Ram Ashrey vs M/S Delite Plastic Industries
2010 Latest Caselaw 1129 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 18716/2005

%                                   Judgment delivered on: 26.02.2010

Ram Ashrey                       ...... Petitioner
                                         Through:Mohd.Nayeemuddin,
                                         Advocate
                        versus

M/s Delite Plastic Industries                   ..... Respondent
                                      Through: Mr. M.L. Mahajan and
                                           Mr. Gaurav Mahajan,
                                           Advocate
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 this petition filed under Article 226 of the

Constitution of the India, the petitioner workman seeks to

challenge the impugned award dated 24.02.2004 passed by the

Ld. Labour Court in I.D. No. 312/1996 whereby the reference was

answered against the petitioner.

2. Brief facts as set out by the petitioner relevant for

deciding the present petition are that the petitioner was appointed

as a machine man in 1979 and was issued an ESI card after

consistent persuasion. He obtained leave on 5.06.1995 till

4.7.1995, but due to ill health of his mother, returned only on

24.7.1995 and reported for duty when he was told to return after

10 days. Thereafter, when he again reported for duty on

10.9.1995, he was told that his services have been terminated

after which the petitioner workman on 11.9.1995 lodged a

complaint with the Asst. Labour Commissioner; SHO, P.S Ashok

Vihar; and to Dy. Commissioner of police. Consequently, on

30.10.1995, the petitioner sent a demand notice to the respondent

management and an industrial dispute bearing ID No. 312/1996

was raised. The Labour Court passed an order dated 24.2.2004

vide which it concluded that the workman had settled his dispute

with the management and that the services of the petitioner were

not terminated and he was not entitled to any relief. Feeling

aggrieved with the same the petitioner has preferred the present

petition.

3. Counsel for the petitioner submits that the Ld. Labour

Court failed to appreciate that no settlement was arrived at

between the petitioner workman and the management and the

petitioner had never received any payment through the bearer

cheque alleged to have been issued by the respondent to settle the

claims of the petitioner. Counsel for the petitioner further submits

that the Ld. Labour Court also failed to appreciate that if such a

settlement had taken place between the parties, then the parties

were under an obligation to submit a memorandum of settlement

before the office of the Labour Commissioner in compliance with

Rule 58 (4) of the I.D. Act within Central Rules, 1957 and since no

such settlement was filed by the parties before the said authority,

therefore the Labour Court committed a grave error in believing

the respondent management on its plea of settlement. Counsel

further submits that the Labour Court also failed to appreciate

that the management witness Mr. Ram Saran Ram MW2, in whose

presence the alleged settlement took place, in his evidence clearly

deposed that he was not able to recognize the petitioner but still

his testimony was believed by the Ld. Labour Court. Counsel

further submits that the petitioner in his statement of claim had

clearly stated that the respondent management had procured his

signatures on blank papers, blank proformas and on papers

containing revenue stamps on vouchers, etc. therefore it was

quite manifest that the respondent had taken the advantage of the

signatures of the petitioner in fabricating the documents so as to

show receipt of full and final payment by the petitioner through

the bearer cheque.

4. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent, submits that the petitioner

cannot wriggle out from the said settlement as he was paid an

amount of Rs.11,000/- towards balance amount of his wages,

bonus, service gratuity, notice fee , etc on his resigning from the

job and the said payment was made through bearer cheque dated

10.09.1995 that too in the presence of Mr. Ram Saran Ram,

General Secretary of Engineering Mazdoor Union and in view of

the said full and final settlement, the claim raised by the petitioner

was false and he is liable for committing perjury with the court.

Counsel thus submits that the Ld. Labour Court after carefully

scrutinizing the evidence led by the parties came to the conclusion

that the management has succeeded in proving that the workman

had received a sum of Rs.11,000/- towards full and final settlement

of his claims and this court in exercise of jurisdiction under

Article 226 of the Constitution of India would not reappreciate the

said finding of the facts when no perversity or illegality can be

found in the same.

5. I have heard counsel for the parties at considerable

length and perused the records.

