The Management Of M.C.D vs Praveen Kumar & Anr.
2015 Latest Caselaw 3364 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 6372/2002

                                  Judgment reserved on: 20.04.2015
                                  Judgement pronounced on: 27.04.2015

      THE MANAGEMENT OF M.C.D                            ..... Petitioner
                         Through: Mr.Deepak Bhaskar for Ms.Shyel
                         Trehan, Advocate.


                         versus

      PRAVEEN KUMAR & ANR.                     ..... Respondents
                  Through: Mr.Rajiv Agarwal and Mr.Sachin
                  Kumar, Advs.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. Vide the present writ petition, the petitioner has challenged the award

dated 06.07.2001 whereby the learned Presiding Officer has held that the

workman was entitled to be appointed on the post of computer operator

w.e.f. 29th March, 95 in the proper pay-scale of computer operator and other

consequential benefits and also awarded Rs.1000/- towards cost of litigation.

2. The admitted facts of the present case are that respondent no. 1,

Mr.Praveen Kumar, was working with the management. He joined the

employment of the MCD in its Engineering Department at Division No.25,

Under Fly Over, Sewa Nagar, New Delhi on 15.04.88 as a Muster Roll

Beldar.

3. Vide a Circular, the petitioner had invited the applications of the

eligible candidates by 10.01.1994 for the post of Computer Operator having

following qualifications:-

1. Having a degree of matriculation (10th) or equivalent from a

recognized University/Board or Institution.

2. Good knowledge of Hindi & English Typing.

3. Certificate of Computer Operating.

4. The respondent no.1 had applied for post of Computer Operator vide

its application showing his educational qualification as under:-

(a) Matriculate from CBSE Delhi in the year 1983.

(b) Intermediate (10+2) with science subjects from the

CNSE Delhi in the year 1985.

(c) B.Sc (Gen) (Phy, Chem, Math & Eng) from Merrut

University in 1987.

(d) Diploma in Computer Science (Basic, Cobol & Dbase-

III) from Vocational Training Centre Delhi.

(e) Knowing Hindi & English Typing.

5. The respondent no.1 also disclosed that he was working in Division

XXV Engineering Department of MCD since April 1988. Thereafter, vide

the office order dated 24th\November,1995, the respondent no.1 was called

for trade test on 10.02.1995 at 2.00 pm at modernised Press, Civil Lines

Zone, 16-Rajpur Road, Delhi. Respondent No.1 vide order dated 02.03.95

was thereafter transferred and posted against vacant post of Computer

Operator but when he went to join his duties, pursuant to a transfer order, he

was asked to produce his relieving order of LDC and was not allowed to join

at the post of Computer Operator for the reason that he could not produce

the relieving order as LDC. The respondent No.1 then raised the dispute and

the matter was referred vide reference as under for adjudication.

"Whether denial of appointment on the part of Computer Operator to Sh.Praveen Kumar by the management w.e.f. 09.03.1995 is illegal and/or unjustified and if no, to what relief is he entitled and what directions are necessary in this regard?"

6. Before the learned Presiding Officer, the contentions of the petitioner

were that the required qualifications for the post of computer operator was

LDC and raised the preliminary objection that the claim was bad in law and

liable to be dismissed since the workman i.e. respondent no.1 did not

possess the required qualification for the post of computer operator as he

was working as Muster Roll Beldar.

7. The learned tribunal has dealt with both the contentions of the

petitioner and after recording the evidences and on the basis of the evidences

and the documents produced before it, reached to the conclusion that the

circular, inviting application for the post of computer operator was silent

about the LDC being the required qualification for the post of Computer

Operator.

8. The learned tribunal has also observed that the respondent no.1/the

workman had nowhere mentioned in his application when applying for the

post of computer operator that he was holding the post of LDC and also

gave emphasis on the fact that he was found eligible for the post of

computer operator and that is why he was called for the trade-test.

9. It is also apparent that before the Labour Court, the petitioner had,

during the trial, tried to prove that Praveen Kumar shown in the office order

dated 2nd March, 95 and was transferred and posted in the vacant post of

computer operator, was some other Praveen Kumar and not the respondent

no.1 by leading evidences although no such contention was raised in the

written statement. Despite the fact that there was no pleading on the part of

petitioner of the fact that the office order dated 2nd March, 1995 wherein two

LDC's, one of which is shown as Praveen Kumar, did not relate to Praveen

Kumar/claimant. The court had allowed the petitioner to lead evidences on

these pleas and after considering all the evidences produced by the petitioner

reached to the conclusion that this plea of the petitioner was false and had no

merit and was self-contradictory and amounted to blowing hot and cold by

the witness.

