Delhi District Court
Jasveer vs M/S. Metro Hospital on 1 February, 2024
IN THE COURT OF SHRI ARUN KUMAR GARG
PRESIDING OFFICER: LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX: NEW DELHI
CNR No. DLCT13-0005136-2016
LIR No. 7902/2016
Jasveer Singh, s/o Sh. Moti Singh
Aged about 53 years,
R/o 212, Khora Colony, Prashant Garden,
Delhi-110093.
Through Shramik Ekta Manch (Regd.)
D-152, Nand Nagri,
Delhi-110093. ...Workman
Versus
M/s. Metro Hospital,
Preet Vihar,
Delhi-110095. ... Management
Date of Institution : 23.04.2016
Date of Decision : 01.02.2024
ORDER :
1. By this order, I will decide the reference dated 25.02.2016 received from Deputy Labour Commissioner, East District, Delhi, whereby, the following issue has been referred for adjudication by this Court:
"Whether Sh. Jasveer S/o Sh. Moti Singh left the job on his own after receipt of his dues in full and final or his services have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"LIR No. 7902/16
Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 1 of 39
2. Brief facts leading to the aforesaid reference are that an industrial dispute, regarding his alleged illegal termination, was raised by the claimant/workman vide his complaint dated 16.02.2015 and the appropriate Govt., upon being satisfied regarding the existence of an industrial dispute between the workman and the management, has referred the same for adjudication by this Court vide reference no. F.24(454)/E/Lab./14/8086 dated 25.02.2016.
3. The aforesaid reference was received by this Court on 23.04.2016. Upon receipt of the same, a notice was directed to be issued to the workman vide order dated 23.04.2016. Notice was duly served upon the workman who has entered appearance and filed his statement of claim on 30.08.2016, alleging inter alia that he had been working with the management at the post of Driver w.e.f. 01.01.2006 and his last drawn salary was Rs. 8,000/- per month. It has further been alleged by him that the management had not provided any appointment letter, besides other facilities under the Labour Laws, to the workman and after a demand regarding the same was raised by the workman from the management, the management has withheld his earned wages for the month of April 2014. Upon demand by the workman of his earned wages for the month of April 2014, he was illegally terminated w.e.f. 12.05.2014 without any notice pay and without any reason/chargesheet against him.
4. A complaint was thereafter made by the workman to the Labour Department, Govt. of NCT of Delhi on 16.02.2015, however, the management did not appear before the Labour Inspector despite repeated directions. On 05.10.2015, a demand LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 2 of 39 notice was served by the workman upon the management seeking his reinstatement and payment of dues, however, the management has failed to comply with the aforesaid demand leading to filing of the claim by the workman before the Conciliation Officer on 07.12.2015. Since the management did not appear even before the Conciliation Officer despite notice, the Labour Department has referred the aforesaid dispute to this Court for adjudication. The workman in his statement of claim is seeking the payment of his earned wages and continuity of service along with full back wages.
5. Notice of the statement of claim was thereafter duly served upon the management on 14.09.2016 and a written statement was filed on behalf of the management on 23.01.2017.
6. In its Written Statement, management has refuted the claim of workman on several grounds. The management has objected to the territorial jurisdiction of this Court on the ground that the workman was employed at Metro Hospital & Heart Institute, X- 1, Sector 12, Noida and not in Delhi. It has further been alleged by the management that the workman was appointed with the management w.e.f. 23.05.2013 and he has worked with the management till 31.05.2014. It is further its case that the services of the workman were never terminated by the management, rather, he himself has resigned from the services of the management vide letter dated 02.06.2014 expressing his inability to work as a Driver at Noida on account of his medical treatment which he had received at the respondent hospital at Noida and a sum of Rs. 24,332/- out of the total hospital bill of Rs. 25,082/- remains due and payable by him to the management.
LIR No. 7902/16Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 3 of 39
7. After resigning from the services, according to management, the workman did not return on his duty and it was only after repeated requests were made by the management to the workman via phone calls to pay back the balance amount due of the hospital bill raised at the time of his medical treatment during June 2014 to February 2015 that he has for the first time raised a dispute in the Labour Office at Shahdara in February 2015. Management has thus prayed for dismissal of the claim of the workman alleging the same to be wholly frivolous.
8. Rejoinder to the aforesaid written statement was thereafter filed on behalf of the management on 23.02.2017, wherein, the workman has denied all the allegations levelled by the management in the written statement and once again reiterated all the averments made by him in his statement of claim.
9. Thereafter, on the basis of pleadings of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 23.02.2017:
(i). Whether the Courts at Delhi does not have any territorial jurisdiction to entertain the present claim? OPM
(ii). In terms of reference.
(iii). Relief.
10. The workman has thereafter examined himself as WW-1 i.e. as the sole witness in support of his claim and tendered his evidence by way of affidavit Ex. WW1/A alongwith following documents:-
LIR No. 7902/16Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 4 of 39
(i) Ex.WW1/1: Copy of bank pass-book of the workman.
(ii) Ex.WW1/2: Copy of identity card of the workman issued by the management.
(iii) Ex.WW1/3 (colly): Copy of branch transfer challans.
(iv) Ex.WW1/4: Office copy of complaint to Assistant Labour Commissioner dated 16.02.2015.
(v) Ex.WW1/5: Copy of demand notice dated 05.10.2015.
11. The workman was duly cross-examined by Ld. AR for management and during his cross-examination, he has produced the following documents:
(i) Ex.WW1/M1: E-pehchan card of the workman issued by the ESIC.
(ii) Ex.WW1/M2: Original identity card of the workman.
(iii)Ex.WW1/M3 and Ex.WW1/M4: Copies of attendance cards submitted by the Management to the Labour inspector during hearing of his case.
12. During his cross-examination, he was also confronted with the alleged resignation letter dated 02.06.2014 Mark-A, however, he has denied his signatures as well as his handwriting on the aforesaid document. No other witness was examined on behalf of the workman despite opportunity and hence, on the submissions of the workman, workman's evidence was closed vide order dated 13.07.2022. Matter was thereafter adjourned for Management's evidence.