6. There cannot be any doubt that while exercising power

under Article 226 of the Constitution of India it is only in

exceptional circumstances, the court would reappreciate the

findings of fact on being fully satisfied that there is a perversity or

infirmity in such findings given by the courts below. As per the

case set up by the petitioner workman he claimed his employment

with the respondent since 1979 and the services were illegally

terminated on 10.09.1995 i.e. after he had put in about 26 years

of services. The petitioner also pleaded in his statement of claim

that the respondent management had procured his signatures on

several blank papers such as vouchers, printed proformas but

without making any payment to the petitioner. The petitioner also

lodged complaint with various authorities including the office of

Assistant Labour Commissioner and DCP on 11.09.1995 about the

purported illegal acts of the respondent to procure signatures of

the petitioner on various papers. The petitioner also sent a

demand notice on 13.10.1995 and then filed a statement of claim

before the conciliation officer and on failure of the conciliation

proceedings the statement of claim was filed before the Labour

Court.

7. In the written statement filed by the management the

appointment of the petitioner workman was stated to be w.e.f.

3.9.1987 on the post of a helper. The respondent workman further

stated that the petitioner was paid an amount of Rs.11,000/-

towards full and final settlement of all his claims vide cheque No.

488792 dated 10.09.1995 drawn on UCO Bank. Respondent also

took a stand that the petitioner workman started absenting

himself unauthorizedly from 06.06.1995 and when on 10.9.1995

he approached the respondent to settle his dues then the said

payment of Rs.11,000/- was made by the respondent management

to the petitioner through a bearer cheque when also a voucher

was signed by the petitioner on the revenue stamp affixed therein,

the reverse of which was also signed by the General Secretary of

one Union. Certainly, any court would readily believe these

documents as sufficient proof of making payment, more

particularly, when the payment is made through a bearer cheque.

The reliability on such documents would get further strength when

such a settlement is witnessed by the General Secretary of the

Union. This is what has exactly happened in the present case. The

Ld. Labour Court got carried away to believe the said voucher

which was alleged to have been signed by the petitioner and also

the fact of payment being made by the respondent through a

bearer cheque. The Labour Court also gave undue weightage to

the testimony of the General Secretary of the Union who in his

deposition proved that the said settlement was arrived at in his

presence.

8. The Industrial Disputes Act is a beneficial piece of

social legislation and one cannot lose sight of the fact that the Act

has to be interpreted to see that the workman being a weaker

party does not become a victim at the hands of the stronger and

mightier management. The respondent has not denied the fact

that the petitioner was in their employment although pleaded from

a later date w.e.f. 3.9.1987. MW 1 Mr. Rajnish, a partner of the

respondent management in his cross-examination clearly admitted

that ESI Card of the petitioner workman was issued in the year

1987. Once having admitted the employment of the petitioner,

may be, w.e.f. 1987, it would clearly mean that the petitioner

remained in service from 1987 till 1995 i.e. for a period of eight

years. Even if this period of eight years employment is taken into

consideration, there can be no doubt, that there must have existed

some compelling reasons for the petitioner to have resigned from

his employment. It is not in dispute that the petitioner did not

submit any resignation letter and in the absence of the same still

his dues were settled that too for a meagre amount of Rs.11000/-

and as per the voucher proved on record Ex. MW 1/2 the said

dues were towards his wages, bonus, gratuity, notice fee, etc.

When the counsel for the respondent was questioned about the

break up of the said amount then no satisfactory answer came

from the side of the respondent except that he stated that such a

break up can be given by the respondent if this court so desires.

Admittedly, no such break up of the said amount was given by the

respondent before the Labour Court as on what basis the said

amount of Rs.11,000/- has been paid by the respondent

management to the petitioner.

