M/s Zee Enterprises vs Sunil Kumar & Ors.

KIRTI SINGH, J. (ORAL)

The present writ petition has been filed under Article 226/227 of the Constitution of India challenging the award dated 07.2.2017 (Annexure P-6) passed by the learned Industrial Tribunal-cum-Labour Court-I, Gurgaon (respondent No. 2), whereby the respondent No. 1 has been ordered to be reinstated in service with 40% back wages w.e.f. 06.2.2013.

As per the pleaded facts, the petitioner is engaged in the business of providing outsourcing services and manpower to various institutions, companies and corporations. The petitioner participated in the tender invited by respondent No. 3 for supplying Peons and was awarded the contract on 28.07.2007. As per the agreement, the petitioner was required to deploy Peon in the branches of the respondent-bank as and when asked. Vide letter dated 30.10.2007, the respondent-bank demanded 09 Peons at their newly opened branches. It is further pleaded that respondent No.1 had submitted his bio-data to the petitioner seeking employment as a Peon, who was accordingly deployed at the Ghasera Branch of the respondent-bank vide letter dated 31.10.2007. Respondent No.1 initially worked properly, but subsequently several complaints were received regarding his insubordination and non-cooperation. Respondent No. 1 also started misbehaving and refusing the directions of the officers of the petitioner-bank. Respondent No. 3 vide letter dated 05.02.2013, informed the petitioner that it was not satisfied with the services of the Peons working at the Nuh, Ghasera and Malab Branches and requested their replacement. Subsequently, respondent No.1 absented from duty and he neither reported to the respondent-bank, nor to the petitioner. Vide letter dated 14.5.2013, the petitioner also directed respondent No. 1 to report to its office. However, instead of reporting to the petitioner, respondent No. 1 raised a demand alleging that his services had been illegally terminated vide order dated 06.2.2013. Thereafter, upon failure of the conciliation proceedings, respondent No. 1 filed a claim statement before respondent No. 2, which was contested by the petitioner.

Upon appreciation of the evidence available on record, the learned Industrial Tribunal, vide the impugned award dated 07.02.2017, answered the reference in favour of workman-respondent No. 1, and issued directions upon the petitioner to reinstate workman-respondent No.1 with 40% back wages with effect from 06.02.2013. In pursuance to the said award, the petitioner asked respondent No.1 to join at the Malab Branch, whereupon respondent No. 1 joined in the office of respondent No. 4 on 03.5.2017 as per the new outsourcing contract between the petitioner and respondent No. 3. After the expiry of the contract with respondent No. 3 on 31.07.2017, the petitioner secured another contract and asked respondent No.1 to join at the Mahendergarh Branch, but he refused to do so. Respondent No.1 thereafter filed an execution petition for implementation of the award, pursuant to which the Labour Inspector, Circle-I, Nuh also filed a complaint under Section 29 of the Industrial Disputes Act, 1947 before the learned Chief Judicial Magistrate, Mewat. Aggrieved thereby, the petitioner has approached this Court.

Learned counsel for the petitioner inter alia submits that the impugned award passed by the learned Industrial Tribunal is illegal, arbitrary and without jurisdiction. It is submitted that respondent No.1 has failed to establish that he falls within the definition of “workman” under the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’), or that his services were ever terminated on 06.02.2013. Moreover, respondent No.1 himself stopped reporting for duty despite the issuance of letter dated 14.05.2013 by the petitioner to report to its office. Learned counsel further submits that the learned Tribunal categorically held that the petitioner was providing placement services, and that respondent No.1 had been deployed by the petitioner as per the outsourcing contract with respondent No. 3. Thus, it is proved that since the petitioner is an outsourcing agency and the engagement was dependent upon a tenure-based outsourcing contract, respondent No.1 could not claim reinstatement as a matter of right. Furthermore, the learned Tribunal had also exonerated respondents No.3 and 4 on the ground that there was no relationship of employer and workman between respondent No. 1 and the said respondents. It is further submitted that the contract of the petitioner with respondent No. 3 was tenure-based and, after its expiry, the petitioner could not deploy any employee in the office of respondent No. 3. The work being available only for a specific contractual period, respondent No.1 could not compel the petitioner to provide him employment. Learned counsel also submits that the claim petition under Section 10(1)(c) of the Act of 1947 was not maintainable and amounted to a misuse of the process of law. The learned Tribunal has failed to appreciate the specific objections raised by the petitioner and mechanically accepted the claim of respondent No.1 without properly considering the petitioner’s submissions and the evidence on record. Moreover, the learned Tribunal has exceeded its jurisdiction in rendering the impugned award. It is also submitted that the petitioner did not challenge the impugned award as it was bona fide making efforts to reinstate and accommodate respondent No. 1. Therefore, the delay in challenging the award was neither deliberate nor intentional. Accordingly, it is prayed that the impugned award be quashed and set aside.

