Mitahn Lal Goel And Anr. vs R.K. Baweja And Anr.
2005 Latest Caselaw 555 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present appeal arises out of the judgment and order passed by the learned Single Judge in CWP Nos. 1101/1973, 758/1974 and 123/1974. By the aforesaid judgment and order passed on 14th October, 1987, the learned Single Judge set aside the award passed by the Labour Court on 6th April, 1973 holding that the order of termination passed was neither illegal nor unjustified and, therefore, there was no question of making any payment to the workman for any period after the award and in normal course.

2. Facts giving rise to filing of the aforesaid writ petitions were that Sh. Mithan Lal Goel, one of the appellants herein, was appointed as Accounts Assistant at Rs.280/- per month by the management of M/s. Associated Traders and Engineers Pvt. Limited by letter dated 30th April, 1968. One of the stipulations in his appointment letter was that he was appointed as an Account Assistant in the Mori Gate office of the respondent w.e.f 28th February, 1968. It was also stipulated therein that said appointment was for a temporary period of three months on trial only and would automatically lapse unless renewed by a fresh letter or by entering into an agreement of service. It was also added therein that his services could be terminated without assigning any reason. Although the aforesaid appointment, as per the appointment letter and the terms and conditions stipulated therein, was to continue only up to 27th May, 1968 but by subsequent letters his employment was extended up to 27th May, 1969. Since one of the conditions in the letter of appointment dated 30th April, 1968 provided for continuation beyond the trial period by signing an agreement of service, both the parties entered into an agreement by signing the said agreement both by Mr. Goel and the management, on 9th May, 1969. Under the aforesaid agreement, the workman was required to furnish a surety. Accordingly, Sh. Goel furnished the surety of his son, who was shown as a dependant by him and, therefore, the said surety was not accepted by the management. Accordingly, the management wrote to Sh. Goel on 12th May, 1969 to furnish proper surety. Since, by then, the earlier period of temporary employment was due to expire, the management issued another letter dated 21st May, 1969 extending his temporary appointment for a further period of three months w.e.f 28th May, 1969 , as against which the workman expressed his surprise and wrote back that since he had already signed the agreement and only the question of surety had remained, he did not understand the meaning of writing a letter dated 21st May, 1969. The management by order dated 28th July, 1969 informed the workman that he would stand discharged from service with effect from 27th August, 1969.

3. So far the other workman Sh. Balraj Sharma is concerned, by agreement dated 25th January, 1967 he was appointed for a period of one year at a monthly salary of Rs.125/-. One of the conditions in his appointment letter was that his contract of employment would automatically stand terminated on the expiry of one year unless extended by mutual consent. Thereafter, the service of the workman was extended for a further period by the management by issuing letters to that effect till 24th July, 1969.

The last of such letter was issued on 3rd April, 1969. However, though formal acceptance was given to previous orders of continuation, the said appointment was not formally accepted by the workman and, therefore, a letter was written by the management of Sh. Sharma on 2nd May, 1969 asking him to confirm whether he wished to continue in service, in the following manner:-

"We are informed by your immediate officer, Sh. Lekh Raj, Delivery I/C that you refused to fill in the agreement form to further continue your services with this company. Your period of service had expired on 25th January, 1969 and you are further required to give your option as to whether you wanted to continue your services with us or not. Since you failed to do the same we extended the period of service with the company up to 25th July, 1969 as a special case vide our letter S/449/69/1821 dated 3.4.69.

We are now requesting you once again to let us know your decision as to whether you would like to continue your services with the company or not. Your period of service as mentioned above is due to expire on 25.7.69 and after that unless we get specifically in writing from you that you want to continue your services with us, we shall not be in a position to extend your period of service any more.

Your reply should reach us within 10 days of the receipt of this letter failing which we shall presume that you are no longer interested in continuing your services with the company".

4. The said workman, however, did not reply within the time frame as stated in the letter dated 2nd May, 1969. Therefore, the management gave a notice on 23rd June, 1969 to the workman that his service contract dated 25th January, 1967, which was extended from time to time was due to expire on 24th July, 1969 and, therefore, he should settle his accounts on being relieved on 24th July, 1969 afternoon. Relevant portion of the said letter reads thus:-

"Please take notice that your service contract dated 25.1.67 as extended from time to time is due to expire on 24th July, 1969 afternoon. You may, therefore, settle your accounts with Accounts Head Office on being relieved on 24.7.69 afternoon by U.P Border office."

