Shri Zameer Ahmed vs The Appellate Authority, Under ...
2007 Latest Caselaw 293 Del

JUDGMENT

Hima Kohli, J.

1. The present petition has been filed by the petitioner workman, being aggrieved by the order dated 27th June, 1996 passed by the Appellate Authority under Payment of Gratuity Act, 1972, whereby the order dated 18th February, 1994 passed by the Controlling Authority to the effect that respondent No. 2 herein was not covered/ coverable under the Payment of Gratuity Act and as such the petitioner employee (appellant therein) was not entitled to claim any gratuity, was approved and confirmed.

2. Briefly stated, the facts necessary for disposal of the present petition are as follows. The petitioner was appointed as a tailor with the management of M/s. Jagdish Sons, respondent No. 2 herein, in February, 1962. The petitioner resigned from service w.e.f. 4th July, 1988 after working for 26 years with the respondent No. 2. On not being paid any gratuity, the petitioner approached the Controlling Authority under Payment of Gratuity Act, 1972 (hereinafter referred to as `the Act') and submitted his claim of gratuity for an amount of Rs. 14,733/-. Vide order dated 18th February, 1994, the Controlling Authority dismissed the claim of the petitioner on the ground that provisions of the Act were not applicable to respondent No. 2 since at no point of time the respondent No. 2 employed 10 or more than 10 employees on any day in the preceding 12 months from 1972 onwards, and hence the petitioner was not entitled to any relief as claimed under the said Act.

3. Against the abovementioned order of the Controlling Authority, the petitioner preferred an appeal dated 18th February, 1994 under Section 7(7) of the Act before the Appellate Authority, respondent No. 1 herein, praying for setting side the order of the Controlling Authority. After perusing the records and the order of the Controlling Authority, by the impugned order dated 27th June, 1996, the Appellate Authority upheld the order of the Controlling Authority while agreeing with the findings of the Controlling Authority that respondent No. 2 was not covered under the Act, and therefore the petitioner was not entitled to claim any gratuity.

4. During the course of arguments, learned Counsel for the petitioner submitted that the findings of the Controlling authority, which were subsequently affirmed by the Appellate Authority, were not based on correct, appreciation of facts and the evidence placed on the record but were based on presumptions and conjectures and thus liable to be set aside. He referred to the order of the Controlling Authority wherein it is recorded that the petitioner had produced his ESI card and the same was marked as Ex.WW1/1. Based on this, the learned Counsel for the petitioner contented that in the face of such a relevant document, the findings of the Controlling Authority are inconsistent with the evidence on record, and the same having been affirmed by Appellate Authority in its order, the order is perverse in law. It was further stated that orders of the Controlling Authority and the Appellate Authority suffered on the ground of perversity inasmuch as the same were based only on the presumption that the evidence adduced by the witnesses produced by the management was true, and the orders were passed, completely ignoring the evidence of the petitioner's witnesses. In this regard learned Counsel for the petitioner adverted to the deposition of Sh.Ramesh Sharma, MW2, a witness of the management and stated that he had deposed falsely with regard to the maintenance of the attendance register. Learned Counsel for the petitioner also contented that the Appellate Authority failed to appreciate the petitioner's contention that there were a total number of 19 employees working under respondent No. 2 and the impugned order was passed in complete disregard and in complete ignorance of the said fact.

5. On the other hand, learned Counsel for the respondent submitted that ESI was made applicable to respondent No. 2 only from the period of 22nd December, 1979 to 29th July 1980. It was pointed out that the Controlling Authority had visited their premises in 1979, and had found that more than 10 employees were employed with respondent No. 2.and accordingly came to the conclusion that the act was applicable to respondent No. 2. However, as against this, the management made a representation to the ESIC that at the time of inspection, there was some work of white wash going on in the premises, and the workers engaged in the said work were also wrongly counted as employed by respondent No. 2. Convinced by the above said explanation offered by the respondent No. 2, the authorities concluded that the said Act was not applicable to respondent No. 2 and also did not raise any fresh demand regarding contribution etc. It was also pointed out that the Controlling Authority only after considering the said facts, coupled with the presumption that had the workers who were members of a leading Trade Union and thus well aware of their rights, thought that the cancellation of ESI benefits was wrong, they would have taken up the matter with the concerned authority and protested against the withdrawal of the said facility, came to the conclusion that the said Act was not applicable to respondent No. 2 and therefore the petitioner could not claim any benefits under the said Act.

