Dda vs Mool Chand
2017 Latest Caselaw 3478 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 21st July, 2017

+       W.P (C) No. 9468/2004 & CM No. 6772/2004
        DDA                                             ..... Petitioner
                           Through:         Mr.Arun Birbal and Mr.Sanjay
                                            Singh, Advs.
                           versus

        MOOL CHAND                                      ..... Respondent
                           Through:         None

        CORAM:
        HON'BLE MR. JUSTICE C.HARI SHANKAR


                           JUDGMENT

1. This writ petition, filed by the DDA under Article 226 of the

Constitution of India, assails (i) order, dated 3rd January, 2003

whereby the Labour Court had exonerated the respondent of the

charges leveled against him by the management of the petitioner

(hereinafter referred to as "the management") and (ii) consequential

award, dated 5th March, 2003, passed by the Presiding Officer, Labour

Court-I (hereinafter referred to as a "Labour Court") in Industrial

Dispute No. 154/84, which held the respondent to be entitled to

reinstatement in service with 50% back wages and continuity of

service.

2. A brief recital of the facts would be necessary at the outset.

3. In June, 1980, the respondent was posted as Chowkidar with the

petitioner. During the period he served as such, it is alleged that, on

14th June, 1980, 1221 G.I. Pipes of 15mm diameter, 54 G.I. pipes of

20mm diameter and 18 G.I. pipe of 32mm diameter, totally worth

Rs.73,600/- were stolen from the store of the petitioner. An FIR was

also registered. This resulted in the issuance, to the respondent, of a

Statement of Imputation dated 23rd June, 1980, by the petitioner,

alleging that the theft, which had occurred between 8.30 pm and 9pm

on 14th June, 1980, had taken place by the breaking open the lock of

the main gate and that, as the respondent was one of the security

guards deputed for watch and ward of the godown during the said

shift, he was guilty of "general laxity and sheer negligence". The

respondent was, therefore, directed to show cause why disciplinary

action be not initiated against him.

4. Inquiry took place, resulting in the Inquiry Officer submitting a

report dated July 1981, containing the following findings:-

(i) The conspiracy for the abovementioned theft was arranged by

Maman Chand, security guard, with some outsiders. The stolen

goods were removed in a truck.

(ii) The thieves broke open the lock on the main gate, loaded the

pipes on the truck and fled.

(iii) Maman Chand was aided, in his nefarious act, by Rajender

Singh, Mehar Chand and the respondent, who enabled Maman

Chand to carry out his mission by purposely abstaining from the

site.

(iv) After the theft had taken place, Rajinder Singh and the

respondent returned to the store at 10 pm. The security guard,

who officiated during the next shift, P.T. Ram was also callous

as he did not check the lock on the gate, in order to "visualize"

the missing material, which was quite voluminous and lying in

front of the gate.

(v) The loss was only noticed by the security staff on the next date.

In the circumstances, it was opined that Maman Chand,

Rajinder Singh, Mehar Chand and the respondent were a danger

to the security and property of the petitioner, and it was

recommended that their services be immediately dispensed

with. Other security staff were also advised to be strongly

reprimanded.

5. As a sequel to the submission of the aforementioned inquiry

report, the services of the respondent were terminated, under Rule 5(i)

of the Central Civil Services (Temporary Services) Rules, 1965 as

extended to employees of the petitioner vide Regulation 6 of the Delhi

Development Authority (Salaries & Allowance and Conditions of

Services), Regulation 1961, by way of establishment order No.174,

dated 01st June, 1980.

6. The respondent raised an industrial dispute, resulting in

reference, by the Delhi Government, of the following dispute, to the

Labour Court, for adjudication:

"Whether the services of Mool Chand were terminated illegally

and/or unjustifiably and if so, what relief is he entitled?"

The reference was registered as ID 154/84.

7. In his statement of claim, dated 10 th December, 1984, filed

before the Labour Court, the respondent contended thus:-

(i) He had been appointed as Chowkidar but was actually assigned

the work of electrician.

(ii) For a while before the fatal night, Maman Chand was bringing

considerable pressure, on the respondent, to go to his relative's

house to carry out some electrical repairs. The respondent had,

ultimately, to succumb to the said pressure, as a result whereof,

on 14th June, 1980, the respondent went, with Rajinder Singh, to

Dadri.

