The Municipal Corporation Of ... vs Smt. Krishna
2009 Latest Caselaw 2137 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                          W.P.(C) No.3459/2003

                             Judgment reserved on: 1.05.2009
                             Judgment delivered on:19.05.2009



The Municipal Corporation of Delhi                   ......Appellant

                              Through Mr.O.P.Saxena, Adv

Versus

Smt.Krishna                                     ........ Respondents

Through: Mr.Anuj Aggarwal, Adv

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported                 Yes

     in the Digest?

KAILASH GAMBHIR, J

1. The present petition has been filed under Articles

226 & 227 of the Constitution of India for issuance of

appropriate writ quashing the order dated 4.12.2000 of the

Industrial Tribunal.

2. The brief facts of the case as set up before the

tribunal by the workman are as under:-

The respondent workman joined MCD on 1.11.1979

as Safaikaramchari & has been working on the said post with

due diligence but while her counterparts doing identical work

were paid salary in the pay scale of Rs.750-940 with usual

allowances along with other benefits while she was denied the

same. The non-regularization of services of workman w.e.f.

1.11.1979 is the pay scale of Rs.196-232/- as revised to the

scale of Rs.750/--940 w.e.f. 1.1.1996 was alleged to be illegal

and unjustified. Upon reference, the Ld. Labour Court passed

the award in favour of the workman. Aggrieved with the said

award, present petition has been preferred by the management

MCD.

3. Counsel for the petitioner submitted that respondent

was appointed as a part time Sweeper and not as a full time

employee. Counsel also submitted that respondent was given

duty in a Government Dispensary where she used to work only

for two hours and she was appointed in terms of the MCD

policy dated 29.4.1994. The contention of the counsel for the

petitioner is that such workmen were being employed as part

time workers only on monthly salary of some small amounts.

The revision in the monthly salary of part time workers was

made in fact much prior to the said office order. Counsel thus

submitted that once the respondent was employed as a part

time worker on the post of sweeper, her status cannot be

treated at par with a full time employee and therefore, the

findings of the Labour Court are illegal and perverse treating

such an employee as full time worker. Counsel for the

petitioner placed reliance on the judgment of the Apex Court

as State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 in

support of his arguments.

1. (1997) 11 SCC 224 Secretary Ministry of Communications and others Vs. Sakkubai and Another

2. (1996) 11 SCC 341 Union of India Vs. Bishamber Dutt

3. (2003) 9 SCC 304 Phool Badan Tiwari and Others Vs. union of India and others.

4. 1992 SCC (L&S) 345 State of Punjab and Others Vs. Surinder Kumar and Others.

4. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent submitted that the

respondent was employed as a full time sweeper in the year

1979 for the past more than 30 years initially on a fixed

monthly salary of Rs.30/- and she had been working as a full

time employee from 8.00 a.m. to 2.00 p.m. Counsel further

submitted that respondent had been working on the said post,

continuously, now for more than 30 years without any

interruption and once the petitioner had been taking services

of the respondent at par with the other regular employees,

therefore, she was entitled for regularization at par with the

other regular employees. Counsel further submitted that

tribunal has taken into consideration all the facts proved on

record and then came to the conclusion that the respondent

was a full time employee working from 8.00 a.m. to 2.00 p.m.

and the said finding of fact may not be interfered with by this

court, more particularly, when no evidence has been adduced

by the petitioner to rebut the case set up by the respondent.

Counsel for the respondent placed reliance on the following

judgments in support of his arguments.

1. AIR 1986 SC 302 SCC Harbans Lal Vs. Jagmohan Saran

2. JT 2007 (12) SC 179 U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others

3. (1999) V AD (Delhi) 905-MCD VS Gauri Shanker & Ors

4. WPC No.17932/2004- MCD Vs. Brij Mohan decided on 20.10.2005 by Delhi High Court

5. SBI Vs. Workman of SBI - AIR 1990 SC 2034.

6. State of Haryana Vs. Om Prakash - (1998) 8 SCC

5. I have heard Ld. Counsel for the parties and perused the

record.

