Ms. Hindustan Photofilms ... vs Ganesh Prasad & Anr.
2009 Latest Caselaw 1558 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: April 21, 2009

+        L.P. A No. 170/2009 & CM Nos. 5491-92/2009


         Ms. HINDUSTAN PHOTOFILMS MANUFATURING
         COMPANY LTD.
                                                 ..... Appellant
                       Through: Ms. Deepti, Advocate

                        versus


         GANESH PRASAD & ANR.                           .... Respondents
                     Through:                 Nemo.

         CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

                                 ORDER

% 21.04.2009

1. The present appeal is against the judgment dated 10th September,

2009 of the learned Single Judge. Briefly stated the facts of the case are

as follows:

2. The respondent No.1 (original respondent No.1 in the writ

petition) was employed with appellant (original petitioner in the writ

petition) as Packer. His services were terminated on 18 th October, 1983.

The respondent No.1 is stated to have written several letters to the

management seeking reinstatement but to no avail. Ultimately, even the

conciliation proceedings failed to yield any result and dispute with

regard to termination of respondent no. 1 was referred to the Industrial

Adjudicator.

3. It was the stand of the management in the writ petition that

respondent no.1 during the period of his employment, was reported to

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

weight glossy special paper. The management charge-sheeted

respondent no.1 as per their standing order and also placed him under

suspension.

4. Since the explanation of the respondent no.1 was not found

satisfactory an enquiry was ordered. The respondent no.1 denied the

charge of misconduct. On behalf of the management, it was stated that

though the respondent no.1 participated in the enquiry initially, he

absented himself later and the enquiry officer proceeded to conduct the

enquiry ex-parte. The respondent no.1 was found guilty of the charges

framed against him and was terminated from his services by the

management.

5. Vide order dated 7th March, 2003, the Industrial Adjudicator came

to the conclusion that the enquiry proceedings held by the enquiry

officer besides being perverse were arrived at in haste without affording

fair opportunity to the worker. The Industrial Adjudicator proceeded to

hear the merits of the reference with direction to the parties to produce

evidence by way of affidavit on the issues framed. Vide order dated 28 th

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 respondent no.1, 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 the services of the

respondent no.1 was found illegal, unjustified and the management was

directed to reinstate the workman with continuity of service. However,

the Industrial Adjudicator also arrived at a finding that it was the

workman who had delayed adjudication of reference and its disposal for

a period of two years and thus the payment of back wages was limited to

the extent of 50% by the Industrial Adjudicator.

6. It was the stand of the appellant before the learned Single Judge

that the respondent no.1 had delayed proceedings before the Labour

Court thereby causing serious prejudice to the management and that the

management-company had been declared a sick industrial company by

BIFR in the meantime. It was further urged that it was only on account

of delay caused by the workman that the management failed to put-forth

their defence during the crucial stages of the hearing before the

Industrial Adjudicator for reason of sickness as aforesaid. The appellant

also urged that the Labour Court had failed to appreciate that despite the

workman not cooperating the management had conducted a fair enquiry

and imposed a penalty of dismissal from service after due consideration

of the grave and serious misconduct on the part of respondent no.1.

7. The counsel for respondent no.1 urged before the learned Single

Judge that the management had failed to produce the witnesses to the

purported confession made by the workman in respect of the alleged

misconduct and failed to seek an opportunity to lead evidence before the

Industrial Adjudicator and consequently they could not by way of

present petition seek re-adjudication or re-appreciation of the facts as

found by the Industrial Adjudicator.

8. We are in complete agreement with the findings and conclusions

of the learned Single Judge. There is no infirmity in the impugned order.

The learned Single Judge has rightly held that findings of facts 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. The findings of the Industrial

Adjudicator have been arrived at after appreciation of evidence produced

before it. The learned Singe Judge has rightly held that the findings

cannot be said to be based on no evidence at all. As correctly observed

by the learned Single Judge, the findings of the Industrial Adjudicator do

not suffer from any error of jurisdiction or breach of principles of natural

justice or are vitiated by a manifest or apparent error of law. There is no

fallacy in the finding of the learned Single Judge that the entire

adjudication process cannot be frustrated by picking holes in the award

on trivial points.

9. As held by the Supreme Court of India in H.B. Gandhi, Excise

and Taxation Officer-Cum Assessing Authority v. Gopi Nath & Sons,

1992 Supp. (2) SCC 312 that judicial review cannot extend to the

examination of the correctness or reasonableness of a decision as a

matter of fact. It will be erroneous to think that the court sits in

judgment not only on the correctness of the decision making-process but

also on the correctness of the decision itself. Further, the Supreme

Court in High Court of Judicature at Bombay v. Sashikant S. Patil,

(2000) 1 SCC 416 observed that interference with the decision of

authorities can be permitted while exercising jurisdiction under Article

226 of the Constitution of India if such authority had held proceedings in

violation of the principles of natural justice or in violation of statutory

regulations or if the decision of the authority is vitiated by considerations

extraneous to the evidence and merits of the case; or if the conclusions

made by the authority on the very face of it is wholly arbitrary or

capricious that no reasonable person could have arrived at such a

conclusion; or grounds very similar to the above. The settled legal

position is that if there is some legal evidence on which the findings can

be based, then adequacy or even reliability of that evidence is not a

matter for canvassing before the High Court in a writ petition filed under

Article 226 of the Constitution.

10. For the above stated reasons, the appeal must fail. We see no

reason to interfere with the judgment of the learned Single Judge.

Accordingly the appeal is dismissed with no orders as to cost. The

pending applications are also disposed of accordingly

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J

APRIL 21, 2009 rb/RS