Right Marketing vs J.B. Thakur and Others

Siddharth Mridul, J.—By way of the present writ petition, the petitioner assails the correctness of the award dated 19th July, 2007 passed by the Industrial Adjudicator in favour of the respondent/workman, whereby the Industrial Adjudicator answered the reference made to him in the affirmative and directed reinstatement with continuity of service and full and back wages.

The factual matrix germane for the adjudication of the present petition is adumbrated as follows:

a) Respondent No. 1(workman) had been employed by the petitioner(Management) w.e.f. 5th April, 1994 as salesman and his last drawn wages were Rs. 8000/-. According to the workman, the management did not provide him legal facilities and when these were demanded, he was called to the office of the management and was beaten on the behest of the management. Signatures of the workman were obtained on the blank papers and thereafter his services were terminated, without any prior notice or payment in lieu of notice. The workman was also not paid wages w.e.f. 1st January, 2005 to 7th May, 2005.

b) The workman sent a demand notice dated 7th March, 2005 to the management, but to no avail.

c)The workman also made a complaint to the SHO, PS Adarsh Nagar on 7th March, 2005 by the registered post. The workman was consequently constrained to initiate the present industrial dispute u/s 10(4A) of the Industrial Disputes Act (ID Act).

d) The workman in his statement of claim categorically stated that he had been unemployed since the date of termination of his services by the Management. The workman, therefore, prayed for reinstatement with continuity of services and full back wages.

e) The management contested the claim on behalf of the workman by firstly asserting that Mr. SN Gupta was not the proprietor of the management firm. It was alleged on behalf of the management that it was the sole proprietorship owned by Smt. Sunita Gupta, wife of said Sh. S.N. Gupta. It was further urged on behalf of the management that the workman was a Commission Agent who dealt with the management for sale and purchase of its product. It was also asserted that the workman was never employed w.e.f. 5th April, 1994 as salesman at wages of Rs. 8,000/- per month, and that since he had not been so employed, there was no question of granting him any legal facilities. It was further denied that any beating was given to the workman or that his signatures were obtained on blank papers and vouchers as alleged. Furthermore, it was denied that the services of the workman were ever terminated. It was also urged by the Management that the workman having misbehaved with a female employee of the management, was the subject of a complaint with the police.

f) The Industrial Adjudicator framed the following issues on the basis of the pleadings of the parties.:

(I) Whether the services of the workman have been terminated illegally and unjustifiably by the management?

(II) Whether there is no relationship of employer and employee between the parties?

(III) Relief.

g) The workman, examined himself and, inter alia, produced a certificate, proved as EXWW1/4 purportedly issued by the said Mr. S.N. Gupta on behalf of the management. The said Smt. Sunita Gupta w/o Mr. S.N. Gupta was examined as a witness on behalf of the management and thereafter evidence of the parties were closed.

(h) The Industrial Adjudicator with regard to Issue No. 2 considered the document namely EX.WW1/4 which is in the following terms:

This is a certificate that J.B. (Jang Bahadur) Thakur has worked in my (Right Marketing) company since April, 1994 to February 24.2.2005 as a Sales Representative. During the period of employ his salary was Rs. 8,000/-. He is very skilled and good. I wish to his bright future.

i) The Industrial Adjudicator found that, although, at the outset, it had been pleaded on behalf of the management that the Proprietor of the Management had not issued any Experience Certificate to the workman and that the certificate if at all had been issued by a person who was not duly authorized in this behalf, however, in the cross examination of said Smt. Sunita Gupta, it emerged that the witness admitted that EXWW1/4 bore the signature of her husband said Sh. S.N. Gupta at point A. The said Smt. Sunita Gupta''s testimony was in the following words

EXWW1/4 bore signature of my husband at point A...

My husband is actively involved involved in the work of the management but I do not know as to in what work he do(es). There is no dispute between me and my husband. Both of us together run the business.

j) The Industrial Adjudicator, therefore, found that the case of the management had been inconsistence qua EX.WW1/4 and that the management had not placed on record any document to establish that the management was a proprietorship concern owned exclusively by said Smt. Sunita Gupta. As such, the Industrial Adjudicator drew an inference that Sh. S.N. Gupta was the proprietor of the management and having issued the experience certificate in nature of EXWW1/4, could not retract from his admission that the workman worked with the management w.e.f. April, 1994 to February, 2005 at wages of Rs. 8,000/- per month.

(k) The Industrial Adjudicator, therefore, held that the claimant/workman was employed by the Management and thereby decided Issue No. 2 in favour of the workman and against the Management.

l) With regard to Issue No. 1, the Industrial Adjudicator after considering the demand notice sent to the Management on 7th March, 2005 by Registered Post, duly proved as EXWW1/M1 and postal receipts proved as EXWW1/1, WW1/2 and WW1/5, observed that the same established the dispatch of the Registered letters to the SHO PS Adarsh Nagar as well as dispatch of the letter to the management on 11th March, 2005. Further, observing that it was not disputed by the Management, that the address mentioned on the demand notice, was not that of the Management, the Industrial Adjudicator raised the presumption that the notice sent by registered post to the management at the correct address must have reached the Management. Further, an interference was raised that, since there was no explanation as to why management remained silent and did not reply to the demand notice sent by the workman, in addition to the admission in relation to EXWW1/4 aforesaid, the Industrial Adjudicator came to a conclusion that the Management cannot wash their hands of the legitimate claim of the workman.