(iii) Having completed the electrical repairing work, Rajinder Singh

and the respondent returned to the site office. The respondent

did not notice anything amiss and found everything to be as

usual and normal.

(iv) Nothing out of the way was seen even by the staff which took

charge for the next shift, which was from 10 pm on 14 th June,

1980 to 6 am on 15th June, 1980.

(v) The fact that the lock of the main gate was broken was noticed

only by the staff who worked between 6 am and 2 pm on 15 th

June, 1980.

(vi) A statement recorded by the police team, which was called,

revealed that the chief perpetrator of the theft was Maman

Chand and that he was supported, in the said act, by Rajinder

Singh. Maman Chand and Rejinder Singh on being interrogated,

confessed to their involvement in the above crime.

(vii) Office Memo dated 23rd June, 1980, was thereafter, issued to

the respondent, seeking his explanation in the matter. In reply

thereto, the respondent submitted that he was unaware of the

commission of the offence, and was entirely innocent of any

involvement therein.

(viii) Though the respondent was intimated that departmental

proceedings might be initiated against him, no such proceedings

were, in fact, initiated. Neither was the respondent given any

opportunity to defend himself.

(ix) In stark violation of the fundamental principles of natural justice

as well as Article 311 of the Constitution of India, the services

of the respondent were terminated vide letter No. 174 dated 01 st

June, 1980.

(x) The name of the respondent did not figure in the FIR lodged

with the police authorities either.

(xi) In the circumstances, the respondent prayed that he be

reinstated, with full back wages and continuity of service.

8. In its reply to the above mentioned statement of claim of the

respondent, the petitioner averred thus:-

(i) The contention, of the respondent, that he had been asked to do

electrical works, was denied. It was asserted that the respondent

had been appointed as a Chowkidar and was asked only to

discharge the duties of a Chowkidar.

(ii) The averment, of the respondent, that he had been coerced into

visiting the house of Maman Chand, was also denied. It was

asserted that, in fact, the respondent had left his place of duty

without permission, and without any prior information being

given to the Competent Authority in this regard. The absence of

the respondent had resulted in theft of the property of the

petitioner, which could have been avoided, had he not absented

himself from duty.

(iii) Though it was accepted that Maman Chand was the main culprit

and Rajinder Singh was the supporter, the fact remained that the

respondent had abstained from duty without authority, leaving

the property of the petitioner unguarded and allowing the

culprits to flee with the stolen goods.

(iv) In view of the issuance, to the respondent, of letter dated 23 rd

June, 1980 (supra), the contention, of the respondent, that no

departmental proceedings had been instituted and that, he had

not been given any opportunity to defend himself, were denied.

(v) The services of the respondent were terminated in view of the

finding, of the Inquiry Officer, that the officials on duty,

including the respondent, were a danger to the security and

property of the petitioner.

9. On the basis of the pleadings of the petitioner and the

respondent, the following preliminary issue was framed by the Labour

Court:-

"Whether the domestic enquiry held by the management is

improper and invalid as alleged by the workman?"

10. On the ground that there had been complete violation of the

principles of natural justice, it was held, by the Labour Court, vide

award dated 24th March, 1998, that the services of the respondent had

been terminated illegally and unjustifiably, and that he was entitled to

be reinstated in service.

11. The said award, of the Labour Court, was carried, by the

petitioner, to this Court, by way of CWP 4456/1998. Vide judgment

dated 25th April, 2001, a learned Single Judge of this Court set aside

the said award, dated 24th March, 1998, of the Labour Court, on the

ground that, having decided the issue of whether the enquiry held by

the management was improper and invalid, against the management,

the Labour Court erred in proceeding, without any pause, to decide the

subsequent issue of whether the services of the respondent had been

terminated illegally/unjustifiably, and of the relief to which he would

be entitled as a consequence thereof, without affording the

management opportunity to lead evidence in this regard. In the

circumstances, the award dated 24th March, 1998, of the Labour Court

was set aside and the petitioner and respondent were directed to

appear before the Labour Court on 30th May, 2001 on which date, the

Labour Court was directed to fix a date for consideration of the second

issue i.e. whether the services of the respondent had been terminated

illegally and/or unjustifiably, and the relief, if any, to which he would

be entitled as a consequence thereof.

