Delhi High Court
Ks Sasidharan Nair vs Presiding Officer And Anr on 19 September, 2013
Author: A.K. Pathak
Bench: A.K. Pathak
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1638/2011
Decided on 19th September, 2013
KS SASIDHARAN NAIR ..... Petitioner
Through: Mr. K.B. Rohatgi, Mr. Mahesh Kasana and
Ms. Aparna Rohatgi Jain, Advs.
Versus
PRESIDING OFFICER AND ANR ..... Respondents
Through: Mr. Ganesh Kumar and Ms. Shalini Adaitya
Rout, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Petitioner was working with the respondent no. 2 as Assistant Manager. He was demoted from the post of Assistant Manager to Head Assistant Bearer and transferred to Shimla Branch vide order dated 30th December, 2000 (Ex.WW1/1), after holding a domestic enquiry. Petitioner did not report at Shimla. Instead he submitted a representation dated 9 th January, 2001 (Ex.WW1/2) against his transfer and also applied for leave on medical grounds. Petitioner also challenged the order of demotion and transfer by filing a Civil Suit No. 304/01 titled K.S. Sasidharan Nair vs. M/s W.P. (C) 1638/2011 Page 1 of 8 Indian Coffee Workers Co-operative Society Ltd., which was dismissed by the Civil Judge, Shimla vide order dated 5th March, 2002 (Ex. MW1/5).
2. Petitioner did not join at Shimla despite repeated communications sent by respondent no.2 to the petitioner requesting him to join. Instead of joining at Shimla he continued to send applications for extension of leave for about one year. Vide letter dated 24th December, 2001 (Ex.WW1/14) respondent no.2 instructed the petitioner to comply with its resolution, as reproduced in the letter. It was categorically stated that in case he failed to join his duties within 10 days on receipt of the letter, it shall be presumed that petitioner is not interested to join duty and the management shall be at liberty to take appropriate disciplinary action including termination without any further notice. Since petitioner did not join his duties at Shimla inspite of this letter he was terminated from service vide letter dated 8th January, 2002 (Ex. WW1/15) of the respondent no.2.
3. Petitioner raised an industrial dispute thereby challenging his termination. Accordingly, Secretary (Labour), Govt. of NCT of Delhi referred the dispute to the Labour Court for adjuration in the following terms:-
W.P. (C) 1638/2011 Page 2 of 8
"Whether the service of Sh. K.S. Sasidharan Nair S/o Sh. K.B. Pillai have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in his respect?"
4. In the statement of claim, petitioner alleged that respondent no.2 was annoyed with him due to his contesting the general elections of respondent society held in February, 1999, thus, he was demoted and transferred to Shimla where he could not join due to his illness. Medical certificates were sent to respondent no.2 with the applications. After he became medically fit, he reported for duty on 18th December, 2001 but was not allowed to join. Respondent no.2 asked the petitioner to withdraw cases and submit written apology and when he protested to these conditions his services were terminated on 4th January, 2002 without any show cause notice, charge-sheet or enquiry.
5. In written statement, respondent no.2 alleged that petitioner was appointed on 1st October, 1972 and his last drawn wages were `5204/- per month. He was working as an Officiating Manager. Petitioner never worked as Head Assistant Bearer. He remained absent from duty for 348 days without any sanctioned leave. Petitioner was transferred to Shimla but instead of joining there he absented himself. He submitted medical W.P. (C) 1638/2011 Page 3 of 8 certificates of a private doctor. He was asked to furnish medical certificates of Government hospital but he did not furnish the same. Petitioner filed a civil suit against the respondent no.2 regarding demotion and transfer which was dismissed. He also lodged a complaint against respondent no.2 before the Registrar of Co-operative Societies which was also dismissed. He was asked to collect his dues but he avoided to collect the same.
