Delhi State Civil Supplies Corpn. ... vs Presiding Officer & Anr.
2015 Latest Caselaw 3057 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 7694/2002

                                  Judgment reserved on: 10.04.2015
                                  Judgement pronounced on: 17.04.2015

      DELHI STATE CIVIL SUPPLIES CORPN. LTD.               ..... Petitioner
                         Through: Ms. Anju Bhattacharya, Advocate

                         versus

      PRESIDING OFFICER & ANR.                   ..... Respondents
                    Through: Mr.Rakesh Aggarwal, Advocate

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. Vide the impugned award, the Labour had court reached to the

conclusion that the termination of the workman on 14.06.1985 without

holding an enquiry into the misconduct was bad and that the management

has failed to prove that misconduct in the court and since there was no

compliance of Section 25F of the Industrial Disputes Act, the order of

reinstatement of the workman with full back wages and continuity of service

was passed.

2. The said award has been challenged by the petitioner on several

grounds. The copies of the statement of claim/written statement and the

rejoinder, which were part of the trial court record has been placed on record

alongwith the present writ petition.

3. I have heard the arguments of learned counsel of parties and have

perused the record.

4. The following reference was made to the Labour Court:-

"Whether the termination of services of Sh.Bishan Swaroop Vashist is legal and justified and if not to what relief is he entitled and what directions are necessary in this respect?"

5. Pursuant to the said reference, the workman filed the statement of

claim wherein he has alleged that he had been appointed with the

management on 31st March, 1983 at a monthly salary of Rs. 400/- and his

services were initially terminated on 14 th June, 1985. He sent a protest letter

dated 16th August, 1985 by registered A.D No.77 dated 19th September,

1985 and thereafter he was again taken back in the employment w.e.f. 21 st

June, 1985. He worked on that post till 13 th July, 1985. He was thereafter

again appointed as a daily wage helper. He was harassed and he was not

given any work w.e.f. 9th May, 1986 stating that " your Muster-Roll has

expired". He has also alleged that while he was denied the work, his juniors

were retained. He sent a registered demand notice vide demand letter no.

2903 dated 14th June, 1986 which was duly received by the management but

was not replied. On these facts, he has also alleged that he remained

unemployed from the date of termination.

6. The contention of workman before labour court was that his

termination w.e.f. 9th May, 1996 was illegal.

7. The management filed a reply to the Statement of Claim. The

management/petitioner had denied the appointment of the

workman/respondent w.e.f. 31st March, 1983 but had alleged that the

workman was appointed w.e.f. 28th June, 1983 as per letter no. 1(22)/82-

DSCSC/5816 dated 22nd June, 1983 on the consolidated salary of Rs.400/-

per month. It is further submitted that services of the workman were

discontinued as per order no. F.1(658)/83-DSCSC/651-24 dated 14th June,

1985 under Rule 5 of the CCS (TS) 1965 applicable to the applicant and he

was paid one month salary as per the rules which was duly accepted by the

workman towards full and final settlement of all his claims. The workman

was re-appointed w.e.f. 21st June, 1985 on his personal representation as the

helper on daily wages at the rate of 13.60 per day at Safdarjung Flyover

(Mobile Unit) as per formal order No.F.1(685)/83-DSCSC/8283-85 dated

06.08.1985.

8. The contention of the petitioner is that the workman did not bother to

attend the office after 9th May, 1986 and left the job on its own without any

information and any application. The petitioner/management however

continued to carry the name of the workman upto 27th September, 1986 as

per Admn. order no. (863)/84-DSCSC/4826 dated 26.08.1986.

9. The receipt of the demand notice to the workman by registered post is

also admitted and it was submitted that the representation of the workman

was rejected and workman was accordingly informed.

10. It was on these facts that the parties had led their evidences before the

labour court.

11. From the perusal of the award, it is clear that the labour court had not

applied its mind in this case. In the award, the labour court has not even

recorded the complete facts of the case and has not discussed all the

contentions of the parties.

12. As per the Statement of Claim, it is apparent that the workman had

challenged the termination w.e.f. 09.05.1996 yet the Labour Court has

proceeded in the following manner:-

" 8. Issue No.1 The burden to prove this issue lies on the workman. The case of the workman is that he worked with the management from 28.06.83 to 14.06.85 and his services were terminated on 14.06.85 without any notice and domestic enquiry. The management on the other hand admitted the tenure of service

and termination date of the workman. It pleaded that since the workman remained absent from 15.10.84 to 18.10.84, 22-10- 84, 25-10-84 and again absented on 02-05-85 the workman was issued memorandum about his unauthorised absence and calling upon him to resume duty. Since he did not file any reply to the memorandum his services were terminated. He was again appointed as a daily wager helper after a week on 21-06- 85 but left the management on 09-05-86 of his own accord and thereafter never reported for duty. It is clear from the facts stated above that the workman remained in continuous service with the management from 28-06-83 to 14-06-85 when his services were terminated by the management due to his absence. The management did not hold any domestic enquiry into the misconduct of absenteeism which renders the action of the management highly unwarranted. Admittedly, the workman was reappointed on 21-06-85 as a daily wager who left the management on 06-05-86. The management failed to hold the enquiry into the misconduct which is essential before taking any action against the workman. The management even failed to prove the misconduct in the Court."

13. The labour court has adjudicated the legality or illegality of

termination of the workman on 14.06.85 and held that termination was

wrong as no inquiry was done into misconduct and concluded accordingly,

while simultaneously he has also held that "Admittedly, the workman was

reappointed on 21-06-85 as a daily wager who left the management on 06-

05-86." From this noting in judgment, it is clear that labour court concluded

that "it was an admitted fact that workman left the management on

06.05.1986", while it is contrary to the facts on record. The workman has

categorically contended in para 4 of his Statement of Claim that he was not

assigned any work w.e.f. 09.05.86 on the pretext that muster roll had come

to an end. It is an admitted fact that after the termination of the workman on

14.06.85, he was taken back in the employment by the management and has

worked till 8th May, 86.

14. The issue before labour court was whether the services of workman

were terminated as 09.05.86 on pretext of end of his muster roll or he

stopped reporting on duty w.e.f. 09.05.86 and still maintained his name in its

muster-roll till 28th August, 86. The issue for adjudication before the labour

court thus was whether the services of workman were terminated on 9 th

May, 86 by denying to work to him or whether the workman had abandoned

his services w.e.f. 9th May, 86. This issue has not been dealt with by the

labour court.

15. It is a settled law that in exercise of the jurisdiction under Article

226/227 of the Constitution of India, this court does not sit as a court of

appeal over the award of the inferior court. Only an error of law which is

apparent on the face of the record can be corrected. It is shown that certain

important facts on record have not been considered while arriving to the

conclusion when these facts are material for determination of the real issue

between the parties. The award of the labour court therefore suffers

immensely both on facts as well as on application of law. It is apparent that

the entire award is contrary to the admissible facts and evidences on record

and the court has based its finding on non-issues.

16. In view of the above discussion, the award dated 01.02.2002 is set

aside. The matter is remanded to the labour court to re-hear the parties and

give its findings preferably within two months of the receipt of this order.

DEEPA SHARMA (JUDGE) APRIL 17, 2015 sapna