Rakesh Beniwal vs M/S. Updater Services (P) Ltd. & ...
2015 Latest Caselaw 737 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+                          W.P.(C) 777/2015

%                             Judgement pronounced on: 28.01.2015

         RAKESH BENIWAL                                       ..... Petitioner
                           Through: Mr R.P. Sharma, Advocate

                           versus

         M/S UPDATER SERVICES (P) LTD. & ANR                ..... Respondents
                       Through: None.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT (ORAL)

1. By way of present writ petition, the workman has assailed the award

dated 05.02.2014 on the ground that the Central Government Industrial

Tribunal (CGIT) has not considered the evidence of the petitioner and had

reached a wrong conclusion that the services of the petitioner were

terminated. It is submitted that the award is bad in law and is liable to be set

aside.

2. The brief facts of the case are that the petitioner had joined the

services of the respondent No.1-M/s Updater Services (P) Ltd. Respondent

No.2 had outsourced the services to respondent No.1, who was the

contractor for providing housekeeping personnel at Terminal-3, Indira

Gandhi International Airport in Delhi. Respondent No.1 posted the

petitioner at Terminal 3, Indira Gandhi International Airport. Due to certain

complaints received from respondent No.2, his services from Indira Gandhi

International Airport were withdrawn by respondent No.1. The dispute

thereafter arose between the parties. According to the petitioner, his services

were terminated by respondent No.1, while the contention of respondent

No.1 before the Tribunal was that he was simply transferred to other place

and he still continues on the roll of respondent No.1 and his services were

never terminated.

3. The petitioner filed his claim before CGIT under Section 2A of

Industrial Disputes Act (hereinafter referred to as 'the ID Act'). Vide its

award dated 05.02.2014, the learned CGIT, after taking into consideration

all the evidences led by the parties, reached to the conclusion that the

services of the petitioner were never terminated. The finding of the CGIT is

reproduced as under:-

"17. Claimant project that his services were abruptly dispensed with on 01.03.2012. Contrary to it, Shri Rakesh Kumar deposed in bold works that the services of the claimant were transferred to some other site where he opted not to join his duties. He declared that as on date claimant is on

the rolls of the contractor. Out of facts unfolded by Shri Rakesh Kumar, it emerged that services of the claimant has neither been discharged, dismissed, terminated nor otherwise retrenched. When he still remains on rolls of his employer it is not a case relating to discharge, dismissal, retrenchment or otherwise termination of his services by his employer. As emerged out of records dispute relates to transfer of the claimant from one station to another. His employer wants him to comply transfer order but he is adamant in joining his duties at Terminal 3 Indira Gandhi International Airport, New Delhi. Whether this dispute will fall within the ambit of section 2-A of the Act, or that the claimant may avail provision of sub section (2) of the said section and seek adjudication of the dispute from the Tribunal, without it being referred for adjudication by appropriate government under Section 10(1)(d) of the Act. Answer is plain and simple. His dispute does not fall within the purview of Section 2-A of the Act, since he continues to be on the rolls of his employer. Machinery, provided under Section 2-A of the Act for resolution of disputes, relating to discharge, dismissal, retrenchment or otherwise termination of service of an employee will not come to his

rescue".

4. This order has been assailed by the petitioner by way of the present

writ petition on the ground that no transfer order has been produced by the

Management and the vague submission of respondent No.1 to this effect has

been accepted by CGIT, therefore, the order is bad in law. It is submitted

that the termination was illegal as it was violative of statutory provisions of

Sections 25-F and 25-H of the ID Act. It had also amounted to unfair labour

practices as per Section 2 (ra) read with Vth Schedule of ID Act. Reliance is

placed on Hercules Mechanical Workers and Ors. vs. Wire Ropes

Engineering Workers Union JT 2009(9) SC 281, wherein the Court had

dealt with the question of unfair labour practices. Reliance has also been

placed on Gujarat State Construction Corporation vs. Indravadan Ambalal

Soni 2003 LLR 916 of Gujarat High Court, wherein the Court had held that

non-production of letter of appointment will not enable the management to

justify the point that the workman was appointed for the project work.

