Delhi High Court

Delhi Transport Corporation vs Raj Pal on 8 January, 2013

Author: V. K. Jain

$~4

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     LPA 657/2012


      DELHI TRANSPORT CORPORATION               ..... Appellant
                   Through: Mr J.S. Bhasin and Mr Anand Nandan,
                   Advs.

                  versus

      RAJ PAL                                            ..... Respondent
                           Through: Mr Atul T.N., Adv.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN

              ORDER

% 08.01.2013

1. The respondent workman was employed with DTC as a driver. He

met with an accident and was hospitalized. On regaining health, he reported

for duty with a Medical Certificate recommending that he should be given

light duty. The case of the appellant is that the respondent was sent for

medical check-up and after receipt of the report of the Medical Board,

declaring him unfit for the duty of a driver, he was given light duty. The

respondent, according to the appellant, was supposed to go for medical examination at regular intervals, but he did not appear before the Medical

Board on 19.02.1992 and raised an industrial dispute alleging removal from

service.

2. During pendency of the proceedings before the Labour Court, the

appellant instituted an enquiry against the respondent workman, alleging

unauthorized absence from duty. The enquiry proceedings culminated in

passing of the order dated 19.11.1999, terminating the services of the

respondent. No dispute with respect to the termination vide order dated

19.11.1999 was raised by the respondent. The Tribunal vide award dated

01.10.2004 held the termination order dated 19.11.1999 to be illegal. A writ

petition filed by the appellant against the order of the Tribunal was allowed

by a learned Single Judge of this Court on 13.09.2006. In an appeal filed by

the workman respondent, the matter was remanded back to the Writ Court.

Vide order dated 09.05.2012, the learned Single Judge dismissed the writ

petition filed by the appellant. Being aggrieved, the appellant is before us

by way of this appeal.

2. It is an admitted position that no dispute with respect to the

termination order dated 19.11.1999 was raised by the respondent workman

and the scope of the reference made to the Tribunal was confined to the alleged termination dated 19.02.1992. The learned Single Judge noted that

the Labour Court, despite noticing the allegation of the respondent workman

that his services were actually terminated by the appellant--management as

also the plea of the appellant--management that his services were not

terminated on 19.02.1992, did not give its decision one way or the other, in

this regard. However, the learned Single Judge proceeded to undertake the

exercise himself, instead of remanding the matter back to the Labour Court

to return a finding on this disputed question of fact. On consideration of the

evidence led before the Labour Court, the learned Single Judge held that the

services of the respondent workman had actually been terminated in the year

1992 and further holding that the said termination was legal and justified,

dismissed the writ petition filed by the appellant.

3. In State Bank of Bikaner & Jaipur v. Om Prakash Sharma (2006) 5

SCC 123, an industrial dispute was raised by the respondent workman

culminating in a reference being made to the Industrial Tribunal with respect

to the action of the management in terminating the services of the workman

and employing another junior workman in his place in violation of Section

25H of the Industrial Disputes Act. The Labour Court concluded that the

respondent had failed to prove that after termination of services another workman was employed in his place in violation of Section 25H of the Act.

A finding, however, was arrived at that no seniority record was maintained

as required under Rule 17 of Industrial Disputes Rules and, therefore, the

respondent was entitled to be reinstated in service with 50% of back wages.

The appellant before Supreme Court filed writ petition challenging the

award of the Labour Court. A learned Single Judge of the High Court

dismissed the writ petition taking a view that if the reference in the question

referred only to Section 25 of the Act, the same would not debar the

Tribunal from going into other illegalities committed under the Act or the

Rules. An intra-Court appeal filed by the appellant was dismissed by a

Division Bench of the High Court. Allowing the appeal and setting aside the

award to the extent of order of reinstatement with back wages, Supreme

Court, inter alia, observed and held as under:-

"In the instant case, the award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the award, if the Labour Court exceeds its jurisdiction, the Award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The Award and the judgment of the High Court, therefore, cannot be sustained."

4. In the case before us, since the termination order dated 19.11.1999

was not the subject matter of the reference made to the Labour Court, it had

no jurisdiction to go into the said termination order and give a finding with

respect to the said termination. The award dated 01.10.2004 holding the

termination dated 19.11.1999 to be in violation of Section 33 of Industrial

Disputes Act was, therefore, liable to be set aside on this ground alone.

As noted earlier by us, no finding with respect to the alleged

termination dated 19.02.1992 was returned by the Labour Court. The

appellant having denied the alleged termination dated 19.02.1992, a disputed

question of fact arose as to whether the services of the respondent workman

were actually terminated on 19.02.1992 or not. The findings on this

disputed question of fact should, in the first instance, have been given by the

Labour Court and the learned Single Judge was not justified in taking it

upon himself to analyse the evidence produced by the parties during the

course of award proceedings and return a finding of fact. The disputed

questions of fact ought not be decided in exercise of writ jurisdiction and

should be decided, at least initially, by the Court/Tribunal which records evidence in the matter. In fact, while exercising writ jurisdiction, this Court

is precluded from re-appreciating the evidence produced by the parties and

interference by the Writ Court with the finding of fact, is allowed only if the

case before the Court is of the view that the finding is based on no evidence

at all or where the finding rendered by the Court of the first instance is

perverse, being a finding which no reasonable person, acting upon the

material available to him, could have rendered. Therefore, in the absence of

any finding of fact having been recorded by the Labour Court in this regard,

the learned Single Judge was not justified in taking upon himself to render

such a finding, in the first instance.

For the reasons stated hereinabove, the impugned judgment cannot be

sustained. The appeal is, therefore, allowed and the impugned judgment

dated 09.05.2012 is set aside. The matter is remitted back to the Labour