M/S British Airways vs Union Of India & Anr
2019 Latest Caselaw 655 Del

$~
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                        Date of decision: 01.02.2019
+            W.P.(C) No.5720/2015

     M/S BRITISH AIRWAYS                                ..... Petitioner
                    Through:            Mr.Sandeep Prabhakar & Mr.Vikas
                                        Mehta, Advs.

                       versus

     UNION OF INDIA & ANR                                ..... Respondents

                   Through:             Ms.Shiva Lakshmi, CGSC for R-1.
                                        Mr.Uttam Datt & Mr.Tarun Sharma,
                                        Advs. for R-2.

     CORAM:
     HON'BLE MS. JUSTICE REKHA PALLI

     REKHA PALLI, J (ORAL)

1. Vide the present petition under Articles 226 and 227 of the Constitution of India, the petitioner impugns the award dated 30.01.2015 passed by the learned Labour Court-II, New Delhi in ID No.127/2005, whereunder the petitioner was directed to reinstate the respondent no.2 with full back wages.

2. The brief facts emerging from the record that are necessary for the adjudication of the present petition are as follows. The respondent no.2 having being appointed as an international tele-sales Support Clerk in the petitioner/company on 21.02.1994, was promoted as a 'Message Editing Scripter' on 19.06.2000. While working on the said post, which involved long hours of work on the computer, the petitioner was in February, 2004, found to be suffering

from Carpal Tunnel Syndrome. The said diagnosis was based on the opinion of two renowned doctors, namely Dr.Pushpender Singh Bajaj and Dr.N.P.S. Chawla, who also advised her to seek alternate professional employment where there was none or minimal computer-related work.

3. In view of the aforesaid medical advice, a series of discussions took place between the parties, whereafter the petitioner vide its letter dated 02.06.2004 informed the respondent that since there was no possibility of redeploying her in any department where there was no computer-related work, the best option that could be offered to her was redeployment at the Customer Service Department at Indira Gandhi International Airport where computer-related work was found to be minimal. The said letter also assured the respondent that upon her redeployment at the Airport, the petitioner would in view of her health conditions, endeavour to allot only duties like handling of arrivals, mishandled baggage claims etc. to her. The said offer was, however, declined by the respondent who vide her e-mail dated 23.06.2004 informed the petitioner that she was unwilling to accept the said offer as she was suffering from fragile health and had to single-handedly take care of her seven-year old daughter in the absence of her husband who had a touring job.

4. The petitioner's case is that in view of the respondent's refusal to accept its offer of redeployment at the Airport, the petitioner had no option but to terminate her services vide letter dated12.08.2004 in accordance with Section 2(oo)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') by paying her the requisite

amount for the notice period. The respondent not being satisfied with her termination, raised an industrial dispute which was referred by the appropriate Government to the Labour Court. In her statement of claim filed before the learned Labour Court, the respondent stated that after working with the petitioner/management for ten years, she had started suffering from ill health only as a consequence of the bad working conditions provided in by the petitioner's office. She further stated that on account of her ill-health, the petitioner asked her to accept voluntary retirement, but on her refusal to do so, she was illegally terminated from service.

5. On the other hand, in its reply to the respondent's claim petition, the petitioner stated that the working conditions in its office were one of the best in the country and the workstations provided to the employees had been designed as per international norms. However, despite not being at fault for the respondent's ill-health, the petitioner still offered to redeploy her at the Airport where she would be exposed to minimal computer-related work, in accordance with the medical advice given to her. In these circumstances, when the respondent herself declined to accept the petitioner's aforesaid offer, the petitioner could not be faulted for terminating her services in the light of the admitted position that she was unfit to perform her duties as a 'Message Editing Scripter' on account of her ill health.

6. Based on the aforesaid pleadings and upon considering the evidence led before it, the learned Labour Court vide its impugned award dated 30.01.2015, came to the conclusion that the petitioner had adopted unfair labour practices towards the respondent.

Therefore, the Court directed the petitioner to reinstate the respondent with full back wages and provide her with the required furniture similar to the furniture provided to its employees in its parent company in England.

7. Aggrieved by the award passed by the learned Labour Court, the petitioner has approached this Court by way of filing the present petition.

