M/S. M.D. Industries vs Govt. Of Nct Of Delhi & Anr.
2011 Latest Caselaw 6202 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI


                           Judgment reserved on:     02.09.2011
                           Judgment delivered on:     19.12.2011

+    W.P.(C) No. 1214/2010 & CM. NO. 2538/2010 &
     CM No. 11943/2011


M/s.M.D.Industries                                  ......Petitioner

              Through: Mr. J.K. Sharma, Advocate.

                           Vs.

Govt. of NCT of Delhi and Anr.                      ......Respondents

              Through: Mr.       A.S.   Rajput,         Advocate    for
                           respondent no.2.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this petition filed under Articles 226/227 of the

Constitution of India, the petitioner seeks setting aside of the

award dated 7th January, 2010 passed by the learned Labour

Court, Delhi, whereby a lump sum compensation of

Rs.2,00,000/- was awarded in favour of the respondent No.2

herein.

Page 1 of 16 W.P.(C) No. 1214/2010

2. Brief facts as set out in the claim petition and

relevant for deciding the present petition are that the

respondent No.2 was working with the petitioner

management since 15.03.1994 at a monthly salary of

Rs.1,400/- as Helper. It is stated that she was not being given

legal facilities i.e. appointment letter, leave, wages as per the

provisions of the Minimum Wages Act and that the

management was not maintaining service records etc. Hence,

on demanding the earned wages for the month of November,

2001 and other dues, the management got annoyed and

forced her to tender her resignation, upon which she

protested and with utter annoyance, the management

terminated her services. Accordingly, the management was

served with a demand letter dated 17.07.2002 vide registered

A/D and UPC but the management neither reinstated her nor

paid her dues. The case of the respondent no.2 was that her

termination without issuing any notice or service of notice

was in violation of Section 25-F of the I.D. Act and hence an

industrial dispute was raised by her.

Page 2 of 16 W.P.(C) No. 1214/2010

3. While in the present petition, the case as set out by

the petitioner is that the respondent No.2/work lady joined

the petitioner-management as Helper w.e.f. 7th August, 1998

at a monthly salary of Rs.1,950/-. It is also alleged that during

the employment, she was provided all the benefits/facilities

entitled in law including ESI facility. It is stated that the

respondent No.2 worked with the management till 30 th

October, 1999 and thereafter absented herself from the

duties. On 28th March, 2000 the respondent No.2 visited the

office of the petitioner-management and by expressing her

inability to work in the petitioner-management in view of her

having delivered a child, submitted her resignation and on its

acceptance by the petitioner-management, she collected a

sum of Rs.3669/- towards earned wages and bonus etc. on

30.03.2000 by putting her thumb impression on the

receipt/settlement and the voucher showing the payment.

Thereafter, the respondent No.2 raised industrial dispute by

alleging her termination from the services of the petitioner-

management       w.e.f.   12th    December,     2001      before       the


           Page 3 of 16                   W.P.(C) No. 1214/2010

respondent No.1. The said reference was sent by the

respondent No.1 to the learned Labour Court and vide

impugned award, a sum of Rs.2,00,000/- was awarded in

favour of the respondent No.2/work lady and against the

petitioner-management and feeling aggrieved with the same,

the respondent has preferred the present petition.

4. Notice of claim was sent to the petitioner-

management but the management did not appear and hence

was proceeded ex parte vide order dated 05.08.2004 and the

case was adjourned for ex parte evidence. Thereafter, the said

ex parte order was set aside and the petitioner was allowed to

file written statement and in pursuance of the said order,

written statement was filed by the petitioner wherein it was

stated that the reference for adjudication of the Labour Court

was not valid and proper as it had been made mechanically. It

was also stated that the respondent No.2/work lady had

voluntarily submitted her resignation which was duly

accepted by the petitioner-management and after accepting

her resignation, the respondent No.2 had settled all her

Page 4 of 16 W.P.(C) No. 1214/2010 claims and received a sum of Rs.3,689/- towards full and final

settlement in the presence of Shri Surender Pal Sharma.

5. Arguing for the petitioner, Mr.J.K.Sharma, learned

counsel submitted that the respondent No.2 had filed a false

and frivolous claim against the petitioner-management

claiming employment with the petitioner w.e.f. 15.03.1994 as

Helper and also her alleged termination by the petitioner on

12.12.2001. The contention of counsel for the petitioner was

that the respondent was employed by the petitioner-

management as Helper on 07.08.1998 at a monthly salary of

Rupees 1,950/- and she voluntarily submitted her resignation

on 28.03.2000 which was duly accepted by the petitioner-

management and on acceptance thereof, the said resignation

letter was submitted by the respondent No.2 as Ex.WW-1/M4,

settlement document as Ex.WW1/M6, payment voucher

Ex.WW1/M7 and all this documentary evidence was ignored

by the learned Labour Court despite the fact that the same

were bearing the thumb impression of respondent No.2.