12. In the said remand proceedings, S.S. Saraswat, Assistant

Engineer, DDA, and R.L. Jain, Superintending Engineer (Planning),

DDA and the respondent himself, led their evidence as MW-1, MW-2

and WW-1 respectively. They were also cross-examined. Affidavit-in-

evidence was also filed by the management.

13. S.S. Sarswat (MW-1) deposed, on 14th August, 2001 that

(i) on 15th June, 1980, at 7.20 am, he was informed, by two

employees of the petitioner, that the lock of the main gate of the

store was broken and some theft had taken place,

(ii) he reached the store and found that the lock was broken but was

"intact with wire",

(iii) he found the impression of truck tyres on the ground,

(iv) though he could not make any immediate estimate of the theft,

he was informed, by the contract labour present at the godown,

that bundles of pipes had been taken away,

(v) on enquiry, he found that on 14th June, 1980, Maman Chand,

Mehar Chand, Rajinder Singh and the respondent were on duty,

and

(vi) he thereafter, informed his senior officer, namely, R.L Jain,

Executive Engineer as well as the police authorities, consequent

whereof FIR No.384/1980, under Sections 457/300/411/34 IPC,

was registered at PS Janak Puri.

14. In his cross-examination, which took place on 06th November,

2001, MW-1 deposed that

(i) he was aware that the respondent knew the work of electrician.

(ii) it was correct that the respondent used to perform electric work

for the petitioner, to ensure smooth supply of electricity,

(iii) he did not know whether the respondent had been sent by the

mate to do electric work at the village where Maman Chand

resided,

(iv) he came to know of the time of the breaking of lock from the

statement of some of the contract labourers present in the

premises, as also from a tea stall owner,

(v) no statement was taken, either from the said labourers or from

the tea stall owner,

(vi) it was possible that the time of breaking of the lock as stated by

the labour or the tea stall owners might not be exactly correct

and could vary.

(vii) he could not say, with certainty, that, the incident occurred

during the shift of the respondent i.e. between 2 pm and 10 pm.

15. MW-2 R.L. Jain, initially filed his evidence by way of affidavit,

dated 31st January, 2002. In the said affidavit, it was averred that the

theft had taken place during the shift of the respondent, when he was

absent without approval of any senior officer. The assertion, of the

respondent, that he had been assigned electrical work by the petitioner,

was also denied.

16. As a sequel to the above affidavit, examination-in-chief of

MW-2 R.L.Jain, took place on 08th September, 2002, wherein he

deposed that

(i) the duty of security guards was to look after the material lying

inside the store,

(ii) the security guards also used to look after the gate,

(iii) the time of theft was revealed by MW-1 S.S. Sarswat,

(iv) he (R.L.Jain) could neither admit nor deny the fact that the theft

might have taken place during the subsequent shift, i.e. between

10 pm and 6 am, or even during the shift from 6 am to 2 pm on

15th June, 1980.

17. On 24th September, 2002, the respondent was recalled for cross-

examination. The following part of his deposition in cross-

examination is relevant:

"Question of taking prior approval from the JE does not arise as he was not there at that time. There was no AE in the store department. I had taken permission from the Mate Sh. Mehar Chand who was my immediate boss. It is wrong to suggest that Mate is not the immediate boss of cokidars and other labourers. It is not in my knowledge whether the said Mate had taken permission from concerned JE and AR. When I returned back I found everything normal and charge was given peacefully to the shift employee".

18. After hearing the parties, the Labour Court vide order dated 3rd

January, 2003 (impugned herein), found thus:-

(i) MW-1 S.S. Saraswat, was unable to state whether everything

was in order to at the time of handing over of charge by the

respondent, on completion of his shift. In fact, he admitted the

suggestion that no complaint was made by the mate of the shift

from 10 pm to 6 am.

(ii) The mate who was on duty from 6 am to 2 pm was vague, and

testified that he was not exactly aware of any complaint having

been made by the mate of the shift from 10 pm to 6 am, and that

he had lodged FIR on having been informed by the Chowkidar,

on 15th June, 1980, about the breaking of the lock.

(iii) Neither was any FIR proved on record nor was any witness able

to state whether the name of the respondent figured therein or

not.

(iv) The deposition of MW-1, to the effect that he had come to know

of the timing of breaking of the lock from certain contract

labourers and from a tea stall owner, and that no statement,

either of the said labourers or of the tea stall owners was ever

taken, effectively exonerated the respondent. This was

underscored by the further admission, on the part of MW-1, that

it was possible that the timing of breaking of the lock, as stated

by the said labourers or tea stall owners, might not have been

exactly correct, and that, in fact, he could not even state

categorically that the incident took place during the shift of the

respondent from 2 pm to 10 pm.

