Municipal Corporation of Delhi vs Smt. Mohar Kaur

Gita Mittal, J.—By way of this writ petition, the Municipal Corporation of Delhi has impugned an Award dated 1st May, 2003 passed by the Industrial Tribunal holding that the services of the respondent had been terminated illegally and unjustifiably and directing her reinstatement in service with continuity of service and full back wages.

Smt. Mohar Kaur joined the employment of the Municipal Corporation of Delhi w.e.f. 3rd May, 1979 as a School Attendant. Her services were regularised w.e.f. 10th August, 1987. At the time of taking employment, the petitioner had submitted an application form and an affidavit to the effect that she was born on 2nd March, 1951. The petitioner/MCD have contended that the workman used to slip away from the School during her duty hours for two-three days in an unauthorised manner for which memos dated 26th February, 1994, 19th November, 1994 and 4th February, 1995 were also issued to her. The head master is said to have reported the matter to the Education Office vide reports dated 28th March, 1995 & 5th April, 1995.

It is alleged that a legal notice dated 24th March, 1995 was received alleging that the respondent/workman had obtained service by furnishing false documents regarding her date of birth. It was stated that the date of birth of the respondent in the service record was reflected as 2nd March, 1951 while her daughter and son from school record were alleged to have been born on 1st June, 1957 and 10th October, 1959.

In view of these facts, it was submitted that the date of birth claimed by the petitioner was apparently false.

According to the M.C.D., a medical examination was conducted by the petitioner on 1st June, 1987. The medical authorities endorsed the following remarks in the report on such examination:

Her age according to her own statement, 37 years and by appearance about 40 years.

In these circumstances, the Head Master appears to have served a memo on 3rd April, 1995 upon the workman which she refused to receive and also refused to supply her ration card.

The MCD claims to have conducted a departmental inquiry against the petitioner based on charges with regard to the false affidavit and her failure to perform duties as noticed above. The respondent submitted a reply dated 18th May, 2001 denying the charges. The petitioner proceeded to hold that the inquiry against the respondent and finding the charges proved, her services were terminated vide an order dated 8th June, 2001.

Aggrieved thereby, the petitioner raised an industrial dispute which was referred for adjudication to the Industrial Tribunal vide a reference order dated 27th February, 2002 which was in the following terms:

Whether the services of Smt. Mohar Kaur, w/of Shri Lakshmi Chand have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is she entitled and what directions are necessary in this respect?

The petitioner challenged the inquiry proceedings as well as the order of termination. It was also stated that no copies of the document were supplied to the workman and that the inquiry officer on 16th March, 2002 of his own recorded that the petitioner did not want to cross-examine the remaining witnesses. The respondent/workman claimed that the inquiry was a mere eyewash with a predetermined mind.

The MCD failed to file the written statement and none appeared before the Industrial Tribunal on 15th July, 2002 and despite taking several adjournments, failed to file written statement. In these circumstances, the Corporation was proceeded ex-parte. The order directing ex parte proceedings was accepted by the Municipal Corporation of Delhi in as much as it availed the opportunity to cross-examine the workman who had appeared as a witness in support of his own case.

In her deposition, the respondent/workman supported the case set up by her in her claim. She also submitted that she was illiterate and did not call any assistance in the inquiry. No opportunity was given in this behalf to her. I find that no suggestion has been given by the Municipal Corporation of Delhi that her deposition was false or her documents were false or fabricated. There was no evidence in rebuttal on behalf of the management.

Learned Counsel for the respondent has drawn my attention to the explanation given by the workman in respect of the allegations of the date of birth. It has been pointed out by the workman that she is completely illiterate and that her affidavit was submitted on the basis of assumption and approximation of her given age. No inquiry in respect thereof was made at the time of her appointment nor was any proper medical examination done to ascertain her age. The workman has also stated that her daughter was illiterate and was never admitted by her husband Lakshmi Chand or herself in a school. The workman disputed the signatures on the admission form and affidavit produced by the M.C.D. It was also pointed out that these documents did not contain any date of birth.

Therefore, based on these materials, it has been stated by the respondent/workman that the charges against her were totally false and unsubstantiated.

I have had occasion to examine another matter wherein an issue relating to the age of a similarly placed workman had arisen. The management in that case had also placed reliance on an assumption of age given based on an ocular assessment of age of a person, without examining the matter any further. In as much as such an assumption was based on no assertion report or forensic examination of the workman. Vide a judgment dated passed in WP (C) No. 6395/2001 entitled MCD v. Satyawan Singh and Ors. estimation of age based on such estimation was rejected.

I find that in the instant case also, the assumption of age had been rendered on a conjecture based on purely physical appearance without anything further. There has been no examination of the petitioner by any forensic expert nor any test or medical examination undertaken to arrive at a fair assessment and reasonable assessment of the age of the respondent/workman. For this reason, an assertion in the alleged medical report relied upon by the petitioner is not worth of any judicial credence.

The evidence of the workman remains unrebutted. Her statement to the effect that she was not furnished document and that she could not afford a defence assistance have also gone completely unchallenged.

Learned Counsel for the respondent has submitted that the petitioner had even failed to establish the charges led against the respondent even on the evidence led before the inquiry.

I find that there is no reason to disbelieve the deposition of the respondent. There is no evidence or material before this Court to disturb the findings of fact arrived at by the Industrial Adjudicator even if such course was legally permissible which it is not. The Award dated 1st May, 2003 has been rendered based on such evidence.

The parameters and scope of judicial review on issues of fact in industrial awards have been circumscribed within narrow limits by judicial pronouncement. Noteworthy in this behalf are the observations of the Apex Court in AIR 2000 SC 1508 entitled Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union and Anr. in which it was held thus:

The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can b reasonably and possibly one taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below.

The learned Adjudicator had followed the pronouncement of the Apex Court reported in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, wherein it was held that:

The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In Our view, three years'' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for conformation.

For all the foregoing reasons, the Award dated 1st May, 2003 cannot be impugned on any legally tenable ground.

Accordingly, this writ petition is dismissed with costs which are quantified at Rs. 10,000/-. Out of this amount, the petitioner shall pay Rs. 5,000/- to the respondent as costs. The balance amount of Rs. 5,000/-be apportioned equally between the Delhi High Court Bar Association Library Fund and the Delhi High Court Legal Services Authority and paid within a period of four weeks from today.