Delhi High Court
Municipal Corporation Of Delhi vs Hari Kishan on 17 September, 2014
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.09.2014
+ W.P.(C) 6335/2010 & CM No.12589/2010
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
versus
HARI KISHAN ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms Shobha Gupta.
For the Respondent : Mr Varun Prasad.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J (ORAL)
1. The petitioner impugns an award dated 17.02.2010 passed by the
Labour Court in Industrial Dispute No.73/2008 (hereinafter referred to as
the 'impugned award'). By the impugned award, the Labour Court
concluded that the respondent worked as a 'Garden Chaudhary' w.e.f.
1992, however, the Labour Court rejected the claim of the respondent for
regularization as Garden Chaudhary.
2. Brief facts of the case are that the respondent joined the petitioner's
establishment as a 'Mali' in 1981. According to the respondent (workman),
he was assigned the work of a 'Garden Chaudhary' w.e.f. 01.12.1987. The
principal grievance of the petitioner was that although he had been working
as a 'Garden Chaudhary', he was denied the emoluments payable to an
incumbent of that post. It was the respondent's case that whereas the duties
of a Mali were akin to that of an unskilled workman, the work of a Garden
Chaudhary was of a skilled nature. The respondent also sought to be
regularised at the post of 'Garden Chaudhary'.
3. Since the claim made by the respondent was disputed and the
conciliation proceedings were not successful, the appropriate Government
referred the following dispute to the Labour Court:-
"Whether Sh. Hari Kishan S/o Sh. Dalel Singh, was allotted
duty of Garden Chaudhary by the Management and if answer
is affirmative; whether said Sh. Hari Kishan is entitled to be
regularized in service as Garden Chaudhary and if so from
what date ?"
4. The respondent filed his statement of claims and the Labour Court
framed the following issues:-
"1. Whether the cause of the workman has been duly
espoused?
2. Whether the claim is liable to be rejected as claimed in
preliminary objection No 2 in the written statement?
3. As per terms of reference."
5. In proceedings before the Labour Court, the petitioner disputed the
respondent's claim that he was promoted to the post of Garden Chaudhary
and performed the duties of a Garden Chaudhary. The petitioner alleged
that the post of Garden Chaudhary was a promotional post and qualifying
the trade test was mandatory for promotion to the said post.
6. By the impugned award dated 17.02.2010, the Labour Court
considered the evidence including a list issued by the Deputy Director
(Horticulture), Shahdara, North Zone, which indicated that the petitioner
had been working as a Chaudhary w.e.f. "1992" (Ex WW1/1). The Labour
Court also took note of a copy of I-card and the Attendance Register
(collectively marked as Ex.WW1/2) where the designation of the
respondent had been mentioned as "Chaudhary" and concluded that the
respondent had been assigned the work of "Garden Chaudhary" w.e.f.
1992. However, since it was not disputed that the respondent was illiterate
and had not passed the trade test, the Labour Court rejected the claim of
respondent for regularisation at the said post on the ground that he did not
have the requisite qualifications for the post of Garden Chaudhary.
7. Insofar as the respondent's claim for remuneration equal to that of a
Garden Chaudhary is concerned, the Labour Court referred to the decision
of the Supreme Court in Selvaraj v. Lt. Governor of Island, Port Blair and
Ors.: (1998) 4 SCC 291 and concluded that since the respondent had
worked as a Garden Chaudhary, he would be entitled to remuneration
payable for the said post, for the period he performed the duties of a Garden
Chaudhary. The Labour Court also relied on the decision of this Court in
Municipal Corporation of Delhi v. Jagpal Singh: W.P.(C)
No.12646/2009, decided on 27.10.2009 in arriving at its conclusion that the
respondent's claim for remuneration as a Garden Chaudhary was justified
for the period he had worked as such.
8. The learned counsel appearing for the petitioner has not challenged
the decision of the Labour Court that the respondent would be entitled to
remunerations paid to a Garden Chaudhary for the period he had worked as
such. She has focussed her arguments to impugn the findings of the Labour
Court that the respondent had worked as a Garden Chaudhary. It was
contended by the learned counsel for the petitioner that the respondent had
worked as a Mali and had not worked as a Garden Chaudhary. She
submitted that the Labour Court had failed to appreciate that no record had
been produced for the period during which the respondent claimed to have
had worked as a Garden Chaudhary.
9. The question whether the petitioner worked as a Garden Chaudhary
or not is a question of fact and the Labour Court had appreciated the
documentary evidence as well as the testimony of the workman in arriving
at its conclusion. The conclusion, thus, arrived at by the Labour Court
cannot be stated to be perverse or without any material.
10. It is well settled that this Court in exercising powers under Article
226/227 of the Constitution of India would not re-appreciate evidence and
supplant its opinion for that of the concerned authority. The Supreme Court
in Amrit Vanaspati Co. Ltd. v. Khem Chand: (2006) 6 SCC 325 stated the
aforesaid principle as under:
"..the High Court while exercising powers under writ
jurisdiction cannot deal with aspects like whether the quantum
of punishment meted out by the management to a workman for
a particular misconduct is sufficient or not. This apart, the High
Court while exercising powers under the writ jurisdiction
cannot interfere with the factual findings of the Labour Court
which are based on appreciation of facts adduced before it by
leading evidence."
11. In Apparel Export Promotion Council v. A.K. Chopra: (1999) 1
SCC 759, the Supreme Court set aside an order of the High Court and held
as under:
"16. The High Court appears to have overlooked the settled
position that in departmental proceedings, the disciplinary
authority is the sole judge of facts and in case an appeal is
presented to the appellate authority, the appellate authority has
also the power/and jurisdiction to reappreciate the evidence and
come to its own conclusion, on facts, being the sole fact-finding
authorities. Once findings of fact, based on appreciation of
evidence are recorded, the High Court in writ jurisdiction may
not normally interfere with those factual findings unless it finds
that the recorded findings were based either on no evidence or
that the findings were wholly perverse and/or legally untenable.
The adequacy or inadequacy of the evidence is not permitted to
be canvassed before the High Court. Since the High Court does
not sit as an appellate authority over the factual findings
recorded during departmental proceedings, while exercising the
power of judicial review, the High Court cannot, normally
speaking, substitute its own conclusion, with regard to the guilt
of the delinquent, for that of the departmental authorities "
12. Since the finding arrived at by the Labour Court that the respondent
had worked as a Garden Chaudhary is a finding of fact based on
appreciation of evidence, which cannot be stated to be perverse, no
interference with the said finding is warranted in these proceedings.
13. Accordingly, the petition and the application are dismissed. No order
as to costs.
VIBHU BAKHRU, J
SEPTEMBER 17, 2014
RK