Per contra, learned counsel for respondents No. 3 and 4 supports the impugned award. It is submitted that the findings recorded by the learned Tribunal are based upon due appreciation of the oral and documentary evidence available on record, are well reasoned, and call for no interference in exercise of the extraordinary writ jurisdiction of this Court.

I have heard learned counsel and have gone through the record.

It is well settled that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not sit as an appellate Court over the award of the Labour Court. Reappreciation of evidence or substitution of another possible view is not warranted merely because the Court may, on the same material, arrive at a different conclusion. Interference is warranted only where the findings are shown to be perverse, based on no evidence, contrary to the material on record, or suffer from patent illegality or jurisdictional error.

The principal controversy before this Court is whether respondent No.1 had voluntarily abandoned his employment, as pleaded by the petitioner, or whether his services had been illegally terminated on 06.02.2013. The learned Tribunal found that respondent No.1 had failed to establish any employer-employee relationship with respondents No. 3 and 4. However, the petitioner, which was respondent No.3 before the Tribunal, admitted that respondent No.1 was employed with it at the relevant time. The Tribunal, therefore, proceeded to examine the petitioner’s plea that respondent No.1 had himself stopped attending duty and thereby abandoned his employment.

In support of its plea of abandonment, the petitioner relied upon its letter dated 14.05.2013 directing respondent No.1 to report to its office. The Tribunal, however, noticed that respondent No.1 had already served a demand notice dated 11.03.2013 alleging termination of his services on 06.02.2013, and that the petitioner had not furnished any reply thereto. The Tribunal further noticed that the letter dated 14.05.2013 was issued thereafter and that no other cogent evidence had been produced by the petitioner to establish the alleged absence of respondent No.1 from duty. On these circumstances, the Tribunal rejected the plea of voluntary abandonment. The learned Tribunal further found that the petitioner had failed to establish any bona fide effort to procure the presence of respondent No.1 before receipt of the demand notice. It accordingly held that the petitioner ought to have conducted a regular departmental enquiry in respect of the alleged unauthorized absence before terminating his services and also found non-compliance with Section 25-F of the Act of 1947.

The aforesaid findings are based upon the pleadings and evidence considered by the learned Tribunal. The demand notice dated 11.03.2013, the subsequent letter dated 14.05.2013 and the petitioner’s own stand regarding the employment of respondent No.1 were all before the Tribunal. The conclusion that voluntary abandonment had not been established cannot, therefore, be said to be perverse or based on no evidence. The petitioner, in substance, seeks a different appreciation of the same material, which does not warrant interference in exercise of the jurisdiction under Articles 226 and 227 of the Constitution.

The contention regarding the arrangement under which respondent No.1 was deployed with the Bank also does not call for interference. The record shows that the Bank had informed the petitioner that the Peons had been deployed by its agency on contract basis. The Tribunal, however, found that respondent No.1 had failed to establish any employer-employee relationship with the Bank authorities, whereas his employment with the petitioner stood admitted by the petitioner itself. The dispute, therefore, was examined by the Tribunal with reference to the petitioner as the employer of respondent No.1.

As regards the award of back wages, the learned Tribunal, after holding the termination to be illegal, did not grant full back wages but restricted the relief to 40% back wages with effect from 06.02.2013. The petitioner has not been able to show that the said quantification is arbitrary, perverse or unsupported by the material on record.

Consequently, the present writ petition is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.