13. Management has thereafter examined Sh. Rajiv Tyagi, GM (Operations) of the management as MW-1 i.e. as the sole witness LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 5 of 39 on behalf of the management, who has tendered his evidence by way of affidavit Ex.MW1/A along with the following documents:
(i). Ex.MW1/1: Resolution dated 17.08.2022 in favour of MW-1.
(ii). Ex.MW1/2: Resignation letter dated 02.06.2014 of the workman.
(iii). Mark-A: Copy of ESI returns for the period October 2013 to September 2014 obtained by the management from ESIC website.
14. MW-1 was duly cross-examined by Ld. AR for Workman. No other witness was examined on behalf of the management and hence, on a separate statement of Ld. AR for management, Management's evidence was closed vide order dated 30.05.2023.
15. Matter was thereafter listed for final arguments, however, an application under Order 7 Rule 14(3) read with Section 151 CPC was filed on behalf of the workman seeking permission to place on record an additional document i.e. the postal receipt regarding alleged dispatch of demand notice by the workman to the management and to prove the same by leading additional evidence. The aforesaid application of the workman was allowed by Ld. Predecessor of this Court vide order dated 22.08.2023, whereafter, the same was tendered by the workman in his additional evidence as Ex.WW1/6. He was duly cross-examined by Ld. AR for management on the same day.
16. Final arguments were thereafter heard on behalf of both the parties on 06.01.2024.
17. It is submitted by Ld. AR for workman that workman has LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 6 of 39 been able to prove his case as per the statement of claim by way of his uncontroverted testimony in the form of affidavit Ex.WW1/A, which stands corroborated by the documents Ex.WW1/1 to Ex.WW1/6 and Ex.WW1/M1 to Ex.WW1/M4. He submits that the written statement has been filed on behalf of the management on 23.01.2017 without any authority and even MW- 1 has been examined on behalf of the management without any valid authorization.
18. He submits that as per the documents placed on record by the workman, it is apparent that the workman was deployed by the management in various hospitals at Delhi from time to time and at the time of his termination, he was employed at Metro Hospital, Preet Vihar, Delhi. He submits that in the proceedings before a Labour Court strict proof of documents as per the provisions of the Indian Evidence Act, 1947 is not required.
19. He submits that the management has failed to prove the alleged resignation letter Ex.MW1/2 by leading any cogent evidence. He submits that MW-1 could not even disclose the name of the person to whom the alleged letter Ex.MW1/2 was submitted by the workman. He submits that the workman has categorically denied his signatures as well as handwriting on the document Ex.MW1/2, however, the management has failed to examine any handwriting expert to prove either the signatures or the handwriting on the aforesaid document to be of the workman. Moreover, according to him, the Industrial Disputes Act, 1947 does not contemplate the service of a written demand notice as a sine qua non for a reference u/s 10(1)(c) read with Section 12(5) of the Act to be valid.
LIR No. 7902/16Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 7 of 39
20. Under the aforesaid circumstances, according to him, the workman has been able to prove his illegal termination and hence, he is entitled to all the reliefs claimed in the present statement of claim. Ld. AR for workman has relied upon the following judgments in support of his submissions:
(i). Sindhu Resettlement Corporation Limited Vs. Industrial Tribunal of Gujarat & Ors. 1967 SCC Online SC 98.
(ii). Shambhu Nath Goyal Vs. Bank of Baroda (1978)2 SCC 353.
21. On the other hand, it is submitted by Ld. AR for management that the Labour Court, while adjudicating the claim of a workman under a reference in terms of Section 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947, is bound by the terms of the aforesaid reference and cannot travel beyond the terms of reference. He submits that in the case in hand, the workman has alleged himself to be in employment of the management since 01.01.2006 until 12.05.2014. On 12.05.2014, according to him, his services were allegedly terminated by the management. He submits that even in his claim dated 16.02.2015 before the Labour Commissioner, the workman has alleged his illegal termination w.e.f. 12.05.2014. Accordingly, he submits that though in the reference order dated 25.02.2016, the date of alleged illegal termination of the workman by the management has not been mentioned, however, the reference order dated 25.02.2016 was passed pursuant to the claim of the workman dated 16.02.2015, the reference can only be considered to be in respect of his alleged termination dated 12.05.2014 and the Court is required to adjudicate whether the services of the workman LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 8 of 39 were illegally or unjustifiably terminated by the management w.e.f. 12.05.2014.
22. However, according to him, the management in its reply to the statement of claim has taken a plea that the workman was actually appointed by the management at its Noida establishment w.e.f. 23.05.2013 and he kept on working with the management until 31.05.2014. According to him, it is further the case of management that it was the workman himself who had sought discharge from his services with the management vide letter dated 02.06.2014 on the pretext that he would not be able to work as driver at Noida on account of his medical treatment as he was not feeling fit. He further submits that even the workman during his cross-examination dated 13.07.2022 has admitted that he had worked with the management until 31.05.2014.
23. Under the aforesaid circumstances, according to him, there does not arise any question of alleged illegal termination of the workman by the management w.e.f. 12.05.2014 and hence, the reference dated 25.02.2016, to the extent it requires adjudication of the question whether the services of the workman had been terminated illegally and/or unjustifiably by the management is required to be answered in negative.
24. It is further submitted by Ld. AR for management that the present reference is bad in law due to non existence of any industrial dispute between the parties as on the date of reference dated 25.02.2016, in as much as, no demand notice, pursuant to his alleged termination, seeking his reinstatement with full back wages was raised by the workman before the Labour LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 9 of 39 Commissioner. It is further submitted by him that the workman has failed to produce any document to prove his employment with the management w.e.f. 01.01.2006 or for that matter his employment in Delhi. He submits that the documents Ex. WW1/3 (Colly) tendered by the workman in his evidence have not been proved as per law, nor, according to him, do they prove the employment of the workman with the management at any place other than Noida or his appointment prior to 23.05.20213.
