CONTINENTAL FUSE GEARS vs ASHOK SHARMA

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 7th March, 2024.

+ W.P.(C) 5515/2010 & CM APPL. 53404/2023

CONTINENTAL FUSE GEARS ….. Petitioner
Through: Mr. A.K. Jain. Advocate.

versus

ASHOK SHARMA ….. Respondent
Through: Appearance not given.

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Article 226 and 227of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:
“(i) issue appropriate writ, order or direction to Labour Court No. XVI, Karkardoom, Delhi for forwarding the file relating to the impugned award dated 03.10.2009.
(ii) issue a writ of certiorari or an order or direction in the nature of certiorari thereby quashing the impugned award dated 03.10.2009 passed by the presiding officer labour Court No. XVI, Karkardooma, Delhi (Annexure P-2) in case I.D. NO. 63/97/09 titled “Satya Pal Singh & Another Versus. The management of M/s Continental Fuse Gears and Award the cost of the petitioner;
(iii) Pass such other order or direction as this Hon’ble court may deem fit and proper in the facts and circumstances of the case.”

2. The relevant facts necessary for the adjudication of the instant petition are reproduced herein below:
a) The respondent i.e., Ashok Sharma (“respondent workman’ hereinafter) joined the services of the petitioner (“petitioner entity” hereinafter) in the year 1995 at the post of ‘cash book, ledger, sales tax register and purchase register clerk’, last drawn salary being Rs.4,975/- per month.
b) It is stated that on 28th November, 1996, the services of the respondent workman were illegally terminated by the petitioner entity and no earned wages for the period 1st November, 1996 to 28th November, 1996, and bonus for the years 1994 to 1997 were paid to him.
c) Subsequently, the respondent workman served a legal notice dated 4th December, 1996, thereby, demanding reinstatement with full back wages and also filed a complaint in such regard with the SHO, PS Krishna Nagar, Dy. Commissioner, Commissioner of Police and the Home Minister.
d) The respondent workman, through the Industrial Mazdoor Union served demand letters dated 3rd and 4th February, 1997, to the petitioner entity and subsequently, on 5th February, 1997, he filed a complaint before the Labour Conciliation Officer. Thereafter, due to non-appearance by the petitioner entity before the Conciliation Officer, a failure report was sent to the Delhi Government for reference of the industrial dispute.
e) Pursuant to receipt of the above said failure report, the Secretary, National Capital Territory of Delhi vide reference dated 24th July, 1997, bearing reference no. F-24(2069)/97/Lab./23810-14, referred the said dispute before the learned Labour Court for adjudication in the following terms:
“Whether the services of Sh. Satyapal and Sh. Ashok Kumar Sharma have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?”

