Mahavir Woollen Mills vs Presiding Officer

S.S. Nijjar, J.—This petition under Article 226 of the Constitution of India seeks issuance of writ in the nature of Certiorari quashing the impugned award dated 23.6.2000 made by Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat (hereinafter referred to as ''the Tribunal").

The petitioner-Mahavir Woollen Mills, E-33 Industrial Area, Panipat is engaged in the business of manufacturing woollen blankets and woollen products. According to the petitioner, respondent No. 2 Mahabir Singh (hereinafter referred to as "the workman") was employed in their factory in May, 1991. He worked only for five days when he met with an accident. Since the petitioner was registered with the ESI, the workman was sent to the ESI Hospital, till he recovered. In the month of November, 1991, he came for only one day. At that time the petitioners were in the process of closing down their mill and had retrenched all workers who had completed 240 days in the industry. Since the workman had not completed 240 days in any given year, he was simply paid off.

The factory was restarted in the year 1995. The petitioner, therefore, started taking back all the workers who had earlier worked in the industry. Certain workers who had worked for over 240 days, moved a demand notice: The petitioner asked these workers to rejoin their duties. Consequently, a settlement was entered into u/s 12(3) of the Industrial Disputes Act (hereinafter referred to as "the Act"). The workman was not given the benefit of this settlement. Consequently, he raised a dispute by means of demand notice dated 13.3.95. In the demand notice, he alleged that he was appointed with the petitioner-mill on 1.3.1978. He worked continuously upto 14.11.91 when his services, were illegally terminated. In an effort to cover up the delay, the workman stated that the general demand notice regarding bonus had been given which was rejected and the workmen were advised to file demand notice u/s 2-A of the Act. According to the petitioner no detail was given to justify the delay of over 3-1/2 years in filing the demand notice. On failure of the report of the Conciliation Officer, the reference was made to the Tribunal in the following terms :-

"Whether the termination of services of Sh. Mahabir Singh is legal and justified? If not, what relief is he entitled to?"

The workman reiterated his demand in his statement of claim. Petitioner filed a detailed written Statement and pointed out that the workman had worked only for five days in the factory in the month of 1991. During this period he suffered are injury. On account of which he was admitted in the ESI Hospital. The petitioner had stopped the manufacturing process in November, 1991. The workman was simply paid off as he had not worked for 240 days. Section 25-F of the Act was not applicable to the workman, it was also pointed out that question of the re-employment cannot be considered u/s 2-A of the Act. On completion of the pleadings. The Tribunal framed the following issues :-

"1. As per terms of reference ?OPW

Whether the workman already settled the dispute before the Conciliation Officer, if so to what effect ? OPW

Relief."

The workman stepped into the witness box as WW-1 and filed an affidavit to support the testimony. Alter hearing the counsel for the parties and alter examining the evidence as well as the material produced on record, the Tribunal made the award on 23.6.2000. It has been held that period of services of the workman from the oral and documentary evidence has been proved for more than 240 days, and there is no evidence on the file that any notice or retrenchment compensation was given to the workman, and therefore, he is entitled for protection of Section 25-F of the Act. The workman was held entitled for reinstatement with continuity of service and 50% back-wages.

Mr. Mutneja, learned counsel appearing for the petitioner submitted that the Labour Court had wrongly held that the workman had completed 240 days. Even if he is to be treated to be on duty from 24.5.91 till October, 1991, he will not complete 240 days. It is also submitted that the award given by the Labour Court is based entirely on a slip given by the ESI in the year 1986. According to him, there is no documentary evidence to support the claim of the workman between 1986 to 1991. He further submitted that the Labour Court has returned the findings of facts relying merely on the statement of the ESI Clerk. He further submitted that no details were given by the workman as to when he joined the services of the petitioner, although the ESI card is supposed to have been issued in 1986. Infact since the work man did not produce any evidence the Management had produced the record. It has been deposed by MW-2 clearly that the Management had deposited the ESI contribution on the month of May 1991. Thereafter the department had been closed down and did not re-open till 1995. It is further submitted that the workman ought to prove his own case. This onus has not been discharged. Learned counsel submitted that no relief could have been granted to the workman as-he has not completed 240 days. For this proposition, reliance is placed on a Single Bench Judgment of this Court rendered in the case of Karnal Central Coop. Bank Limited, Karnal through its Managing Director v. Presiding Officer, Industrial Tribunal-cum-Labottr Court, Rohtak unit others 1994(2) RSJ 132. It is submitted that the plea of closure of the factory was raised especially before the Labour Court. This issue ought to have been decided first.