25. On the other hand, according to him, the management has placed on record E-pehchan Chard of the workman issued by ESIC as Ex. WW1/M1, in terms of which, the date of appointment of the workman is shown as 23.05.2013 at Metro Hospital and Heart Institute, Sector 12, Noida. He submits that even the workman has produced the original e-pehchan card during his cross-examination. Moreover, according to him, the workman himself has relied upon the copy of his bank pass book Ex. WW1/1 to prove the credit of salary from the management in his aforesaid bank account. A bare perusal of the aforesaid pass book, according to him, shows that the first salary was received by the workman from the management on 17.06.2013 which corroborates the plea of management that the workman was employed with the management only w.e.f. 23.05.2013.
26. He further submits that although the workman has relied upon the Identity card Ex. WW1/2, purportedly issued by the Metro Hospital and Heart Institute, Preet Vihar, to prove that he was employed with the management at its Delhi hospital even prior to 23.05.2013, however, according to him, the original of the aforesaid document was also taken on record during his LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 10 of 39 cross-examination and the same is Ex. WW1/M2 wherein there is apparent manipulation in the year of its validity. He further submits that the performance of duty by the workman even beyond the date of his alleged termination i.e. 12.05.2014 has also been proved by the management vide document Ex. WW1/M-3 and Ex. WW-1/M-4 which were admitted by the workman during his cross-examination.
27. Under the aforesaid circumstances, according to him, the management has been able to establish beyond reasonable doubts that the workman was employed by the management at its Noida Hospital w.e.f. from 23.05.2013 and his services were never terminated, much less, illegally terminated by the management w.e.f. 12.05.2014 as alleged by the workman.
28. So far as the first issue, referred by the appropriate Government to this Court vide reference order dated 25.02.2016 i.e. whether the workman had left the job on his own after receiving his dues in full and final, is concerned, according to him, the management has relied upon the document Ex. MW1/2, which is in the handwriting of the workman and has also been signed by him, wherein, the workman has requested for his discharge from the duty on account of his illness while undertaking to clear the dues of the management to the extent of Rs. 24,000/-. He submits that the workman has denied his signatures as well as handwriting on the aforesaid document, however, this Court is competent to compare the signatures of the workman on the aforesaid documents with that of the admitted signatures of the workman and the aforesaid comparison clearly shows that the workman has wrongly denied his signatures on the LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 11 of 39 document Ex. MW1/2.
29. In rebuttal, it is submitted by Ld. AR for workman that the court cannot rely upon the document Ex. MW1/2 to non suit the workman since despite denial by the workman of his signatures as well as his handwriting on the aforesaid document, the management has failed to examine any handwriting expert to prove the aforesaid handwriting as well as the signatures of workman. On the other hand, Ld. AR for management submits that mere denial on the part of the workman of his signatures as well as handwriting on the document Ex. MW1/2 shall not have the effect of disproof of the aforesaid documents, particularly when the workman himself has failed to examine any handwriting expert to prove the aforesaid handwriting/ signatures were not of the workman.
30. Ld. AR for management has thus prayed for dismissal of the claim of the workman with heavy cost while relying upon the judgment of Hon'ble Bombay High Court in Kishor Ahuja vs. Bal Krishna C. Kadam 2013 (3) MHLJ 145 as well as the judgment of Hon'ble Delhi High Court in S.N. Tiwari Vs. Govt of NCT of Delhi and Anr. 2009 SCC Online Delhi 2510.
31. I have heard the submissions made on behalf of both the parties and have carefully perused the material available on record in the light of judgments relied upon by both the parties. My issue wise findings on the issues settled by this Court vide order dated 23.02.2017 are given in the following paragraphs.
Issue no. (i): Whether the Court at Delhi does not have any territorial jurisdiction to entertain the LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 12 of 39 present claim? OPM
32. Since the management in its written statement has claimed that the claimant was employed at Metro Hospital and Heart Institute, Sector 12, Noida, was issued ESI No. 6714298268 from Noida, used to draw his salary from the Hospital located at Noida and hence this Court does not have jurisdiction to adjudicate the present dispute, onus to prove the aforesaid issue was placed upon the management.
33. In his rejoinder to the aforesaid written statement, the workman has taken a plea that he was employed at Preet vihar Hospital of the management and his services were also terminated while he was working at Preet Vihar Hospital. In order to discharge its onus to prove the aforesaid issue, the management has examined Sh. Rajeev Tyagi as MW-1 i.e. as the sole witness in support of its case and he has tendered his evidence by way of affidavit Ex. MW1/A. In para (2) of his evidence by way of affidavit, MW-1 has categorically deposed that the workman had served as driver at M/s Metro Hospital and Heart Institute, Sector 12, Noida, UP since 23.05.2013 and was issued ESIC card no. 6714298268 from Noida only.
34. During his cross-examination he was confronted with the Identity card of the workman Ex. WW1/2 and it was admitted by him that the aforesaid identity card was issued to the workman. He has further admitted that the aforesaid Identity Card was having the address of one of the units of the management in Preet Vihar. However, when he was enquired about any specific reason LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 13 of 39 for issuance of Identity card of the workman from the unit of management in preet vihar, he expressed his ignorance about the same. MW-1 has further admitted that the management has two hospitals in Delhi, one in Preet vihar and another in Narayana Vihar.
35. No other witness has been examined on behalf of the management in support of the aforesaid plea of the management regarding employment of the workman at its Noida Hospital. On the other hand, the workman in para 4 of his evidence by way of affidavit Ex.WW1/A has categorically deposed that he was employed by the management at Preet vihar and after sometime, he was transferred to Lajpat Nager Metro Hospital. Later on, according to the workman, he was sent to RLKC Metro Hospital and was subsequently called to Preet vihar Hospital. During his cross-examination, a suggestion was given by the management to the workman regarding tempering by the workman of his original Id Card. Another suggestion was given to him that he had only worked with the management at its Noida Hospital. Both the aforesaid suggestions have been denied by the workman.
36. It is significant to note that the workman has failed to produce any document to prove his employment with the management other than the copy of his bank passbook Ex. WW1/1 which reflects credit of salary in his bank account from Metro Hospital w.e.f. 17.06.2013, copy of ID card Ex. WW1/2 bearing the address of Metro Hospital, Preet vihar, Delhi (original of which is Ex. WW1/M2) and copies of various challans/ gate passes Ex. WW1/3 (colly). On the other hand, management has relied upon the e-pehchan card issued by ESIC LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 14 of 39 Ex. WW1/M1, in terms of which, the workman was appointed with the management on 23.05.2013 at Metro Hospital and Heart Institute, Sector 12, Noida.