(v) Equally, damaging to the case of the management, was the

deposition of MW-2, who also testified that he could neither

admit nor deny the possibility that the theft might have taken

place between 10 pm on 14th June, 1980 and 6 pm on 15th June,

1980, or even between 6 am and 2 pm on 15th June, 1980.

(vi) The complaint, dated 04th May, 1981, of the Assistant

Engineer, Sita Ram, merely contained vague allegations that the

respondent, alongwith Rajinder Singh and Mehar Chand,

enabled Maman Chand to carry out the theft by purposely

abstaining from the site and returning at 10 pm. There was no

cogent or corroborating evidence on record, to the effect that the

respondent was found absent from duty.

19. In the circumstances, the Labour Court held that the

management had failed to prove the charges against the respondent

and, consequently, exonerated the respondent of the said charges. The

file was directed to be put up for evidence and arguments on the issue

referred to the Labour Court, on 16th January, 2003.

20. After hearing the parties, on the issue of whether the services of

the respondent had been terminated illegally/unjustifiably and, if so,

the relief to which the respondent was entitled, the Labour Court, vide

the impugned award dated 05th March, 2003, held, at the outset, that,

in view of the failure, on the part of the management, to prove the

charges against the respondent, on the basis whereof the respondent

was dismissed from service, the dismissal would not survive and the

respondent would, ipso facto, be entitled to reinstatement.

21. On the issue of back wages, the Labour Court while accepting

the submission of the respondent that he had remained unemployed

after his termination, and that the work of conducting Poojas and

advising on horoscopes and marriages, practised by him, could not be

regarded as gainful employment, held, nevertheless, that, as the

respondent had also contributed to the delay in the proceedings, he

could not be awarded full back wages. Accordingly, the impugned

award dated 05th March, 2003 directed that the respondent be

reinstated in service with 50% back wages and continuity of service.

22. The present writ petition assails the impugned order dated 03 rd

March, 2003 and award dated 05th March, 2003. The following

grounds, inter alia, have been advanced in the writ petition:

(i) In view of the fact that it was admitted, by the respondent, that

he had left, during his shift on 14th June, 1980, without the

permission either of the Assistant Engineer or the Joint

Engineer, there was no justification for the Labour Court to hold

the charges not to have been proved.

(ii) The Labour Court had erred in proceeding as though it was

conducting a criminal trial in accordance with Code of Criminal

Procedure, 1973, subject to all the technicalities of evidence.

(iii) The petitioner could not be expected to repose any more

confidence in the respondent as a Chowkidar. He could not,

therefore, have been directed to be reinstated in service.

(iv) The Labour Court had erred in failing to appreciate the fact that

the theft had taken place during the shift of the respondent, and

that the culprits, after committing the theft, replaced the lock

with the help of wire so as to give an impression that the lock

was intact.

(v) There was, in any event, no justification for awarding back

wages, or continuity of service, to the respondent.

23. Notice, on the present writ petition, was issued by this Court on

25th August, 2004. Though the petition was adjourned several times

thereafter, the respondent has never entered appearance.

24. I have heard Mr.Arun Birbal, appearing on behalf of the

petitioner. He contended that the deposition, of MW-1 S.S. Sarswat, to

the effect that he was not aware whether the respondent had been sent

by the mate to do electrical work at his village, where Maman Chand

lived, read in conjunction with the evidence in cross-examination of

the respondent, extracted in para 24 ibid, established the fact that the

respondent had remained absent from duty at the time when the theft

took place, without due permission. Mr.Birbal was critical of the

observations of the Labour Court, in the impugned order dated 03 rd

January, 2003, to the effect that the onus to prove the charge was on

the management, and that there was no cogent or corroborative

evidence available to establish that the respondent was absent from

duty, stating that there could not be any evidence better than the

respondent's own admission. Mr.Birbal also drew my attention to the

appointment letter, dated 15th January 1977, whereby the respondent

was appointed as Chowkidar, emphasizing that the said appointment

was purely on a work charged basis. As such, Mr.Birbal, would

contend, the petitioner could very well have terminated the

respondent's service even without notice and, in fact, showed greater

fairness to the respondent than was merited in the circumstances. In

his submission, the Labour Court ought to have taken this fact, too,

into consideration.