5. However, the workman was transferred to U.P. Border office of the petitioner on 26th June, 1969. The workman feeling aggrieved by the aforesaid order of transfer wrote a letter dated 3rd July, 1969 to the management stating therein that the contract of service did not authorise the management to transfer him to U.P. Border office. The workman was, however, stood relieved from service on 24th July, 1969. Accordingly both the aforesaid workmen being aggrieved by non-renewal of the agreement of service by the management sought for a reference before the Delhi Administration, who after considering the case referred the following dispute for adjudication to the Labour Court:-

"Whether the termination of services of S/Shri Mithan Lal Goel, Balraj Sharma and Baldev Raj Sharma is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect?"

6. The respondents/workmen filed their respective statements of claim, in reply to which the management filed their written statement and the workmen filed their rejoinder. On the basis of pleadings of the parties, the Labour Court framed the following issues:

1. Whether the demand in respect of reinstatement of Sarvashri Mithan Lal Goel and Baldev Raj Sharma was made on the management? If not, its effect?

2. As in the term of reference.

7. Evidence was thereafter led by the parties and the learned Labour Court heard the arguments advanced by the counsel for the parties. The Labour Court thereafter passed the award on 6th April, 1973 in the aforesaid reference case being I.D. Case No. 104 of 1970. By the aforesaid award the learned Labour Court rejected the plea of the workmen of victimisation due to trade union activities and also the plea that the services were terminated by an officer not competent to do so. But, the learned Labour court held that the management was guilty of unfair labour practice inasmuch as it was employing people to work in the organisation on short term contracts which was not permissible under the law. The Labour Court also held that the management refused to extend the period of service of Sh. Balraj Sharma because he agitated against the order of transfer. It was held by the learned Labour Court that the workman should have been chargesheeted and disciplinary proceedings should have been taken against him for non-compliance of the transfer order rather than refusing to extend his term. As regards Sh. Mithan Lal Goel, the learned Labour Court held that his term of service was not extended by the management because the workman failed to furnish the surety and the action was not bona fide because of the general malpractice of appointing people on short term basis. After coming to the aforesaid findings, the learned Labour Court held that the orders of termination in the case of both the workmen were illegal and unjustified and they were directed to be reinstated in service.

8. Being aggrieved by the aforesaid award passed by the learned Labour Court, the management filed the aforesaid writ petitions in this court. The learned Single Judge after hearing the counsel for the parties and going through the records held that no issue was framed by the learned Labour Court with regard to alleged unfair labour practice and that no evidence was led by the workmen in respect of the said issue and, therefore, the said question of unfair labour practice, which was decided by the learned Labour Court even not being a question incidental to the dispute in the present case, could not have been decided and that the learned Labour Court was not justified in giving findings and conclusions on that issue. It was also held that as on of the workmen, namely, Sh. Mithan lal, failed to furnish proper surety, there was nothing wrong on the part of management to refuse to extend the agreement on that count after the expiry of the term of engagement inasmuch as such a case cannot be considered as unjustified in any manner. It was also held that so far the other workman, namely, Sh. Balraj Sharma, was concerned, he had failed to give confirmation whether or not he would like to continue with the company although the same was called for from him prior to the order of transfer. It was also held that the workman had joined the place of transfer and, therefore, there was no question of holding any disciplinary proceeding or giving any chargesheet. It was held by the learned Single Judge that the Labour Court was not right in holding that the decision not to extend the term was not bona fide. After recording the aforesaid conclusions, it was held by the learned Single Judge that the finding of the Labour Court that termination of both the workmen were illegal and unjustified and, therefore, cannot be sustained and the same was accordingly set aside and quashed.

9. Counsel for the workmen, who have filed this appeal urged before us that the learned Single Judge should not have interfered with the findings of fact recorded by the learned Labour Court, by reappreciating and reconsidering the evidence on record. It was also submitted that the learned Single Judge should not have referred to and relied upon the terms of contract of service of both the workmen for upsetting the findings of fact as the said contract of service in respect of both the workmen were unregistered and , therefore, the same should not have been looked into and considered in view of the provisions of Section 2 of the Industrial Disputes Act.

