Delhi Transport Corporation Vs. Raj Pal - Court Judgment

Excerpt:
$~4 * in the high court of delhi at new delhi + lpa 657/2012 delhi transport corporation ..... appellant through: mr j.s. bhasin and mr anand nandan, advs. versus raj pal ..... respondent through: mr atul t.n., adv. coram: hon'ble the chief justice hon'ble mr. justice v.k. jain % 1. order 08 01.2013 the respondent workman was employed with dtc as a driver. he met with an accident and was hospitalized. on regaining health, he reported for duty with a medical certificate recommending that he should be given light duty. the case of the appellant is that the respondent was sent for medical check-up and after receipt of the report of the medical board, declaring him unfit for the duty of a driver, he was given light duty. the respondent, according to the appellant, was supposed to go for medical examination at regular intervals, but he did not appear before the medical board on 19.02.1992 and raised an industrial dispute alleging removal from service.2. during pendency of the proceedings before the labour court, the appellant instituted an enquiry against the respondent workman, alleging unauthorized absence from duty. the enquiry proceedings culminated in passing of the order dated 19.11.1999, terminating the services of the respondent. no dispute with respect to the termination vide order dated 19.11.1999 was raised by the respondent. the tribunal vide award dated 01.10.2004 held the termination order dated 19.11.1999 to be illegal. a writ petition filed by the appellant against the order of the tribunal was allowed by a learned single judge of this court on 13.09.2006. in an appeal filed by the workman respondent, the matter was remanded back to the writ court. vide order dated 09.05.2012, the learned single judge dismissed the writ petition filed by the appellant. being aggrieved, the appellant is before us by way of this appeal.2. it is an admitted position that no dispute with respect to the termination order dated 19.11.1999 was raised by the respondent workman and the scope of the reference made to the tribunal was confined to the alleged termination dated 19.02.1992. the learned single judge noted that the labour court, despite noticing the allegation of the respondent workman that his services were actually terminated by the appellantmanagement as also the plea of the appellantmanagement that his services were not terminated on 19.02.1992, did not give its decision one way or the other, in this regard. however, the learned single judge proceeded to undertake the exercise himself, instead of remanding the matter back to the labour court to return a finding on this disputed question of fact. on consideration of the evidence led before the labour court, the learned single judge held that the services of the respondent workman had actually been terminated in the year 1992 and further holding that the said termination was legal and justified, dismissed the writ petition filed by the appellant.3. in state bank of bikaner & jaipur v. om prakash sharma (2006) 5 scc 123.an industrial dispute was raised by the respondent workman culminating in a reference being made to the industrial tribunal with respect to the action of the management in terminating the services of the workman and employing another junior workman in his place in violation of section 25h of the industrial disputes act. the labour court concluded that the respondent had failed to prove that after termination of services another workman was employed in his place in violation of section 25h of the act. a finding, however, was arrived at that no seniority record was maintained as required under rule 17 of industrial disputes rules and, therefore, the respondent was entitled to be reinstated in service with 50% of back wages. the appellant before supreme court filed writ petition challenging the award of the labour court. a learned single judge of the high court dismissed the writ petition taking a view that if the reference in the question referred only to section 25 of the act, the same would not debar the tribunal from going into other illegalities committed under the act or the rules. an intra-court appeal filed by the appellant was dismissed by a division bench of the high court. allowing the appeal and setting aside the award to the extent of order of reinstatement with back wages, supreme court, inter alia, observed and held as under:in the instant case, the award of the labour court suffers from an illegality, which appears on the face of the record. the jurisdiction of the labour court emanated from the order of the reference. it could not have passed an order going beyond the terms of the reference. while passing the award, if the labour court exceeds its jurisdiction, the award must be held to be suffering from a jurisdictional error. it was capable of being corrected by the high court in exercise of its power of judicial review. the high court, therefore, clearly fell in error in refusing to exercise its jurisdiction. the award and the judgment of the high court, therefore, cannot be sustained.4. in the case before us, since the termination order dated 19.11.1999 was not the subject matter of the reference made to the labour court, it had no jurisdiction to go into the said termination order and give a finding with respect to the said termination. the award dated 01.10.2004 holding the termination dated 19.11.1999 to be in violation of section 33 of industrial disputes act was, therefore, liable to be set aside on this ground alone. as noted earlier by us, no finding with respect to the alleged termination dated 19.02.1992 was returned by the labour court. the appellant having denied the alleged termination dated 19.02.1992, a disputed question of fact arose as to whether the services of the respondent workman were actually terminated on 19.02.1992 or not. the findings on this disputed question of fact should, in the first instance, have been given by the labour court and the learned single judge was not justified in taking it upon himself to analyse the evidence produced by the parties during the course of award proceedings and return a finding of fact. the disputed questions of fact ought not be decided in exercise of writ jurisdiction and should be decided, at least initially, by the court/tribunal which records evidence in the matter. in fact, while exercising writ jurisdiction, this court is precluded from re-appreciating the evidence produced by the parties and interference by the writ court with the finding of fact, is allowed only if the case before the court is of the view that the finding is based on no evidence at all or where the finding rendered by the court of the first instance is perverse, being a finding which no reasonable person, acting upon the material available to him, could have rendered. therefore, in the absence of any finding of fact having been recorded by the labour court in this regard, the learned single judge was not justified in taking upon himself to render such a finding, in the first instance. for the reasons stated hereinabove, the impugned judgment cannot be sustained. the appeal is, therefore, allowed and the impugned judgment dated 09.05.2012 is set aside. the matter is remitted back to the labour court to answer the reference made to him, with respect to the alleged termination dated 19.02.1992. considering the fact that the reference was made more than 20 years ago, we direct the labour court to decide the matter expeditiously and in any case within six months from today. the parties shall appear before the concerned labour court at 10.00 a.m. on 17.01.2012. one copy of this order be sent to the concerned labour court. the appeal stands disposed of. chief justice v.k. jain, j january 08 2013 bg