25. Reiterating his contention that the Labour Court seriously erred

in ignoring the admission of the respondent, Mr.Birbal characterized

the findings of the Labour Court as perverse, justifying interference by

this Court in exercise of its powers under Article 226 of the

Constitution of India. He also submitted that, as the respondent was a

casual and work charged employee, who had worked only for 3 years,

no case for reinstatement had been made out.

26. I have bestowed my careful consideration to the submissions

advanced by Mr.Birbal, as well as the material available on record.

27. The law, with respect to the scope of inquiry and interference,

under Article 226 and 227 of the Constitution of India, with respect to

awards/orders of labour courts and industrial tribunals is well settled,

and invariably takes a leaf from the principles, relating to the scope of

certiorari and the circumstances in which it can be issued, as

enunciated by the following words of the Constitution Bench of the

Supreme Court, speaking through P.B. Gajendragadkar, J. (as His

Lordship then was), in Syed Yakoob v. K.S. Radhakrishnan and

Others, AIR 1964 SC 477, which have, since, become locus

classicus:

"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. 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 in properly, 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 y 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 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 Article 226 to issue a writ of certiorari can be legitimately exercised.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis- interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it neither possible nor desirable to attempt either to define or

to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconducted or contravened.

28. Relying on the principles enunciated in the above decision, a

catena of pronouncements of the Supreme Court, including

Management of Madurantakam Cooperative Sugar Mills Ltd. v. S.

Viswanathan: (2005), 3 SCC 193, P.G.I of Medical Education and

Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54 and M.P State

Electricity Board v. Jarina Bee: (2003), 6 SSC 141, followed, which

may be regarded as having laid down, authoritatively, the following

principles:

(i) The Labour Court/ Industrial Tribunal is the final fact finding

authority.

(ii) The High Court, in exercise of its powers under Article

226/227, would not interfere with the findings of fact recorded

by the Labour Court, unless the said findings are perverse,

based on no evidence or based on illegal/ unacceptable

evidence.

(iii) In the event that, for any of these reasons, the High Court feels

that a case for interference is made out, it is mandatory for the

High Court to record reasons for interfering with the findings of

fact of the Labour Courts/ Industrial Tribunal, before

proceeding to do so.

(iv) Adequacy of evidence cannot be looked into, while examining,

in writ jurisdiction, the evidence of the Labour Court.

(v) Neither would interference, by the writ court, with the findings

of fact of the Labour Court, be justified on the ground that a

different view might possibly be taken on the said facts.

29. "Perversity", for its part, is attributed to a judicial/ quasi judicial

decision if the decision ignores/excludes relevant material, considers

irrelevant/inadmissible material, is against the weight of evidence, or

so outrageously defies logic as to suffer from irrationality [Damodar

Lal v. Sohan Devi, (2016) 3 SCC 78; S R Tiwari v. Union of India,

(2013) 6 SCC 602; Rajinder Kumar Kindra v. Delhi Administration,

(1984) 4 SCC 635; Kuldeep Singh v. Commissioner of Police, (1999)

2 SCC 10; Gamini Bala Koteswara Rao v. State of AP, (2009) 10

SCC 636; Babu v. State of Kerala, (2010) 9 SCC 189; Dr. Sunil

Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC

657].

30. Damodar Lal (Supra) further postulates that in examining

whether a decision is, or is not, perverse, the classic test, of the

reasonable man's conclusion on the facts before the authority

concerned would apply. The same decision also reiterates the trite

position that inadequacy of evidence, or the possibility of reading the

evidence in a different manner, would not amount to perversity.

31. Without delving into the details of the evidence, to which

sufficiently comprehensive allusion has already been made

hereinabove, it is clear that the findings of the Labour Court, in the

impugned order dated 3rd January, 2003 on the basis whereof the

management has been held as having failed to prove the charges

against the respondent, cannot be characterized as perverse. The

Labour Court has taken into account the fact that there was

considerable ambivalence, amongst the management witnesses even

on the basic issue of when the theft took place. MW-1, S.S. Saraswat,

clearly stated that he had come to know of the timing of the theft only

from the oral statement of some contract labourers and a tea stall

owner, who themselves never tendered any statement. As such, the

deposition of MW-1 to the effect that the theft had taken place during

the shift of the respondent, can, at best, be characterized as hearsay.