Another judgment on which the petitioner has related is Nicks (India) Tools

vs. Ram Surat and Anr. 2004 LLR 966, wherein the Supreme Court has held

that failure of the respondent-Management to produce the document on

which stand point is based will not enable the management to justify its

stand that the workman had himself left the services and gainfully employed

somewhere else.

On these contentions, it is stated that the findings of CGIT-cum-

Labour Court, Karkardooma, is liable to be set aside and the matter be

remitted back for fresh adjudication. It is also prayed that the writ of

Mandamus be issued, thereby setting aside the action of the respondent of

terminating the workman and direction be issued to respondent No.1 to

reinstate the petitioner/workman with full backwages and continuity in

service.

5. I have heard the learned counsel for the petitioner. The petitioner has

sought vide this writ petition setting aside of the award with the prayer that

the same be remitted to the CGIT for fresh trial and has also prayed for

issuance of writ of Mandamus, whereby directing respondent No.1 to

reinstate him with full backwages and continuity in service. It is apparent

that the workman had invoked the jurisdiction of CGIT under Section 2A of

the ID Act. Section 2A of the said Act reads as under:-

"2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal,

retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."

6. From the bare perusal of this Section, it is apparent that workman can

file a claim directly before a Court under Section 2A only when his services

had been terminated. In the present case, the contention of the respondent

has been that the services of the petitioner had not been terminated at any

stage and on complaint from respondent No.2, his services were withdrawn

and he was transferred to other place, but he did not report for duty. From

the award of the CGIT, it is apparent that CGIT has followed the due

procedure. It recorded the evidences of the parties and heard the learned

counsels and on the basis of evidences on record, it reached to the

conclusion that services of the petitioner were never terminated. This finding

of fact of the CGIT has, in fact, been challenged by the petitioner by way of

this writ petition.

7. The jurisdiction of this Court under Article 226 of the Constitution

has been discussed in several cases. Settled principle of law is that the Court

can correct a judgment of the Lower Court when it is clear that the said

judgment suffers from an error of law. It is apparent that this Court does not

sit as a Court of Appeal over the judgment of a Subordinate Court. It is also

not the function of the High Court to review the evidence and to arrive at an

independent finding on the basis of evidences. Only when it is shown that

procedure adopted is inconsistent with the Statute or with the rules of natural

justice, or where it is shown that the decision is not a fair decision, but is

based on some extraneous consideration or where on the face of it, it is

shown that the order is wholly arbitrary or capricious that no reasonable

person could have arrived at that conclusion, the Court can interfere with the

order.

8. In the present case, as is apparent from the order of the CGIT, that

CGIT has arrived at its conclusion after taking into consideration all the

evidences on record and the petitioner has not been able to show that there is

any error apparent on the face of the order or it is violative of any

substantive law. The Court in exercise of its writ jurisdiction cannot set

aside an award only on the premise that the Tribunal has reached to a

conclusion which is not acceptable to the petitioner. The Court certainly in

the writ jurisdiction is not sitting in the appellate jurisdiction.

9. Since the impugned order apparently shows that it is based on cogent

evidences on record, once the CGIT reached to the conclusion that services

of the petitioner were never terminated by respondent No.1, it certainly had

no jurisdiction to deal with the issue under Section 2A of the ID Act. There

is no error apparent on the face of the award and no ground has been made

out for setting aside the impugned award.

10. Moreover, it is strange that when the Management says that it had

never terminated the services of the petitioner, why the petitioner is not

interested in joining his duties at the transferred place. A workman cannot

insist upon its employer to assign a particular duty to him. He is required to

work wherever he is asked to work. The petitioner has claimed the relief of

reinstatement by raising a dispute and when his Management has said that

his services were never terminated, it was always open for the petitioner to

join his duties. The reason of not doing so has only been known to the

petitioner himself.

The writ petition is dismissed with no order as to costs.

DEEPA SHARMA (JUDGE) JANUARY 28, 2015 BG