Pearey Lal vs O.P. Singla
1995 Latest Caselaw 755 Del

JUDGMENT

Vijender Jain, J.

(1) This is a petition filed by the petitioner against the award passed by the Labour Court dated 9.7.1982

(2) MR.L.D Adalkha, learned counsel appearing for the petitioners, has argued that award suffers from basic infirmity as the Trial Court has not taken into consideration that in the complaint, which was the basis for the termination of the services of the petitioners, no direct or legal evidence was brought on record. Learned counsel for the petitioners further contended that even from the hare reading of the complaint, on the basis of which the services of the petitioners were terminated, it would he apparent that the complaint was made alter the alleged incident at the instance of Management. Yet another submission made by the learned counsel for the petitioners before this Court is that though the complaint was dated 6.5.1980, the petitioner were issued show cause notice on 8.5.1980 and the petitioners replied to the respondent on 9.5.1980 that the allegations and charges made in the letter dated 6.5.1980 were wrong, baseless and false and inter alia requested the respondent to supply the photocopy of the alleged report, which was not supplied to them, but straight away the services of the petitioners were terminated vide letter of the respondent dated 12.5.1980. Non-supply of vital document to the petitioner violated the principle of natural justice. On the basis of the aforesaid submissions, Mr.Adalkha has contended that the impugned award is patently perverse and is liable to he set aside.

(3) On the other hand, Mr.D N Vohra, learned counsel appearing for the respondents, has defended the award on the basis of the reasoning, which has been mentioned in the impugned award. The first contention vehemently convassed before me by Mr.Vohra is that the writ petition be dismissed as the same has been filed after a period of 3 years. In support of his argument, he has cited State of Madhya Pradesh v. Bhailal Bhai & ors. and 0 P Malhotra & ors. v Municipal Corporation of Delhi 1973 Slj 1005.

(4) On the other hand, Mr.Adalkha has cited K.Prasad v. Union of India & ors. , Ramchandra Shankar Deodhar & ors. v The State of Maharashtra & ors. Km LAB.I.C. 165, Sudhir Kumar Sahu v. The India Institute of Technology & anr. Air 1987 Bombay 358, P V Nayar v. Union of India & ors. 1992 (25) LAB.I.C. 40 and Nand Kishore Nayak v. State of Orrisa & anr. .