10. Next submission of the counsel for the workmen was that there was total non-compliance of the provisions of Section 25 of the Industrial Disputes Act and, therefore, the order of termination was rightly set aside by the learned Labour Court.

11. We have considered the aforesaid submissions of the counsel for the appellant in the light of the records and we may now proceed to record our reasons as against the aforesaid pleas. Upon going through the records and the impugned judgment and order of the learned Single Judge, we find that similar contentions, as sought to be raised by the counsel for the appellants, were also raised before the learned Single Judge. The said pleas were considered by the learned Single Judge and it was held that there are correspondences between the parties, which are annexed to the writ petition which would indicate that even prior to the order of transfer the management was wanting a confirmation from the workman Balraj Sharma swhether he would like to continue with the company and that the workman failed to give such confirmation though on previous occasions when the contract was renewed he had given such confirmation in writing to that effect. It was accordingly held that the learned Labour Court gave a perverse finding in holding that the decision not to extend the term was not bona fide.

12. So far the plea with regard to non-interference in respect of findings of fact under Article 226 of the Constitution of India is concerned, it is settled law that there is no hard and fast rule that a writ court cannot set aside and quash the findings of fact recorded by the learned Labour Court. Powers are provided to a writ court under Article 226 of the Constitution of India to set aside and quash findings of fact recorded by a tribunal as inferior court under certain circumstances. The finding of fact arrived at by the learned Labour Court, on the basis of proper appreciation of the evidence on record, is generally not to be interfered with but if it is found by the writ court that the Labour Court misread the findings and had given a perverse finding, there is always a power vested on the writ court to set aside and quash the findings, which are found to be perverse. Such findings can also be set aside when it is found that inadmissible evidence is admitted or when findings are such that no reasonable man would have arrived at it on the materials before it.

13. In that view of the matter, we are required to consider and appreciate the findings and the conclusions recorded by the learned Single Judge as also by the learned Labour Court. So far the finding of the Labour Court regarding unfair labour practice, on the ground that it was employing people to work in the organisation on short term contracts is concerned, the same was never an issue before the learned Labour Court. There was no reference to the learned Labour Court of the aforesaid issue and, therefore, the learned Labour Court proceeded to extend the scope of reference and decided a matter, which was not an issue arising out of reference nor it could be said to be a matter incidental to the reference. Therefore, such findings recorded and the award passed on the basis of such findings could not and should not have been considered for deciding the matter which was not referred to for the decision of the learned Labour Court.

14. So far the plea that the management could not have relied upon the agreement/contract of employment between the management and the workmen because of non-registration and non-compliance of Section 2 of the Industrial Disputes Act is concerned, no such objection was ever raised by the workmen before the learned Labour Court and the same was raised for the first time before the learned writ court. The said plea was, however, allowed to be raised holding the said question to be a question of la. On the said issue as to whether or not the contract of service could be referred to and relied upon, although the same was not registered, and as to whether or not there was non-compliance of Section 2 of the Industrial Disputes Act, the learned single Judge held that Section 2 of the Industrial Disputes Act deals with registration of settlements arrived at between the management and the workmen but does not deal with contract or agreement of service. Consequently, it was held by the learned Single Judge that Section 2 of the Act has no application to the facts and circumstances of the present case, inasmuch as, the contract of service was not arrived at between the parties by way of settlement of a dispute within the course of conciliation proceeding or otherwise. It was also held that none of the authorities cited by the counsel for the workmen before it arises out of or dealt with registration of contract of service and were, therefore, not relevant. It was specifically held that the said contract or agreement of service between the management and the workmen in the present case could be relied upon and referred to by the management as they did not require registration. Same plea was also raised before us and the counsel for the appellant , in addition to the decisions which were referred to in the decision of the learned Single Judge, also placed before us another decision of this court rendered by a Single Judge in the case of The Management, The Coop. Stores Ltd. v. Shri Ve Prakash Bhambhri reported in 36 (1998) DLT 185. The said decision in our considered opinion is not applicable to the facts of the present case as the said case was also not a case which is concerned with the agreement pertaining to contract of service. On considering the provisions of Section 2 of the Industrial Disputes Act very carefully and on analysing the same, we hold that there is no error in the findings and conclusions recorded by the learned Single Judge. Section 2 of the Industrial Disputes Act is clearly not applicable to the facts of the present case as the same clearly applies and relates to registration of settlement arrived at between the management and the workman pursuant to certain dispute between them. The said provision clearly postulates and presupposes an agreement of settlement arising out of a dispute. One of the conditions for applicability of Section 2 of the Industrial Disputes Act is that there should be a dispute between the management and the workman and pursuant to the said dispute, through conciliation or through other process a settlement is arrived at on certain terms and conditions. The said terms and conditions are reduced into writing and it could be referred to and relied upon only when the same are registered, as required under Section 2 of the Act. However, the same is not the case here. In this particular case, the management seeks to rely upon the contract of service in support of their contention that the services of the workmen had come to an end by efflux of time and because the workmen had failed to enter into the fresh agreement by exercising his option as to whether or not the workman would like to continue in service and, therefore, the provisions of Section 2 of the Industrial Disputes Act cannot be made applicable to the present case. We find no error of law apparent on the face of the records in the aforesaid findings and conclusions arrived at by the learned Single Judge. The said plea, therefore, is held to be without any merit and is dismissed.