(m) The Industrial Adjudicator, therefore, came to a conclusion that the workman had been able to establish that he worked w.e.f. April, 1994 to February, 2005 and his services were terminated illegally and unjustifiably by the Management.

(n) With regard to the relief to be granted to the workman, the Industrial Adjudicator observed that the workman had alleged that he had remained unemployed since the date of termination of his service and although, the Management denied the same in the written statement, the latter had been unable to produce any evidence to show that the workman was gainfully employed. The Industrial Adjudicator resultantly came to a finding that there was no material to show that the Claimant was gainfully employed.

(o) Therefore, relying on the decisions of this Court, in DTC v. Ishwar Singh 2006 4 AD (Delhi) 537 where it was observed as follows:

In this view of the matter, in view of the authoritative principles laid down by the apex court which are binding on this Court, there being no evidence of gainful employment of the workman or any other circumstances justifying denial of the back wages, the award of the industrial adjudicator holding that the workman was entitled to reinstatement with continuity of service and full back wages cannot be faulted in any manner.

And in Darshan Singh (Shri) v. DTC 2006 (2) AD (Delhi) 17 where this Court had observed as follows:

The workman was prevented from rejoining the service for the actions of the management. The finding of the industrial adjudicator to the effect that the workman is responsible for his unemployment has to be set aside and quashed.

the Industrial Adjudicator came to a finding that the workman was entitled to reinstatement with continuity of services with full back wages.

Learned Counsel appearing on behalf of the petitioner would firstly urge that the Impugned Award is erroneous, inasmuch as, the workman had been unable to establish that he was employed with the Management. I find no merit in this statement on behalf of the Management for the reasons that the testimony of Smt. Sunita Gupta in conjunction with EXWW1/4, proved by the workman, clearly established that the Management was also being run by Mr. S.N. Gupta. The Management had failed to produce on record any material to make good its assertion that said Smt. Sunita Gupta was Sole Proprietor thereof. Counsel would further submit that, workman had been unable to establish that he was not gainfully employed during the pendency of the reference before the Industrial Adjudicator. I do not agree with this submission either, for the reason that, the workman has clearly asserted and pleaded that he had remained unemployed from the date of termination of his services, and the Management had not been able to produce any evidence to the contrary. In this behalf, it is also noticed that the decisions relied upon by the Industrial Adjudicator, clearly justify the view taken by the Industrial Adjudicator that, there being no evidence of the employment of the workman denial of the back wages was impermissible. Therefore, the Award of the Industrial Adjudicator, holding that the workman was entitled to reinstatement with continuity of service with full back wages cannot be faulted in any manner.

In the instant case, it is noticed that the workman had been able to establish that he was employed by the Management from April, 1994 to February, 2005. The workman had further been able to establish that he had been employed at salary of Rs. 8000/- per month. The workman had also been able to establish that his services were terminated by the Management without compliance with the statutory provision u/s 25 of the Industrial Disputes Act. On the other hand, the management had not been able to establish either that Mr. S.N. Gupta who admittedly issued Ex.WW1/4, was not the proprietor of the firm, or that the workman had been gainfully employed during the pendency of the reference before the Industrial Adjudicator. It is, thus, evident that there was ample material before the Industrial Adjudicator for the conclusion that was reached in this respect.

The scope of judicial review in a proceeding under Article 226 of the Constitution of India is no longer res integra. This Court under the provisions of Article 226 of the Constitution of India cannot undertake the exercise of liberally reappreciating the evidence and drawing conclusions of its own on pure questions of fact. The findings of fact recorded by a fact-finding authority duly constituted for the purpose cannot be interfered with as long as they are based upon some material relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken.

In the present case the findings of the Industrial Adjudicator are based on the appreciation of evidence produced before it. I am of the view that the findings cannot be said to be based on no evidence at all, so as to, warrant re-appreciation of evidence, by this Court. The limitations on the jurisdiction of this Court are well settled. A writ in the nature of certiorari may be issued only if the finding of the Industrial Adjudicator suffers from an error or jurisdiction or from a breach of principles of natural justice or is vitiated by a manifest or apparent error of law. No such issue has been urged or established in the instant case on behalf of the petitioner. The Court will not countenance the picking of holes here and there in the award on trivial points and attempting thereby to frustrate the entire adjudication process before the Industrial Adjudicator on hypertechnical grounds as is being sought to be done by the petitioner in the present case.

Therefore, in my view, the Award of the Industrial Adjudicator does not suffer from any factual or other infirmity so as to warrant interference by this Court in the exercise of discretionary jurisdiction under Article 226 of the Constitution of India. It may also be observed that this Court does not normally interfere with the finding of fact arrived at by Industrial Adjudicator unless the Award''s findings are based on no evidence at all or are perverse or contrary to the material on record. In my view, the Impugned Award does not suffer from any infirmity in this behalf and consequently the writ petition is devoid of merit and hereby dismissed, but, with no order as to costs.