M/S Bruk Electricals Pvt.Ltd. vs Nct Delhi & Ors.
2009 Latest Caselaw 1362 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.12054/2006

                                     Date of Decision : 13.04.2009

M/S BRUK ELECTRICALS PVT.LTD.             ......Petitioner
                          Through : Nemo.


                                 Versus

NCT DELHI & ORS.                                   ...... Respondents
                                     Through : Mr. Awadhesh Kumar,
                                     Advocate      for   respondents
                                     2,3,4,5,6 & 7/workmen.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                      YES
2.    To be referred to the Reporter or not ?           NO
3.    Whether the judgment should be reported
      in the Digest ?                                    NO

V.K. SHALI, J. (Oral)

1. Nobody is present despite the matter having been called up

twice earlier. Previous order sheets show that for the last number of

dates, the matter has been adjourned on the request of the learned

counsel for the petitioner to enable him to arrive at a negotiated

settlement and even the respondent had given an offer to the petitioner

that in case an amount of Rs.41,000/- is paid to each of the workmen

towards full and final settlement of their claim. They shall feel

satisfied but however, on instructions, the learned counsel for the

petitioner had made a statement on 20.3.2009 that the proposal is not

acceptable to the petitioner. Thereafter, the matter was adjourned to

1st April, 2009 on which date a request for adjournment was made and

the matter was kept for today. Today again, despite the fact that it is

already 3.30 p.m. and the matter has been called out twice, nobody

has appeared for the petitioner.

2. I have heard the learned counsel for the respondent /workmen

and perused the record including the impugned award.

3. The petitioner has challenged the award dated 15.5.2006 passed

by the learned Labour Court-XII, Karkardooma Court, Delhi by virtue

of which ID No.587/2004/1999 titled Sh.Madho Singh & Ors. Vs. M/s

Bruk Electricals was decided.

4. By the impugned award, the learned Labour Court had

answered the reference made to it by the appropriate Government,

which reads as under"

"Whether the services of Sh. Madho Singh, Raju Paswan, Ramdin, Satya Narain Paswan, Ravinder Kumar and Khushal Singh Papola are absenting from their duties their services have been terminated illegally and/or unjustifiably by the management and if so, to what relief are, they entitled, and what directions are necessary in this respect?"

5. On the basis of the aforesaid reference, the learned Labour

Court had framed the following four issues on the basis of the

pleadings of the parties, which are as under:-

"(i) Whether there was no relationship of employer and employee between the parties? OPM

(ii) Whether the workmen were employed by the management through contractor M/S Deluxe Seat Manufacturing and if so to what effect? OPM

(iii) As per the terms of reference. OPW

(iv) Relief."

6. The parties to the industrial dispute had adduced their

respective evidence and the learned Labour Court had decided issues

No. 1 and 2 together and come to a finding of fact that all these

respondents /workmen including Sh.Ramdin (since deceased) were

able to establish the relationship of the employee and employer

between the respondents /workmen of the petitioner. For this

purpose, the learned Labour Court had placed reliance on the

statements brought on record which shows that the petitioner was

deducting the provident fund and paying ESIC contribution of all these

workmen on behalf of the contractor M/S Deluxe Seat Manufacturing.

The learned Labour Court had given a definite finding that the

respondents/ workmen were prima facie able to established that they

were the workmen within the definition of Section 2(S) of the Industrial

Disputes Act, 1947 and the onus of proof regarding non-existence of

the relationship accordingly, shifted on to the petitioner /Management

which failed to reasonably discharge the same. The learned Labour

Court on the basis of the aforesaid finding decided issues No.1 and 2

in favour of the workmen and held the reference in favour of the

respondents/workmen that their services were illegally and

unjustifiably terminated by the Management without complying with

the provisions of Industrial Disputes Act regarding payment of

retrenchment compensation.

7. So far as issue No.4 is concerned, instead of directing

reinstatement and payment of back wages to the

respondent/workmen, the learned Labour Court gave a sum of

Rs.35,000/- to each of all the six respondents/workmen. It was

observed in the judgment that in case the aforesaid payment is not

made within two months from the date of publication of the award, it

shall carry an interest @ 9% per annum.

8. The petitioner's grievance in the writ petition essentially pertains

to the question of appreciation of evidence brought by the respective

sides before the Labour Court on the basis of which the learned

Labour Court has come to a finding that there exists a relationship of

employee and employer between the parties. In exercise of power of

judicial review, the Writ Court cannot sit as a Court of appeal and re-

appreciate the evidence so as to arrive at a finding of its own and then

substitute the said finding in place of finding arrived at by the learned

Labour Court. The whole exercise of power of judicial review is to see

that as to how the decision has been arrived at and not the quality of

decision. The principles of natural justice have not been violated in

the present case. There is no allegation of violation of any rule or

regulation and therefore, I feel that this Court cannot interfere with

the finding of fact arrived at by the learned Labour Court regarding the

existence of relationship of an employee and employer between the

parties.

9. So far as the payment of quantum of compensation in lieu of

reinstatement and the payment of back wages are concerned, although

the aforesaid amount of Rs.35,000/- seems to be on the lower side but

since the respondents/workman have not come in a writ against the

impugned award, this Court has no jurisdiction to increase the same

in the writ filed by the petitioner. Regarding the payment of interest

since there was a stay operating from 2nd August, 2006 till date,

therefore, it will not be proper to grant the interest also for this period.

This Court, accordingly, upholds the quantum of compensation of

Rs.35,000/- which has been awarded by the learned Labour Court to

each of the workmen and it shall be paid within four weeks from

today. So far as the respondents/workman Sh.Ramdin is concerned,

since he has expired and his legal heirs have been brought on record,

the aforesaid compensation shall be paid to his legal heirs. The

aforesaid compensation of Rs.35,000/- shall be paid to all the

respondents /workmen within four weeks from today failing which it

shall carry an interest @7% p.a. from today till the date of realization.

10. In view of the aforesaid observations, I find no infirmity,

perversity, illegality or violation of principles of natural justice by the

impugned award while passing the order. Accordingly, the present

writ petition is without any merit and the same is dismissed.

V.K. SHALI, J.

APRIL 13, 2009 RN