This stood underscored by the further deposition, of MW-1, to the

effect that the time of theft could vary and that he could not

definitively state that the incident had, in fact, taken place during the

shift of the respondent. MW-2 was no less prevaricating, in stating

that he could neither admit, nor deny, the possibility of the theft

having taken place during the shift from 10 p.m. to 6 a.m. on 15th

June, 1980, or even from 6 a.m. to 2 p.m. on the next day.

32. No submission, on this aspect, of the matter, i.e. the is time of

occurrence of the theft were advanced by Mr. Birbal who essentially

criticized the finding of the Labour Court towards the conclusion of

paragraph 5 of the impugned order dated 3 rd January, 2003, to the

effect that there was no cogent and corroborative evidence, on record,

to the effect that the respondent had absented himself from duty. The

submission of Mr. Birbal was that the respondent had himself

admitted the fact of such absence, and that there could be no better

evidence than the admission of the respondent himself. For this, Mr.

Birbal relies on the following extract, from the evidence in cross

examination of the respondent, recorded on 24th September, 2002:

"Question of taking prior approval from the JE does not arise as he was not there at that time. There was no AE in the store department. I had taken permission from the Mate Sh. Mehar Chand who was my immediate boss. It is wrong to suggest that Mate is not the immediate boss of chokidaars and other labourers. It is not in my knowledge whether the said Mate had taken permission from concerned JE and AE. When I returned, I found everything normal and charge was given peacefully to the shift employee".

33. It is not possible for this Court to accept the submission of Mr.

Birbal that the above extracted words of the respondent, as contained

in the record of his cross examination on 24 th September, 2002,

amount to an unequivocal admission, on his part, to the effect that he

had been unauthorisedly absent from duty at the time when the theft

took place. No such clear-cut admission is to be found in the said

words of the respondent and, as such, it cannot be said that the Labour

Court acted perversely in entering a finding that there was no cogent

or corroborative evidence on record, to the effect that the respondent

was unauthorisedly absent from duty.

34. In any event, the main allegation against the respondent was

that, owing to his unauthorized absence from duty, theft of a large

quantity of goods belonging to the petitioner had taken place. Had

there been unimpeachable and unequivocal evidence, regarding the

time of theft, it might, perhaps, been possible to take exception to the

decision, of the Labour Court, that the time of theft had not been

proved. However, as things stand, there was no clear-cut evidence

regarding the time when the theft took place, and the finding, of the

Labour Court, to that effect, cannot be characterized as so perverse as

to vitiate its order. This Court does not discountenance the possibility

that the evidence could, holistically, be also read as indicating that the

theft had taken place during the shift of the respondent. However, as

the various authorities cited hereinabove have held, the possibility, of

taking a different view, cannot be a ground for this Court, in exercise

of its jurisdiction under Article 226 of the Constitution of India, to set

aside the decision of the Labour Court. Wide and expansive though

the sweep and swing of certiorari may be, it stops short of

metamorphosing into an appellate jurisdiction. The Labour Court has,

in its wisdom, appreciated the evidence before it, and this Court is

convinced that no case, for issuance of writ of certiorari for quashing

or setting aside the said decision of the Labour Court can be said to

exist.

35. Almost as a post script, it is relevant to note that there is no

allegation that the respondent was actually complicit in the actual

commission of theft.

36. The only other aspect surviving for consideration is that of back

wages.

37. On the issue of back wages, too, there is wealth of authority,

from the Supreme Court. The consensus of judicial opinion, over the

last decade or two, on this issue, appears to be that, while, statutorily,

a finding of illegal retrenchment from termination of the employee

would entail, in its wake, reinstatement of continuity of service and

full back wages, in a given fact situation, granting reinstatement with

back wages, in full or in part, may be "wholly inappropriate", and that

a lumpsum compensation should, instead, be awarded. In arriving at

this decision, the factors which appear to have been held to be relevant

are (i) the number of years the workman continued in service, (ii) the

delay, if any, in the workman seeking relief, against her/his

retrechment/dismissal/termination, under the Industrial Disputes Act,

1947 and (iii) the period that has lapsed since then, and the possibility

of the workman having attained the age of superannuation in the

interregnum.

