Smt. Sushila Sharma vs Sh. Pawan Sharma
2007 Latest Caselaw 105 Del

JUDGMENT

Hima Kohli, J.

1. In the present writ petition, the petitioner has assailed the award dated 2nd September, 2006 passed by the learned Presiding Officer, Labour Court on a reference dated 29th March, 2000 made to the said court to adjudicate upon the following issue:

Whether the services of Sh.Pawan Sharma have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?

2. Under the impugned award, the learned Presiding Officer, Labour Court has held that the petitioner herein has retrenched the respondent workman (hereinafter referred to as `the workman') illegally, without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short `the Act') and thus termination of the services of the workman on 27th August, 1999 is ab initio illegal and unjustified. However, after considering the facts and circumstances of the case, it was held that it is not a fit case for reinstatement of the workman. In lieu thereof, the petitioner was directed to pay compensation of Rs. 25,000/- to the workman along with interest at the rate of 8% per annum from the date of the order till the date of payment.

3. The brief facts relevant for the purposes of appreciating the impugned award are that the petitioner is the owner of a bus which was plying on route No. 33 under the kilometer scheme of the Delhi Transport Corporation. The workman was in the employment of the petitioner with effect from 12th November, 1998 on wages of Rs. 4,500/- per month, besides Rs. 300/- as daily expenses. The management neither issued any appointment letter to the workman nor maintained any attendance register. It was claimed by the workman that he was not paid wages for the period from 12th November, 1998 to 27th August, 1999 besides overtime for that period, despite his repeated verbal requests. The services of the workman were terminated from 27th August, 1999 without complying with the provisions of Section 25F of the Act. As a result, the workman served a demand notice (Ex.WW1/1) dated 11th September, 1999 on the management for amicable settlement of the matter. Although the said demand notice was received by the management (vide postal receipt, Ex.WW1/2 to WW1/3) and the management admitted receipt thereof, the said demand notice was not replied to. Thereafter, the matter was referred to the Conciliation Officer. The conciliation proceedings failed and pursuant thereto, the workman raised an industrial dispute whereunder, he sought his reinstatement with full back wages and continuity of service.

4. The claim of the workman was contested by the management by filing a written statement. In the said written statement, a preliminary objection was taken that there was no relationship of an employer and an employee between the parties as the workman was not a permanent employee of the petitioner. The claim of the management was that the services of the workman were taken only sometimes when the permanent driver was on leave and for the said services rendered by him, he was duly paid at the rate of Rs. 100/- per day and thus nothing was due and payable to the workman. It was alleged that on 5th September, 1999, the workman fled away with the vehicle, namely, bus of the petitioner which was recovered from him and the matter was reported to the police. Subsequently, he returned the vehicle to the petitioner who did not initiate any criminal action against the workman. It was also averred that the workman was gainfully employed and was not entitled to reinstatement or any other relief.

5. Issue was framed in the matter on 17th February, 2004 as per the terms of reference.

6. The workman examined himself as WW1 and filed an affidavit by way of evidence. He also proved the documents placed by him on record. The management examined Smt.Sushila Sharma as MW1 and her husband Mr. Ashok Sharma as MW2. Both the witnesses filed their respective affidavits by way of evidence and also filed documents on record pertaining to the incident of 5th September, 1999 by way of a complaint to the police regarding the missing bus of the petitioner, information given to the insurance company, the finance company which had financed the bus and to the DTC.

7. After examining the evidence and perusing the records, the learned Presiding Officer, Labour Court observed that in view of the fact that the management did not reply to the demand notice issued by the workman despite having received the same, the contents of the said demand notice were deemed to have been admitted. Further, it was observed that in the written statement, the petitioner did not disclose the name of the regular driver running the bus for the management during the period from 12th November, 1998 to 27th August, 1999. In fact, even when the workman was being cross-examined, no name of the driver was suggested to him to give any explanation in this regard. Instead, the workman in his cross-examination volunteered that there was no other driver except him in the management. As a result, the learned Presiding Officer, Labour Court arrived at a conclusion that the statement of the workman had gone un-rebutted and unchallenged. It was observed that the claim of the petitioner, that there was a regular driver of the said bus, namely, Mr. Rajinder, came up for the first time only during the cross-examination of MW1, Smt.Sushila Sharma, but no such pleas were taken in the written statement. Thus the statement of Smt.Sushila Sharma was disbelieved.