6. Counsel for the respondent further submitted that this Court ought not to reappreciate evidence while exercising its powers of judicial review under Article 226 of the Constitution of India. In this regard, reliance was placed on the judgment rendered by the Supreme Court in the case of Government of A.P. and Ors. v. Mohd. Nasrullah Khan reported as .

7. I have heard the arguments of the learned Counsels for the parties and have carefully perused the documents on record, including the orders of the Controlling Authority and the Appellate Authority.

8. It is a settled position of law that a writ court should not interfere with factual findings of the lower courts and should restrain itself from re-appreciating evidence while exercising powers of judicial review under Article 226. Reliance has been rightly placed by the respondent on the judgment of the Supreme Court in the case of Mohd. Nasrullah Khan (supra). Reliance may also be placed on the following judgments rendered by the Supreme Court and this Court concerning the scope of judicial review by a writ court:

(i) Harbans Lal v. Jagmohan Saran .

(ii) B.C. Chaturvedi v. Union of India .

(iii) Indian Overseas Bank v. I.O.B. staff Canteen Workers' Union AIR 2000 SC 1508.

(iv) Municipal Corporation of Delhi v. Asha Ram and Anr. .

(v) Filmistan Exhibitors Ltd. v. N.C.T. Secy. Labour and Ors. 131 (2006) DLT.

9. In all the above judgments, it has been held that a writ court should refrain from interfering with the orders of an inferior tribunal or subordinate court unless it suffers from an error of jurisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law.

10. In the present case, none of the above-mentioned conditions are satisfied, so as to warrant any interference by this Court with the order passed by the Appellate Authority or the Controlling Authority. The Controlling Authority came to a conclusion only after due appreciation of evidence on record and the Appellate Authority upheld the award having found no perversity in the order of the Controlling Authority. This Court, in exercise of its extraordinary jurisdiction, cannot interfere with the findings of facts of the trial court only on the ground that two views are possible, and cannot substitute its own views with the views of the subordinate court. In the present case, after appreciating the evidence on the record and perusing the documents produced by the parties, the Controlling Authority arrived at the conclusion that the Act was not applicable to the establishment of respondent No. 2/management and thus the petitioner could not be extended the benefits of the Act.

11. All the three points raised by the counsel for the petitioner in the course of arguments have been dealt with and rejected not only in the order dated 18th February, 1994 passed by the Controlling Authority, but have also been examined by the Appellate Authority while passing the impugned order dated 27th June, 1996. On the point of the ESI cards, the Controlling Authority has observed that:

In his cross examination, he accepted that he did not have any proof that 10 or 11 employees were given ESI cards. When ESI Inspector had visited the establishment they had made enquiries about their wages etc. All employees had a common attendance register. He did not recall when Sh.Zameer went for operation. Before operation, Sh.Zameer used to visit AIIMS and not ESI dispensary. He was treated in AIIMS and not ESI hospital. He was unable to recall how much leave Sh.Zameer had taken before the operation. ESI was stopped because later the number of employees became less. ESI was applicable for one or two years only. He denied that ESI was stopped because the number of employees were less than 10 from the very beginning. He denied that repairs were going on when ESI Inspectors visited the establishment.

12. Even in respect of the claim of the petitioner, that respondent No. 2 had employed 15 workmen, the Controlling Authority categorically held that:

...there is contradiction in the statement of the applicant and his witness and atleast one witness of the applicant himself conceded that the number of employees in the establishment were 9.

13. He went on to hold that though the petitioner gave 15 names, he was not able to establish that all 15 of them worked with respondent No. 2 at the same point of time and that out of the 15 named, only two were reported to be still in the employment of respondent No. 2. At the end, the Controlling Authority has also recorded that had the petitioner been able to prove that some workmen who had left before him, were paid gratuity, he could have got the benefit of Section 1(3A) of the Act, but having failed to prove so, the said benefit could not be extended to him. The Appellate Authority has also held on the perusal of the records and the orders of the Controlling Authority that "it is clear that the appellant workman had not been able to establish that at any point of time 10 or more employees were employed with respondent establishment." He went on to conclude that the witnesses who appeared on behalf of the petitioner were unable to establish on the basis of any document or proof that at any point of time, 10 or more workers were employed with the establishment to attract the provisions of the Act. No other point has been urged by the petitioner.

14. In view of the facts and circumstances of the present case, and in the light of the law laid down by the various judgments as mentioned above, this Court cannot but arrive at the conclusion that there is no perversity or infirmity in the impugned order dated 27th June 1996 passed by the Appellate Authority under Payment of Gratuity Act, 1972, concurring with the order dated 18th February, 1994 passed by the Controlling Authority. Petition is accordingly dismissed. No order as to costs.