Alex P. Mohan vs Govt. Nct Delhi & Ors.
2009 Latest Caselaw 586 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP (C) No. 2858/2007

              Judgment delivered on: February 18, 2009
%

Alex P. Mohan                                 ...... Petitioner
                                Through: Mr. Manoj V. George, Adv.

                       versus

Govt. NCT Delhi & Ors.                             ..... Respondents
                                Through: Mr. K.C. Dubey, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?                    Yes

2.    To be referred to Reporter or not?                 Yes

3.    Whether the judgment should be reported
      in the Digest?                                     Yes

KAILASH GAMBHIR, J. (Oral)

*

1. By way of the present petition filed under Article 226

of the Constitution of India, the petitioner seeks to challenge the

alleged action of the respondent in terminating the service of the

petitioner and setting aside the impugned order dated 4.1.2007

passed by the Presiding Officer, Labour Court-V.

2. Brief facts of the case relevant for deciding the present appeal

are as under:-

3. The workman Shri Alex P. Mohan was appointed in management

company on 21.6.91 as a garment checker and at that time his

consolidated salary was Rs. 1800/- p.m. He was given additional

responsibilities and was placed in embroidery department as a

Quantity Checker/Controller and his last drawn salary was Rs.

10,550/- p.m. According to the workman, he was performing his duties

with due diligence and honesty but for raising demand for legal

benefits, his services were terminated by the management on

3.3.2005 without assigning any reason or show cause notice.

Aggrieved with the said illegal termination, he raised an industrial

dispute and upon reference by Secretary, Labour Deptt. an award was

passed by the Labour Court, Karkardooma, Delhi on 4.1.2007.

Aggrieved with the said award the present writ petition has been

preferred by the workman.

4. Counsel for the petitioner submits that proper procedure as

envisaged under Section 25-O of the Industrial Disputes Act was not

adhered to by respondent No. 2 before taking a decision to close down

their unit. Counsel for the petitioner further submits that admittedly

100 to 125 employees were working in respondent No. 2 when the

closure took place as would be evident from the cross-examination of

MW1 Jagdamba Prasad, who in his cross-examination stated that

there were about 100-125 employees when the closure took place.

Contention of the counsel for the petitioner is that clearly the

provision of Section 25-K of the Industrial Disputes Act was attracted

which deals with all those establishments in which not less than 100

workmen were employed on an average per working day for the

preceding 12 months. Counsel further submitted that in view of the

fact that no proper procedure was adopted by the management to

close down its unit as envisaged under Section 25-O of the Industrial

Disputes Act, therefore, the petitioner became entitled to all the

benefits as if the said unit was not closed as provided under Section

25-O(6) of the Industrial Disputes Act. Counsel for the petitioner

further submits that on the pleadings of the parties the Tribunal was

to deal with the issue of grant of closure benefits to the petitioner and

the Tribunal has committed grave illegality in not properly deciding

the said issue ignoring the provisions of Section 25-K, 25-O (i) and 25-

O(6) of the Industrial Disputes Act. In support of his argument counsel

for the petitioner also placed reliance on the judgment of the Apex

Court reported in Hindalco Industries Ltd. vs. Union of India and

Ors. JT 2003 (10) SC 277.

5. Refuting the said submissions made by the counsel for the

petitioner, counsel for the respondent submits that the petitioner has

raised altogether new issues which were never raised by him before

the Labour Court and therefore, once the Labour Court had no

occasion to deal with such issues then the validity of the same cannot

be decided by this Court while exercising power of judicial review

over the order passed by the Labour Court. Counsel for the

respondent further submitted that only issue before the Lower Court

was to examine as to whether the respondent offered closure benefits

to the petitioner and the same were refused by him or not. The

evidence was led by the respective parties on the said issue and the

learned Labour Court came to the conclusion that the amount of the

closure benefits offered by the respondent were less than that of the

amount payable and accordingly awarded a sum of Rs. 48,508/- with

interest @ 9% per annum till the final realization of the said amount.