8. For arriving at the conclusion that the workman was on duty on behalf of the management for driving the bus on the DTC route under DTC operation, the learned Presiding Officer, Labour Court observed that the management had the option of summoning the records of the DTC to prove its plea that one Mr. Rajinder was its regular driver on the bus plying on route No. 33 under DTC during the relevant time, and not the workman, but the management failed to do so. Hence an adverse inference was drawn against the management for having failed to produce the relevant records. Furthermore, reliance was also placed on Ex.MW2/W1 and MW2/W2 and MW2/W3, the challans of the bus in question which pertained to the period from 12th November, 1998 to 27th March, 1999, i.e. the period prior to termination of the services of the workman, which reflect that the said challans were issued in the name of the workman. Basing the award on the aforementioned evidence produced by the workman, the learned Presiding Officer, Labour Court held that the workman had produced sufficient and cogent evidence to arrive at the conclusion that he was employed as a driver of the aforesaid bus of the petitioner during the period of 12th November, 1998 to 27th August, 1999 and the workman having worked for the petitioner for more than 240 days in the preceding one year, the management was under an obligation to serve a notice to show cause, give a chargesheet or hold a domestic enquiry in terms of Section 25F of the Act, before terminating the services of the workman on 27th August, 1999. In the absence of compliance with the provisions of Section 25F of the Act before terminating the services of the workman, it was held that the termination of services was illegal and unjustified, being in violation of the Act.

9. On the question of reinstatement and back wages, after examining the facts and circumstances of the case and referring to various judgments, it was held that in view of long passage of time, direction for reinstatement with back wages could not be granted and that the claimant was entitled to be granted compensation. Reliance was placed on the judgments wherein reinstatement had not been considered desirable in cases where there have been strained relationships between employers and the employees or there is lack of trust or loss of confidence and in these circumstances, the learned Presiding Officer, Labour Court held that taking in view the claim of the petitioner that the workman had taken away the vehicle and the same was subsequently recovered from him, there appeared lack of trust between the workman and the management and it was not in the interest of the management to pass an order for reinstatement of the workman and payment of back wages. It was observed that it was not a fit case for reinstatement of the workman with back wages. In lieu of the same, the workman was granted compensation of Rs. 25,000/- with interest, as noted above.

10. Before me, the main grievance of the learned Counsel for the petitioner is that the learned Presiding Officer, Labour Court has observed in the impugned award that neither the workman nor the management turned up to address final arguments despite repeated opportunities granted to them. In this context, the petitioner has relied on an order dated 17th July, 2006 passed by the learned Presiding Officer, Labour Court wherein it was recorded that the management had addressed final arguments and the matter was renotified for 28th July, 2006 to enable the workman to address the arguments. The plea of the petitioner that the management has not been heard is not fortified by the aforesaid submission for the reason that in any case it had addressed its arguments in the matter and there is nothing on record to show that evidence recorded on behalf of the petitioner has escaped the notice of the learned Presiding Officer, Labour Court while passing the impugned award. The other plea put up by the petitioner is that the workman was not a regular employee of the petitioner and could not be awarded compensation, there being no relationship of employer and employee between the parties and that furthermore, the learned Presiding Officer, Labour Court failed to appreciate the fact that onus was not on the petitioner to produce the record of the DTC but the same was on the workman.

11. The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme Court in this context, as mentioned below:

(i) Sadhu Ram v. Delhi Transport Corporation AIR 1984 SC 1967.

(ii) Harbans Lal v. Jag Mohan .

(iii) Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.

(iv) Ramniklal N. Butta and Anr. v. State of Maharashtra and Ors. .

(v) Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. AIR 2000 SC 1508.

(vi) Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Anr. .

12. All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as referred to hereinabove, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.

13. In the instant case in hand, there was sufficient material before the Labour Court for recording its findings. Not only are the findings reasonable but the same have been arrived at after proper appreciation of the evidence on record. In my opinion, it is not even a case where on the basis of the evidence on record, any other view than that arrived at by the Labour Court could have been reasonable or possible. This Court has to be mindful of the fact that in judicial review the writ court is not exercising any appellate jurisdiction over the awards rendered by the Labour Court, which is a fact finding authority. There is no error apparent on record, either of law or jurisdiction, nor is the petitioner justified in claiming that the workman was not a regular worker of the petitioner. It is misconceived on the part of the petitioner to claim that the onus of proving the case was wrongly shifted on the petitioner. The petitioner is overlooking the fact that to prove and establish her case as claimed in her affidavit that another driver was plying the bus under DTC operation and not the workman, undoubtedly the onus was on the petitioner, who failed to produce the records of the DTC, thus leaving no option with the Labour Court but to hold that evidence adduced by the workman that he was employed by the petitioner to ply the said bus in the capacity of a driver, had gone un-rebutted and unchallenged.

14. In the aforesaid facts and circumstances, the impugned award dated 2nd September, 2006 cannot be assailed. The same does not warrant any interference by this Court under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed being devoid of any merits.