Delhi High Court

Ks Sasidharan Nair vs Presiding Officer And Anr on 19 September, 2013

Author: A. K. Pathak

$~8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 1638/2011

                                            Decided on 19th September, 2013

       KS SASIDHARAN NAIR                        ..... Petitioner
                Through: Mr. K.B. Rohatgi, Mr. Mahesh Kasana and
                         Ms. Aparna Rohatgi Jain, Advs.

                          Versus

       PRESIDING OFFICER AND ANR               ..... Respondents
                Through: Mr. Ganesh Kumar and Ms. Shalini Adaitya
                          Rout, Advs. for R-2.


CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Petitioner was working with the respondent no. 2 as Assistant

Manager. He was demoted from the post of Assistant Manager to Head

Assistant Bearer and transferred to Shimla Branch vide order dated 30th

December, 2000 (Ex.WW1/1), after holding a domestic enquiry. Petitioner

did not report at Shimla. Instead he submitted a representation dated 9 th

January, 2001 (Ex.WW1/2) against his transfer and also applied for leave on

medical grounds. Petitioner also challenged the order of demotion and

transfer by filing a Civil Suit No. 304/01 titled K.S. Sasidharan Nair vs. M/s

Indian Coffee Workers Co-operative Society Ltd., which was dismissed by

the Civil Judge, Shimla vide order dated 5th March, 2002 (Ex. MW1/5).

2. Petitioner did not join at Shimla despite repeated communications

sent by respondent no.2 to the petitioner requesting him to join. Instead of

joining at Shimla he continued to send applications for extension of leave

for about one year. Vide letter dated 24th December, 2001 (Ex.WW1/14)

respondent no.2 instructed the petitioner to comply with its resolution, as

reproduced in the letter. It was categorically stated that in case he failed to

join his duties within 10 days on receipt of the letter, it shall be presumed

that petitioner is not interested to join duty and the management shall be at

liberty to take appropriate disciplinary action including termination without

any further notice. Since petitioner did not join his duties at Shimla inspite

of this letter he was terminated from service vide letter dated 8th January,

2002 (Ex. WW1/15) of the respondent no.2.

3. Petitioner raised an industrial dispute thereby challenging his

termination. Accordingly, Secretary (Labour), Govt. of NCT of Delhi

referred the dispute to the Labour Court for adjuration in the following

terms:-

"Whether the service of Sh. K.S. Sasidharan Nair S/o Sh. K.B. Pillai have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in his respect?"

4. In the statement of claim, petitioner alleged that respondent no.2 was

annoyed with him due to his contesting the general elections of respondent

society held in February, 1999, thus, he was demoted and transferred to

Shimla where he could not join due to his illness. Medical certificates were

sent to respondent no.2 with the applications. After he became medically fit,

he reported for duty on 18th December, 2001 but was not allowed to join.

Respondent no.2 asked the petitioner to withdraw cases and submit written

apology and when he protested to these conditions his services were

terminated on 4th January, 2002 without any show cause notice, charge-sheet

or enquiry.

5. In written statement, respondent no.2 alleged that petitioner was

appointed on 1st October, 1972 and his last drawn wages were `5204/- per

month. He was working as an Officiating Manager. Petitioner never worked

as Head Assistant Bearer. He remained absent from duty for 348 days

without any sanctioned leave. Petitioner was transferred to Shimla but

instead of joining there he absented himself. He submitted medical

certificates of a private doctor. He was asked to furnish medical certificates

of Government hospital but he did not furnish the same. Petitioner filed a

civil suit against the respondent no.2 regarding demotion and transfer which

was dismissed. He also lodged a complaint against respondent no.2 before

the Registrar of Co-operative Societies which was also dismissed. He was

asked to collect his dues but he avoided to collect the same.