8. Mr. Sandeep Prabhakar, learned counsel for the petitioner, at the outset submits that the impugned award suffers from non- application of mind as the learned Labour Court has simply stated its findings without even attempting to give any reasons for the same. While drawing my attention to the impugned award, he states that the learned Labour Court has merely reproduced the entire statement of claim, the petitioner's reply thereto and the evidence tendered by the parties, and has failed to give any reasons, howsoever brief, in support of its findings. Therefore, he urges, the impugned award being bereft of any reasons whatsoever, it is liable to be set aside on this ground alone.

9. Without prejudice to his aforesaid contention, Mr.Prabhakar further submits that the finding of the learned Labour Court that no bona fide attempt was made to give alternate employment to the respondent, is wholly misconceived and is in fact falsified from the record itself. In this regard, he places reliance on the correspondence exchanged between the parties and states that the petitioner has been more than fair to the respondent by keeping her health in mind and redeploying her to a post where she would be required to do

negligible computer-related work. However, the petitioner's offer of redeployment was declined by the respondent herself, leaving no option with the petitioner but to terminate her in accordance with Section 2(oo)(c) of the Act.

10. Mr. Prabhakar further states that the perversity in the impugned award is also evident from the fact that even though it was never the respondent's case that the furniture and equipment used in the petitioner's office was sub-par compared to that used in the parent company's office in UK, the learned Labour Court had on its own come to a conclusion that the petitioner/management ought to provide to its workmen the same furniture as is being provided to employees in their office in UK.

11. On the other hand, Mr.Dutt, learned counsel for the respondent states that the impugned award is well-reasoned and based on the evidence led before the Court. He submits that in the light of the admitted facts, it was evident that the petitioner was at fault for not redeploying the petitioner at a suitable post and the learned Labour Court was, therefore, justified in coming to the conclusion that the petitioner was deliberately trying to deploy her at a post involving even more physical strain, thereby compelling the respondent to reject the offer of alternative employment. Furthermore, once it is an admitted position that the respondent had been deployed by the petitioner on computer-related jobs for the last 10 years, there was no reason for the Court to disbelief her statement that she was suffering from Carpal Tunnel Syndrome because of the defective furniture used in the petitioner's office. Therefore, even the conclusion that the

petitioner ought to provide the respondent the same furniture as being used in its UK Office was fully justified.

12. I have heard the learned counsel for the parties at length and with their assistance perused the record. Upon closely examining the impugned award which runs into about 55 pages, I am pained to find that the learned Labour Court has for the first 47 pages, merely replicated the respondent's claim statement dated 17.03.2006, petitioner's reply dated 11.05.2006, respondent's rejoinder dated 12.08.2006, the evidence-in-chief tendered by the parties alongwith their cross-examination and, finally, the written submissions handed over by the parties. In the remaining 8 pages of the impugned award where the learned Labour Court purportedly records its findings, I find that the written submissions of the respondent, including the brief facts of the case as mentioned therein, have been once again reproduced without any material changes whatsoever. Thereafter, the learned Labour Court, without providing any reasons, has simply proceeded to record its conclusions in three brief paragraphs, which read as under:-

"It is a case in which management has adopted unfair Labour Practice towards workman/claimant.

In the instant case workman/claimant was suffering from Repetitive stress Injury (R.S.I) which caused to her due to non-providing of required furniture like furniture which is provided in parent company in England.

Instead of providing required furniture by management to workman/claimant. Management changed the job of workman/claimant. In which workman/claimant had to work in night shift and that too at a airport. Although, management

was well conversant with the fact that workman/claimant had a young daughter and her husband has a touring job. This alternate was chosen by management not to adjust the workman/claimant but to harass her so that she may be compel to leave the job and ultimately management terminated job of workman/claimant on 12.08.2004."