15. The next contention which was raised was that the termination of the employment of the workmen amounted to retrenchment as there was total non-compliance of the provisions of Section 25 of the Industrial Disputes Act. The said issue was also not raised before the learned Labour Court nor any issue was framed by the learned Labour Court. No evidence was also adduced in respect of the aforesaid plea. However, such an issue was raised by the workmen before the learned Single Judge. It was held by the learned Single Judge that the respondents cannot be permitted to raise such objection, for the first time, in the writ court because the said question is both a question of law and fact. It was held that Section 25 which stipulates condition precedent to retrenchment is applicable only when the workman concerned is in employment for more than one year. It was also held that what is continuous service is again defined in Section 25 of the Industrial Disputes Act. After considering the said provisions of Section 25 and 25(b) of the Industrial Disputes Act, it was held by the learned Single Judge that if the aforesaid objection had been raised by the workmen before the learned Labour Court, the management would have been able to plea evidence that the workmen were not in continuous service for one year. As the said opportunity was not given and could not be availed of by the management, it was held that the said plea having not been raised by the workmen before the learned Labour Court, such a plea cannot be allowed to be raised, for the first time, in the writ petition as it required investigation of fact, which cannot be done without allowing the workmen and the management to lead evidence on that count. The aforesaid conclusions cannot be said to be arbitrary or illegal. It was also held that the contract of service of both the workmen had expired due to efflux of time and that Sh. Mitahn Lal had given the surety, as required, of his own son, whom he himself had shown as dependent on him and when he was asked to substitute the said surety by giving a surety of another person, he refused to do so. Since the workman failed to comply with one of the requirements and refused to furnish surety of any other person than his own son, who was dependent on him, we find no illegality nor any error apparent on the face of the records on the findings recorded by the learned Single Judge that the aforesaid action on the part of the workman was against the terms of his agreement of service and that there is no mala fide or unjustifiability in the management refusing to extend the agreement after the expiry of its term.

16. So far Sh. Balraj Sharma is concerned, the learned Labour Court itself observed that as per the agreement, it was within the power of the management to transfer him to any other place. It, however, held that the order of termination is illegal on the ground that the letter terminating the agreement w.e.f 24th July, 1969 was issued on 23rd June, 1969 and, therefore, there was harldly any reason to transfer him for a few days to another place and accordingly it was held that refusal to extend the term of appointment was illegal. The said findings have been set aside by the learned Single Judge holding that even prior to the order of transfer, the management was asking for a confirmation from the workman as to whether he would like to continue with the company. The workman failed to give such confirmation though such confirmation was earlier given by the workman on previous occasions when the contract was renewed. The said confirmation was sought for by the management but the same was not furnished by the workman although, in the meantime, a transfer order was issued by the management in which post the workman did not join. The same had no impact at all on the order of release of the workman as the same was done only because confirmation was not given by the workman, which he was asked to give. Communication to the said effect having been done prior to the order of transfer, we find no error in the order passed by the learned Single Judge. The said plea is found to be without any merit an is dismissed. No other issue was urged before us. We find no merit in this appeal and the same is dismissed. However, in the interest of justice we leave the parties to bear their own costs.