37. On a bare perusal of ID card Ex. WW1/M2 (copy being Ex. WW1/2) shows that there is a tempering in the ID card in the year up to which the aforesaid ID Card was valid. No explanation has been offered by the workman in respect of the aforesaid manipulation. Be that as it may, even the management could not disclose the reasons for issuance of aforesaid ID card to the workman from Preet vihar Unit of the management.
38. Thus, even though the Court cannot take into consideration the aforesaid document as a proof of employment of the workman with the management prior to the year 2010, however, in view of the admission on the part of management of issuance of the aforesaid card by the management, in my considered opinion, the management has failed to prove that the workman was employed by the management exclusively at its Noida Hospital.
39. So far as the document Ex. WW1/3(colly) are concerned, in my considered opinion, the same are not sufficient to prove the employment of the workman by the management either at Delhi or at Noida Hospital.
40. In view of the aforesaid discussion, in my considered opinion, Management has failed to discharge its onus to prove that the Workman was employed exclusively at Noida Hospital of the Management and hence, this Court has no jurisdiction to LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 15 of 39 adjudicate the present claim.
41. Issue no. (i) is thus decided against the management.
Issue no. (ii): In terms of reference i.e. "Whether the workman has left the job on his own after receiving of all his dues in full and final or his services have been terminated illegally and/ or unjustifiably by the management ?"
42. Onus to prove the aforesaid issue was upon both the parties, in as much as, the workman, in his statement of claim, has alleged that his services were illegally terminated by the management w.e.f. 12.05.2014, however, the management, it its written statement, has taken a plea that the workman has himself left the services of the management w.e.f. 02.06.2014 on account of his illness.
43. As has already been observed hereinabove, the management has denied the existence of any industrial dispute between the parties for want of service of any demand notice by the workman upon the management prior to his approaching the Labour Department vide complaint dated 16.02.2015. However, the workman has tendered a copy of one demand notice dated 05.10.2015 Ex. WW1/5, which was allegedly served by him upon the management through speed post vide postal receipt Ex. WW1/6. It has further been contended by Ld. AR for management that in the absence of service of any demand notice by the workman upon the management prior to his approaching the Labour Department, the reference dated 25.02.2016 itself is invalid. In support of his aforesaid submission, Ld. AR for LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 16 of 39 management has relied upon the judgment of Hon'ble Delhi High Court In S.N. Tiwari's case (Supra).
44. On the other hand, it has been alleged by Ld. AR for workman that in view of the authoritative pronouncement of Hon'ble Supreme Court in Shambu Nath's case (Supra), the service of any written demand notice by the workman upon the management is not a sine qua non for a valid reference. Even otherwise, according to him, the workman has been able to prove the service of demand notice Ex. WW1/5 upon the management vide speed post dated 16.10.2015, prior to the reference dated 25.02.2016, in view of the provisions of Section 27 of the General Clauses Act.
45. No doubt, Hon'ble Supreme Court in Shambu Nath Case (Supra) has observed that for coming into existence of an industrial dispute, a written demand notice is not a sine qua non unless of course in case of public utility service, however, there is a long line of cases wherein Hon'ble Delhi High Court, after reconciliation of the aforesaid observations of Hon'ble Supreme Court in Shambu Nath's case (supra) with the propositions of law laid down by a three judge bench of Hon'ble Supreme Court in Sindhu Resettlement Corporation Ltd. case (Supra) has held that unless the workman serves the demand notice for his reinstatement upon the management, the industrial dispute can not come into existence till that time. The relative observations of Hon'ble Delhi High Court in Nagendra Sharma Vs. Management of M/s Rajasthan Timber Corporation ILR (2006) I Delhi 1030 in this regard are being reproduced herein below for ready reference :
LIR No. 7902/16Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 17 of 39 ready reference:
"23. In Sindhu Resettlement Corporation Limited v. Industrial Tribunal of Gujarat, AIR 1968 SC 529, an employee was transferred to the subsidiary company by his principal employer with his consent. He received retrenchment compensation from his new employer. The services of the workman were terminated by the subsidiary company. He claimed a lien on his post with the principal company and when informed that the post which he occupied stood filled up, the employee sought retrenchment compensation from the principal company. This was not paid by the principal company. In these circumstances, a reference of the industrial dispute was sought by him whereupon the appropriate government made a reference relating to reinstatement of the employee into service with the principal company.
The Apex Court was of the view that if no dispute at all is raised by the employees with the management, any request sent by them to the Government would be in the nature of a demand by them and would not be an industrial dispute between them and their employer. An industrial dispute, as statutorily defined under Section 2(k) is of the Industrial Disputes Act, 1947, must be a dispute between employers and employers, employers and workmen and workmen and workmen. The Government is required to come to an opinion that an industrial dispute does exist and that an opinion can only be formed on the basis that there was a dispute between the employee and the employer. Thus, when the retrenched employee and the union had conveyed a demand to the management only for retrenchment compensation, and did not make any demand for reinstatement, it was held by the Apex Court that the reference made by the Government under Section 10 in respect of the reinstatement is not competent and that the only reference which the Government could have made had to be related to payment of retrenchment compensation.
24. Noticing the facts of the case before it, the Supreme Court had observed that when the conciliation officer reported to the Government that an industrial dispute did exist, the appropriate government had to be satisfied on the material before it that such dispute had been raised by the respondent with the management. In this behalf, the court observed thus:LIR No. 7902/16
Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 18 of 39 "If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute. Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958, respondent No. 3 and respondent No. 2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subjectmatter of dispute between the appellant and the respondents."
