Management Of M/S Suraj Cinema vs Presiding Officer (Labour Court ...
2015 Latest Caselaw 3009 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 5163/2002
                                  Judgment reserved on: 19.03.2015
                                  Judgement pronounced on: 16.04.2015

      MANAGEMENT OF M/S SURAJ CINEMA                        ..... Petitioner
                             Through:   Mr.Ashok Kashyap, Advocate along
                                        with Mr Anand Prakash, Manager,
                                        M/s Suraj Cinema
                    versus

    PRESIDING OFFICER (LABOUR COURT NO.7) & ORS.
                                       ......Respondents
                  Through: Ms.Ripu Adlakha, Advocate
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. Vide the present writ petition the petitioner has assailed the award

dated 20.09.2001 passed by the Presiding Officer, Labour Court No.VII in

I.D.No.685/91 whereby the Labour Court held that the services of the

workman were illegally terminated and ordered for the reinstatement of the

workman with full back wages and continuity of service.

2. It is the management who has challenged the said award. The

petitioner has submitted that the award of the labour court is illegal and the

error is apparent on the face of the award. It is submitted that the facts and

the evidences have also not been properly appreciated by the Labour Court.

It is submitted that the case of the petitioner in written statement was that the

workman had left the services on his own and did not report for duty and the

petitioner had sent notices asking him to join the duties, but instead of

joining duties the workman had settled his accounts and abandoned his

services. It is submitted that the petitioner had never terminated the services

of the workman. It is submitted that the alleged settlement which the labour

court had put emphasis upon, was not the settlement of the dispute between

them but it was the settlement of the accounts. It is further submitted that

there were certain admissions made by the respondent and contradiction in

the evidence of the respondent yet those were not considered by the learned

labour court. It is submitted that the findings suffer with illegality and the

impugned award is liable to be set aside.

3. In the counter affidavit filed by the respondent no.4/workman, it is

alleged that the findings of the labour court does not suffer with any

illegality. It is submitted that it was only in the cross examination before the

labour court that the management had come out with the false plea that it

had paid Rs.3,250/- through the alleged voucher and that the voucher was

fake and fabricated document and had no relevancy and there was no such

settlement of accounts and there was no other settlement between them at

any point of time. It is submitted that the petition is liable to be dismissed.

4. I have heard the arguments of the learned counsels for the parties.

5. In the present case admittedly there was a relationship of the

employer and employee between the petitioner and respondent no.4 and the

respondent no.4 was working with the management since 1982 as a lineman

at the monthly salary of Rs.500/- per month.

6. As per the contention of the respondent no.4/workman his services

were terminated on 23.01.1990 without any rhyme or reason and he, thus,

had challenged his alleged termination of services on 23.01.1990 by raising

the dispute.

7. The management in his written statement had taken the plea that the

workman had abandoned the service on his own and stopped reporting on

job and the petitioner had written letters dated 03.02.1990 and 06.02.1990

asking him to join his duties but he did not join his duties and subsequently,

he informed them that he was not interested to continue in the job and

sought settlement of his accounts vide a voucher.

8. The Secretary, Labour, Government of NCT of Delhi had referred the

following industrial dispute for adjudication: (page 71)

"Whether Shri Ved Pal Singh has left his job after full and final settlement of his accounts or his services have

been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

9. The reference has two parts (a) whether Ved Pal Singh had left his job

after full and final settlement of his accounts and/or (b) his services were

terminated illegally or unjustifiably. The plea of the management was that

the workman left his job and did not come to join the duties despite their

letters dated 03.02.1990 and 06.02.1990 and subsequently, he came and

settled his accounts. The voucher by which the accounts were settled by the

workman has been proved as Ex.MW-1/1 before the labour court. The

workman had flatly denied his signatures on this voucher Ex.MW1/1. The

management called the handwriting expert opinion who gave his expert

opinion and proved that the voucher bore the signatures of the workman.

10. English translated copy of voucher Ex.MW1/1 is reproduced as under:

SURAJ CINEMA

Debit voucher No. ........ New Delhi 21.4.1990

Dr. Arrear Payment a/c

Paid Ved Pal due to 3250/-

      full and final settlement
      clearing full payment

                    Paid by cash

Rupees 3250.00/-                  Total     3250/-

 sd/-                                         sd/-
Accountant                                   Partner/Manager
                                             21.4.90

Recd Rupees 3250/-
on account of arrear payment

                                            sd/-
                                      (Ved Pal Singh)

11. From perusal of this voucher it is clear that it is a debit voucher

relating to "arrear payment account". Workman Ved Pal vide this voucher

received the amount on account of "arrear payment". The voucher thus does

not show that the workman and management had settled their dispute vide

this voucher.

12. Even otherwise, the terms of reference does not speak of full and final

settlement of "dispute" by the parties. None of the party had contended at

any stage that there was a settlement of dispute. The plea of petitioner all

along had been that the workman had abandoned his job and settled his

accounts and this is reflected in reference as "Whether Shri Ved Pal Singh

has left his job after full and final settlement of his accounts....". Thus,

there was neither a reference nor a plea before labour court that the parties

had settled their disputes.

13. The dispute between the parties relates to termination of the

employment (as per contention of the workman) or abandonment of service

by workman (as per contention of the management) and despite that the

labour court had proceeded by framing the question in para 15 of its award

in the following manner:

"15. The short question now to be answered is whether the kind of settlement which is before the court in the form of voucher is in accordance with provisions of the Industrial Dispute Act".

14. It is apparent that the labour court without application of mind and

contrary to the terms of reference and pleadings of the parties proceeded to

deal with the matter as if there was settlement of dispute by the parties. The

award is contrary to the facts, pleas and contentions of the parties. It is also

apparent that the labour court has not answered the reference which related

to questions whether there was abandonment of the service by the workman

or whether his services were terminated. The labour court has concluded his

award with the remark "In view of the above discussion, I am of the

opinion that there was no valid settlement in the eye of law on the basis of

which services of the workman were terminated", failing to appreciate the

fact that none of the party before him had raised the contention that the

services were terminated on the basis of settlement. The main issue between

the parties have not been even touched or discussed by the labour court.

There is total absence of application of mind by the labour court on the real

issue between the parties. The findings are based on conjectures and

presumption of facts, neither raised by parties nor referred for adjudication.

15. 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.

16. 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 the writ proceedings. An error of law which is

apparent on the face of the record can however 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 his 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.

17. Section 10 (4) of the I.D.Act requires that when by an order while

referring an industrial dispute to a Labour Court, Tribunal or National

Tribunal under this section or in a subsequent order, the appropriate

Government has specified the points of dispute for adjudication, the

Labour Court or the Tribunal or the National Tribunal, as the case may

be, shall confine its adjudication to those points and the matters incidental

thereto. The issue of settlement of dispute was neither referred to nor

included in main dispute.

18. The award of the labour court, thus, suffers with patent illegality on

the face of it and is hereby set aside.

19. Since the labour court has not recorded any finding on the facts of the

case, the matter is remanded back to the labour court with direction to re-

hear the arguments of the parties and give its findings preferably within two

months from the receipt of this order.

20. The writ petition stands disposed of with the above directions.

DEEPA SHARMA (JUDGE) APRIL 16, 2015 rb