In support of this proposition, learned counsel relied on a judgment of the Supreme Court in the case of Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union AIR (44) 1957 S C 95. This judgment had been followed subsequently in the case of J.K. Synthetics Vs. Rajasthan Trade Union Kendra and Others, . In thisjudgment, it has been held that it cannot be denied that the closure need not be of the entire plant. A closure can also be a part of the plant. However, the learned Labour Court, according to the learned counsel, has not decided this point at all. Since the plant had been closed, there can be no question of reinstatement. Apart from delay, Mr. Mutneja has also argued that demand notice is actuated with malice. It is only because the petitioner decided to restart asmall unit, that the demand notice was served by some of the workmen. Those workers who had completed 240 days had arrived at a settlement with the petitioner. However, the settlement could not be executed as the work could not be restarted. The award is also said to be contrary or outside the claim put forward by the workman. Learned counsel has submitted that even in the demand notice the workman had only sought re-employment. The impugned award, however, gave the relief of reinstatement. It is retired that the aspect of re-employment cannot be agitated u/s 2-A of the Act Learned counsel further submitted that no finding of facts could be given without the necessary pleadings. In the impugned award, the relief of reinstatement has been granted even in the absence of any pleadings. Learned counsel had laid a considerable amount of stress on the argument that the workman himself is not sure of his case since he has given conflicting details about the date of appointment and the salary drawn. In these circumstances, the workman could not have been given the relief of reinstatement. In support of this submission the learned counsel has relied on a judgment of the Supreme Court in the case of Municipal Committee Tauru Vs. Harpal Singh and Another, .

Mrs. Rathore appearing for the workman has sub-ill itted that there is cogent evidence on record to show that the workman has been continuously working since April 1986. She has pointed out from the record to the ESI Card which was initially issued in the year 1978 and has been renewed in the year 1986. Learned counsel has submitted that this Court while exercising jurisdiction under Articles 226/227 of the Constitution of India, will not upset the finding of fact on the ground that the material produced before the Tribunal was insufficient. In support of this argument, the learned counsel has relied on a judgment of the Supreme Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, . She has further submitted that the Management cannot be permitted to say that the workman was remiss in not producing the evidence which was exclusively in the possession of the petitioner. It is the party which is in possession of the evidence who has to produce it before the Court. For this submission, the learned counsel relied on a judgment of the Supreme Court in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, . The learned counsel has also relied on an unreported judgment of this Court in the case of Rasitl v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Faridabad vide CWP No. 8566 of 2000 decided on 9.1.2001 on the same point. Adverting to the evidence, the learned counsel stated that there is even otherwise, evidence on the record, to show that the workman had been employed with the petitioner since 1986. She has referred to Ex.W/1 which is the ESI Card issued by the ESI Corporation. According to the learned counsel this card which is in form 4 is a perment card. This is issued only after 3 months of service. According to the learned counsel, this is evident if one refers to Regulations 17 of the Employees Stale Insurance (Gen.) Regulations, 1950. The temporary cards as issued in form 3 under regulation 15. Learned counsel also pointed out to the plaint of the civil suit filed by the petitioner wherein it is categorically stated that the petitioner is in the process of retrenching a number of workers due to shortage of work. The name of the workman finds mention at Sr. No.21 of the array of respondents, in the suit. Furthermore, it is submitted that the oral statement of the workman was sufficient for the Tribunal to come to a conclusion that he has worked for a period of more than 240 days. In any event, the oral statement of the workman has been supported by an affidavit which is on page 33 of the record. The Management has not led any evidence to controvert the evidence led by the workman. With regard to the point of framing of preliminary issue, it is submitted that the point was never raised before the Tribunal. Therefore, it cannot now be permitted to be raised in the writ petition for the first time. In fact the point is not even raised in the writ petition, yet the same is sought to be argued. With regard to the finding being beyond (he scope of the reference, again it is submitted that the point was never urged before the Tribunal.