25. A similar point came for consideration of two Judge Bench of the Apex Court in (1978) 2 SCC 353 : AIR 1978 SC 1088 entitled Shambhu Nath Goyal v. Bank of Baroda. In this case, the petitioner workman was an employee of the Bank of Baroda. After service of a charge-sheet and conduct of inquiry, he was dismissed from service. Admittedly, the workman appealed against the order of dismissal but was unsuccessful. An industrial dispute arising out of the dismissal of the workman was espoused by the Punjab Bank Workers Union. Upon failure of the conciliation proceedings, the Government of India made a reference in the following terms:
"Whether the action of the management of Bank of Baroda in dismissing Shri Shambhu Nath Goyal, Clerk, LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 19 of 39 Civil Lines Branch, was justified? If not, to what relief is he entitled?"
The respondent bank raised a preliminary objection that no demand in respect of Shri Shambhu Nath Goyal was made on the management and that therefore there was no industrial dispute in existence. It was urged that for this reason, the reference under the Industrial Disputes Act, 1947, was incompetent.
The industrial tribunal held in favour of the respondent/bank on this petition. However, the Apex Court in this behalf noticed thus:
"xxxxxxxxx
8. In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey? That appeal itself is a representation questioning the decision of the Management dismissing the workman from service and praying for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion hat there exists a dispute concerning workman S.N. Goyal and it was an industrial dispute because there was demand for reinstatement and a reference was made, such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent. Accordingly this appeal is allowed and the A ward of the Tribunal is set aside and the matter is remitted to Tribunal for disposal according to law. The respondent shall pay cost of the appellant in this Court. As the reference is very old the Tribunal should dispose it of an expeditiously as possible."
26. So far as the question of raising a demand upon the management is concerned, the court held thus:
LIR No. 7902/16Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 20 of 39 "xxxxxxxxxxxx
5. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-
employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are 'dispute' or 'difference'. What is the connotation of these two words? In Beetham v. Trinidad Cement Ltd. Lord Denning while examining the definition of expression 'Trade dispute' in Section 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
By definition a 'trade dispute' exists whenever a 'difference' exists; and a difference can exist long before the parties locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparing for an opening.
6. Thus the term 'industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or nonemployment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section."
27. Thereafter, the court held that in the light of the pronouncement of the Apex Court reported in AIR 1958 SC 53 entitled Madras State v. C.P. Sarthi, while making a reference under Section 10(1) of the Industrial Disputes Act, 1947, the Government is performing an administrative act which is based on an opinion as to the factual existence of an LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 21 of 39 industrial dispute. So far as the order is concerned, so long there is some material which would enable the government to form an opinion, it is not open for the industrial tribunal to examine the same.
28. The court distinguished the judgment rendered by the Apex Court in Sindhu Resettlement Corporation Limited (Supra) holding that the question raised before the Apex Court in the Sindhu Resettlement Corporation case (Supra) was as to whether there was an industrial dispute in existence on the date of the reference and not a question as to whether in the case of an apprehended dispute, the government can make a reference or not. In this behalf, the court held thus:
"The Tribunal, however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, (1968) 1 Lab LJ 834 : (AIR 1968 SC 529) in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined.
xxxxxxxxx
29. The Apex Court distinguished the decision of this court in Sindhu Resettlement Corporation on facts and held thus:
"We further consider whether the notification dated 1212-1968 could be construed to be one under Section 7 assuming that the mention of Section 8 therein was wrong. A notification under Section 7 would have to be for the constitution of another Labour Court, inasmuch as the Labour Court presided over by Shri Baweja still continued. This notification dated 12-12-1968 does not constitute a new Labour Court presided over by Shri Desh Deepak and cannot, therefore, be upheld under Section 7 also."
30. It is, therefore, apparent that the Apex Court decided the facts of the case before it which were at variance with the facts and issues raised in the Sindhu Settlement Corporation Case (Supra).
31. The same issue had arisen for consideration before a Division Bench of this court in Fedders Lloyd Corporation (Pvt.) Limited v. Lt. Governor, Delhi reported at AIR 1979 Delhi 60.
32. In this case, the respondent No. 3 Ajayab Singh was an employee of M/s Fedders Lloyd Corporation Pvt. Limited LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 22 of 39 and had expressed his inability to work and resigned. Based on this reason, he was relieved of his duty on 4th July, 1967. He accepted the ex gratia payment made by the petitioner which was paid on the basis of workers which retrenched from service. The workman received payment in full and final settlement of all claims and even requested for certificate which was issued by the petitioner. The workman, thereafter, did not make any demand on the petitioner company directly but wrote the letter to the labour commissioner stating that an industrial dispute exists between him and petitioner company and sought a reference. In the enclosed statement, the respondent No. 3 alleged that his services were terminated by way of retrenchment and that this retrenchment should be set aside and respondent No. 3 should be reinstated into service.
