SWATANTER KUMAR, J.

( 1 ) DINESH Thapa joined as a driver with the management of M/s. Roy Brothers, E-25 A/1, Hauz Khas, New delhi, a partnership concern in August 1996. Somewhere in june/july 1999, it was noticed by the management that he consumed alcohol at work and was warned to be careful in future, failing which his services would be dispensed with. On 3. 11. 1999, the driver was caught red-handed stealing petrol from the car. When questioned, he even made an attempt to physically assault the partner of the firm. The workman left abruptly after the incident. A complaint was also lodged with the concerned police station at Saket requesting them to take appropriate action against the workman. On 12. 11. 1999, the management sent a legal notice to the respondent No. 2 directing him to come forward and amicably settle the matter to which there was no response from the workman. Again on 11. 4. 2000 an attempt was made by the petitioner to settle the matter and a meeting was fixed at the office of the Counsel for the petitioner, wherein the workman never turned up. In the meanwhile, the workman had raised an industrial dispute which was referred to the Labour Court by the appropriate Government. As the management failed to appear before the Labour Court in march, 2004, the management was ordered to be proceeded against ex parte in those proceedings.

( 2 ) THE appropriate government on the basis of thenotice issued by the workman had made a reference under Section 10 (1) (C) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ) on 4th august, 2000. This reference was answered by the presiding Officer, Labour Court-VIII, Delhi, vide award dated 26. 11. 2002 wherein the Court granted reinstatement with continuity of service to the workman, but restricted the relief of back wages to the extent of 40%. The management has questioned the correctness and legality of this award, in the present writ petition under Article 226 of the Constitution of India. At the very outset, it may be noticed that the workman has not impugned this award, thus, the relief granted by the Labour Court has attained finality as far as the workman is concerned.

( 3 ) THE contention raised on behalf of the petitioner is that the award of the Labour Court is based on no evidence and the Court has mis-applied the settled principles of law in deciding the reference against the management. It is also argued that as the management was never served, no ex parte proceedings could be taken against the management and in any case the application for setting aside the ex parte order ought to have been allowed, thus, the court has failed to exercise jurisdiction lawfully vested in it.

( 4 ) THE workman had filed his statement of claimwherein he stated that he was appointed as a driver on 1. 8. 1996 at a monthly salary of Rs. 3000/- per month. The employer was not paying him overtime and ultimately his services were illegally terminated on 3. 11. 1999 without giving him one month s notice. As nobody appeared on behalf of the management before the Labour court despite service, they were ordered to be proceeded against ex parte in the reference proceedings. On 2. 4. 2002 an application was filed for setting aside the ex parte order. After filing of this application, again nobody appeared on behalf of the management to pursue the application, and as such the application was dismissed in default. The workman led ex parte evidence by way of affidavits. The affidavit was exhibited as WW1/a. Other documents which were relied upon and proved by the workman were exhibited as WW1/1 to WW1/10. On the basis of these documents, the Labour Court concluded that the petitioner was an industry within the meaning of Section 2 (j) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ) and the claimant was a workman within the definition of Section 2 (s) of the Act. The workman had completed more than 240 days of continued service with the management

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