13. There is no gainsaying that an award passed by a Labour Court is the end product of an adjudicatory process by a statutory authority appointed under the Industrial Disputes Act, 1947. While performing this adjudicatory function, it is incumbent upon a Labour Court to apply its mind to the material on record and provide reasons, howsoever brief, in support of its findings. The importance of passing a well-reasoned order while performing adjudicatory functions, cannot be undermined and has been repeatedly emphasized by the Hon'ble Supreme Court as also this Court in a plethora of decisions. Reliance may be placed upon a recent decision of this Court in Ms. Richa Shailja v. Union of India and Anr. [WP(C) No.4757/2018], wherein a Division Bench while dealing with a challenge to an order passed by the Central Administrative Tribunal, held as follows:-

"15. [T]he impugned order in our view is not a reasoned order. The petitioner being dissatisfied by the reasons given by the respondents while rejecting her representation has led to the filing of the OA and an application seeking stay of transfer. While dealing with the similar issue, the Hon‟ble Supreme Court of India in the case of Kranti Associates Private Limited and Another vs. Masood Ahmed Khan and Others reported in (2010) 9 SCC 496 has held that reasons have become an indispensable component of the decision making process. The Supreme Court has highlighted that even a quasi-judicial authority must record reasons in support of its conclusions. The Supreme Court has underlined the principle that recording of reasons is meant to serve the

wider principle of justice that must not only be done but it must appear to be done..."

14. It may also be appropriate to refer to the decision of the Punjab and Haryana High Court in Fruit & Merchant Union v. Chief Information Commissioner and Ors. [CWP No. 4787/2011], the relevant paragraph 12 of which reads as under:

"12. A perusal of the aforesaid order shows that the same is totally non-speaking. It is lacking not even in reasons for which it was opined that the information sought by the applicant herein does not amount to personal information or trade secrets of a third party, even the facts of the case have not been referred to in detail. In the absence of brief facts and the reasons contained in the order, it is not possible for the next higher court to appreciate as to what weighed with the authority in reaching the conclusion and as to whether there was application of mind by the authority or the order is arbitrary. Hon'ble the Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496, while referring to its earlier judgments... opined that every order passed by quasi-judicial authority or even an administrative authority affecting the rights of parties, must be a speaking order. It must not be like the "inscrutable face of a sphinx". The superior court cannot effectively exercise its power of judicial review unless in the order impugned, facts and reasons have been stated in detail. Merely giving an opportunity of hearing is not enough. Wherever an order can be subject to appeal or judicial review, the necessity to record reasons is even greater. It ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant facts and the law. It enables an aggrieved party to demonstrate before the higher court that the reasons on which his claim has been rejected, are erroneous. It operates as a deterrent against possible arbitrary action by any authority invested with judicial power. The aim is to prevent unfairness or arbitrariness in reaching conclusions. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. The faith of the people in

administrative authorities can be sustained only if they act fairly and dispose of the matters before them by well- considered orders..."

15. When the findings in the impugned award are examined in the light of the settled legal position noted hereinabove, there can be no doubt that the said award is wholly bereft of reasons and does not at all show application of mind to the materials on record. It is also evident that the learned Labour Court's findings and consequential directions are based on the bald assertions of the respondent. As noted hereinabove the learned Labour Court has just not given any reason for his findings and almost 54 pages out of the 55 pages award are a simpliciter reproduction of either the pleadings, evidence by way of an affidavit as also the cross-examination of the parties or their written submissions. Such an approach of the learned Labour Court discharging an important adjudicatory function wholly unacceptable. For the aforesaid reasons, the impugned award is, wholly unsustainable and is accordingly quashed.

16. In view of my aforesaid conclusion, I do not deem it necessary to deal with the other contentions raised by the learned counsel for the parties at this stage.

17. However, since it is the specific plea of the respondent that she had led sufficient evidence before the learned Labour Court in support of her claim, which plea is vehemently denied by the learned counsel for the petitioner, the interest of justice demands that the matter be remanded back to the learned Labour Court to consider the material already on record and pass an order in accordance with law.

Accordingly, while quashing the impugned award dated 30.01.2015, the matter is remanded back to the learned Labour Court to pass a fresh award after considering and dealing with the entire material on record at this stage. It will be open for the parties to raise all pleas as may be available to them, before the learned Labour Court.

18. Keeping in view the fact that the matter has remained pending for the last many years, the learned Labour Court is requested to expeditiously decide the dispute, preferably within a period of 6 months.

19. The writ petition is allowed in the aforesaid terms with no order as to costs.

(REKHA PALLI) JUDGE FEBRAURY 01, 2019 gm