The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 3389 of 2023 Shakeel Anwar, aged about 62 years, Son of Md. Hazi Imbrahim, resident of House No. 2, Taj Medical Hall, Purulia Road, Azad Nagar, Jamshedpur, P.O. & P.S. Mango, District East Singhbhum Versus Petitioner … … 1. The State of Jharkhand 2. Management of Tata Iron & Steel Co. Ltd., Jamshedpur, having its work and office at Bistupur, Jamshedpur through its Managing Director officiating at TISCO, Jamshedpur, P.O. & P.S. Bistupur, Dist. East … … Respondents Singhbhum CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondents 07/3rd July 2024 --- ---
Legal Reasoning
: Ms. Aprajita Bhardwaj, Advocate : Mr. Manish Mishra, Advocate 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “a) For quashing of the award dated 28.01.2023 (Annexure-9) passed by the Learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 22 of 2003 whereby and whereunder the Ld. Labour Court has passed an award so as to not reinstating the petitioner at his earlier position by the management of M/s TISCO Ltd. is justified and the petitioner is not entitled to get any relief. AND/OR b) For a direction upon the Respondent no. 2 to reinstate the Petitioner in the services of the Respondent No. 2 w.e.f. 27.01.1999 that is from the date the letter of appointment was issued to the Petitioner, however he was not allowed to join his duties and to further direct the Respondent No. 2 to reinstate the Petitioner with full back wages. AND/OR c) Further for issuance of any such other writ(s) / order(s) / direction(s) as may appear for doing just, conscionable justice to the petitioner and in the interest of justice.” fair and proper 3. The learned counsel for the petitioner while giving the background of the case has submitted that the petitioner was appointed in the Park and Garden Department of the respondent-Management on 16.04.1988 and on account of unauthorized absence, he was dismissed on 24.11.1995. She submits that the 1 matter regarding his re-employment was taken up by the Committee of the respondent and vide Committee Meeting dated 13.06.1997, a decision was taken to re-employ the petitioner on purely compassionate ground as Mazdoor (P –1) in Park and Garden Department against Standard Force Vacancy provided he is found medically fit and does not absent himself for a period of six months without any information or permission failing which he will be discharged straightaway. 4. The learned counsel submits that for two years the respondents did not issue the offer letter to the petitioner and ultimately the same was issued only on 27.01.1999, but this time the petitioner was offered employment as Sanitary Hand in Public Health (pool) Department of the respondent. The learned counsel submits that the offer in another department i.e. Sanitary Hand in Public Health (Pool) Department itself shows that the respondents never had the intention to give re-employment to the petitioner. She further submits that upon receipt of the said letter dated 27.01.1999, although the petitioner was not satisfied, still the petitioner made all effort to join the services at Public Health (Pool) and had gone there on 19.02.1999 also, but was not allowed to join by citing “no vacancy”. She submits that this would be apparent from the letter dated 21.02.1999 which was filed by the petitioner before the President of Tata Workers Union, Jamshedpur and the grievance of the petitioner has been mentioned therein so that the Union could take up the matter of the petitioner. 5. She submits that thereafter when nothing positive happened, the dispute was referred to the learned Labour Court for adjudication vide notification dated 08.10.2003. The terms of reference is as under: - “Whether retrenched not reinstating at his earlier position to the Shakeel Anwar worker of M/s TISCO Ltd., Jamshedpur P. No. 110887 by the management is justified? If not, what relief he is entitled to?” 6. The learned counsel submits that the learned Labour Court ultimately decided the case against the petitioner, but the impugned award is perverse, inasmuch as, a finding has been recorded that the letter dated 27.01.1999 is not a genuine document and it is an afterthought. The learned counsel submits that once the document was produced as an exhibit, there was no occasion to doubt the genuineness of such document and if the timeline is counted then the fact 2 that the petitioner had approached the Management on or upon expiry of 21 days i.e. on 19.02.1999 cannot be disputed. 7. The learned counsel submits that even the retrenchment compensation has not been given to the petitioner. 8. The learned counsel appearing on behalf of the respondents while opposing the prayer has submitted that the letter dated 21.02.1999 has been elaborately dealt with by the learned Labour Court and was found to be not a reliable document and was a result of an afterthought. He submits that neither such pleading was made by the workman in his written statement by referring to the letter dated 27.01.1999 nor there is any evidence of the workman on this point. Merely because the said document was produced along with list of documents, the same does not cut any ice in favour of the petitioner. He has referred to paragraph 18 of the impugned award. He has submitted that there is no perversity in the impugned award calling for any interference under Article 226 of the Constitution of India. 9. So far as the retrenchment compensation is concerned, since the petitioner never joined, the question of retrenchment does not arise and therefore there is no occasion to give any retrenchment compensation. 10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the sheet anchor of the argument of the petitioner is the letter dated 21.02.1999 to show that pursuant to the offer of re-employment vide letter dated 27.01.1999, the petitioner had gone to the respondent within a period of 21 days to join. It is not in dispute that the petitioner was to join within a period of 21 days as per the offer of re- employment. 11. This Court finds that the said letter has been elaborately dealt with by the learned Labour Court and the genuineness of the said letter has been found to be doubtful by citing numerous reasons. It has also come on record that as per the materials on record, the learned Court found that the petitioner failed to establish before the court that he had gone to report for duty within the time which was allowed. The pleadings and other aspects of the matter have also been considered and it has also been recorded that the workman had not given 3 any explanation for non-production of this letter dated 21.02.1999 prior to 06.12.2019. The findings of the learned Labour Court in paragraph 18 is as under: - “18. Both parties admitted that on 27.01.1999 management issued re- employment letter on 27.01.1999 (Ext. M/9 & W/2). Workman pleaded that in compliance of re- employment letter dated 27.01.1999 he had gone to report for duty in Public Health (Pool) Department within the stipulated time, but concerned department did not allow the workman to join his duty on something