10. The court has observed as under:-

"13. The management examined Sh.P.K. Gupta, Controller, Printing Press as MW1, who stated that the workman applied for the post of Computer Operator with them and this post was sanctioned only for internal candidates who were working as LDCs with them. The workman had applied for the same, but he has never disclosed in the application that he was working as an LDC with them to fulfil the above conditions vide copy of application Ex.MW1/1. They did not give any offer of appointment or trade test etc to the workman for above reason. They have not yet declared the result of above post even till that day as the recruitment rules are not yet notified. They were not sanctioned as there is some difficulty regarding the pay scale. However,to do the work of Computer Operator they have transferred two LDCs vide Ex.MW1/2. The name of Praveen Kumar appearing in Ex.MW1/2 was for another Praveen Kumar and not the present workman as the present workman was working as muster roll Beldar while the above Praveen Kumar of Ex.

MW1/2 was working as a LDC. It is pertinent to note here that this witness is deposing contrary to the documents issued by management itself and the management has not examined any other such Praveen Kumar to show that this document Ex.MW1/2 belongs to some other person. He has also not filed any other document to show that there was some other Praveen Kumar who was posted vide Ex.MW1/2. The management was in possession and control of such a material evidence, but the same has been withheld by the management was in possession and control of such a material evidence, but the same has been withheld by the management without any sufficient reason which could throw light on the material question of controversy. Therefore, it is presumed that management has no such evidence, and if at all it was there, this statement of Ex.MW1/2 cannot be believed that document Ex.MW1/2 belongs to another Praveen Kumar. This witness has deposed that they have not called this workman for any trade test or anything else contrary to the documents on record. Thus his testimony does not inspire any truth in this respect. He further deposed that they did not allow the workman to join as Computer Operator as per the above transfer as he was not an LDC. They have told him to get the relieving order as an LDC and then approach them to join as Computer Operator. This version of this witness is like that he is blowing hot and cold in the same breath as earlier he was stating that this letter did not belong to workman and later on he stated that they called him to get the relieving letter as LDC."

11. It is this award which the petitioner has challenged before this court.

12. The plea before this court is that respondent no.1 who is the daily

rated/muster roll beldar that too in some other department of MCD, could

not be appointed as a computer operator and that there was nothing on

record to show that the respondent no.1 was actually working as LDC. It is

also argued that although applications were invited for the post of LDC but

no results has so far been declared and none has selected. The office order

dated 02.03.1995 was merely a transfer order and not the appointment order

of the workman/respondent no.1. It is further argued that the fact that the

respondent no.1 had failed to produce the relieving order from the earlier

department as LDC shows that he had never worked as LDC. It is submitted

that the award is perverse and contrary to a settled principle of law.

13. Reliance is also placed on the findings of the Supreme Court in the

case of State of Haryana Vs. Sh. Surinder Kumar and Anr reported in AIR

1997 SC 2197.

The Hon'ble Supreme Court has held as under:-

"Merely because the post held by daily rated workers and regular employees are inter changeable but still the daily rated workers do not undergo selection process of recruitment. Under these circumstances, the workman is not entitled for equal pay as was being drawn by regular ward boys during the period when he was treated as daily wager."

14. It is submitted that in view of this since he was simply a beldar, he

could not have been appointed as a computer operator on regular basis. It is

prayed that award be set aside.

15. The petition is contested by the respondent no.1. It is submitted that

the learned tribunal had, on the basis of the evidences led before it has given

its findings. These are the findings of fact and cannot be challenged under

Article 226 of the Constitution of India as this court does not sit as an

appellate court and is prevented from re-appreciating the evidences.

16. Reliance is placed on the case of Syed Yakoob vs. K.S.

Radhakrishnan and Ors, AIR 1964 SC 477.

17. It is submitted that petition is liable to be dismissed.

18. I have heard the arguments and perused the relevant records. My

findings are as under:

19. Admittedly, there was a circular dated 22nd December,1993 whereby

the applications were invited for the post of computer operator. From the

bare perusal of the circular, it is apparent that there was no such condition

that only the LDCs could apply for the said post. It was an open invitation

to all those persons who were having a degree of matriculation, good

knowledge of Hindi & English Typing and a Certificate of Computer

Operating. It is also an admitted fact that pursuant to the application of the

respondent no.1 to the said post, he was called for trade-test.