Counsel further submitted that the learned Labour Court even

Page 5 of 16 W.P.(C) No. 1214/2010 ignored the evidence of the expert witness, MW3, who, based

on his expert report, Ex. MW3/17, duly proved that the thumb

impression on resignation letter, settlement receipt, etc. of

the respondent No.2 were compared by him with her admitted

thumb impression affixed by her on the statement of claim,

her demand letter, on the rejoinder, on her affidavit as well as

on her statement. Counsel further submitted that once the

said hand writing expert produced by the petitioner had duly

proved thumb impression of the respondent No.2, then it was

of no consequence whether the said thumb impression was of

her left hand or of right hand. Counsel also submitted that the

learned Labour Court has also not given any reasons for

awarding an exorbitant amount of compensation to the tune

of Rs.2 lakhs to the respondent no.2 considering the fact that

her employment with the petitioner was for a very short

period.

6. Opposing the present petition, learned counsel

appearing for the respondent No.2 submitted that the

respondent No.2 was illegally terminated from her services by

Page 6 of 16 W.P.(C) No. 1214/2010 the petitioner-management and no fault can be found by this

Court with the reasoned award passed by the learned Labour

Court. Counsel also submitted that the learned Labour Court

rightly rejected the testimony of the expert witness, MW3 as

he was not only an unqualified expert but also a novice as he

had compared two sets of thumb impressions, one of RTI and

other of LTI and under no circumstances the two sets of

thumb impressions could have tallied with each other.

Counsel further submitted that the respondent on her own

had never resigned from her service and the petitioner had

deliberately forged and fabricated the documents with the

sole objective to put up a false defence.

7. I have heard learned counsel for the parties at

considerable length and gone through the records.

8. It is a settled legal position that the supervisory

jurisdiction conferred on the High Courts under Article 227 of

the Constitution of India is to the limited extent to see as to

whether the subordinate Courts or the Tribunals are acting

within the limits of their authority and the orders passed by

Page 7 of 16 W.P.(C) No. 1214/2010 the said Courts or Tribunals are not perverse or illegal on the

very face of it. While exercising supervisory power under

Article 227 of the Constitution of India, the High Court does

not act as an Appellate Court and cannot re-weigh the

evidence with a view to substitute its own view or to

appreciate the findings of fact recorded by the subordinate

Court or the Tribunal. The discretionary power under Article

227 can be undoubtedly used to advance justice but must be

exercised sparingly and this power of superintendence cannot

be used to circumvent the statutory law or in the cloak of an

appeal in disguise. It is also a settled legal position that the

Labour Courts or the Tribunals exercising their jurisdiction

under the provisions of various Labour Acts and statutes are

the final courts of facts and the High Court will not ordinarily

interfere with the findings of facts recorded by the Labour

Court or the Tribunal unless such findings by these

adjudicatory bodies are perverse or irrational on the very face

of it.

Page 8 of 16 W.P.(C) No. 1214/2010

9. Keeping in view the above stated settled legal

position, in the facts of the case at hand, the respondent No.2

claimed her employment with the petitioner-management

since 15.03.1994 as a Helper from which job she alleged to

have been terminated by the petitioner-management on

12.12.2001. The defence raised by the petitioner-management

was that the respondent No.2 was never appointed on the

post of a Helper on 15.03.1994 and consequently that she was

never terminated from her said job, but had voluntarily

resigned from her job on 28.03.2000. The petitioner-

management also took the assistance of a handwriting expert

to prove the resignation letter of the respondent No.2 and the

payment voucher alleged to have been carrying her thumb

impression.

10. What was the period of her employment with the

petitioner and under what circumstances the respondent No.2

left her said job were the two main questions to be decided

before the learned Labour Court. In support of her case, the

respondent No.2 examined herself as WW-1 and the

Page 9 of 16 W.P.(C) No. 1214/2010 petitioner-management produced three witnesses and one of

them was the hand writing expert, MW3. Commenting upon

the evidence of the hand writing expert, the learned Labour

Court held that the said hand writing expert is not a qualified

expert as he did not obtain any degree or diploma in the said

technical field of hand writing examination and finger prints

and this lack of qualification was duly admitted by the said

witness in his cross-examination. The learned Labour Court

thus found that the said witness is not a qualified and

competent hand writing expert. Not only the incompetence of

the hand writing expert, the learned Labour Court further

found that the basis of his report was also erroneous, as he

had carried out the comparison of the thumb impressions

which were not of the same hand. After having examined the

thumb impressions on the documents produced by the

petitioner-management, the learned Judge observed that he

himself had seen that the thumb impressions are of right hand

while the hand writing expert referred to the thumb

impressions as that of left hand. After examining the thumb

Page 10 of 16 W.P.(C) No. 1214/2010 impressions on the admitted and disputed documents, the

