M/S Associated Trading Co. vs Sh. Ram Vishal
2015 Latest Caselaw 8061 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Decision: 20th October, 2015
+       W.P.(C) 7184/2013

        M/S ASSOCIATED TRADING CO.                                          ..... Petitioner
                        Through:   Mr.Raj Rishi, Advocate

                              versus

        SH. RAM VISHAL                                                 ..... Respondent
                              Through:       Mr.Manish Sharma, Advocate along with
                                             the respondent in person.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                       JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this writ petition under Article 226 and 227 of the Constitution of India is to the award dated 11.09.2012 passed by the learned Presiding Officer, XI, Labour Court, Karkardooma Court, Delhi in ID No.114/05 whereby the termination of services of the workman was held to be illegal and unjustifiable. A compensation of Rs.1,50,000/- was awarded to the workman besides a sum of Rs.10,000/- towards litigation expenses.

2. The appropriate government sent a reference dated 05.08.2005 relating to the industrial dispute between the parties with the following terms of reference:

"Whether the services of Sh.Ram Vishal S/o Sh.Barsati Lal were terminated illegally and/or unjustifiably by the Management, and if so, to what sum of monetary relief along with consequential benefits in terms of existing Law/Government Notifications and to what other relief was he entitled and what directions were necessary in that respect?"

3. In the statement of claim filed by the respondent (hereinafter referred as 'workman'), he claimed to have been working with the petitioner (hereinafter referred as 'management') since 02.04.1982 at the last drawn salary of Rs.1400 per month. He alleged that he was illegally terminated on 07.08.2004 without giving him any notice or

notice pay. As per claim, he contacted the labour department but could not get any relief. Ultimately he raised the industrial dispute.

4. The claim of the workman was contested by the management solely on the ground that there was no relationship of employer and employee between the parties.

5. That being so, the labour court framed the following issues:

1. Whether there existed relationship of employer and employee between the respondent and the claimant?

2. Relief in terms of reference."

6. The claimant-workman examined himself and tendered his evidence by way of affidavit Ex.CW1 wherein he reiterated his claim. He relied upon 10 documents. On the other hand, management examined MW-1 Sh.I.M.Aggarwal who denied the case of the claimant and relied upon Ex.MW1/3 which is Form-6 submitting to Employees State Insurance Corporation purporting to be giving the details of all the workmen working with the management.

7. At the outset, the Labour Court referred to the law relating to onus of proof in a labour adjudication laid down by Hon'ble Supreme Court in Workmen of Nilgiri Cooperative Marketing Society Limited vs. State of Tamil Nadu & Ors. 2004 LLR 351, UCO Bank vs. Presiding Officer & Anr. 1999 AD (Delhi) 514, Automobile Association of Upper India Limited vs. PO Labour Court & Anr. 2006 LLR 851 wherein it was held that the person who sets up a plea of existence of relationship of employer and employee, the burden is on him to prove the same. With this legal proposition, the Labour Court went on to examine the issues relevant for adjudication of controversies between the parties.

8. In order to prove the existence of relationship in the nature of an employer and employee between the management and the claimant, the claimant relied upon few documents viz. Identity letter Ex.CW1/A, handing over receipt Ex.CW1/C and authority letter Ex.CW1/D. Identity letter Ex.CW1/A is on the letter pad of the management. In this letter, name of the workman, nature of duties, workmen's specimen signatures and his photographs were attested by a partner of the management. The identity card was initially valid upto 31.03.1984 and it was revalidated upto 31.03.1985. Ex.CW1/D is a

letter on the letter pad of the management whereby the workman was sent to the Plant Manager, IOC L.P.G., Tikri Kalan, Delhi where he was made to represent the management. Although the authenticity of these documents were tried to be challenged by the management but the management did not place on record any document to show that the letter heads on which the documents were written did not pertain to the management. Rather in pursuance to the question put by the workman as to whether the letter head Ex.CW1/A is like the letter head of the management, the witness replied "letter head milta julta hi he". Moreover, the witness was also confronted with documents Ex.CW1/B to Ex.CW1/D but he expressed his inability to identify the signatures and handwriting of Sh.Poojan Chauhan and Ms.Chandra Kanta on these documents. On the other hand, to disprove the claim of the claimant, the management placed on record Ex.MW1/3 purported to be the list of ESI beneficiaries in the management establishment. By virtue of this document, the management tried to show that the name of the claimant does not figure in the list of workman employed by the management. The learned Trial Court, however, observed that MW-1 Sh.I.M.Aggarwal referred to the name of several other workers who were working with the management, namely, Sh.Nand Kishore, Ms. Isha, Ms.Savita and mechanic Ashok whose name does not find mention in this list. Moreover, perusal of cross-examination of MW-1 goes to show that he admitted that the management used to maintain salary register and attendance register of the employees, however, it was admitted that the said record was not placed on record. The best evidence was available with the management in order to disprove the claim of the workman. Despite the same, the said record was withheld by the management. It is the duty of the party to lead the best evidence in his possession which would throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal and Ors. v. Badkulal and Ors. AIR 1953 SC 225; A. Raghavamma and Anr. v. A. Chenchamma and Anr. AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. AIR 1968 SC 1413; M/s. Bharat Heavy