(5) Let me deal with the contentions raised before me by the learned counsel appearing for both the parties regarding limitation for filing the writ petition. The provision of Limitation Act as such do not apply to the granting of relief under Article 226 of the Constitution of India but maximum period fixed by the Legislature for a relief which can be granted by a Civil Court must be claimed and may ordinarily be taken as a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution can be measured. Now I have to see whether in this case there has been an unreasonable delay on the part of the petitioners to file the writ petition. The petitioner has mentioned in the writ petition that he was precluded in filing the writ petition as the papers to file the writ petition were given in the Union Office. The petitioners had also deposited the necessary expenses at the Office of Hospital Employees Union, Aggarwal Bhavan, G.T.Road, Tis Hazari, Delhi. It has also been averred in the writ petition that the petitioners were pursuing the matter with the Union when it was told that the Union has lost the file and, therefore, the writ petition could not be filed. The petitioners were poor Sweepers and they were illiterate persons. In invoking the extra-ordinary jurisdiction of the Court, the Court will not non suit the petitioners on account of delay in idling the petition, if petitioners were diligent and taking steps for filing this petition. Another mitigating factor to condone the delay, if any, is that petitioners were poor and illiterate. Petitioners diligently followed the Union Office but on account of misplacing of the file in the Office of the Union, they could not file the writ petition within a period of 3 years. Even otherwise there is no inordinate and unreasonable delay in filing the writ petition. The. award was notified, admittedly, somewhere in November'1982 and the present writ petition was filed on 14.11.1985. Therefore, I do not find any force in the arguments of the learned counsel for the respondent that the petition is barred by limitation and be dismissed on account of delay and laches. That leaves this Court to decide about the controversy, which has been raised by Mr.Vohra regarding the evidence led before the Tribunal and appreciation of the evidence by the Tribunal and interference by this Court in the present proceedings. In writ jurisdiction, the Court is not sitting as a Court of appeal over the judgment of the Labour Court. The Court will also not go while exercising the writ jurisdiction into the sufficiency or insufficiency of the evidence led before the Tribunal. The Court will interfere if the order/judgment of the Tribunal is patently illegal or manifestly perverse. Keeping this constraint in view, I would like to deal with the arguments advanced by the learned counsel for both the parties. The incident leading to the termination of the services of the petitioners was a complaint by three persons, who were at the relevant time, alleged to have been admitted in the Female General Ward of the Hospital, i.e. Smt.Roop Wati, Smt.Bano and Smt.Malati. All the three persons retracted from their statement and denied having made such complaint vide their letter dated 8.5.1980 stating inter alia therein that their signatures were taken in the Hospital on the ground that they would be given free treatment and they did not know what was written there in the complaint and whatever was written on the alleged complaint was not to their knowledge. In the absence of any of the three persons, who alleged to have made complaint to the Hospital whether there was any evidence on the allegations contained in the complaint before the Tribunal, the answer is in negative The testimony of Dr.Nanda, who is a doctor of the Hospital, cannot be treated testimony of a person, who was not interested. There was no independent witness. Admittedly, petitioner No. 1 was the Secretary of the Trade Union. The case of petitioner No.1 is that the Management wanted to victimise him for his Trade Union activities. Unfortunately, petitioner No. 1 died during the pendency of this writ petition. Learned counsel for the respondents has urged that in such case the evidence of Dr.Nanda and Smt.Chameli could be appreciated and citied in his support Workmen of Motipur Sugar Factory (Pvt.) Ltd. v. Motipur Sugar Factory (Pvt.) Ltd. 1965 (II) Llj 162, which lays down - "IT is now well settled that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have .jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been properly held - see Indian Iron and Steel Company v.their workmen [1958-1 L.L.J .260] but also to satisfy it sell on the facts adduced before it by the employer whether the dismissal or discharge was justified."

(6) I am afraid that this authority is of no help as there cannot be two opinions that regarding the dismissal of an employee if employer has failed to make enquiry before dismissal or discharge, the workman thereafter can lead all the relevant evidence before the Tribunal. Here, it is not the case of leading evidence before the Tribunal. The question in the instant case is whether relevant evidence was led before the Tribunal so as to enable the Tribunal to make the impugned order. There after learned counsel for the respondent has cited Delhi Cloth and General Mills Co.Ltd. v. Ludh Budh Singh 1972 (1) Llj ISO. This authority is also of no help to the case of respondent as the Supreme Court was dealing with regard to the jurisdiction in cases where a proper enquiry has been held by the Management. In this case no enquiry has been held, which could be called legal or proper. After receipt of the show cause notice dated 6.5.1980, the petitioners have represented to the Management that they should be given a copy of the complaint, which was the basis of the charge against them. In stead of supplying the copy of the cplaint, they were served with the termination letter dated 12.5.1980.

(7) MR.VOHRA cited State of Haryana & anr. v. Ratan Singh 1977 (34) Iflr 204, this authority does not help the case of the respondent. The law laid down in State of Haryana &. anr. v. Ratan Singh's case (supra) by the Supreme Court helps the case of the petitioner. Mr.Vohra has also cited Management of State Bank of India, New Delhi v. J D Jain & anr. 1979 (2) LABJ.C. 1041 and J D Jain v. Management of State Bank of India & anr. .

(8) It is important to quote from State of Haryana & anr. v. Ratan Singh's case (supra) - "IT is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. 01 course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached. such Imding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should he chased and brought before the tribunal before a valid finding could be recorded. The simple point is, was there some evidence or was there no evidence - not in sense of the technical rules governing regular court proceedings hut in a fair commonsense way as men understanding and worldly wisdom will accept Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny........."