6. The petitioner management did not produce any cogent

evidence to prove that the respondent was a part-time worker.

It has been observed by the tribunal in para 6 of the award that

the management did not lead any evidence and vide order

dated 21.5.2001, management evidence was closed. The

management neither produced any record, register or

document to prove the factum of respondent being a part time

or a full time worker nor did it cross examine the respondent on

this point. Infact it was failure on the part of the petitioner in not

placing any material on record to substantiate its plea of

respondent being a part time worker. The tribunal made an

award against the management and in favour of the workman.

The petitioner has not come to this court with clean hands and

did not disclose that it was due to its inability callousness and

lackadaisical approach to bring relevant documents on record or

any other cogent and reliable evidence on record that the

tribunal decided the matter in favour of the respondent. It is a

fundamental principle of law that a person invoking the

extraordinary jurisdiction of the High Court under Article 226 of

the Constitution of India must come with clean hands and must

make a full and complete disclosure of facts to the Court.

Parties are not entitled to present those facts before the writ

court which were not put forward before the Courts below. The

foundational facts are required to be pleaded enabling the Court

to scrutinise the nature and content of the right alleged to have

been violated by the authority. In this regard, the Hon'ble Apex

court in Prestige Lights Ltd. v. SBI,(2007) 8 SCC 449, observed

as under:

33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

7. Be that as it may, It is well known that a writ in the

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

inferior tribunal or subordinate court suffers from an error of

jurisdiction, or from a breach of the principles of natural justice

or is vitiated by a manifest or apparent error of law. In this

regard in Harbans Lal v. Jagmohan Saran, (1985) 4 SCC

333, the Hon'ble Apex Court observed as under:

5. We are satisfied that the High Court travelled outside its jurisdiction in embarking upon a reappraisal of the evidence. The Prescribed Authority as well as the learned Second Additional District Judge concurrently found that Madan Lal was sitting in the shop on behalf of the appellant and deputising for him in carrying on the vegetable selling business. The finding by both authorities rested on evidence, and there was no warrant for disturbing that finding of fact in a writ petition. The limitations on the jurisdiction of the High Court under Article 226 of the Constitution are well settled. The writ petition before the High Court prayed for a writ in the nature of certiorari, and it is well known that a writ in the nature of certiorari may be issued only if the order of the inferior tribunal or subordinate court suffers from an error of judisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior court or subordinate court. When a High Court proceeds to do so, it acts plainly in excess of its powers. We are informed that a report of the Commissioner in another suit was not considered by the

Prescribed Authority and by the learned Second Additional District Judge, and therefore, it is urged, the High Court was justified in taking that report into consideration and entering into an examination of the material on the record. We have examined the report of the Commissioner and we find that an objection had been filed to that report and the trial court had failed to dispose it of. In other words, the report of the Commissioner is not a final document and cannot be taken into consideration as it stands. It must, therefore, be ignored. That being so, the finding of fact rendered by the Prescribed Authority and affirmed by the learned Second Additional District Judge remains undisturbed. The finding is that Madan Lal sat in the shop conducting the vegetable selling business on behalf of the appellant.

8. Further in Calcutta Port Shramik Union v. Calcutta

River Transport Assn., 1988 Supp SCC 768, the Hon'ble

Apex Court observed as under:

10. The object of enacting the Industrial Disputes Act, 1947 and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a government to an Industrial Tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases an attempt should be made by courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hypertechnical grounds. Unfortunately the orders of the Single Judge and of the Division Bench have resulted in such frustration and have made the award fruitless on an untenable basis."

9. In view of the above discussion and considering that the

petitioner itself was not diligent in pursuing the matter before

the tribunal as it did not bring forth the relevant evidence to

prove that the respondent was not a full time employee of the

petitioner, I feel that the tribunal committed no error in this

regard. Therefore, no interference in this regard is made by this

court.

10. The judgments relied upon by the petitioner are of no

assistance to it.

11 . The petition is devoid of any merit and is accordingly

dismissed.

May 19, 2009                             KAILASH GAMBHIR, J.
pkv