Manoj Kumar Singh vs The Union Of India & Ors on 15 February, 2010

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Patna High Court - Orders

Manoj Kumar Singh vs The Union Of India & Ors on 15 February, 2010

Counsel for the appellant-writ petitioner while assailing the award of the Central Government Industrial Tribunal, No. 1, Dhanbad dated 25th February, 2009 and its affirmance by the learned single Judge in the impugned order dated 2.7.2009 in CWJC No. 7362 of 2009 has submitted that since it was an admitted fact that the appellant-writ petitioner was appointed as a driver on daily wages by the District Manager, Food Corporation of India (hereinafter referred to as the FCI), Darbhanga on 3.12.1999 and had continued in service till 11.8.2000 and thereby had completed service of more than 240 days in a 2 calender year as such he ought to have been held entitled for protection of Section 25 F of the Industrial Dispute Act, requiring one month notice or salary in lieu thereof before his being terminated from service. In this regard it has been submitted that the Tribunal as also the learned single Judge have failed to take note of the documentary evidence including the Annexure-1 of the memo of appeal, allegedly, an order of the District Manager appointing him as a driver in FCI at District Office Darbhanga (Laheriasarai) stating therein that the services of the appellant- writ petitioner had been utilized as the driver of the departmental vehicle for the period 3.12.1999 to 11.8.2000. Further reliance has been placed by the learned counsel on a communication dated 11.7.2003 of the office of the District Manager of the FCI, Darbhanga directing him to submit original certificate allegedly issued on 12.8.2000 by the then District Manager with regard to his continued service from 3.12.1999 to 11.8.2000 so that his services could be made permanent. On the basis of all these documents learned counsel for the appellant had impressed upon us that there was no iota of doubt with regard to engagement and completion of 240 days of 3 service of appellant-writ petitioner as a driver on casual basis in the office of FCI, Darbhanga and as such even if these documents could not be produced by the appellant- writ petitioner before the Tribunal, this Court in exercise of power under Article 226 could still look into them for the purpose of upsetting the findings recorded by the Tribunal as affirmed by the learned single Judge.

Mr. Prabhakar Tekariwal, learned counsel appearing on behalf of the FCI, on the other hand, has submitted that this Court in exercise of supervisory power under Article 227 could only look into the findings recorded by the Tribunal and interfere only if such finding was either based on a patent error of record or was wholly perverse. He has also submitted that any document which was never produced in evidence by the appellant-writ petitioner before the Tribunal could not be made a basis for upsetting findings recorded by the Tribunal. He has, accordingly, supported the impugned order of the learned single Judge affirming the findings of the Tribunal.

This court on perusal of the award of the Tribunal, would find that the appellant-writ petitioner had produced oral and documentary evidence and his two 4 documents were marked as Ext. W- 1 and W-2. Ext. W-2 was a letter of the District Manager, FCI stating therein that the appellant-writ petitioner was a driver of a departmental car and he had worked regularly and he should be appointed in the department on a permanent basis. A finding however on this document, Ext-W-2 has been recorded by the Tribunal that this letter was procured by the appellant-writ petitioner by manipulation on a date on which he was no longer in service and as such the same in isolation could not have been relied specially when in the cross-examination, the appellant-writ petitioner in his deposition before the Tribunal had himself admitted that he had never received any letter of his appointment from FCI nor infact he had submitted an application for his appointment as a driver in the FCI. Thus, the finding of the Tribunal recorded on the basis of evidence adduced by the appellant -writ petitioner would now leave no scope for this Court to take into account the alleged appointment letter dated 3.12.1999 (Annexure-1) which appears to be an extract recorded on a page of diary and reads as follows:-

" It is hereby ordered that Sri Manoj Kumar Singh s/o Sri Deo Narain 5 Singh resident of village & P.O. Sathalmalpur, P. S. Warisnagar, Distt. Samastipur is appointed as Driver of four wheeler in Food Corporation of India at District Office Darbhanga with effect from 3.12.1999."

It is thus more than clear that this document is yet another attempt on the part of the appellant-writ petitioner to create a subsequent evidence to a fact which was already denied by him in his cross-examination wherein he had unequivocally admitted that no appointment letter was ever issued to him by the FCI. The fact that Annexure- 1 cannot be appointment letter, is also visible from a naked eye inasmuch as it has been written by hand by some one on a torn piece of a page of diary in the date of 3/4 December and bears no resemblance of an office order issued in usual course from the office of FCI as is also apparent on a close comparison from Annexure 3/1, a letter dated 11.7.2003 issued by the same office of FCI, Darbhanga which was exhibited as W-2 before the Tribunal and was disbelieved as a procured document after almost three years of his alleged removal from service.

The Tribunal in fact having also gone into the whole issue at great length had found that the appellant- 6 writ petitioner was an employee of one R. K. Travel Agency which had been given contract for providing vehicle with driver and certain payment were made to the travel agency for the services extended to FCI, Darbhanga. The tribunal, in fact, after looking into all these aspects had arrived at a finding that there was no relationship of employee and employer between the appellant-writ petitioner and the management of FCI and the appellant- writ petitioner was actually never appointed by the Management of FCI and as such the question of termination of his service by FCI would also not arise.

Such a conclusive finding of fact based on a appraisal of evidence would in fact hardly require any interference by this court in exercise of power under Article 226 of the Constitution and the plea that this Court should give one more opportunity to the appellant-writ petitioner for producing his additional evidence by way of Annexure-1 and Annexure-2 to this memo of appeal has to be only noted for its being rejected. If such procedure of allowing evidence to be led in instalments is permitted by this court there would be an unending spate of litigation.

This Court, however, has looked into 7 Annexure 1 and 2 only for the purpose of examining the plea of the appellant-writ petitioner and from them also there would be hardly any improvement in the case of the appellant-writ petitioner inasmuch as, FCI, an instrumentally of the Government of India cannot be compelled to treat the employee of contractor, a travel agency to be its own employee. This court is also satisfied that the Tribunal had made a thread bare discussion of the documentary evidence led by the Management of FCI wherein with the help of payment vouchers it had been satisfactorily proved that the appellant-writ petitioner was a staff of a travel agency and whatever payment was made to the travel agency for the service extended by way of providing the vehicle and driver was also suitably compensated by making payment as per the terms of agreement between the FCI and the travel agency.

This court must hold that the findings recorded by learned single Judge in this regard also does not suffer from any infirmity wherein it has been held as follows:-

".... After going through the decision rendered by the tribunal and also the so-called annexure-1 which has been brought on record the Court can only observe that Annexure-1 cannot be treated in isolation or as a fresh evidence 8 to hold that the tribunal has committed error of law. No amount of jugglery by the petitioner can establish his case at this stage because this Court is not an appellate authority or an authority to do reappraisal of new evidence which was never produced before the tribunal. There is no infirmity in the order of award....."

That being so, this appeal, is devoid of any merit, is accordingly dismissed. There would be, however, no order as to costs.

(Dipak Misra, CJ.) (Mihir Kumar Jha, J.) kanchan

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Patna High Court - Orders