Vinod Kumar & Anr. vs P.O. Labour Court-Vii And Anr.
2012 Latest Caselaw 7152 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P. (C) No. 4998/1997

%                                          Reserved on: 25th September, 2012
                                           Decided on: 13th December, 2012

VINOD KUMAR & ANR.                                       ..... Petitioners
                 Through:               Mr. Anuj Aggarwal, Adv.

                    versus

P.O. LABOUR COURT-VII AND ANR.               ..... Respondents

Through: Ms. Saroj Bidawat, Adv.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. The Petitioners were employed as Beldars on 16 th October, 1989 by the Respondent No.2. On 14th January, 1990 the services of the Petitioners were terminated. On a dispute being raised the following terms of reference were sent for adjudication:

"Whether the services of Shri Vinod Kumar and Kalu Ram have been terminated illegally and unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect."

2. The Petitioners filed their statements of claim, inter alia, stating that they were employees of the Horticulture Department as Beldars with effect from 16th October, 1989 and their services were terminated with effect from 14th January, 1990 without any reason. They sought the relief of reinstatement with full back wages on the ground that the termination of their services was illegal and unjustified. Despite notice, no written

statement was filed by the Respondent No.2 nor did anybody appear for them to cross-examine the workmen. Thus, there is no evidence led by the Respondent No.2 and the evidence of the Petitioners have gone unrebutted. On the basis of documentary evidence filed by the Petitioners, the learned Trial Court held that the termination of the services of the workmen amounted to "retrenchment" within the meaning of Section 2(oo) of the ID Act and as admittedly the workmen had not completed one year of continuous service, thus the management was not required to comply with the provisions of Section 25F of the ID Act but at the same time fairness required that the Respondent No.2 ought to have followed the principles of natural justice. Thus, considering the length of service of the workmen and the fact that the workmen were not proved to be gainfully employed, the learned Trial Court granted lump-sum compensation of Rs. 25,000/- to each of the Petitioners.

3. Learned counsel for the Petitioner contends that once the learned Trial Court held that the services of the Petitioners were terminated illegally, it ought to have passed an order of reinstatement with back wages. In the alternative it is prayed that since the compensation awarded is too low, the same be enhanced. Reliance is placed on Management of Aurofood Pvt. Ltd. Vs. S. Rajulu (2009) 2 SCC (L&S) 368; Management of Garrison Engineer Vs. Bachhu Singh 2010 9115) DRJ 576 and the Management of Municipal Corporation of Delhi Vs. Presiding Officer, Industrial Tribunal and Anr. W.P.(C) 6024/1999 decided on 25th August, 2011.

4. Learned counsel for the Respondent No.2 on the other hand contends that the Petitioners admittedly were engaged for seasonal work and worked

only for 76 days. The Trial Court erred in granting the relief to the Petitioner as the necessary requirement under Section 25F had not been met. Though Respondent No.2 was proceeded ex-parte yet the learned Trial Court ought to have looked into the fact that even as per the own admission of the Petitioners, they have not been able to prove their case.

5. I have heard learned counsel for the parties. As regards the contention of the learned counsel for the Respondent No.2 that the workman was engaged for a seasonal work for 76 days only and thus the finding that the termination is illegal and unjustified is unwarranted cannot be considered by this Court as the Respondent No.2 has not challenged the impugned award. Thus, to this extent the findings against the Respondent have become final.

6. The two alternative prayers raised by the learned counsel for the Petitioner are that The Petitioners should be granted the relief of reinstatement with back wages or in the alternative the compensation be enhanced. As regards the contention of the learned counsel for the Petitioner with regard to the reinstatement with back wages, learned counsel for the Petitioner has relied upon the Management of MCD (supra) wherein this Court upheld an award of reinstatement with back wages in view of the decision of the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation (2010) 3 SCC 192. In Harjinder Singh (supra) their Lordships held:

"10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction

by the High Court under Articles 226 and/or 227 of the Constitution -- Syed Yakoob v. K.S. Radhakrishnan [ AIR 1964 SC 477] and Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] . In Syed Yakoob case [ AIR 1964 SC 477] , this Court delineated the scope of the writ of certiorari in the following words: (AIR pp. 479-80, paras 7-8)

" The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it 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 dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the 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 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. In dealing with this category of cases, however, we must always bear in mind that a finding of

fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari 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 a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque [ AIR 1955 SC 233 : (1955) 1 SCR 1104] , Nagendra Nath Bora v. Commr. of Hills Division [ AIR 1958 SC 398 : 1958 SCR 1240] and Kaushalya Devi v. Bachittar Singh [ AIR 1960 SC 1168] ).

It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior court or

tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."

7. Thus, this Court can only interfere in the award if the same is perverse. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC 327 their Lordships held that the factors relevant for determining whether reinstatement should be granted or not are; whether the appointment was made as per statutory rules, period for which the workman worked, whether their existed any vacancy and whether the workman obtained some other employment on the date of termination or passing of the award. Considering the total length of service rendered by the workman therein, i.e. 1st September, 1995 to 18th July, 1996 and that the workman was engaged as a daily wager, their Lordships held that a compensation of Rs. 50,000/- would met the ends of justice. In Rattan Singh Vs. Union of India And Anr. (1997) 11 SCC 396 in a case where the workman had been working for four years continuously and he was appointed as a daily rated casual worker, the Hon'ble Supreme Court awarded a consolidated sum of Rs. 25,000/- to the appellant in lieu of compensation for back wages as well as reinstatement. Thus, in view of the law laid down by the Supreme Court regarding scope of interference and that in a case where the workman is a daily wager and has worked for limited period, a relief of reinstatement and

back wages will not automatically follow, I find no infirmity in the impugned award granting compensation instead of reinstatement with back wages.

8. In the case in hand the award was passed on 30th July, 1997 when the learned Trial Court awarded compensation of Rs. 25,000/- each to the workmen. It may be noted that even as per the own admission of the Petitioners taking into consideration Saturdays and Sundays as well they worked for 90 days and thus the compensation of Rs.25,000/- each in the year 1997 is an adequate compensation which is not required to be enhanced by this Court.

9. Since the impugned award suffers from no illegality much less any perversity, I find no reason to interfere in the same. The said compensation has already been received by the Petitioners soon after the award. Petition is dismissed.

(MUKTA GUPTA) JUDGE DECEMBER 13, 2012 'ga'