In addition to the award of the said amount the Labour Court also

awarded a sum of Rs. 10,000/- towards the litigation expenses in

favour of the petitioner. Counsel for the respondent thus submits that

the petitioner cannot rake up the controversy of non-compliance of

the procedure by the respondent as envisaged under Section 25-O of

the Industrial Disputes Act before the closure of their unit. Counsel

for the respondent further submits that the judgment of the Apex

Court in Hindalco Industries Ltd. (supra) is not applicable to the

facts of the present case.

6. I have heard learned counsel for the parties and perused the

record.

7. The petitioner in his statement of claim filed before the Labour

Court raised the grievance of his illegal termination and claimed his

reinstatement with full back wages and continuity of service. The

respondent management in their written statement besides raising

various legal and factual objections mainly contended that its entire

business and manufacturing activities were closed down w.e.f.

28.2.2005 and consequently it offered all legal dues to all the

employees working with them including the present petitioner. The

respondent also averred that since they had closed down their

business activities, therefore, there was no job left for the claimant

after the closure of their establishment. The respondent management

also offered payment of all legal dues to the petitioner, but he himself

did not come forward to accept the dues but preferred to file a false

case against the respondent. Based on the said pleadings the Tribunal

framed the following issues:-

"1. Whether the workman was offered closure benefits and the

same were refused by him?

2. Relief."

8. Both the parties led evidence on the said issues and the Labour

Court found that refusal on the part of the petitioner to accept the

closure benefits as were being offered to him by the management was

justified as the said offer made by the management was not in

accordance with the mandate of Section 25-F of the Industrial

Disputes Act. On issue No. 2 the Labour Court gave directions to the

respondent management to pay a sum of Rs. 38,508/- towards the

compensation payable under Section 25-F of the Industrial Disputes

Act and a sum of Rs. 10,000/- towards wages in lieu of one month

notice. It would be thus apparent that the controversy which the

petitioner has raised in the present writ petition and as canvassed by

the counsel for the petitioner was not before the Labour Court as no

such case was set up by the petitioner that the closure of the

establishment of the respondent was not as per the mandate of

Section 25-O of the Industrial Disputes Act.

9. Although the amplitude of plenary powers of the writ

Court under Article 226 are very vast but normally while exercising

power of judicial review to test the legality and validity of the order of

any adjudicating Authority it will not deal with those issues which

were never tried by such Authority. In the present case the legality,

correctness and validity of the order of the Labour Court is under

scrutiny and when no controversy with regard to the illegal closure of

the respondent was taken up by the petitioner before the Labour

Court then I am at loss, as to how the petitioner can be allowed to

rake up such a controversy at this stage more particularly when the

Labour Court had no occasion to give any finding on the same. In this

regard the Hon'ble Apex Court in Krishi Utpadan Mandi Samiti Vs.

Arvind Chaubey-(2002) 9 SCC 549, observed as under:

"2. Learned Senior Counsel for the appellant contended that the appellant Mandi Samiti is not an "industry" governed by the provisions of the U.P. Industrial Disputes Act, 1947. The High Court has held against the appellant on the ground that such a contention was not canvassed before the Industrial Tribunal and also following an earlier decision of another Bench, the High Court dismissed the writ petition. Once the appellant did not raise such a contention before the Industrial Tribunal, it was not available to be canvassed higher up."

10. The judgment of the Apex Court reported in Hindalco

Industries Ltd. (Supra) with great respect shall not be applicable in

the facts of the present case as the matter before the Apex Court was

that the mining activity was closed by the company without following

the mandate of Section 25-O of the Industrial Disputes Act and one of

the contentions raised by the company was that Section 25-O would

be applicable only in a case where the closure by the management is

voluntary and without any force. Repelling the said contention of the

management, the Apex Court held that Section 25-O of the Industrial

Disputes Act would also apply to a case of planned and intended

closure. Scenario in the present case is entirely different as no such

controversy was raised by the petitioner before the Labour Court,

therefore, the said judgment of the Apex Court is of no help to the

petitioner.

11. In the light of the above discussion, I do not find that there

is any merit in the present writ petition. The same is hereby

dismissed.

February 18, 2009                        KAILASH GAMBHIR, J.
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