Hindustan Photofilms ... vs S. Ganesh Prasad & Another
2008 Latest Caselaw 1606 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WRIT PETITION (CIVIL) 3267 OF 2004

                              Reserved on :      14th July, 2008

                          Date of Decision :    10th September, 2008

      HINDUSTAN PHOTOFILMS MANUFACTURING COMPANY
      LIMITED                        ..... Petitioner

                           Through:   Ms. Jhuma Bose, Adv.

                    versus

      S. GANESH PRASAD & ANOTHER                 ..... Respondents

                           Through:   Mr. Sanjay Ghose, Adv.

%     CORAM:
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.     Whether reporters of local papers may be allowed to see
             the judgment?                                           YES
      2.     To be referred to the Reporter or not?                  YES
      3.     Whether the judgment should be reported
             in the Digest?                                          YES


                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present petition is directed against the order dated 7th

March, 2003 and the subsequent award dated 28th March, 2003

passed by the Presiding Officer, Labour Court-I, Karkardooma Courts,

Delhi in ID No.319 of 1985 directing the petitioner herein to reinstate

the respondent no.1 with back wages.

2. The factual matrix, as is relevant for the adjudication of the

present petition is as follows:

(a) S. Ganesh Prasad, respondent no.1 herein, was employed

with the management as Packer for more than one year

preceding the date of his illegal termination on 18th

October, 1983.

(b) Ganesh Prasad is stated to have written several letters to

the management seeking reinstatement but to no avail.

Eventually he reported the matter to the Labour Office.

However, despite intervention by the Labour Inspector the

management refused to take the workman back on duty

on 20th January, 1984. Demand notice and conciliation

proceedings which ensued thereafter failed to yield any

result and the dispute with regard to termination of

Ganesh Prasad was referred to the Industrial Adjudicator.

(c) The management, inter alia, contested the claim of

Ganesh Prasad and stated that during the period of

employment Ganesh Prasad was reported to have

committed on 18th October, 1983, theft of one packet of

single weight glossy special paper. The management

charge sheeted Ganesh Prasad on 2nd November, 1983 as

per Standing Order relating to theft, fraud and dishonesty

in connection with the management's property and also

placed the latter under suspension w.e.f. 2nd November,

1983.

(d) Since the explanation dated 14th November, 1983 in reply

to the charge sheet was found not satisfactory, an enquiry

was ordered on 16th November, 1983.

(e) S. Ganesh Prasad, at the enquiry held on 24th November,

1983 denied the charges of misconduct.

(f) On behalf of the management it was stated that though S.

Ganesh Prasad participated in the enquiry initially, he

absented himself later and the Enquiry Officer proceeded

to conduct the enquiry ex-parte.

(g) S. Ganesh Prasad was found guilty of the charges framed

against him on the basis of the documents available and

was terminated from his services by the management.

(h) The Industrial Adjudicator proceeded to frame the

following issues:

1. Whether the workman was appointed on probation as alleged? If so its effect?

2. What were his last drawn wages.

3. Whether the termination of services of Sh. Ganesh Prasad is legal and justified and if not to what relief is he entitled and what directions are necessary in this respect.

(i) Subsequently an additional issue no.3A as under was

framed on the pleadings of the parties:

"Whether the management conducted unfair and improper enquiry against the workman".

(j) The Industrial Adjudicator while going through the

proceedings of the enquiry duly considered the order

passed by the Enquiry Officer as follows:

"Sh. Ganesh Prasad brought Mr. Bhatia whom he had mentioned in his letters. Mr. Bhatia was informed that he can not be permitted to assist the worker. Hence, the enquiry which was scheduled to take place could be taken up only at 11AM on 26th November, 1983. Sh. Ganesh Prasad left the enquiry hall and did not come even after an hour the enquiry is held exparte

and based on the documents in support of the charge of misconduct leveled against the worker charged, copies of which documents, were also given to the worker, he is held guilty of the charge of misconducts framed against him in the letter dated 2.11.1983.