In fact the order of reference has not been challenged till today. Learned counsel submits that in view of Section 10(4) of the Act, the Tribunal cannot go beyond the terms of the reference. This is also supported by a judgment of the Supreme Court in the case of Firestone Tyre and Rubber Company of India (P) Ltd. Vs. Workmen Employed, represented by Firestone Tyre Employees'' Union, . The plea of closure not having been taken before the Tribunal, cannot be permitted to be raised in the present proceedings. In the civil suit, it was stated that the workers are sought to be retrenched. This can mean that the retrenchment is taking place on account of lay-off, lockout or a lack of orders. It is not necessary that retrenchment is taking place only on account of closure. It was incumbent on the respondents to make a positive assertion that there has been a closure of the factory. Further, it is submilted that the issuance of the permanent ESI Card is infact admitted by MW2. This argument about the closure is sought to be taken now only as it was suggested to the MW2 that the work is being in fact done by the contractors. It is further submitted that the argument about the relief of re-employment u/s 2-A does not even arise as the workman has been illegally retrenched. It is further submitted that pleadings are not conflicting as the workman has only corrected the errors made. Rather it is the Management which is telling lies as they had denied the employment of the workman from 1986, altogether.

I have considered the arguments put forward by the learned counsel for the parties.

A perusal of the award clearly shows that the workman appeared in the witness box in support of his case. He has tendered an affidavit in support of his oral evidence. In the affidavit, he has stated that he was appointed initially in the year 1986 on monthly wages of Rs. 988/-. He has produced the ESI membership card. Reference is made to the accident resulting in the injury to the workman on 29.5.1991. His stay in the ESI Hospital is proved by positive evidence. Infact, it has been categorically stated that he was paid a sum of Rs. 28 every day from 30.5.91 till October, 1991. A perusal of the award shows that the findings given by the Tribunal are based on evidence. There is much force in the submission made by the learned counsel for the workman. This Court will not interfere in findings of fact recorded by the Tribunal unless the same are perverse on the face of it or have been based on no evidence. It has been clearly held by the Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan and Ors. (supra) as follows :-

"The jurisdiction of High Court to issue a writ of cer-tiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that . findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of the certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adeouacy or sufficiency of evidence led on a point ana the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court. (S) Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, & Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, & Kaushalya Devi and Others Vs. Bachittar Singh and Others, , Rel. on."

From the facts as narrated by Mrs. Rathore which are noticed above, it becomes evident that it cannot be said that the findings recorded by the Tribunal are based on no evidence. There is also much force in the submission made by Mrs. Rathore that it was for the management to produce the muster roll or any other official record to show that the workman had not been employed from 1986 till 1991. In similar circumstances, in the case of Rasid v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Faridabad, (supra) a Division Bench of this Court has held as follows :-

".....The petitioner had specifically come up with a case that he had worked upto 18.2.1996. There is no reason shown as to why respondent No. 2 could not have produced the Muster rolls for the remaining period upto 38.2.1996 also. The best evidence was therefore, with respondent No. 2 and it had failed to produce the same. Adverse inference can be drawn against respondent No. 2 and at the same time reliance can be placed on the oral testimony of the petitioner that he had worked for that period. We are supported in our view by thejudgment in the case - Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, in which it has been held that a party who is in possession of best evidence and withholds it, adverse inference can be drawn against that party. It is also observed therein that the party in possession of best evidence has to produce it in court though it is not called upon to produce or burden of proof is not on that party."

The Management having failed to produce the record, cannot be permitted to take advantage of its own default. There is also much force in the submissions made by Mrs. Rathore to the effect that the petitioner cannot be permitted to raise questions of law and fact which are neither pleaded nor argued before the Tribunal. The position of law on this point is settled. Therefore, it is not necessary to make any reference to the authorities cited by the learned counsel. Since the Tribunal has arrived at a finding of fact that the workman had completed 240 days in the year preceding the date when his service 240 days in the year preceding the date when his services were terminated, the provisions of Section 25-F of the Act would become applicable. Since admittedly, the workman had neither been given any notice nor any compensation as required u/s 25-F of the Act, the action of the respondents in terminating his services is void ab ini-tio. In normal circumstances, once it is found that the termination of the workman is illegal, reinstatement with full back-wages has to be ordered. However, the Tribunal has granted only 50% of the back wages. This part of the award is, however, not challenged by the workman. In view of the above, it would not be necessary to examine the propriety of the same.

With the aforesaid observations, this petition is hereby dismissed. No costs.

Petition dismissed.