(9) Now in the present case, I have to see whether the present case is a case of some evidence or of no evidence. If there is absence of any evidence in support of a finding then it certainly would amount to an error apparent on the record, which makes the impugned order manifestly unjust and perverse. The complaint against the petitioners was that petitioner No. 1 along with petitioner No.2 occupied one bed in the Female General Ward and indulged in indecent and obscene acts and vulgar talks. Charges were that on last night, i.e. 6.5.1980, petitioner No.1 passed on Eggs. Soft-drinks and Chapaties to petitioner No.2 through a window of the Ward. As I have observed earlier this complaint was made on the basis of the report by Smt.Roop Wati. Smt.Bano and Smt.Malati, patients of Female General Ward. None of these persons were brought before the Tribunal, not only this all the three persons had vide their letter dated 8.5.1980, of which the Labour Court took notice, denied having made such complaint as their stand was that the Hospital Authorities obtained their signatures by telling them that they would be given free treatment and they did not know what was written there and whatever was written on that complaint was not in their knowledge. Curiously, one of the patients, who alleged to have signed the complaint, was Smt.Malati. The evidence of her mouther, Smt.Chameli, who was working as 'Aaya' in the Hospital, was recorded. In her statement, she had staled that she did not see any sexual contact between the petitioners. She did not say anything about the happening of the intervening night of 5th and 6th May, 1980. In the cross-examination, she admitted that she was forced to go in Court because the matter concerns her daughter. From the side of the workmen, Shri Kamla Nand, President of the Employees' Union, deposed before the Labour Court to the effect that he made the verification from the Ward but patients denied having made the complaint against the petitioners. If such an evidence was before the Labour Court then on what basis the Trial Court came to the finding, Labour Court lost sight of law laid down in State of Haryana & anr. v. Ratan Singh's case (supra) by Supreme Court and the approach of the Court below was not objective. The whole approach of the Tribunal was lop-sided. The Tribunal in paragraph-12 of the impugned judgment has stated that the whole procedure adopted by the Management is informal and not fully in the way of a regular enquiry. After coming to this finding the Tribunal has simply accepted the testimony of the Management and disbelieved the evidence adduced by the workmen. The expression used "good cause" by the Labour Court in the concluding paragraph of the impugned judgment leads much to be said. The Trial Court has not dealt with the reference in a legal and objective manner. The findings of the Trial Court are on the basis of no evidence on charge which was the basis of termination of service. The same are perverse and, therefore, I set aside the order/judgment of the Labour Court.

(10) The next question is that what should be the relief to be given to the petitioners. Petitioner No.1 has died. on 10.8.1994, an amended memo of parties was filed Petitioner No.1 left behind him his wife, Smt.Savitri, two sons, namely Shri Ramvir Singh and Shri Raju, and two daughters, Smt.Kamla Devi and Ms.Sushila Devi. petitioner No.1 was drawing a sum of Rs.421.85 paise as salary at the lime when his services were terminated. As I have set aside the order/judgment of the Labour Court, petitioners are entitled to reinstatement. On account of the death of petitioner No.1, he cannot be reinstated and, therefore, compensation has to be granted to the legal heirs of petitioner No.1 in lieu of his reinstatement. As petitioner No.1 has succeeded in this petition, his heirs are entitled to the amount due on account of such compensation, the amount of compensation be calculated from the date of his termination till the age of his superannuation with all statutory increase, other increments and other benefits, which are available to the same class of employees. Petitioner No.2, at the time of her termination, was drawing Rs.377.00 per month approximately. As I have set aside the order/judgment of the Labour Court, I direct the respondent to reinstate petitioner No.2 with continuity in service with all increments and other benefits. The respondents are directed to make the payment of amount, which has accrued on account of compensation on the death of petitioner No.1, to Smt.Savitri, the wife of petitioner No.1, after obtaining necessary affidavits of the other legal heirs of petitioner No.1 within 3 months.

(11) The petition is disposed of in terms of the above order.