Ramesh Chand vs M/S Arihant Polymers Pvt. Ltd.
2010 Latest Caselaw 1036 Del

                     *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                               WP(C) No.8465/2003

%                                                 Date of decision: 23rd February, 2010

RAMESH CHAND                                                                  ..... Petitioner
                         Through: Mr. Rakesh Dahiya, Advocate.

                                            Versus

M/S ARIHANT POLYMERS PVT. LTD.                                            ..... Respondent

                         Through: Mr. K.K. Tyagi with Mr. Iftekhar Ahmad, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      No

2.       To be referred to the reporter or not?               No

3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman seeks a writ of certiorari for quashing the award dated 3rd

September, 2003 of the Labour Court to the extent it does not award back wages to the

petitioner. Notice of the petition was issued by this Court and after the completion of

pleadings, the petition ordered to be heard in the category of 'after notice miscellaneous

matters'. The counsels for the parties have been heard.

2. The terms of reference to the Labour Court were as under:-

"Whether the services of Shri Ramesh Chand have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. The case of the petitioner workman is that he was appointed with the respondent

management on 20th November, 1994 as a helper; that he was confirmed as a regular

employee/workman on 2nd January, 1995; that on 6th January, 1995 he suffered an injury

while on duty and consequently was under treatment; that on 20th November, 1995 he

was turned out of employment without any cause and/or notice and on 21st November,

1995 when he went to his place of work, he was not allowed to perform his duties; that

his salary for the month of August, 1995 and onward had not been paid.

4. The respondent management filed a reply to the statement of claim of the

petitioner workman denying that the petitioner workman was appointed on 20th

November, 1999 though admitting that he joined duty as a helper with the respondent

management w.e.f. 2nd January, 1995. The respondent management admitted the accident

but pleaded the same to be a minor one and further pleaded that the petitioner being

covered under the ESI Act availed benefit thereof. It was further denied that the

respondent management had terminated the services of the petitioner workman and not

allowed the petitioner workman to work. On the contrary, it was pleaded that the

petitioner workman had been highly irregular and did not come for work from 21st

November, 1995 without applying for leave; notwithstanding the same it was pleaded

that taking a lenient stand, the name of the petitioner workman was not struck off from

the roll of employees and on 16th December, 1995 a letter was sent by Registered Post

AD to the petitioner workman asking him to join duty failing which disciplinary action

would be taken against him; his earned wages were also sent through money order which

was refused. It is the case of the employer that the petitioner workman instead of

reporting for duty sent a threatening letter dated 24th December, 1995 in response to the

letter dated 16th December, 1995 (supra) stating that he would go to the Labour Court

alleging that his services had been terminated; that upon receipt of the letter dated 24th

December, 1995 another letter dated 7th January, 1996 was sent by the employer to the

petitioner workman by Registered Post AD again calling upon the petitioner workman to

report for duty. This was followed by another letter dated 30th January, 1996 but the

petitioner workman failed to join the duty and on the contrary approached the

Conciliation Officer. The respondent management states that upon receipt of notice from

the Conciliation Officer also, letters dated 1st June, 1996, 17th June, 1996, 29th June, 1996

& 16th July, 1996 were sent by the respondent management to the Conciliation Officer

inter alia to the effect that there was no dispute; that the wages of the petitioner workman

from August, 1994 to November, 1994 were lying outstanding with the respondent

management; that the petitioner workman continued to be shown in the records of the

employer as an employee and requesting the Conciliation Officer to direct the petitioner

workman to join the duties with the respondent management and if the petitioner

workman was not interested in the same then to collect his dues in full and final

settlement of the account. It was further pleaded in the reply dated December, 1997 to the

statement of the claim itself that if the petitioner workman was really interested in

working with the respondent management, he should be directed to report for duty.

5. The petitioner workman filed a rejoinder before the Labour Court expressing

willingness to join duty.

6. The matter remained pending before the Labour Court. It appears that an

application was filed by the respondent management for directing the petitioner workman

to join the duty and in pursuance to directions thereon, the petitioner workman joined the

duties with the respondent management w.e.f. 3rd March, 2003. Thus the only dispute

which remained for adjudication before the Labour Court was of the claim of the

petitioner workman for wages from December, 1995 till February, 2003.

7. During the course of hearing before this Court the counsel for the petitioner

workman has informed that the petitioner continued to work with the respondent

management from 3rd March, 2003 to 18th November, 2008 when he resigned from the

employment.

8. It is not in dispute that the petitioner workman did not work for the respondent

management from 21st November, 1995 till 3rd March, 2003. The question which falls

for consideration is whether, without having worked during the said period the petitioner

is entitled to wages for that period. He would be so entitled if he proves that his services

were illegally terminated or he was prevented from working. The Labour Court found

that the respondent management had proved the letters referred to herein above, asking

the petitioner workman to join duty. On the basis of the evidence, it was held that despite

repeated offers, the petitioner workman neither showed any intention to join duty nor

joined the duty. The petitioner workman was as such not held entitled to back wages.