38. The earlier trend of judicial thought may be said to be

represented by the following words of D.A. Desai J, speaking for a 3

Judges Bench of the Supreme Court in M/s. Hindustan Tin Works

Pvt. Ltd v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd.

and Others : (1979), 2 SCC 80:

"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the

workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen

were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal [(1971) 1 LLJ 508 (Guj)] and a Division Bench of the Allahabad High Court in Postal Seals Industrial Cooperative Society Ltd. v. Labour Court II, Lucknow [(1971) 1 LLJ 327 (All)] have taken this view and we are of the opinion that the view taken therein is correct.

11. In the very nature of things there cannot be a strait- jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular

12. It was, however, very strenuously contended that as the appellant company is suffering loss and its carry- forward loss as on March 31, 1978 is Rs 8,12,416.90, in order to see that the industry survives and the workmen continue to get employment, there must be some sacrifice

on the part of workmen. If the normal rule in a case like this is to award full back wages, the burden will be on the appellant-employer to establish circumstances which would permit a departure from the normal rule. To substantiate the contention that this is an exceptional case for departing from the normal rule it was stated that loss is mounting up and if the appellant is called upon to pay full back wages in the aggregate amount of Rs 2,80,000, it would shake the financial viability of the company and the burden would be unbearable. More often when some monetary claim by the workmen is being examined, this financial inability of the company consequent upon the demand being granted is voiced. Now, undoubtedly an industry is a common venture, the participants being the capital and the labour. Gone are the days when labour was considered a factor of production. Article 43-A of the Constitution requires the State to take steps to secure the participation of workmen in the management of the undertaking, establishments or other organisations engaged in any industry. Thus, from being a factor of production the labour has become a partner in industry. It is a common venture in the pursuit of a desired goal.

13. Now, if a sacrifice is necessary in the overall interest of the industry or a particular undertaking, it would be both unfair and inequitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice. Sacrifice for the survival of an industrial undertaking cannot be an unilateral action. It must be a two-way traffic. The management need not have merry time to itself making the workmen the sacrificial goat. If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater brunt making the shock of

sacrifice as less poignant as possible for those who keep body and soul together with utmost difficulty.

17. Now, undoubtedly the appellant appears to have turned the corner. The industrial unit is looking up. It has started making profits. The workmen have already been reinstated and, therefore, they have started earning their wages. It may, however, be recalled that the appellant has still not cleared its accumulated loss. Keeping in view all the facts and circumstances of this case it would be appropriate to award 75% of the back wages to the workmen to be paid in two equal instalments."

(Emphasis supplied)

39. The above view was, however, diluted thereafter. The decisions

in P.G.I. of Medical Education & Research, Chandigarh (Supra),

M.P. State Electricity, Indian Railways Construction Co. Ltd. v. Ajay

Kumar, (2003) 4 SCC 579 and Hindustan Motors Limited v. Tapan

Kumar Bhattacharya, (2002) 6 SSC 41, M/s. Hindustan Tin Works

(supra) reiterated the principle that no strait-jacket formula regarding

quantum of back wages to be awarded, consequent to setting aside of

an order of illegal retrenchment, could be laid down though statutory

sanction, for grant of full back wages, in such a case, undoubtedly

exists

40. At the same time, P.G.I of Medical Education & Research,

Chandigarh (Supra) and M.P. State Electricity (supra) also held that

the Labour Court is the final fact finding authority even on the

question of quantum of back wages to be awarded, and that the

decision of the Labour Court, in that regard, would not justify

interference by the High Court, in the absence of a finding that the

said decision was perverse, erroneous or not in accordance with law.

Significantly, in Management of Madurantakam Coop. Sugar Mills

Ltd (supra), the Supreme Court, taking stock of the fact that the

workman had attained the age of superannuation and that the

management was in financial crisis, reduced the quantum of back

wages payable to 50%, retaining the entitlement of the workman to

full retiral benefits. In, M/s. Hindustan Tin Works Pvt. Ltd. (supra),

it was held that though, at times, to keep the industry running,

sacrifice was required both from the management and the employee,

greater sacrifice had necessarily to be expected from the management.

In that case, the Supreme Court reduced the back wages as directed to

be paid by the High Court, from 100% to 75%.