33. The petitioner company alleged that it learnt of this only when a notice was received from the conciliation officer and the petitioner resisted the claim of the respondent No. 3 on the ground that there was no industrial dispute between the parties which could be referred to adjudication. In the judgment in Fedders Lloyd Corporation Pvt. Limited case, the court held that despite facts being placed before it, the Delhi Administration made an order of reference which was assailed by the company in a writ petition before this court. The Division Bench held thus:
"11. Under Section 10(1) of the Act, the appropriate Government is empowered to make a reference if it is of the opinion that an industrial dispute either exists or is apprehended. The reference at annexure 'A' to the petition is of an existing industrial dispute. Weare not, therefore, concerned in this case with any apprehended dispute. The question is whether an industrial dispute existed before it was referred to the Labour Court. Section 2(k) of the Act defining an "industrial dispute"
refers to a dispute or difference. This means that one party asserts something, which is denied by the other or that the demand of one party is refused by the other. Preamble of the Act says that the Act makes provision for the investigation and settlement of Industrial Disputes. Chapter II of the Act constitutes certain authorities to compose any material difference of opinion or to settle industrial disputes between the employers and the employees. Such authorities include Conciliation Officers as well as the Labour Courts. In Chapter III of the Act, Section 10 deals with the reference of the disputes by the appropriate Government LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 23 of 39 for settlement to the authorities under the Act and Section 10-A deals with voluntary reference of the disputes by the parties to arbitration. Chapter IV has laid down the procedure, powers and duties of the authorities in dealing with industrial disputes. From the scheme of the Act, therefore, it is clear that an industrial dispute must exist or must be apprehended before it can be referred by the appropriate Government under Section 10(1) to the authorities mentioned therein. Section 12 which deals with the duties of the Conciliation Officer pre-supposes that an industrial dispute exists or is apprehended before the Conciliation Officer can deal with it thereunder. It does not contemplate that an Industrial dispute can arise for the first time during the proceedings before the Conciliation Officer. When the parties are unable to settle the dispute between themselves, an application is made under sub section (2) of Section 10 of the Act for reference of the dispute to an authority under the Act by the appropriate Government. The contents of such an application are to include, according to R. 3(e) of the Rules, the efforts made by the parties themselves to adjust the dispute. This would also show that a dispute must exist between the parties before an approach is made to the appropriate Government for reference of the dispute to adjudication. The application made by respondent No. 3 in the present case is at annexure 'D' of the writ petition. It begins by saying that an industrial dispute exists between the parties. But the particulars of the dispute given in accordance with the requirements of Rule 3 are significantly silent about any demand made by respondent No. 3 against the petitioner company. It does not say that any effort was made by respondent No. 3 to settle any dispute with the petitioner-company. The inference that arises is that no demand whatever was made by respondent No. 3 on the petitioner-company before he applied under Section 10(2) to the appropriate Government, for such reference of the dispute for adjudication. Respondent No. 3 has not placed any documentary evidence on the record that he made demand on the petitioner-company before making the application under Section 10(2). The referring Judge, therefore, called for the proceedings before the Conciliation Officer and found that the same application under Section 10(2) was before the Conciliation Officer. The claim of respondent No. 3 was sent by the Conciliation Officer to the management for LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 24 of 39 comments, but no comments were received in writing. The matter was, however, orally discussed and the management conveyed to the Conciliation Officer their defence on merits. As there was no possibility of settlement, the Conciliation proceedings were closed and a report was made by the Conciliation Officer to the Government. Under Section 12(5) of the Act on a consideration of this report, the Government was satisfied that there was a case for reference to the Labour Court and accordingly the reference at annexure 'A' to the petition was made.
34. The Division Bench then discussed the pronouncement of the Supreme Court in the Sindhu Resettlement Corporation Limited v. Industrial Tribunal of Gujarat(supra) and further stated thus:
13. In our anxiety to understand precisely what the Supreme Court meant I studied the whole of their decision and also the Gujarat High Court decision reported in (1965) 2 Lab LJ 268 (Guj), which was reversed by the Supreme Court. At page 271 of the report of the Gujarat High Court Judgment it is stated that respondent No. 3 had made a complaint to his Union, respondent No. 2, who thereupon presented the demand to the Corporation for the reinstatement of respondent No. 3. But the Supreme Court has held that the evidence before the Tribunal clearly showed that no such demand was made by the workmen concerned or by the Union on the Management of the Sindhu Re-settlement Corporation and I feel bound to accept this later position. The Supreme Court has held that the evidence before the Tribunal clearly showed that no such demand was made by the workmen concerned or by the Union on the Management of the Sindhu Resettlement Corporation and I feel bound to accept this later position. The Supreme Court has also clarified that even if the Conciliation Officer found that an industrial dispute existed and so reported to the Government, this could not be regarded as the existence of the industrial dispute which has to be founded upon a demand by the workmen on the employers. If this is the ratio of the Supreme Court decision, it cannot be said that an industrial dispute existed in the present case as no demand was made by respondent No. 3 on the petitioner-company before he made an application under Section 10(2) for redemand of respondent No. 3 was forwarded by the Conciliation LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 25 of 39 Officer to the petitioner-company and was not accepted by the latter would not constitute an industrial dispute.
The observation in Standard Coal Company v. S.P. Verma, AIR 1952 Pat 56, in paragraph (15), that xxxxxxxxx We are of the view that the decision of the Supreme Court in AIR 1968 SC 529 referred to above, has finally established the proposition that a demand by the workmen must be raised first on the Management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute. The decisions and dicta of some of the High Courts to the contrary can no longer be considered good law."
35. It is noteworthy that in the Shambhu Nath Goyal case (Supra), the petitioner had agitated against his dismissal and had even filed an appeal before the bank against the same. Therefore, the court was of the view that the petitioner had been persistently demanding reinstatement from its employer and for this reason, rendered the judgment as noticed above.
36. So far as the reliance on judicial precedent is concerned, it has been repeatedly observed that court should not place reliance on decision without discussing as to how factual situation fits in the fact situation of the decision on which reliance is placed. In this behalf, I may refer to the principles laid down in the pronouncement of the Apex Court reported in JT 2002 (1) SC 482Haryana Financial Corporation v. Jagdamba Oil Mills. In this case, the court held thus:
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 26 of 39 statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951 AC 737 at p. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the languages actually used by that most distinguished judge."
In Home Office v. Dorset Yacht Co., (1970 (2) All ER
294) Lord Reid said, "Lord Atkin's speech .......... is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megrry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. As if it were an Act of Parliament." And, in Herrington v. British Railways Board, ((1972) 2 WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
20. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may later the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case falls, the broad resemblance to another case is not at all decisive."
xxxxxxxxx "Precedent should be followed only so far as it LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 27 of 39 marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets nd branches. My plea is to keep the path to justice clear of obstructions which could impede it."
37. In the Sindhu Resettlement Corporation case, Fedders Lloyd Corporation (Pvt.) Limited case and in the instant case, no demand or notice of any kind had been served upon the employer/management with regard to the demand of the workman. Therefore, the fact situation before the Apex Court in Shambhu Nath Goyal case was quite different from the facts which were before the court in the Sindhu Resettlement Corporation case, Fedders Lloyd case and the case in hand.
38. Judicial decorum, legal propriety and bindingness of precedents mandate that a judgment rendered by a larger bench of the Apex Court, which is prior in time, would prevail over latter judgment of the Apex Court which may have been rendered by a smaller Bench. A judgment rendered by a two bench of the Apex Court which distinguishes the earlier judgment by the larger bench on the facts of the case would, therefore, not be laying down a binding principle of law.
