made that the notice has been served on the addressee.

In our opinion the only difference between such a presumption of law u/s 27 of the General Clauses Act and a presumption of fact u/s 114 of the Indian Evidence Act is that in the former case a presumption has got to be made by the Court, while in the latter case, i.e., u/s 114 of the Indian Evidence Act it may or may not be made according to the facts and circumstances of each case. However, even a presumption of law is rebuttable unless it is made unrebuttable by some provision of law. A presumption of law to be raised u/s 27 of the General Clauses Act has not been made unrebuttable.

In Har Charan Singh v. Shiv Rani and Ors. AIR 1981 SC 1284, Apex Court opined as follows. Relevant paragraphs 7 and 8 of the said judgment are being quoted below:

Section 27 of the General Clauses Act, 1897 deals with the topic -''''Meaning of service by post'' and says that where any Central Act or Regulation authorizes or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to S. 114 of the Indian Evidence Act where under it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both u/s 27 of the General Clauses Act as well as u/s 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the Appellant on November 10, 1966 but the Appellant refused to accept. In other words, there was due service effected upon the Appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the Appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the Appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised u/s 27 of the General Clauses Act as well as u/s 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised u/s 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act.

...In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Shri Nath and Another Vs. Smt. Saraswati Devi Jaiswal, Fanni Lal''s case 1972 All LJ 499 and Ganga Ram Vs. Smt. Phulwati, and would confirm the High Court''s finding on the point in favour of the Respondents.

(Emphasis supplied)

In Basant Singh and Another Vs. Roman Catholic Mission, Apex Court held as follows; relevant paragraphs 10 and 11 of the judgment are being quoted below:

It is nobody''s case that the postal addresses of the Defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody''s case that the registered summons are not prepaid and not duly sent. In fact the registered summons, bearing receipt Nos. 875 and 876 dated 24-4-1986, were issued is borne out from the record.

Once it is proved that summons were sent by registered post to a correct and given address, the Defendants'' own conduct becomes important. Before the trial Court, the Appellants were allowed to lead evidence in support of their contentions. As order to this effect was passed by the trial Court on 11-1-1991. The premises in question is occupied by two Defendants jointly Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the Defendant-Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly.

(Emphasis supplied)

Hon''ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and Another, has taken the view that addressee can always rebut the presumption of service of notice by showing that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect. Paragraphs 11, 12, 13 and 14 of the said judgment being relevant are quoted below:

However, the Referring Bench was of the view that this Court in Vinod Shivappa#s case (supra) did not take note of Section 114 of Evidence Act in its proper perspective. It felt that the presumption u/s 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement #out of station#; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption u/s 114 of Evidence Act.

Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:

114 - Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened. regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presum

(f) That the common course of business has been followed in particular cases;

# # #

According to Section 114 of the Act, read with illustration (f) there under, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised u/s 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:

Meaning of service by post. -Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ''serve'' or either of the expressions ''give'' or ''send'' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ''refused'' or ''not available in the house'' or ''house locked'' or ''shop closed'' or ''addressee not in station'', due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh ; State of M.P. v. Hiralal and Ors. and V. Raja Kumari Vs.P. Subbarama Naidu and Anr. ] It is, therefore, manifest that in view of the presumption available u/s 27 of the Act, it is not necessary to aver in the complaint u/s 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.

On the parameters of the provisions of law and the judgments quoted above, the inevitable conclusion is that addressee can always rebut the presumption of service of notice by showing that he had no knowledge of the notice being brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect, and on the said parameters, the facts of the present case are being adverted to. In the present case, the Labour Court has proceeded on the presumption that notice had been sent by registered post and the same had not returned back, as such such, notice should be presumed to be sufficiently served. The Petitioner in its turn filed application supported by affidavit, clearly and categorically contending therein that at no point of time any notice or summon had been received by them. Record is speaking for itself. At the initial stage attempt and Endeavour was made to get the summons served through process server, and the process server came up with a case that he visited the office of the Petitioner on 01.06.1996 and 14.06.1996 and the summons were not accepted. There is nothing on record to show and suggest as to at what point of time the process server visited the office of the Petitioner and tried to serve the summons, the name of the person on whom summons was sought to be served, has also not been disclosed, whereas it was incumbent and obligatory upon him to have disclosed the name of the aforesaid incumbent upon whom he tried to serve the summons and he refused to accept the same. There is overwriting on both the dates of respective visits dated 01.06.1996 and 14.06.1996. Manipulation is writ apparent from the record. From the record in question, it is further reflected that on 15.07.1996, it was mentioned that the employer would be sent summons by registered post, and it was also precisely mentioned that requisite envelope be taken from the concerned workman, and the next date fixed in the matter was 01.08.1996. The most surprising feature is that the order was passed on 15.07.2006 fixing 01.08.1996 and the workman was asked to submit the requisite envelope, whereas as per the report dated 17.03.1997 available on record as Paper No. 7D at page 12, registered letter No. 209 had been sent by registered post on 30.07.1996, but no explanation, whatsoever, has come forward that when the notices itself were directed to be issued on 15.07.1996 fixing 01.08.1996, then why registered notice had been sent only two days prior to the date fixed. On 01.08.1996, the Labour Court has proceeded to mention that the notice be awaited and the next date fixed was 07.08.1996. On 07.08.1996, it was mentioned that registered summons has not been received back, as such service be presumed to be sufficient and the proceedings be undertaken ex-parte.

Thereafter on 21.08.1996 next date fixed was 29.08.1996 and final award had been passed on 28.10.1996. This Court has the advantage of perusing the entire original record, and on paper No. 7D dated 16.07.1996, endorsement dated 12.03.1997 has been made providing therein that by registered letter No. 291 dated 30.07.1996, letter had been sent and the same has not been received back. Apart from the aforesaid endorsement, there is nothing on record to show and suggest that the letter had been sent by registered post at any point of time, as registered receipt in lieu of having sent the letter by registered post, namely, registered letter No. 291 is not available on record, which could substantiate this fact that it had been sent by registered post on the correct address of the Petitioner. The presumption of letter having been delivered in normal course of business is rebuttable presumption and once Petitioner has come up with specific case that at no point of time any notice or summons had been served upon the Petitioners and the backdrop of the case clearly reflects that the report of the process server has been manipulated on the face of it, and further there is nothing on record to show and substantiate that the registered letter had been sent on correct address, then in such a situation and in this background, contention of the Petitioner has to be accepted as correct. In such factual scenario once sufficiency of cause is therefore non-appearance when the case had been taken up, then in such a situation and in this background, passing of ex-parte award is not at all being approved of.

As to whether the Respondent workman had been employed in the Census Department and as to whether he had been properly engaged or not, are essentially questions of fact. In this background, as records are still available, as litigation has been ongoing since long, the Labour Court is directed to decide the matter afresh, especially in the backdrop as to whether there existed employer-employee relationship between the Petitioner and the Respondent workman, and as to whether the engagement was only for census operation and as to whether the claim made by the Respondent workman that he had functioned for 240 days in a calendar year is correct or not

Consequently, in the facts of the case, writ petition is allowed. The award dated 28.10.1996 and consequential action pursuant thereto are hereby quashed and set aside. However, it is made clear that the amount which has been paid to Rajesh Kumar Rawat, shall not be recovered from him, and proceedings before Labour Court be decided, at the earliest without granting unnecessary adjournments.