41. Subsequently, however, the trend of judicial thought appears to

have sharply swung, from the theory of "reinstatement with back

wages (in whole or in part)" to the theory of "lumpsum

compensation". Noting this fact, Senior Superintendent Telegraph

(Traffic) v Santosh Kumar Seal, (2010) 6 SCC 773 held thus:

"9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] , Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353 : (2007) 2 SCC (L&S) 813] , State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405] , M.P. Admn. v. Tribhuban [(2007) 9 SCC 748 : (2008) 1 SCC (L&S) 264] , Sita Ram v. Moti Lal Nehru Farmers Training Institute [(2008) 5 SCC 75 : (2008) 2 SCC (L&S) 71] , Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684 : (2007) 1 SCC (L&S) 518] , GDA v. Ashok Kumar [(2008) 4 SCC 261 : (2008) 1 SCC (L&S) 1016] and Mahboob Deepak v. Nagar Panchayat, Gajraula [(2008) 1 SCC 575 : (2008) 1 SCC (L&S) 239] .)

10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , the aforesaid decisions were noticed and it was stated: (SCC pp. 330 & 335, paras 7 & 14)

"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position

that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

***

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."

42. Perhaps the most recent pronouncement, on this issue, is to be

found in the following unequivocal words of Ranjan Gogoi, J., in

Rashtrasant Tukdoji Maharaj Technical Education Sanstha v

Prashant Manikarao Kubitkar, MANU/SC/0745/2017, which holds

thus:

"2. The Respondent workman had worked under the Appellant for a period of two years and three months

whereafter he was terminated on 1st June, 1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25F and 25G of the Industrial Disputes Act, 1947 reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice.

3. The Respondent workman in the present case had worked for a period of two years and three months and that apart he had approached the labour Court after 13 years. Taking into account the totality of the facts and circumstances of the case we are of the view that the order of the labour Court and the High Court ought to be modified by granting compensation of Rs. 1,00,000/- (Rupees one lakh) in lieu of reinstatement without back wages as ordered. It is ordered accordingly." (Emphasis supplied)

43. In deciding to reinstate the respondent with 50% backwages, the

Labour Court noticed the fact that, except for some Pooja Work and

advice on Horoscope and marriages, there was no evidence of the

respondent having been engaged in any gainful employment,

consequent to his termination by the petitioner. This finding, of the

Labour Court, has not been traversed by the petitioner in the writ

petition. It is also undisputed that the respondent has had to suffer

litigation from 2004 till date, during which period no benefit, of the

impugned award dated 5th March, 2003 has enured to him, owing to

the interim stay granted by this Court. Having held that the

respondent had been unjustifiably terminated by the petitioner, this

Court cannot be unmindful of the fact that, had the respondent

continued in service, he would have earned full wages and would,

monetarily, be substantially better off than he is today.

44. The rationale, behind the decision of the Labour Court, to award

50% back wages to the respondent is, therefore, understandable.

45. The operation of the impugned award, dated 5 th March, 2003

was stayed by this Court vide order dated 25th August, 2004, subject to

deposit of litigation expenses by the petitioner. As such, it is apparent

that the respondent would neither have been reinstated in service nor

paid any amount consequent upon the impugned award. The

respondent was appointed as chowkidar more than 40 years ago in

1976; in all probability therefore, he would have crossed the age of

superannuation. No useful purpose would, therefore, be served, by

directing the petitioner to reinstate the respondent in service, at this

distance of time. This Court is also guided, in this regard, by the

pronouncements in Santosh Kumar Seal (supra) (as well as the

authorities relied upon therein) and Rashtrasant Tukdoji Maharaj

Technical Education Sanstha (supra). In view of the said decisions,

it would be necessary to substitute the decision, of the Labour Court,

to reinstate the respondent with 50% back wages, to an award of

lumpsum compensation. While deciding on the compensation to be

awarded, this Court cannot lose sight of the fact, that had the award

been implemented, the respondent would have been in the

employment of the petitioner till today, and would also be entitled to

retiral benefits.

46. In view of the above discussion, I am of the view that the

interests of justice would be met, if the petitioner is directed to pay, to

the respondent, an amount of Rs. 2 lakhs, as lump sum compensation.

The said payment shall be disbursed to the respondent within a period

of four weeks and proof of compliance, thereof, filed by the petitioner

before this Court on affidavit, which shall be taken on record in the

present proceedings.

47. The writ petition is disposed of, in the above terms.

48. No costs.

C. HARI SHANKAR (JUDGE) JULY 21, 2017 neelam/kb/nitin