39. In these circumstances, I am unable to agree with Shri K.L. Gupta, learned counsel for the petitioner, that the judgment of the Apex Court in Shambhu Lal Goyal v. Bank of Baroda case supra would be binding for the purposes of adjudication of the present case. As I have already noticed, the facts which were before the Apex Court in Shambhu Nath Goyal v. Bank of Baroda are different from the case set up by the present petitioner before the industrial adjudicator.
40. In JT 1989 (3) SC 156 entitled Jayantbhai Manubhai Patel v. Arun Subodhbhai Mehta, the court held that the observations of the Apex Court in the judgments which were relied upon by the High Court did not constitute the ratio of the judgment in that case and consequently, the High Court need not have considered itself bound by the observations in the judgment of the Apex Court cited before it. In this case, the Apex Court held thus:
"In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire's case, as they have done. In the first place, these observations LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 28 of 39 do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem's case, might not have made the afore-stated observations at all."
41. In the judgment reported in (1989) 1 SCC 101 entitled MCD v. Gurnam Kaur, an issue was raised before the Apex Court as to whether an order passed with the consent of parties would amount to a pronouncement of law and constitute binding precedent. In this behalf, the court observed thus:
"10. It is axiomatic that when a direction or order is made by consent of the parties, the court does not adjudicate upon the rights of the parties nor does it lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 29 of 39 court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said:
Article 38(2) of the Constitution mandates the State to strive to minimise, amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Deli sun freezing cold or torrential rain. They are being denied continuance at that place under the specious lea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order.
This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the Metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam which it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 30 of 39 on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. Explains the concept of sub silentio at p. 153 in these words:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
12. In Gerard v. Worth of Paris Ltd. (k)., the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lncaster Motor Co. (London) Ltd. v. Bremith Ltd., the court held itself not bound by its previous decision. Sir Wilfried Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided 'without argument, without reference to the crucial words of the rule, and without any citation of authority', it was not binding and would not be followed.
Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 31 of 39 casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."
42. In view of the above, I have no manner of doubt that the facts of the instant case, which are on all fours with the fact situation before the Apex Court in Sindhu Resettlement Corporation case supra and the principles laid down therein would bind this court." (Emphasis mine)
46. The aforesaid judgment has been followed by Hon'ble Delhi High Court in subsequent cases including in S.N.Tiwari's case supra.
47. Now, this Court shall proceed to examine whether the workman has been able to prove the service of demand notice dated 05.10.2015 upon the management by way of speed post dated 16.10.2015. It is submitted by Ld. AR for management that the workman has failed to prove the service of demand notice Ex. WW1/5 upon the management, in as much as, no acknowledgment of delivery of the aforesaid notice to the management has been produced/proved by the workman in his evidence. It has been further pointed out by him that the Court cannot even presume the service of the aforesaid notice upon the management with the help of Section 27 of the General Clauses Act in view of the fact that although the notice Ex. WW1/5 is on the letter head of Sharmik Ekta Manch, Nand Nagri Delhi, however, the postal receipt records the name of sender as PNL Union, Pratap Khand.
48. He submits that the workman has failed to either allege or prove that he had any relationship with the PNL Union. He LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 32 of 39 submits that in the aforesaid circumstances, the Court cannot presume that it was the notice Ex. WW1/5 which was sent by the workman to the management through postal receipt Ex. WW1/6.
49. I find force in the aforesaid submission made on behalf of the management. No doubt, in view of observations of Hon'ble Supreme Court in Sindhu Resettlement Corporation case supra, in proceedings before a Labour Court, strict proof of documents in accordance with the provisions of Indian Evidence Act is not required, however, the Court is required to be satisfied with the genuineness of the documents relied upon by the parties in support of their respective pleadings, before acting upon the same. A bare perusal of notice dated 05.10.2015 Ex. WW1/5 shows that the same has been prepared on the letter head of Sharmik Ekta Manch (Regd) having its address as Block D- 1/152, Nand Nagri, Delhi-110093.
50. The workman had initially failed to produce any postal receipt or AD card regarding dispatch/delivery thereof to the management, however, after final arguments were heard on behalf of both the parties in part, an application U/O 7 R 14 (3) r/w Section 151 CPC was filed on behalf of the workman seeking permission to place on record the postal receipt dated 16.10.2015 regarding alleged dispatch of the notice dated Ex. WW1/5 to the management and to prove the same. The aforesaid application of the workman was allowed vide order dated 22.08.2023, whereafter, the aforesaid postal receipt was tendered by the workman in his evidence as Ex. WW1/6. He was duly cross- examined by Ld. AR for management qua the aforesaid postal receipt. During his cross-examination, it was pointed out to him LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 33 of 39 that no date of dispatch of the demand notice Ex. WW1/5 was disclosed by him in his statement of claim to which he has answered in affirmative. When he was enquired about the full form of PNL Union, whose name had been mentioned as the sender on the postal receipt Ex. WW1/6, the workman pleaded his ignorance about the same. He could not even admit or deny whether the PNL Union mentioned in the postal receipt stands for the 'Progressive National Labour Union' as mentioned in his statement of claim or not. He has further admitted that he has not placed on record any demand notice sent by PNL Union besides admitting that demand notice Ex. WW1/5 was on the letter head of Sharmik Ekta Manch.
51. Under the aforesaid circumstances, in my considered opinion, the Court cannot raise any presumption regarding the service of legal notice Ex. WW1/5 by the workman upon the management vide postal receipt Ex. WW1/6. In the absence of proof of service of legal notice Ex. WW1/5 by the workman upon the management, in my considered opinion, the workman has failed to prove the existence of any industrial dispute on the date of reference dated 25.02.2016 in view of the pronouncement of Hon'ble Delhi High Court Nagender Sharma's case (Supra).
52. In view of the aforesaid conclusion, in my considered opinion, the reference itself being invalid, the Court is not required to adjudicate as to whether the service of the workman were terminated by the management illegally and/or unjustifiably LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 34 of 39 or whether the workman has left the job on his own after receipt of his dues in full and final. However, considering the fact that any decision of this Court is amenable to the writ jurisdiction of Hon'ble Delhi High Court, the Court proceeds to decide the reference on merits also.