Judgment:
$~4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 657/2012 DELHI TRANSPORT CORPORATION ..... Appellant Through: Mr J.S. Bhasin and Mr Anand Nandan, Advs. versus RAJ PAL ..... Respondent Through: Mr Atul T.N., Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V.K. JAIN % 1. ORDER 08 01.2013 The respondent workman was employed with DTC as a driver. He met with an accident and was hospitalized. On regaining health, he reported for duty with a Medical Certificate recommending that he should be given light duty. The case of the appellant is that the respondent was sent for medical check-up and after receipt of the report of the Medical Board, declaring him unfit for the duty of a driver, he was given light duty. The respondent, according to the appellant, was supposed to go for medical examination at regular intervals, but he did not appear before the Medical Board on 19.02.1992 and raised an industrial dispute alleging removal from service.

2. During pendency of the proceedings before the Labour Court, the appellant instituted an enquiry against the respondent workman, alleging unauthorized absence from duty. The enquiry proceedings culminated in passing of the order dated 19.11.1999, terminating the services of the respondent. No dispute with respect to the termination vide order dated 19.11.1999 was raised by the respondent. The Tribunal vide award dated 01.10.2004 held the termination order dated 19.11.1999 to be illegal. A writ petition filed by the appellant against the order of the Tribunal was allowed by a learned Single Judge of this Court on 13.09.2006. In an appeal filed by the workman respondent, the matter was remanded back to the Writ Court. Vide order dated 09.05.2012, the learned Single Judge dismissed the writ petition filed by the appellant. Being aggrieved, the appellant is before us by way of this appeal.