9. Counsel for the respondent was also questioned as to

why the need arose to make the payment through a bearer cheque

when the said payment could have been made in cash also, that

too when an office bearer of the Union was present who could

have witnessed such a payment but no satisfactory response came

from the side of the counsel for the respondent. It is thus manifest

that this entire exercise was carried out by the respondent

management to set up a strong case of making the Labour Court

believe about the genuineness of the settlement. The Ld. Labour

Court got so much carried away with the said settlement and the

payment made through the bearer cheque and the voucher that it

overlooked the fact that the said office bearer i.e. Mr. Ram Saran

Ram in his examination-in-chief showed his inability to even

recognize the petitioner. It is quite strange that a person who

claimed himself to be the General Secretary of the Union and in

whose presence the said payment was made would express his

inability to recognize the workman and this is despite the fact that

in his cross-examination he stated that he knew the workman very

well. This apparent falsity on the part of MW2 Ram Saran Ram

itself exposes the ploy enacted by the management in fabricating

the said documents with a view to set up a case of settlement with

the petitioner. The action of payment through bearer cheque is

again beyond the comprehension of this court as where was the

need for the respondent to have issued a bearer cheque and to

hand over the same to the petitioner while such a small payment

could have been made in cash. No explanation came from the

side of the respondent, as to why the need arose for such a

payment being made through a cheque instead of cash. The Ld.

Labour Court also over looked the cross-examination of MW 1

wherein the petitioner gave many suggestions to dispute the said

settlement and the receipt of any payment by the petitioner. The

petitioner not only wrote to various authorities including lodging a

complaint against the respondent management for obtaining his

unauthorized signatures on various papers alongwith the fact that

within a month's time the petitioner raised a demand notice, and

therefore, it cannot be believed that the petitioner who was in

service, even if taken from the year 1987 and not from 1979,

would resign from his job that too just after having received a

small amount of Rs.11,000/- towards full and final settlement of his

dues.

10. This Court is conscious of the fact that the jurisdiction

of the High Court under Article 226 of the Constitution is very

wide and untrammelled and hence for that reason alone the same

has to be exercised with great care and circumspection.

Ordinarily, the court would not interfere with the award of the

Labour court unless it is found to be perverse or there is an error

of law apparent on the face of it or there is some patent illegality

in it, but what is perverse and illegal would ultimately depend on

the facts of each case. The Apex Court in the case of Seema

Ghosh vs. TISCO (2006) 7 SCC 722 held that when the

judgment of the Labour Court is perverse and against the facts

and records, the High Court is entitled to exercise its jurisdiction

under Article 226 and to interfere with the perverse finding and

set aside the same. It has been further held in the case of

Trambak Rubber Industries Ltd. vs. Nashik Workers Union

(2003) 6 SCC 416 where the Apex Court held the interference by

the High Court in the Award by the Labour Court was justified on

the ground that the Labour court failed to reach reasonable

conclusions that should have been followed from the evidence

placed on record. It held that:

"We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived the patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence, especially the admissions of the witness examined on behalf of the management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. ...............................

There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court."

This was again reiterated in the case of ONGC vs. ONGC

Contractual Workers Union (2008) 12 SCC 275 where the

Apex Court held that the High Court would be fully justified in

interfering with an award of the Industrial court on account of

patent illegality.

11. In view of the legal position discussed above, the gamut

of facts of the case at hand shows that the award passed by the

Labour Court was contrary to the evidence on record. More so, it

did not labour to fathom the depraved tactic adopted by the

respondent management to create a sham of a settlement arrived

at by the petitioner and the management. In my considered view,

the award challenged the commonsensible notions as it could

come to believe that the petitioner after working for eight years

would be satiated by an amount of Rs.11,000 and that too towards

full and final settlement of his dues. Therefore, the award is

perverse and warrants interference by this Court to set the tune

right in the direction of achieving the underlying aim of the

industrial disputes legislation i.e. social justice.

12. Therefore, in the light of the aforesaid discussion, the

findings given by the Ld. Labour Court in my considered view, are

clearly perverse and untenable in the eyes of law and therefore

the impugned award is accordingly set aside.

13. The respondent management is hereby directed to

reinstate the petitioner workman within a period of one month

from the date of this order with the grant of 50% of back wages

from the date of his termination till the date of his reinstatement.

February 26, 2010                             KAILASH GAMBHIR,J