20. It is argued on behalf of the petitioner that the result has not been

declared so far and no select list has been prepared, therefore, it cannot be

said that the respondent no.1 was a successful candidate. It is apparent from

the pleadings and from the Statement of Claim before the tribunal that the

petitioner is not claiming his right to the post of computer operator as a

successful candidate. His claim had arisen when pursuant to the office order

dated 2nd March, 95, he was not allowed to join at the transferred place at the

post of Computer Operator in the office of C.P&S. His contention was that

since he was found eligible for the post of Computer Operator and called for

trade test and possessed all the required qualification (as per circular inviting

application for said post) and subsequently transferred to man that post, he

ought to have been allowed to join. He contested the said plea before the

tribunal wherein the petitioner took the plea that the person shown as LDC

in the transfer order 2nd March, 1995 was the some other person and not the

respondent no.1. The contention of the respondent no.1 before the tribunal

was that this transfer order was received by him and that although he had

been shown as muster roll employee, he actually had been working as the

LDC. The tribunal, on the basis of evidences, rejected the contention of the

petitioner that Praveen Kumar shown as LDC in office order dated 2nd

March, 1995 was some other and reached to the conclusion that the transfer

order relates to the respondent no.1/workman.

21. Now, the question is whether the finding of fact can be interfered with

by this court in exercise of its jurisdiction under Article 226 of Constitution

of India.

22. The jurisdiction of this court to issue a writ of certiorari is very

limited. It can be done only when there is an error of law on the face of the

award or where the award has been passed without any jurisdiction. The

scope of the jurisdiction of the court under Article 226 and 227 of the

Constitution of India has been discussed by the courts in several

pronouncements. The Supreme Court delineated the scope of writ of

certiorari in the following words in Syed Yakoob case (supra).

" 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 writ proceedings. An error of law which is apparent on the face of the record can 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 the impugned 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. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court."

23. In the case of Sadhu Ram Vs.Delhi Transport Corporation, AIR

1984 SC 1964, the Supreme Court has discussed the jurisdiction of this

Court under Article 226 and has held as under:-

"We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudciate upon questions of fact decided by those Tribunals."

24. In Harbans Lal vs. Jag Mohan (1985) 4 SCC 333 also, the Supreme

Court has clearly held that in exercise of the jurisdiction under Article 226

and 227 of the Constitution, it is not open for the High Courts to re-

appreciate the evidences on record and then give its findings. The Court has

clearly held that "We are satisfied that the High Court travelled outside its

jurisdiction in embarking upon a reappraisal of the evidence."

24. The proposition of law therefore is very clear. In the cases where the

admissible evidences are not considered or left out or where non-admissible

evidences have been relied upon or undue emphasis have been given to

extraneous considerations or where the findings are based on no-evidence,

the findings of the fact can be interfered with but where the tribunal has

based its findings on the evidences before it on the issues in dispute, it

cannot be said that the tribunal exceeded its jurisdiction. In such cases, it is

desired that the courts should be slow in interfering with the orders of the

tribunal.

25. In the present case, the petitioner has failed to point out that the

tribunal while reaching to the conclusion has relied on non-admissible

evidences or has left out any material evidences from consideration or that

the findings are based on no-evidences.

26. The learned tribunal has considered all the aspects of the case and

then reached to the conclusion that Praveen Kumar who was shown working

as a LDC in the transfer order dated 2nd March, 1995 vide office order no.

F.1/1 95-CED(C) 81 was the respondent no.1. When the petitioner himself

has treated the respondent as LDC and transferred him to the post of

computer operator, refusal to allow him to join the said post, only on the

ground that he had failed to obtain the relieving certificate of LDC is

certainly high handedness of the department of the petitioner who had

refused to issue the relieving order of the respondent no.1 despite the fact

that in the order dated 2nd March, 1995, he was shown as LDC. It seems

that the respondent no.1 has become a scape goat between different

departments of the MCD. One department is treating him as an LDC and

passing transfer order on that basis and the other refused to allow him to join

the duties. It is apparent to mention here that while inviting the application

to the post of computer operator, there was no eligibility criterion that the

person must be working or posted as LDC. The petitioner has also failed to

show any recruitment rules on record showing that the eligibility criterion

for post of Computer Operator was LDC. In the absence of any such

criterion, the insistence on the part of petitioner that only LDC could be

appointed on the said post was inconsistent to its own earlier orders and

stand.

27. There is no illegality in the award. The petition has no merit in it and

the same is dismissed.

No order as to cost.

DEEPA SHARMA (JUDGE) APRIL 27, 2015 sapna