2. It is an admitted position that no dispute with respect to the termination order dated 19.11.1999 was raised by the respondent workman and the scope of the reference made to the Tribunal was confined to the alleged termination dated 19.02.1992. The learned Single Judge noted that the Labour Court, despite noticing the allegation of the respondent workman that his services were actually terminated by the appellantmanagement as also the plea of the appellantmanagement that his services were not terminated on 19.02.1992, did not give its decision one way or the other, in this regard. However, the learned Single Judge proceeded to undertake the exercise himself, instead of remanding the matter back to the Labour Court to return a finding on this disputed question of fact. On consideration of the evidence led before the Labour Court, the learned Single Judge held that the services of the respondent workman had actually been terminated in the year 1992 and further holding that the said termination was legal and justified, dismissed the writ petition filed by the appellant.

3. In State Bank of Bikaner & Jaipur v. Om Prakash Sharma (2006) 5 SCC 123.an industrial dispute was raised by the respondent workman culminating in a reference being made to the Industrial Tribunal with respect to the action of the management in terminating the services of the workman and employing another junior workman in his place in violation of Section 25H of the Industrial Disputes Act. The Labour Court concluded that the respondent had failed to prove that after termination of services another workman was employed in his place in violation of Section 25H of the Act. A finding, however, was arrived at that no seniority record was maintained as required under Rule 17 of Industrial Disputes Rules and, therefore, the respondent was entitled to be reinstated in service with 50% of back wages. The appellant before Supreme Court filed writ petition challenging the award of the Labour Court. A learned Single Judge of the High Court dismissed the writ petition taking a view that if the reference in the question referred only to Section 25 of the Act, the same would not debar the Tribunal from going into other illegalities committed under the Act or the Rules. An intra-Court appeal filed by the appellant was dismissed by a Division Bench of the High Court. Allowing the appeal and setting aside the award to the extent of order of reinstatement with back wages, Supreme Court, inter alia, observed and held as under:In the instant case, the award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the award, if the Labour Court exceeds its jurisdiction, the Award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The Award and the judgment of the High Court, therefore, cannot be sustained.

4. In the case before us, since the termination order dated 19.11.1999 was not the subject matter of the reference made to the Labour Court, it had no jurisdiction to go into the said termination order and give a finding with respect to the said termination. The award dated 01.10.2004 holding the termination dated 19.11.1999 to be in violation of Section 33 of Industrial Disputes Act was, therefore, liable to be set aside on this ground alone. As noted earlier by us, no finding with respect to the alleged termination dated 19.02.1992 was returned by the Labour Court. The appellant having denied the alleged termination dated 19.02.1992, a disputed question of fact arose as to whether the services of the respondent workman were actually terminated on 19.02.1992 or not. The findings on this disputed question of fact should, in the first instance, have been given by the Labour Court and the learned Single Judge was not justified in taking it upon himself to analyse the evidence produced by the parties during the course of award proceedings and return a finding of fact. The disputed questions of fact ought not be decided in exercise of writ jurisdiction and should be decided, at least initially, by the Court/Tribunal which records evidence in the matter. In fact, while exercising writ jurisdiction, this Court is precluded from re-appreciating the evidence produced by the parties and interference by the Writ Court with the finding of fact, is allowed only if the case before the Court is of the view that the finding is based on no evidence at all or where the finding rendered by the Court of the first instance is perverse, being a finding which no reasonable person, acting upon the material available to him, could have rendered. Therefore, in the absence of any finding of fact having been recorded by the Labour Court in this regard, the learned Single Judge was not justified in taking upon himself to render such a finding, in the first instance. For the reasons stated hereinabove, the impugned judgment cannot be sustained. The appeal is, therefore, allowed and the impugned judgment dated 09.05.2012 is set aside. The matter is remitted back to the Labour Court to answer the reference made to him, with respect to the alleged termination dated 19.02.1992. Considering the fact that the reference was made more than 20 years ago, we direct the Labour Court to decide the matter expeditiously and in any case within six months from today. The parties shall appear before the concerned Labour Court at 10.00 A.M. on 17.01.2012. One copy of this order be sent to the concerned Labour Court. The appeal stands disposed of. CHIEF JUSTICE V.K. JAIN, J JANUARY 08 2013 bg