or other plea. Thereafter the workman raised Industrial dispute. On the other hand management has clearly pleaded that in compliance of recommendation of S.C.W.C. meeting dated 13.06.1997 letter dated purely on compassionate ground re-appointment 27.01.1999 was issued but this workman voluntarily choose not to accept the re-employment offered to him at the instant of the S.C.W.C., there is nothing for the management to justify retrenchment which did not take place. This fact has been clearly supported by management witness. Management witness clearly stated that this workman did not come to employment bureau within 21 days in compliance of re-appointment letter dated 27.01.1999. The fact that this workman had gone to join his duty is a affirmative fact, hence the burden lies upon the workman to establish this fact. To prove this fact workman has not produced any documentary evidence. In his deposition vide para 25 he has supported this fact and stated that he had gone to report for duty but he was not allow to do the job on own pretext or another. Other witness has not been produced in support of his pleading. raised thereafter the workman Industrial dispute From perusal of written argument filed by the workman it appears that vide para 10 & 11 the Ld. Counsel clearly mentioned that for Implementation of Ext M/9 mentioning therein that the workman was not permitted to join his services. Further, in the light of Ext M/9 the workman approached the Tata Workers Union vide letter dated 21.02.1999 and requested for his reinstatement with full back wages resulting into present reference case but such type of fact has not been mentioned in the pleading of the workman. Not only this but at the time of deposition, the workman has also not stated that he approached the Tata worker union vide letter dated 21.02.1999. This workman was also examined twice in this case but he has not stated such type of fact in his deposition. The workman neither mentioned this type of fact in his pleading nor stated in his deposition. After hearing both the parties this court passed Award on 17.08.2012. Thereafter the workman preferred writ before the Hon'ble Jharkhand High Court. The Hon'ble Jharkhand High Court pleased to pass order on 01.08.2019. Thereafter workman appeared in this court and filed his alleged letter dated 21.02.1999 which is available on record. Workman has not given any explanation for non production of this letter prior to 06.12.2019. Not only has this but he not produced any member of Tata workers union in support of his this letter. Examination of any member of Tata Workers Union was highly essential for corroborate the version of the workman and receiving of this letter. Since, this letter was not filed by the workman prior to award dated 17.08.2012 and workman has not given any explanation 4 for non production of this letter, hence, creates a doubt upon the genuineness of this document. Admittedly workman neither pleaded about this document nor brought this document on record prior to 06.12.2019. The workman has not produced any evidence to establish the fact that he sent any letter to the management for redressal of his grievance or Deputy Labour Commissioner. Therefore the document (latter dated 21.02.1999) filed by the workman before this court on 06.12.2019 is not fruitful for the workman rather it appears that this document has been created and filed by the workman after thought and with a view to fill up the lacuna of his case otherwise any representative of Tata Workers Union must have been examined in support of the fact of receiving of this letter in his office. Filing time of this document and not disclosing the reason for not filling this document prior to 06.12.2019 highly created a doubt upon the genuineness and validity of this document. The Hon'ble Delhi high court clearly held in a judgment filed by the Ld. Counsel for the management titled as Dr. J.K. Jain Vs. Krishnaram Baldev investment and finance co. Ltd. that "The court may permit the production of such documents only on showing sufficient cause. In the present case, the documents sought to be produced by the petitioner later on were not such which were not in the power of the petitioner or could not have been obtained by the petitioner. The petitioner had not made any reference to these documents in the written statement neither filed as list of documents relied upon. I find no reason as to why the court should allow filing of such documents at a belated stage when the petitioner is not able to satisfy the court about the relevancy of these documents and reasons for not filing the same with the written statement or before framing the issues." Moreover only on the basis of this document it is not proved that workman had gone to join his duty within 21 days in compliance of re-appointment letter dated 27.01.1999 and management did not allow him to join his duty. Therefore, there is no sufficient material available on record to establish the fact that this workman had gone to join his duty in compliance of appointment letter dated 27.01.1999. The documents filed by the workman Ext. W to W 6/C does not help to the workman to establish the fact that the workman had gone to join his duty. The workman completely failed to prove this fact. Re-employment letter dated 27.01.1999 issued with specific terms and conditions which are as follow -"If the offer is acceptable to you, you should report within 21 days of the issue of this letter to our divisional manager (employment) with 4 passport size photograph etc. In case you fail to report within the stipulated period, the letter of appointment will automatically stand canceled". Since, the completely failed to establish this fact that he went to join his duty within 21 days, in such circumstance his re- employment automatically cancelled after 21 days, therefore, there was no need to issue show cause or explanation. Submission of Ld. Counsel for the workman that "if the Management claim that the workman had voluntarily not joined the duty or reported to duty, it was incumbent upon the Management to show cause the workman or issue a show cause notice calling upon the workman to respond as to the reason of not reporting or joining, in absence of which the Management cannot take a stand that it was a default on the part of the workman” is not tenable in the eyes of law.” 5 12. After having gone through the impugned award and considering the arguments which have been raised by the petitioner to challenge the impugned award, this Court is of the considered view that there is no scope for re- appreciating the materials on record and coming to a different finding in writ proceedings filed against an award. This court finds no illegality or perversity calling for interference in the impugned award. The impugned award is based on appreciation of materials on record and in view of the limited scope of interference under writ jurisdiction, no case has been made out by the petitioner for interference. 13. Accordingly, this writ petition is dismissed. 14. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.) 6