9. The counsel for the respondent management has during the course of hearing

handed over copies of the letters (supra) proved before the Labour Court.

10. I have enquired from the counsel for the petitioner workman whether the

petitioner workman challenges the existence of the evidence aforesaid on the basis

whereof the Labour Court held the petitioner workman to be neither intending to nor

joining the employment of the respondent management till 3rd March, 2003. I do not find

any ground or challenge in that regard being taken in the petition preferred before this

Court. The counsel for the petitioner workman is also unable to show or even argue that

the petitioner workman had in the course of trial before the Labour Court challenged any

of the aforesaid documents or offered any explanation with respect thereto. There thus

appears to be evidence before the Labour Court for the conclusion reached. The

parameters laid down by the Supreme Court for exercise of jurisdiction by the High Court

under Article 226 and/or 227 of the Constitution of India in Syed Yakoob Vs. K.S.

Radhakrishnan AIR 1964 SC 477, and which have been consistently reiterated in

subsequent dicta, do not permit interference or issuance of a writ of certiorari in such

circumstances. A writ of certiorari can be issued for correcting errors of jurisdiction

committed by inferior Courts or Tribunals i.e. where orders are passed without

jurisdiction or in excess of jurisdiction or as a result of failure to exercise jurisdiction or

where the inferior Court or Tribunal decides a question without giving an opportunity to

be heard to the party affected by the order or where the procedure adopted in dealing with

the disputes is opposed to principles of natural justice. The findings of fact reached by the

inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or

questioned in writ proceedings. An error of law which is apparent on the face of the

record can be corrected by a writ but not an error of fact, however grave it may appear to

be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be

issued if it is shown that in recording the said finding the Tribunal had erroneously

refused to admit admissible and material evidence or had erroneously admitted

inadmissible evidence and which has influenced the impugned finding. Similarly, if a

finding of fact is based on no evidence that would be regarded as an error of law which

can be corrected by a writ of certiorari. However, a finding of fact cannot be challenged

on the ground that the relevant and material evidence adduced before the Tribunal was

insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency

of evidence led on a point and the inference of fact to be drawn from the said finding are

within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated

before the writ court.

12. Applying the aforesaid principles, no case for interference with the order of the

Tribunal is made out. The petitioner and/or his counsel appear to be under the impression

that an order directing payment of back wages is automatic to an order of reinstatement

and continuity of service. However that is not so. The Supreme Court in P.G.I of M.E. &

Research, Chandigarh Vs. Raj Kumar JT(2001) 1 SC 336 has held that the payment of

back wages having a discretionary element involved in it has to be dealt with in the facts

and circumstances of each case and no straightjacket formula can be adopted. Further it

has been consistently reiterated by the courts that grant of back wages is not automatic

and that in cases, back wages may not be warranted at all. Reference in this regard may

be made to J.K. Synthetics Ltd. Vs. K.P. Agrawal (2007) 2 SCC 433 and The Depot

Manager, APSRTC Vs. P. Jayaram Reddy (2009) 2 SCC 681. The award itself refers to

several dictas where the courts have held that where the workman is shown to be not

interested in reinstatement and/or is not shown to have reported for work, he is not

entitled to any back wages.

13. I am however constrained to observe a disturbing fact which emerges from these

proceedings. In terms of the statute, the dispute between the petitioner workman and the

respondent management first went to the Conciliation Officer. The disputes so reached

the Conciliation Office within months of accruing. While the petitioner workman was

claiming to have been illegally terminated, the respondent management was denying the

same and contending that it had not terminated the services and was asking the petitioner

workman to join the services. This Court is unable to fathom as to why in these

circumstances the Conciliation Officer failed to discharge his duty and as to why the

reference was made and why the valuable time of the Industrial Tribunal was taken for

nearly five years when the proceedings remained pending before it. From the documents

and the award it appears that the Conciliation Officer ought to have directed the petitioner

workman to join the duty. Not only so, even when the matter reached the Labour Court,

in view of the pleadings, the Labour Court ought to have at least in the year 1998

attempted to have resolved the dispute by directing the petitioner workman to join the

duty. It is inexplicable in the face of the record and the counsels are also not able to

explain as to why this did not happen. If nothing else, it shows a complete failure of the

machinery under the I.D. Act. It appears that no attempt at all is being made to bring

about a settlement and conciliation has become but a formality. The Conciliation Officer

does not appear to have applied his mind and appears to have treated the dispute as an

ordinary civil litigation which has to run through its entire life. Had the authorities

functioned in the spirit and letter of the law, this dispute would not only have not

consumed the precious time of different fora, but such time could have been spent in

other contentious matters; the matter would also not have even reached this Court then.

In the circumstances, the writ petition is dismissed, however, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 23rd February, 2010 pp