(k) Vide order dated 7th March, 2003, the Industrial

Adjudicator came to a conclusion that the enquiry

proceedings held by the Enquiry Officer besides being

perverse, were arrived at in haste without affording a fair

opportunity to the workman. Vide the order dated 7th

March, 2003 the Industrial Adjudicator vitiated the

enquiry, and since it had not been pleaded on behalf of the

management to lead evidence before the Industrial

Adjudicator, proceeded to hear the merits to the

reference, with a direction to the parties to produce

evidence by way of affidavit on the other issues framed.

(l) Vide the impugned order dated 28th March, 2003 the

Industrial Adjudicator held that, the management had

failed to discharge the onus to prove that the workman

was appointed on probation. The claimant on the other

hand had been able to establish that his last drawn wages

were Rs.750/- per month as his testimony on this issue

went uncontroverted during his cross-examination by the

management. The termination of services of the claimant

was found illegal and unjustified, and the management

was directed to reinstate the workman with continuity of

service. But, finding that it was the workman who had

delayed the adjudication of the reference and its disposal

for a period of two years, the payment of back wages was

limited to the extent of 50% by the Industrial Adjudicator.

3. Ms. Jhuma Bose, advocate appearing on behalf of the

management firstly submitted that S. Ganesh Prasad was not entitled

to any relief, inasmuch as, he had delayed the proceedings before the

Labour Court for a period of more than two years thereby causing

serious prejudice to the management and that the management-

company had been declared as a sick industrial company by the Board

for Industrial and Financial Reconstruction(BIFR) in the meantime. It

was further urged that it was only on account of the delay caused by

the workman that the management failed to put forth their defence

crucial stages, during of hearing before the Industrial Adjudicator, for

reason of sickness as aforesaid. Counsel also urged that the Labour

Court had failed to appreciate that despite the workman not

cooperating with the enquiry proceedings the management had

conducted a fair enquiry and imposed the penalty of dismissal from

service after due consideration of the grave and serious misconduct

on the part of Ganesh Prasad.

4. Per contra it was urged by Mr. Sanjay Ghose, advocate on

behalf of S. Ganesh Prasad that the management had failed to (a)

produce the witnesses to the purported confession made by the

workman in respect of the alleged misconduct, (b) failed to seek an

opportunity to lead evidence before the Industrial Adjudicator and

consequently they could not by way of the present petition seek

readjudication or reappreciation of the facts as found by the Industrial

Adjudicator. He further urged that vide the finding in the impugned

award in respect of the finding of delay having been caused by the

workman, the Industrial Adjudicator had consequently directed

reinstatement with continuity of service, but subject to only 50% back

wages, and, therefore, the impugned award was sustainable as being

just and equitable.

5. The scope of judicial review in a proceeding under Article 226 of

the Constitution of India is no longer res integra. This Court under the

provisions of Article 226 of the Constitution of India cannot undertake

the exercise of liberally reappreciating the evidence and drawing

conclusions of its own on pure questions of fact. The findings of fact

recorded by a fact-finding authority duly constituted for the purpose

cannot be interfered with as long as they are based upon some

material relevant for the purpose or even on the ground that there is

yet another view which can reasonably and possibly be taken.

6. In the present case the findings of the Industrial Adjudicator are

based on the appreciation of evidence produced before it. I am of the

view that the findings cannot be said to be based on no evidence at

all, so as to, warrant a re-appreciation of evidence, by this Court. The

limitations on the jurisdiction of this Court are well settled. A writ in

the nature of certiorari may be issued only if the finding of the

Industrial Adjudicator suffers from an error or jurisdiction or from a

breach of principles of natural justice or is vitiated by a manifest or

apparent error of law. No such issue has been urged or established in

the instant case on behalf of the management. The Court will not

countenance the picking of holes here and there in the award on

trivial points and attempting thereby to frustrate the entire

adjudication process before the Industrial Adjudicator on

hypertechnical grounds as is being sought to be done by the

management in the present case.

7. For the foregoing reasons, I find no merit in the submissions

made on behalf of the petitioner. The findings of the Industrial

Adjudicator are based on material constituting ample basis for the

findings recorded and the reasonable findings are unexceptionable.

The Award does not suffer from any infirmity so as to warrant

interference by this Court. As a result the writ petition fails and is

accordingly dismissed, but, with no order as to costs.

SIDDHARTH MRIDUL, J.

September 10, 2008 mk