Electrical Ltd. v. State of U.P. and Ors. AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. and Anr. v. Union of India and Anr. (2011) 9 SCC 126). On the basis of the aforesaid documents, learned Labour Court returned a finding that primarily the onus was on the workman to prove the relationship of employer and employee which he had discharged from these documents. The management could not lead any evidence to discredit the documents filed by the workman as such, the workman succeeded in proving the relationship of employer and employee between the parties.

9. As regards issue no.2, it was held that the services of the workman were retrenched by the management in contravention of the provisions of law. The workman had not pleaded or proved his subsequent unemployment, therefore, he was not granted backwages. Considering his illegal retrenchment at the hands of the management, a sum of Rs. 50,000/- was awarded as retrenchment compensation, besides that, an additional compensation of Rs.1 lac was awarded. A sum of Rs.10,000/- was also awarded as litigation expenses. Learned counsel for the petitioner has not been able to show any infirmity in the impugned award which warrants interference.

10. Moreover, the scope and extent of jurisdiction of the High Court under Article 226 of the Constitution is by now well settled. While exercising jurisdiction, this Court is not to exercise its power in such a manner as to convert itself into a court of appeal sitting in judgment over the Tribunal. Such writs as are referred to in Article 226, are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in it or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable this Court to convert itself into a Court of appeal and examine for itself the correctness of the decision and decide what is the proper view to be taken or the order to be made.

11. Similar issue came up for consideration before Hon'ble Supreme Court in K.V.S.Ram vs. Bangalore Metropolitan Transport Corporation AIR 2015 SC 998 while

dealing with the powers of this Court in exercise of Article 227 of the Constitution of India. It was observed as under:-

11........ In our considered view, in exercise of its power of superintendence Under Article 227 of the Constitution of India, the High Court can interfere with the order of the Tribunal, only, when there has been a patent perversity in the orders of tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. In our view, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.

12. In Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477, the Constitution Bench of this Court considered the scope of the High Court's jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi-judicial functions under the Motor Vehicles Act, 1939. Speaking for the majority of the Constitution Bench, Gajendragadkar, J. observed as under: (AIR pp. 479-80, para 7) "7...A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. 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. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a 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. It is within these limits that the

jurisdiction conferred on the High Courts Under Article226 to issue a writ of certiorari can be legitimately exercised."

13. In the case of Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Co. Ltd. and Anr. (2004) 6 SCC 434, it was held as under:

"15. We find the judgment and award of the labour court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power Under Article 227 of the Constitution of India to annul the findings of the labour court in its award as it is well settled law that the High Court cannot exercise its power Under Article 227 of the Constitution as an appellate court or re-appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the Appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice.

16. It is relevant to mention that in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 with regard to the limitations of the High Court to exercise its jurisdiction Under Article 227, it was held in para 49 that: (SCC p. 348) "49. (m)...The power of interference Under [Article 227] is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."

It was also held that: (SCC p. 347, para 49) "49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence Under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it."

14. Emphasizing that while exercising jurisdiction Under Articles 226 and/or 227 of the Constitution of India, Courts are to keep in view the goals set out in the Preamble and in Part IV of the Constitution while construing social welfare legislations, in Harjinder Singh v. Punjab State Warehousing Corporation (2010) 3 SCC 192, this Court has held as under:

"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction Under Articles 226 and/or 227 of the Constitution

in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e),43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

"10...The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.

                        (State    of  Mysore   v.   Workers    of   Gold
                        Mines MANU/SC/0110/1958: AIR 1958 SC 923 at page
                        928 para 10)"

15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court Under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained.

12. The findings of the Labour Court does not suffer from any error of law or error apparent on the record which requires this Court's interference. In view of the same, there is no warrant for interfering with the impugned award passed by the Labour Court.

The petition is devoid of merit and the same is accordingly dismissed.

(SUNITA GUPTA) JUDGE OCTOBER 20, 2015 mb