53. In view of the authoritative pronouncement of Hon'ble Delhi High Court in DTC Vs. Rajpal 2006 LLR 1179 and of Hon'ble Bombay High Court in Kishore Ahuja's case (supra), I find force in the submission of Ld. AR for the management that the Court in the proceedings U/s 10(1)(c) r/w 12(5) of ID Act cannot go beyond the terms of reference. No doubt, the terms of reference does not specifically mention the date of alleged illegal termination of the workman by the management while requiring this Court to adjudicate whether the services of the workman have been terminated illegally and/or unjustifiably by the management, however, considering the complaint Ex. WW1/4 of the workman before Labour Commissioner, it is apparent that the workman has alleged his date of illegal termination to be 12.05.2014.
54. Even in the statement of claim filed before this Court, he has alleged the date of his termination as 12.05.2014 and hence, the terms of reference regarding the illegal termination of the services of the workman necessarily meant that this Court is required to adjudicate whether the services of the workman were terminated illegally and/or unjustifiably by the management w.e.f. 12.05.2014.
55. It is significant to note that during his cross-examination, LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 35 of 39 the workman has categorically admitted that he has worked with the management until 31.05.2014 thereby contradicting his own claim qua his alleged illegal termination w.e.f. 12.05.2014. The plea of the management, that the workman had worked with the management until 31.05.2014 and hence, there is no merit in the plea of workman that he was illegally terminated by the management w.e.f. 12.05.2014, stands corroborated not only by the aforesaid admission of the workman during his cross- examination, but also, by the document Ex. WW1/M3 which records the attendance of the workman at the establishment until 31.05.2014. The aforesaid document has not been disputed by the workman during his cross-examination.
56. Moreover, even Ld. LAC for workman has given a suggestion to MW-1 during his cross-examination dated 30.05.2023 that the workman had worked with the management from 23.05.2013 till 31.05.2014. Under the aforesaid circumstances, in my considered opinion, since the workman has failed to prove that his services were illegally terminated by the management w.e.f. 12.05.2014 and has rather admitted that he had worked with the management until 31.05.2014, the reference to the extent it requires this Court to adjudicate whether the services of the workman were illegally terminated by the management w.e.f. from 12.05.2014 is answered in negative.
57. It is significant to note in this regard that in view of the settled legal position regarding the scope of jurisdiction of this Court in an adjudication of reference U/s 10(1)(c) r/w 12(5) of ID Act, i.e. that the Court cannot travel beyond the terms of the reference, the workman cannot be granted any relief while LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 36 of 39 considering his plea that this Court should hold the termination of the workman to be illegal irrespective of the date of his termination.
58. Now, coming to the remaining part of the reference i.e. whether the workman has left the job on his own after receipt of his dues in full and final, it is significant to note that the management has heavily relied upon the document Ex. MW1/2 whereby the workman had purportedly sought his discharge from his duties as driver of the management at Noida Hospital on the ground of his illness. It is worth noting that the aforesaid document has been tendered by the management through MW1, who had admittedly joined the management in the month of July 2017, i.e. much after the submission of the alleged letter by the workman seeking his discharge w.e.f. 02.06.2014. In response to a specific question of Ld. AR for Workman i.e. whether the letter dated 02.06.2014 was ever received by the management or whether any acknowledgment in this regard was ever given by the management to the workman, the witness could not give any specific answer except that the same must have been received by the management and the receiving, if asked, would have been supplied to the workman.
59. Upon further enquiry from MW-1 as to whether the letter dated 02.06.2014 was in the handwriting and bears the signature of workman, MW-1 had expressed his ignorance about the same on the pretext that he was not a handwriting expert. It may be noted in this regard that the workman during his cross- examination has categorically denied his signatures as well as handwriting on the aforesaid document, however, the LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 37 of 39 management has failed to produce any witness to prove that the aforesaid letter was either in the handwriting of the workman or the signatures on the same were that of the workman. The management has even failed to examine any handwriting expert to prove the signatures as well as the handwriting of the workman on the aforesaid document.
60. Under the aforesaid circumstances, in my considered opinion, the management has failed to prove that the workman was relieved by the management of his duty pursuant to his request dated 02.06.2014 vide letter Ex. MW1/2.
61. It is next sought to be contended by Ld. LAC for workman that the Court may take note of the conduct of the management in admitting the workman as a cash patient in its hospital for his treatment despite he being entitled to ESI benefits and the hospital of the management being empaneled hospital under ESIC. The aforesaid conduct of the management, according to Ld. LAC for workman, indicates that the workman was not being provided with the ESI benefits by the management and has been illegally terminated on the basis of forged and fabricated document Ex. MW1/2.
62. No doubt, the management has failed to explain as to why the workman was admitted in the hospital for treatment as a cash patient despite the management being aware of the fact that workman was registered with ESIC and the hospital of the management was affiliated with ESIC, however, the aforesaid fact, by itself, is not sufficient to hold the workman entitled to the reliefs claimed by him in the present statement of claim. In my LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 38 of 39 considered opinion this Court is neither required nor empowered to adjudicate as to whether the workman owns any liability to the management towards the alleged treatment of the workman at the hospital of the management as a cash patient.
63. In view of the aforesaid discussion, in my considered opinion, although the management has failed to prove that the workman has left the job on his own after receipt of his dues in full and final, however, the reference even to the extent whether the services of the workman were terminated illegally and/or unjustifiably is required to be answered in negative.
64. The reference is accordingly answered in the following terms:-
"The management has failed to prove that Sh. Jasveer Singh S/o Sh. Moti Singh left the job on his own after receipt of his dues in full and final and the workman has failed to prove that his services have been terminated illegally and or unjustifiably by the management w.e.f. 12.05.2014 and hence the workman is not entitled to any relief."
65. Ordered accordingly.
Announced in the open Court on this 01st day of February, 2024. This Order consists of 39 number of signed pages.
(ARUN KUMAR GARG) Presiding Officer, Labour Court-III Rouse Avenue Courts, New Delhi LIR No. 7902/16 Jasveer Singh Vs. M/s Metro Hospital Order dated 01.02.2024 Page 39 of 39