M/S Mvl Industries Ltd. vs Harendra Singh & Anr
2011 Latest Caselaw 2380 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 4th May, 2011.

+                  W.P.(C) 2931/2011 & CM No.6292/2011 (for stay)

%        M/S MVL INDUSTRIES LTD.                  ..... Petitioner
                      Through: Mr. Deepak Sabharwal, Adv.

                                   Versus

         HARENDRA SINGH & ANR                                  ..... Respondents
                     Through: None.
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 writ petition impugns the award dated 3 rd December, 2010 of the

Industrial Adjudicator on the following reference:

"Whether the services of Sh. Harender Singh s/o Late Sh. Banwari Singh have been terminated illegally and/or unjustifiably by the Management, if so, to what relief is he entitled and what directions are necessary in this respect?"

in favour of the respondent workman and against the petitioner

employer but granting the relief only of `1 lac by way of lump-sum

compensation to the respondent workman and against the petitioner

employer.

2. The respondent no.1 workman was employed as a driver with the

petitioner employer at the last drawn salary of `3,850/- per month for four

years when in December, 2002, according to the respondent workman, his

services were illegally terminated and according to the petitioner employer,

the respondent workman started absenting from duty and failed to resume

duty despite various letters sent to him. It was also the case of the petitioner

employer that the respondent workman had got employment elsewhere and

that is why left the employment of the petitioner employer though it was

pleaded that the salary being paid to the respondent workman was far above

the minimum wages payable to a driver.

3. The Industrial Adjudicator on the basis of the evidence led before him

held that the conduct of the petitioner employer did not inspire confidence

and found that the petitioner employer had not acted bona fide in inviting the

respondent workman to resume duty. It was also held that the onus to prove

that the respondent workman had abandoned his employment was on the

petitioner employer and which the petitioner employer had failed to

discharge. Accordingly, it was held that the petitioner employer had

illegally terminated the services of the respondent workman. However, the

Industrial Adjudicator further held that in view of the disputes and the

conduct, it would not be appropriate to direct reinstatement and awarded

compensation for illegal termination computed at `1 lac, being

approximately 50% of the four years of wages of the respondent workman.

4. The findings returned by the Industrial Adjudicator, of the case for

abandonment having not been made out and of the petitioner having illegally

terminated the services of the respondent workman are findings of fact. The

Legislature having not provided for any appeal against the order of the

Industrial Adjudicator, this Court in exercise of powers of judicial review

under Article 226 of the Constitution of India cannot deal with the award as

an appellate court. Such findings of fact would be interfered with only if

shown to be perverse or totally unreasonable or being not borne out from the

record.

5. The counsel for the petitioner employer, with reference to the letters

claimed to have been sent by the petitioner employer to the respondent

workman, has sought to challenge the aforesaid findings.

6. The Industrial Adjudicator has with reference to the said letters held

that there were inconsistencies therein, making the same suspicious. It was

also held that the petitioner employer had failed to prove delivery of the said

letters to the respondent workman.

7. Re-appreciation of evidence is also beyond the scope of Article 226.

8. The counsel for the petitioner employer has contended that the

mistakes in the letters noticed by the Industrial Adjudicator ought not to

have created any doubt as to the authenticity thereof. However such

arguments are in the realm of appreciation of evidence and which as

aforesaid is not permitted. See:

(i) Govt. of A.P. Vs. Mohd. Narsullah Khan (2006) 2 SCC 373.

(ii) Sub-Divisional Officer, Konch Vs. Maharaj Singh (2003) 9

SCC 191.

(iii) Union of India Vs. M/s Mustafa and Najibai Trading Co.

(1998) 6 SCC 79.

         (iv)      B.C. Chaturvedi Vs. UOI (1996) I LLJ 1231 SC.

         (v)       Poorna Singh Kain Vs. UOI MANU/DE/1292/2008.

         (vi)      Suresh Kumar Vs. the Management of Monsanto Enterprise

         Pvt. Ltd. MANU/DE/8303/2007.

(vii) Ram Narain Jha Vs. T.M. Apartments Pvt. Ltd. 2007 (99) DRJ

724.

(viii) MCD Vs. Satish Kumar (2005) 81 DRJ 344 (DB)

A finding of fact even if erroneous, would not form a basis for judicial

review (see Kirloskar Brothers Ltd. Vs. The Presiding Officer, Labour

Court ILR (1976) 1 Del 565, DTC Vs. Delhi Administration ILR (1973) 1

Del 838, Jawahar Singh Vs. Financial Commissioner

MANU/DE/8396/2007 & Kishan Chand Bhatia Vs. UOI

MANU/DE/0265/2005.

9. A perusal of the record in the present case shows that the respondent

workman in the present case in January, 2003 itself got a letter issued to the

petitioner employer through the Union complaining of illegal termination.

The respondent workman approached the Conciliation Officer also within

the month of January, 2003 i.e. within a month or two of the dispute

aforesaid. In fact reference of the dispute itself was made in September,

2003. The petitioner employer admittedly appeared before the Conciliation

Officer and paid the dues of salary etc. of the respondent workman to the

respondent workman before the Conciliation Officer.

10. I have enquired from the counsel for the petitioner employer that if it

was the case of the petitioner employer that it had not terminated the

services and it was the respondent workman who had abandoned the

employment, than why such stand was not taken before the Conciliation

Officer and why the dispute was allowed to be referred to the Industrial

Adjudicator. It may be noticed that the petitioner employer claimed to have

been writing letters in December, 2002 and January, 2003 to the respondent

workman asking the respondent workman to join back. If it was so, the

natural thing for the petitioner employer upon receipt of notice from the

Conciliation Officer was to state before the Conciliation Officer that there

was no dispute and they were willing to take back the respondent workman.

No such steps are shown to have been taken. No explanation also is coming

forth from the counsel for the petitioner employer. In the circumstances, the

view taken by the Industrial Adjudicator of the letters purportedly sent by

the petitioner employer being not worthy all credit is found to be reasonable.

11. There is another aspect of the matter. I have in Anil Chuttani Vs. The

Oil and Natural Gas Corporation 2010 (117) DRJ 433 and in Hindustan

Associates Engineer Pvt. Ltd. Vs. Sh. K.K. Aggarwal 2010 LLR 312 on

consideration of the case law on the subject held that abandonment of

employment is also a misconduct requiring inquiry before terminating the

employer for the reason thereof. No such inquiry has been done in the

present case. Had the petitioner employer conducted any such inquiry as

required in law and furnished notice thereof to the respondent workman, the

respondent workman would have joined back the employment.

12. As far as the quantum of compensation awarded is concerned, the

Industrial Adjudicator has given the reasons/basis therefor. No ground for

the interference in the same is also made out.

13. The writ petition is accordingly dismissed in limine. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 04, 2011 bs