6. Industrial Adjudicator afforded opportunities to parties to lead

evidence. Petitioner examined himself as WW/1. He proved certain

documents as Ex. WW1/1 to Ex. WW1/16. As against this, respondent no.2

examined MW1 and proved documents as Ex.MW1/1 to Ex.MW1/10. Upon

scrutiny of ocular as well as documentary evidence adduced by the parties

Industrial Adjudicator has returned a finding that petitioner upon his transfer

at Shimla failed to join there almost for one year. Instead of joining he

applied for leave initially and thereafter extension applications on medical

grounds between 5th January, 2001 to 7th December, 2001. Medical

certificates issued by one Dr. M.S. Nagpal, MBBS, a medical practitioner

were sent but without any medical prescription and test reports. Petitioner

claimed that all along he had been suffering from jaundice and fever.

During this period respondent no. 2 continued to write to petitioner to join

duties immediately. It was mentioned by the respondent no.2 in its letters

that on his failure to join duties respondent no.2 shall be constrained to take

action against him. Except furnishing medical certificates petitioner did not

produce any document regarding treatment, prescription slip or any report

regarding his illness. His leaves were never sanctioned. Petitioner avoided

to report for duties at Shimla. He continued to submit only medical

certificates from a private doctor on pretext of ailing from jaundice without

producing any prescription, diagnostic reports etc. Even after petitioner

claimed that he had recovered from his illness he did not join at Shimla;

instead he insisted that he be transferred to Delhi. Respondent no.2 had

given ample opportunities to the petitioner by writing letters to join duties.

Though, vide letter dated 18th December, 2001 (Ex.WW1/12) petitioner

claimed that he requested for cancellation of transfer and claimed that in

case transfer is not cancelled he would join at Shimla but, in fact, he did not

do so. Failure of petitioner to comply with the instructions of respondent no.

2 to join at Shimla by various communications was sufficient to show that

he was not interested to join at Shimla, therefore, management-respondent

no. 2 was free to take action against the petitioner including termination

without any further notice.

7. It is trite that findings of facts returned by the Industrial Adjudicator

cannot be interfered with by this Court in exercise of its power of judicial

review under Article 226 of the Constitution on re-appreciation of evidence.

In New India Flour Mills and another vs. Sixth Industrial Tribunal, West

Bengal and others 1963 1 LLJ 745, a Single Judge of Calcutta High Court

has observed thus, "It is difficult for me, sitting in constitutional writ

jurisdiction, to interfere with a finding of fact, even though the findings may

have been arrived at on a wrong evaluation of evidence". The High Court

can interfere only if it is shown that the Award suffers from manifest error

of law or jurisdiction or is based on no evidence. In case the Award is

based on no evidence, the High Court would step in. In case award is based

on some evidence the High Court will refrain from interfering the same. A

Single Judge of this court in NDMC vs. Secy. (Labour) NCT of Delhi &

Ors. 2008 (4) AD (Delhi) 382 held as under:-

"Therefore, the findings of the Industrial Adjudicator are based on appreciation of evidence produced by the parties before it. The High Court in the exercise of jurisdiction under Article 226 of the Constitution of India interferes with the order of the inferior Tribunal in a writ of certiorari, only if the order assailed suffers from an error of jurisdiction or from breach of principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling this court to reappraise evidence as in an appeal and draw conclusions on questions of fact while exercising writ jurisdiction. The findings of fact

recorded by which Authority duly constituted for the purpose and, which ordinarily should be considered to have become final, cannot be disturbed, so long as they are based upon some material relevant for the purpose. The High Court ought not to re-adjudicate upon questions of facts decided by the Industrial Adjudicator unless the circumstances indicate that the Tribunal has snatched jurisdiction, not vested in it".

8. Finding of facts have been returned by the Industrial Adjudicator

upon close scrutiny of evidence. Upon appreciation of evidence it is held

that petitioner remained absent for almost one year on the ground of illness

which was suspicious, inasmuch as, no medical prescription, treatment

documents, diagnostic reports were produced. Instead of joining at Shimla

petitioner challenged his demotion and transfer order by filing civil suit

which was dismissed. Even after petitioner claimed to have recovered from

the ailment he did not report for duties at Shimla. Respondent no.2 had

written various communications to the petitioner calling upon him to join the

duty or face action but petitioner failed to do so. The findings of facts

returned by the Industrial Adjudicator are based on the evidence adduced by

the parties. It is not the case of petitioner that findings are based on no