learned Labour Court observed that since the comparison of

thumb impressions is not of the same hand which was

admitted by the said hand writing expert, therefore, under no

circumstances such a witness can be called as an expert and

his opinion deserves to be discarded. Counsel for the

petitioner has failed to point out any infirmity or perversity in

the said finding given by the learned Labour Court. However

counsel for the petitioner relied upon the judgment of this

court in the case of Mahender Singh Sachdeva vs. Kailash

Rani Wadhwan 2010(120)DRJ34 to support his argument that

the trial court has wrongly discarded the opinion of the

expert. On a perusal of the said judgment, it is clear that it

reiterates the well settled principle that the expert opinion as

per the mandate of section 45 of the Indian Evidence Act,

1872 is to be received with great caution and is only advisory

in character and hence the said judgment does not in any

manner support the case of the petitioner. It would be

Page 11 of 16 W.P.(C) No. 1214/2010 relevant here to reproduce the relevant para of the said

judgment here:

"17. Now to examine the contention of the appellant relating to expert evidence, it is a settled legal position that the opinion of the expert is relevant as provided by Section 45 of the Indian Evidence Act, 1872 but the report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. Hence in the present case the report of the CFSL would not carry the sanctity of being the gospel truth in the absence of the said expert being summoned. Even in the event of the expert being examined, it is also an established rule of evidence that the opinion of the expert is not conclusive and has to be corroborated by other piece of evidence. It would be relevant to refer to the judgment of the Apex Court in the case of State of Himachal Pradesh v. Jai Lal : (1999) 7 SCC 280 here:

17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.

18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons

Page 12 of 16 W.P.(C) No. 1214/2010 stated in support of his conclusions and the data and materials furnished which form the basis of his conclusion.

18. Therefore the opinion of the expert can be relied upon when supported by other internal and external evidence as the opinion of the expert simply corroborates the other evidence produced and is not the only determining factor."

Thus in my considered view the learned Labour Court rightly

found the expert opinion untrustworthy as it is well settled

law that if the expert opinion is conflicting than the judge can

form its opinion which has been rightly done by the learned

trial court in the present case.

11. Dealing with the argument of the respondent that the

petitioner had herself resigned for which they produced MW 2

as witness according to whom the resignation was tendered in

his presence, the learned Labour Court while commenting on

the testimony of MW-2, found that the said witness failed to

give any explanation about his presence at the time of

submission of resignation letter Ex.WW1/M4 by the

respondent as he alleged to be present there because of

some business dealings with the petitioner management but

no document showing any kind of business dealings was

placed and proved on record and hence the resignation

Page 13 of 16 W.P.(C) No. 1214/2010 letter, copy of statement of claim Ex.WW1/M5, settlement

letter Ex.WW-1/M6, payment voucher Ex.WW-1/M7 were

correctly held as not proved. No argument was advanced by

counsel for the petitioner to impeach the said finding of the

learned Labour Court. The learned Labour Court in my

considered view has rightly observed that MW2 in his cross

examination stated that he knew the respondent no.2 for

about 6-7 years which would imply that the petitioner

management's claim that the respondent no.2 joined only on

7.8.98 is belied keeping in view the fact that as per the

petitioner, the respondent no.2 had resigned on 28.3.2000

meaning thereby she worked only for a short span of time. In

this background, the learned trial court rightly disbelieved the

testimony of MW 2 that he was present at the time when

respondent no.2 tendered her resignation. Taking a broad

view of the matter, in the light of the inability of the

petitioner management to prove its defence, it seems to be

nothing more than a concocted story based on forged and

fabricated documents to escape liability.

Page 14 of 16 W.P.(C) No. 1214/2010

12. So far the argument of counsel for the petitioner

regarding amount of compensation granted by the learned

Labour Court is concerned, the only argument advanced by

counsel for the petitioner was that the amount of

compensation of Rs.2 lakhs awarded by the learned Labour

Court cannot be justified on account of the short duration of

the employment of the respondent No.2 with the petitioner-

management. As per the stand of the petitioner-management,

the respondent No.2 had resigned from her job on 28.03.2000

and this stand of the petitioner-management was disbelieved

by the Labour Court and, therefore, clearly the respondent

No.2 was illegally terminated from her said job by the

petitioner-management in contravention of provisions of

Section 25-F of the Industrial Disputes Act. The respondent

No.2 in this manner remained out of job for a period of more

than 10 years and even looking into the minimum wages

payable to an unskilled worker, the award of compensation of

Rs.2 lakhs in favour of the respondent No.2 cannot be termed

as excessive, exorbitant or unreasonable.

Page 15 of 16 W.P.(C) No. 1214/2010

13. In the light of the above discussion, this Court does

not find any merit in the present petition and the same is

hereby dismissed.

                                     KAILASH GAMBHIR, J
December 19, 2011




          Page 16 of 16               W.P.(C) No. 1214/2010