6. Industrial Adjudicator afforded opportunities to parties to lead evidence. Petitioner examined himself as WW/1. He proved certain documents as Ex. WW1/1 to Ex. WW1/16. As against this, respondent no.2 examined MW1 and proved documents as Ex.MW1/1 to Ex.MW1/10. Upon scrutiny of ocular as well as documentary evidence adduced by the parties Industrial Adjudicator has returned a finding that petitioner upon his transfer at Shimla failed to join there almost for one year. Instead of joining he applied for leave initially and thereafter extension applications on medical grounds between 5th January, 2001 to 7th December, 2001. Medical certificates issued by one Dr. M.S. Nagpal, MBBS, a medical practitioner were sent but without any medical prescription and test reports. Petitioner claimed that all along he had been suffering from jaundice and fever. During this period respondent no. 2 continued to write to petitioner to join W.P. (C) 1638/2011 Page 4 of 8 duties immediately. It was mentioned by the respondent no.2 in its letters that on his failure to join duties respondent no.2 shall be constrained to take action against him. Except furnishing medical certificates petitioner did not produce any document regarding treatment, prescription slip or any report regarding his illness. His leaves were never sanctioned. Petitioner avoided to report for duties at Shimla. He continued to submit only medical certificates from a private doctor on pretext of ailing from jaundice without producing any prescription, diagnostic reports etc. Even after petitioner claimed that he had recovered from his illness he did not join at Shimla; instead he insisted that he be transferred to Delhi. Respondent no.2 had given ample opportunities to the petitioner by writing letters to join duties. Though, vide letter dated 18th December, 2001 (Ex.WW1/12) petitioner claimed that he requested for cancellation of transfer and claimed that in case transfer is not cancelled he would join at Shimla but, in fact, he did not do so. Failure of petitioner to comply with the instructions of respondent no. 2 to join at Shimla by various communications was sufficient to show that he was not interested to join at Shimla, therefore, management-respondent no. 2 was free to take action against the petitioner including termination without any further notice.
W.P. (C) 1638/2011 Page 5 of 8
7. It is trite that findings of facts returned by the Industrial Adjudicator cannot be interfered with by this Court in exercise of its power of judicial review under Article 226 of the Constitution on re-appreciation of evidence. In New India Flour Mills and another vs. Sixth Industrial Tribunal, West Bengal and others 1963 1 LLJ 745, a Single Judge of Calcutta High Court has observed thus, "It is difficult for me, sitting in constitutional writ jurisdiction, to interfere with a finding of fact, even though the findings may have been arrived at on a wrong evaluation of evidence". The High Court can interfere only if it is shown that the Award suffers from manifest error of law or jurisdiction or is based on no evidence. In case the Award is based on no evidence, the High Court would step in. In case award is based on some evidence the High Court will refrain from interfering the same. A Single Judge of this court in NDMC vs. Secy. (Labour) NCT of Delhi & Ors. 2008 (4) AD (Delhi) 382 held as under:-
"Therefore, the findings of the Industrial Adjudicator are based on appreciation of evidence produced by the parties before it. The High Court in the exercise of jurisdiction under Article 226 of the Constitution of India interferes with the order of the inferior Tribunal in a writ of certiorari, only if the order assailed suffers from an error of jurisdiction or from breach of principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling this court to reappraise evidence as in an appeal and draw conclusions on questions of fact while exercising writ jurisdiction. The findings of fact W.P. (C) 1638/2011 Page 6 of 8 recorded by which Authority duly constituted for the purpose and, which ordinarily should be considered to have become final, cannot be disturbed, so long as they are based upon some material relevant for the purpose. The High Court ought not to re-adjudicate upon questions of facts decided by the Industrial Adjudicator unless the circumstances indicate that the Tribunal has snatched jurisdiction, not vested in it".
8. Finding of facts have been returned by the Industrial Adjudicator upon close scrutiny of evidence. Upon appreciation of evidence it is held that petitioner remained absent for almost one year on the ground of illness which was suspicious, inasmuch as, no medical prescription, treatment documents, diagnostic reports were produced. Instead of joining at Shimla petitioner challenged his demotion and transfer order by filing civil suit which was dismissed. Even after petitioner claimed to have recovered from the ailment he did not report for duties at Shimla. Respondent no.2 had written various communications to the petitioner calling upon him to join the duty or face action but petitioner failed to do so. The findings of facts returned by the Industrial Adjudicator are based on the evidence adduced by the parties. It is not the case of petitioner that findings are based on no evidence. Findings of fact cannot be said to be perverse and the same cannot be interfered with by this Court on re-appreciation of evidence. W.P. (C) 1638/2011 Page 7 of 8
9. In the light of above discussions, writ petition is dismissed.
A.K. PATHAK, J.
SEPTEMBER 19, 2013 ga W.P. (C) 1638/2011 Page 8 of 8