Shri Harish Chander vs M/S Pragati Industries
2011 Latest Caselaw 2479 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 9th May, 2011
+                                 W.P.(C) 2976/2010

         SHRI HARISH CHANDER                       ..... Petitioner
                      Through: Mr. S.L. Kashyap, Advocate
                                       Versus
         M/S PRAGATI INDUSTRIES                                  ..... Respondent
                       Through: None.

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

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 petition impugns the award dated 20 th March, 2007 of the

Industrial Adjudicator on the following reference:

"Whether the termination of services of Sh. Harish Chand is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

in favour of the respondent employer and against the petitioner workman.

2. This writ petition has been preferred after more than two years of the

publication of the award and was accompanied with CM No.5918/2010 for

condonation of delay in filing the writ petition. Notice only of the

application for condonation of delay was issued. No steps were taken for

service of the said notice and on 15 th November, 2010 the matter was

dismissed in default. An application for restoration was filed which was

allowed. However, the petitioner applicant again failed to take steps for

service of the notice and the writ petition was again dismissed in default on

8th March, 2011. CM No.5884/2011 has again been filed for restoration of

the matter. The said application came up before this Court on 28 th April,

2011 when being prima facie of the opinion that no case for interference

with the award of the Industrial Adjudicator also is made out, the counsel

for the petitioner was asked to argue on the admissibility of the writ

petition. The counsel after some arguments sought adjournment and the

matter was posted for today. The counsel for the petitioner has been heard.

3. The Industrial Adjudicator had framed a preliminary issue as to the

validity of the departmental inquiry conducted preceding the order of

termination of service of the petitioner workman. It was the plea of the

petitioner workman that he was not permitted to participate in the

departmental inquiry and was stopped at the gate of the factory only and

thus the departmental inquiry was bad.

4. The Industrial Adjudicator vide order dated 17th August, 2005 also

impugned in this petition held that the petitioner workman intentionally

and deliberately did not join the inquiry proceedings on 13th February,

1988 and having himself absented from the proceedings had no right to

aver non compliance with the principles of natural justice. The Industrial

Adjudicator accordingly held the departmental inquiry preceding

termination to be fair and proper and in compliance with the principles of

natural justice.

5. The contention of the counsel for the petitioner workman before this

Court also is of having been prevented from participating in the inquiry.

However, the findings in this regard are findings of fact on the basis of the

evidence led before the Industrial Adjudicator. The counsel for the

petitioner workman has been unable to show that the said findings of fact

are not based on any evidence or are perverse or unreasonable. Without

the petitioner so establishing, such findings of fact are non interfereable in

exercise of powers of judicial review.

6. Significantly, the order of removal of the petitioner workman is of

the year 1988. The industrial dispute was raised after eleven years of the

admitted knowledge of termination of service. The Industrial Adjudicator

has in the award also held the claim to be stale and the petitioner workman

not entitled to any relief for this reason also.

7. The counsel for the petitioner has been unable to make any dent

whatsoever on the aforesaid relevant factor. All that is pleaded is that the

petitioner workman is poor. However, a workman who is poor and without

means of livelihood is expected to act in right earnest. The petitioner

herein first slept over his right to raise the dispute for eleven years; even

after the award of the Industrial Adjudicator against him, he again went

into slumber for over two years; even after the notice of the application for

condonation of delay was issued, in the last two years before this Court

also no expediency has been shown and the matter as aforesaid has been

conducted in a very lackadaisical manner. It appears that the present

proceedings are being agitated by way of a wager. The Industrial

Adjudicator in the award has rightly held that since dispute had been raised

after such long lapse of time, the respondent employer was justified in

presuming the matter to have attained finality and having not preserved all

the records.

8. The Industrial Adjudicator has also held the punishment meted out

of termination to be proportionate to the charge of verbal abuse.

9. No case for interference with the award is made out. The petition is

dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 09, 2011 'gsr'