Mr. Ashutosh Rana, Advocates v. MR. MITHILESH PANDEY

Judgment

1. This writ action, brought under Article 226 of the Constitution of India assails Labour Court Award dated 25.05.2019 whereby, holding that services of the respondent workman were illegally terminated, the petitioner management was directed to pay him a compensation of Rs.5,00,000/-. On service of notice of the petition, the respondent entered appearance through counsel before the predecessor bench. I have heard learned counsel for both sides and perused the records. W.P.(C) 12960/2019 Page 1 of 16 pages GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d435f 97626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EEE60 402C487965FF801E26FA, cn=GIRISH KATHPALIA Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31

2. Succinctly stated, circumstances leading to the present petition are as follows.

2.1 The Deputy Labour Commissioner, Government of NCT of Delhi sent a Reference to the Labour Court as to whether the present respondent had received full and final payment on his own volition from the present petitioner or his services were terminated by the present petitioner illegally or unjustifiably and if so, the relief to which he is entitled.

2.2 On service of notice from Labour Court, the present respondent filed Statement of Claim pleading that he was employed with the present petitioner since 05.03.2002 on the post of Bus Driver at a monthly salary of Rs.9200/-, but when he demanded the facilities like appointment letter, weekly and yearly leave, overtime, bonus etc., the present petitioner terminated his services on 09.09.2012 without any notice and without payment of salary for the period from 01.08.2012 to 08.09.2012; that despite his demand letter to the petitioner and a written complaint to the Labour Commissioner, the petitioner management refused to reinstate his service; and that since the date of termination of service, he is unemployed.

2.3 The present petitioner filed Reply to the Statement of Claim, pleading that the respondent was employed with the petitioner from 01.11.2005 to

31.05.2011, after which he left the job and joined again with effect from

01.11.2011 at a reduced salary of Rs.8,550/- per month but worked only till

24.08.2012 and thereafter never reported for duty; that on 25.08.2012 the W.P.(C) 12960/2019 Page 2 of 16 pages GIRISH KATHPALIA

DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d435f97626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EEE60402C487965FF801 E26FA, cn=GIRISH KATHPALIA Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31 respondent workman requested for advance payment regarding which he was assured that his request would be considered on 27.08.2012, but he stopped reporting for duty from 27.08.2012; that on 08.09.2012 the respondent again visited office of the petitioner to collect salary for the month of August 2012 and the same was paid to him; that on 08.09.2012 itself, the respondent also informed the petitioner that he had joined job elsewhere, so his account be settled in full and final; that at his request, the petitioner management prepared a voucher towards due amount, but the respondent refused to accept the same, stating that he would come on some other date; that in the last week of September 2012, the respondent again visited office of the petitioner and collected his full and final settlement amount in cash.

2.4 On the basis of above pleadings, the Labour Court framed two issues as to whether the present respondent had absented himself from duty with effect from 27.08.2012, onus whereof was placed on the petitioner management and the issue on the terms of Reference. Both sides examined one witness each and after hearing both sides, the Labour Court passed the impugned award.

2.5 In the impugned award, the Labour Court after analyzing the evidence on record held that the present petitioner had failed to prove its pleadings that the present respondent had voluntarily absented himself from duty with effect from 27.08.2012 and that the voucher of full and final settlement is a forged document. The Labour Court, further taking note of the evidence on W.P.(C) 12960/2019 Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31 Page 3 of 16 pages GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d435f9 7626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EEE604 02C487965FF801E26FA, cn=GIRISH KATHPALIA record that the present respondent had obtained a job elsewhere held that it is not a fit case to direct reinstatement of service and that for illegal termination of his service, the present respondent is entitled to compensation of Rs.5,00,000/- from the present petitioner.

3. Hence, the present petition.

4. During arguments, learned counsel for both sides took me through record in support of their rival contentions.

4.1 Learned counsel for petitioner argued that in their Written Statement, the petitioner offered the respondent to join back the service but he did not do so, therefore, it is a clear case of voluntary abandonment of service and consequently, the present respondent is not entitled to any compensation in lieu of reinstatement. Learned counsel for petitioner also laid heavy emphasis that the respondent workman had falsely pleaded in his Statement of Claim that he is unemployed; and in this regard, learned counsel for petitioner took me through cross examination of the present respondent where he admitted about his current employment. On behalf of petitioner, it was also argued that vide voucher dated 08.09.2012, the respondent workman was paid a sum of Rs.30,000/- which he accepted towards full and final settlement, so no compensation was called for. In support of his arguments, learned counsel for petitioner placed reliance on judicial precedent in the case of Sonal Garments vs. Trimbak Shankar Karve, 2003 (1) LLN 91, in which the learned Single Judge of Bombay High Court held W.P.(C) 12960/2019 Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31 Page 4 of 16 pages GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835 d435f97626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2E EE60402C487965FF801E26FA, cn=GIRISH KATHPALIA that where offer of the management for reinstatement was not accepted by the workman, he would not be entitled to relief of reinstatement and back wages at all.

4.2 On the other hand, learned counsel for respondent workman supported the impugned award and contended that the voucher in question is clearly a fabricated document. Learned counsel for respondent emphasized that no full and final amount was paid to the respondent by the petitioner. On behalf of respondent, I was also taken through report dated 04.12.2012 of the Labour Inspector, according to which the present petitioner had refused to take the present respondent back in job. Further, learned counsel for respondent also took me through evidence on record to show that even after termination of his services, the present respondent is not regularly employed anywhere though he is working and being paid on the basis of distance driven. Learned counsel for respondent also pressed that no evidence qua the alleged abandonment of service was led by the petitioner management.

4.3 As regards the legal position, there is no dispute between the parties. However, both sides placed on record copies of various judicial precedents, many of which are not even relevant. That is why, only one judicial precedent of Sonal Garments (supra) was referred during arguments. The entire dispute revolves around the questions of facts and appreciation of evidence. W.P.(C) 12960/2019 Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31 Page 5 of 16 pages GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d435f 97626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EEE60 402C487965FF801E26FA, cn=GIRISH KATHPALIA

5. To begin with, it would be apposite to briefly traverse through the scope of interference by this court under Article 226 of the Constitution of India while dealing with disputes of the present nature. The jurisdiction available to the High Court under Article 226 of the Constitution of India is not in the nature of appellate or revisional jurisdiction. It is an extraordinary jurisdiction in which the discretion can be exercised within the limited parameters, delineated by the Supreme Court.

5.1 Most recently, in the case of State of Rajasthan & Ors. vs. Bhupendra Singh, 2024 SCC OnLine SC 1908, the Supreme Court recapitulated the legal position on the scope of Article 226 of the Constitution of India thus: “23. The scope of examination and interference under Article 226 of the Constitution of India (hereinafter referred to as the ‘Constitution’) in a case of the present nature, is no longer res integra. In State of Andhra Pradesh v. S Sree Rama Rao, AIR 1963 SC 1723, a 3-Judge Bench stated: ‘7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the W.P.(C) 12960/2019 Signature Not Verified Digitally Signed By:NEETU N NAIR Signing Date:13.02.2025 18:21:31 Page 6 of 16 pages GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb483 5d435f97626cacca, postalCode=110003, st=DELHI, serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD 2EEE60402C487965FF801E26FA, cn=GIRISH KATHPALIA departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.’ (emphasis supplied)