Management Of Daily Pratap vs Delhi Administration And Ors.
1992 Latest Caselaw 190 Del

JUDGMENT

B.N. Kirpal, J.

(1) This is the letters patent appeal against the judgment of a Single Judge of this Court, S.B. Wad, J., who had dismissed the writ petition of the appellant herein whereby the appellant had sought quashing of the award dated 10th December, 1973 of the Industrial Tribunal.

(2) The Tribunal vide award dated 10th December, 1973 decided the reference, which was made to it, namely, whether the retrenchment of respondent No. 3, Shri Balram, was illegal or unjustified, in favor of the workman. Aggrieved by the said award, a writ petition was filed. The respondent workman engaged one Shri S.C. Munjal as Counsel. When the case came up for hearing on 11th January 1989, no Counsel was present on behalf of the workman. The writ petition was allowed and the learned Single Judge accepted the plea, which was raised before him on behalf of the petitioner, namely, that the workman was retrenched because of financial constraints. The case of the petitioner was accepted by the learned Single Judge that the post of Cartoonist has been abolished and, secondly, the number of pages of the newspaper Daily Pratap were reduced from 8 pages to 4.

(3) It appears that after 8 months, the workman concerned filed an application for recalling of the said order and for re-hearing of the writ petition. In the application it was, inter alia, stated that the workman had engaged a lawyer in 1974 and had even contacted him in the year 1987. The lawyer had told the workman that be will inform him about the date of the hearing but, in fact, when the hearing took place, neither the lawyer was present nor the workman was informed. On this application, the learned Single Judge vide Impugned order dated 8th February, 1991 recalled the earlier decision of 11th January, 1989 and re-heard the writ petition. He came to the conclusion that the number of pages were reduced from 8 to 4 long after the workman bad been retrenched. The learned Single Judge also took note of the fact that the workman was General Secretary of the Trade Union, and he agreed with the finding of the Tribunal that the retrenchment of the workman was illegal. While quashing the retrenchment, he awarded half of the back wages to the workman with effect from 9th September, 1973 till the date of retirement of the workman. It is this decision of the learned Single Judge which is challenged before us. Relying upon , Aribarn Tuleshwar Sharma v. Aribarn Pishak Sharma and Others, it is contended by the learned Counsel for the appellant that there was no reason as to why the Single Judge should have revoked his earlier decision of 11th January, 1989. We do not agree with this contention.

(4) While it is true that the jurisdiction of review is limited but under Article 226 of the Constitution, it is the duty of the Court to prevent miscarriage of justice. If the Court is satisfied that the judgment has resulted in miscarriage of justice, depending upon the facts and circumstances of each case, it will be open to the Court to recall its earlier order. What had happened in this case was that the Counsel who had been engaged by the workman chose to absent himself and did not appear. The interest of the workman was not protected before the Single Judge.

(5) In our opinion, it was in the interest of justice that the workman should have been given appropriate opportunity of representing his case and defending the decision of the Tribunal before the Single Judge, as the fight between the management and the workman is always regarded as an unequal fight. If in the circumstances of the case, the learned Single Judge chose to give an opportunity to the workman to be heard, when due to default of his Counsel he was unrepresented, we find no infirmity in this.

(6) Coming to the facts of this case, we find that the Tribunal had at length discussed the entire evidence led before it. It was never contended before the Tribunal that due to financial constraints the number of pages of the newspaper were reduced from 8 to 4 and, secondly, it was also not contended that the post of cartoonist was absolished. The Tribunal has held that the management had a complement of about 100 employees and it is only the respondent workman, who was the concerned General Secretary of the Trade Union, who was retrenched. The Tribunal has further taken note of the fact that as a General Secretary of the Union, the workman had in May 1972 served a notice on the management claiming benefits as per recommendations of the Wage Board. These benefits to the workman were not granted and instead his services were terminated in December 1972. The Tribunal came to the conclusion that the order of retrenchment was a punishment to the workman who persisted in his demands before the management.

(7) The learned Single Judge in the latter order which is impugned before us has taken note of the fact that the number of pages of the newspaper were reduced long after the termination of the workman's services. That apart, the learned Single Judge has agreed and concurred with the findings of fact arrived at by the Tribunal and we see no infirmity in the order of the learned Single Judge.

(8) The learned Counsel for the appellant has also sought to rely before us on certain documents which he had filed during the pendency of the appeal. We see no reason as to why such documents in appeal should be entertained especially when, according to the Counsel for the respondent workman, this evidence was not even produced before the Tribunal.

(9) The letters patent appeal is dismissed.

(10) In view of order dated 16th January, 1992 Mr. Arun Sinha, Advocate should be paid a fee of Rs. l,000.00 out of the legal aid fund, if any, lying with the High Court.