f) Subsequently, the learned Labour Court after completion of pleadings on 10th March, 2000 framed three issues, and thereafter, passed the Award dated 3rd October, 2009, (“impugned Award” hereinafter), thereby, holding that since the respondent workman has completed 240 days for the purpose of applicability of the provisions of the Act and the petitioner entity had failed to prove abandonment of services by the respondent workman himself, he is a workman under the Industrial Disputes Act, 1947 (“the Act” hereinafter).
g) Furthermore, the learned Labour Court directed that the petitioner entity shall pay a compensation of Rs.1,00,000/- within 30 days failing which the petitioner entity shall pay an interest @ 12% and the respondent workman is entitled to bonus for the years 1995-1996 and 1996-1997 along with salary amounting to Rs.2,586/- for the month of November, 1996.
h) Aggrieved by the aforementioned impugned Award, the petitioner entity has preferred the instant writ petition under Article 226 of the Constitution seeking setting aside of the impugned Award dated 3rd October, 2009.
3. Learned counsel appearing on behalf of the petitioner entity submitted that the learned Labour Court erred in passing the impugned Award as the same has been passed without taking into consideration the entire facts and circumstances of the case and also based on surmises and conjecture, therefore, the same is liable to be set aside.
4. It is submitted that the learned Labour Court failed to consider the fact that claimant no.1 before it namely Sh. Satyapal Singh, was working in a supervisory and managerial capacity since February, 1986, at last drawn salary being Rs.4,625/- and, therefore, as per the settled principle of law, the petitioner entity could not have appointed the respondent workman in the same capacity at a higher pay i.e., Rs.4,975/- per month, as there already exists a more experienced person.
5. It is submitted that the learned Labour Court erred by wrongfully deciding the aspect of gainful employment wherein it observed that the petitioner entity did not give an unconditional offer of joining to the respondent workman. It is further submitted that the petitioner in its written statement filed before the learned Court below had categorically stated that it had extended an unconditional offer to the respondent workman.
6. It is submitted that the learned Labour Court failed to consider the settled position of law that a workman is precluded from seeking any claim for back wages or any other relief if he does not respond to the offer of resumption of services and to substantiate the same, reliance is placed upon the Sonal Garments Vs. Trimbak Shanker Karve, 2003 LLR (5) and M/s Suja Agencies Vs. Uday Singh B. Rawat & Another, 2003 SCC Online BOM 503.
7. It is submitted that the learned Labour Court has failed to apply its judicial mind by granting a compensation of Rs.1,00,000/- and has passed the award in a mechanical manner. Hence, as per the settled position of law, this Court may set aside the relief granted as it has been granted mechanically.
8. It is submitted that the learned Labour Court failed to examine the handwriting of the respondent workman on Mark-X1 to X5 and had the same been examined by a handwriting expert, a clear and true picture pertaining to the designation could have surfaced.
9. It is submitted that the learned Labour Court failed to appreciate that the respondent workman himself abandoned his services and further erred in concluding that the services of the respondent workman were illegally terminated.
10. Therefore, in light of the foregoing submissions, the learned counsel appearing on behalf of the petitioner entity seeks that the instant petition may be allowed, and the reliefs be granted, as prayed.
11. Per Contra, learned counsel appearing on behalf of respondent workman vehemently opposed the instant petition submitting to the effect that the Award impugned by the petitioner entity is well reasoned and has been passed after profoundly considering the entire facts, circumstances and evidence, thereby, making the instant writ petition, liable to be dismissed.
12. It is submitted that the learned Labour Court has rightfully held that the petitioner entity failed to prove that he was working in a supervisory and managerial capacity rather the respondent workman proved that he falls under the definition of a workman as provided under the Act.
13. It is submitted that the learned Labour Court has rightfully held that the respondent workman was terminated illegally and that the petitioner entity failed to discharge the burden of proof with regard to abandonment of services by the respondent workman himself.
14. It is submitted that the learned Labour Court formulated three issues for consideration in the present case and it rendered a detailed and accurate findings on each of the issues in accordance with the settled position of law, hence, the instant writ petition by the petitioner entity is a gross misuse of law.
15. Therefore, in light of the foregoing submissions, the learned counsel appearing on behalf of the respondents prayed that the present petition, being devoid of any merit, may be dismissed.
16. Heard learned counsel appearing on behalf of the parties and perused the record.
17. The petitioner entity has approached this Court seeking a writ of certiorari for quashing the impugned Award dated 3rd October, 2009, passed in I.D. No.64/97/09 whereby, the learned Labour Court decided the reference in favor of the respondent workman.
18. In order to adjudicate the present case, this Court deems it imperative to analyse the findings of the impugned Award and ascertain the reasoning afforded by it. The learned Labour Court heard the parties and perused the evidence led before it and on the basis of such evidence adduced and cross examinations, the learned Court passed the impugned Award thereby, deciding the dispute in favour of the respondent workman and against the petitioner entity. The relevant paragraphs of the impugned Award are reproduced below:
“….13. On the basis of claim, reply, evidence and documents on record, my findings on the issues are as under:

Regarding Issue no.1: Workman Issue
Keeping in view the documentary evidence as well as arguments addressed by both the parties, my inference is that the issue no. 1 i.e the issue of workman be decided against the workman Satyapal Singh and in favour of Ashok Kumar Sharma on following grounds:
(i) Definition of workman has been provided under section 2(s) of Industrial Dispute Act. Four categories of persons have been excluded from the definition of workman. First category of persons are member of armed forces which is not relevant here. Second category for excluded persons are members of police service which is also not relevant here. Third category of excluded persons are the persons employed mainly In a managerial or administrative capacity. Hence for the purpose of decision of workman issue this clause of excluded person is also relevant. In fourth category of excluded persons are those persons (a) employed In a supervisory capacity and (b) who draws wages exceeding one thousand six hundred rupees per mensem. So far as wages of claimants are concerned their last paid wages or carry home salary were more than Rs. 1600 pm at the time of dismissal. Hence, second condition of fourth category is fulfilled. Now, only question is to be seen whether the claimants working in supervisory capacity or not.

(ii) Burden of proof
My impression on the basis of authorities cited by the parties is that the burden of proof is on the workman to prove that he is covered under the definition of workman. I am supported by Supreme Court judgment; In Workman N/lg/rl Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR page 351 wherein Hon’ble Supreme Court has held that:
“The burden of proof being on the workman to establish the employer and employee relationship and adverse Inference cannot be drawn against the employer that If he _ were to produce books of accounts they would haveproved employer-employee relationship.”

I am also supported by Swapan Das Gupta and ors. Vs. The First Labour Court of West Bengal and ors.. 1975 LIC pg. 202 wherein it has been held that :
“Where a person asserts that he was a workman of the company, and it is denied by the company, It is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.”

I am also supported by Shanker Chakravartl Vs. Br/tan/a Biscuit Company, 1979 (II) LLJ pg. 134 wherein it was held that:
“Obligation to lead evidence to establish an allegation made by a party Is on the party making the allegation. The test would be who would fall if no evidence Is led.”
The management in the WS as well as in the preliminary objections and reply on merits has denied the claimants to be workmen. Accordingly, the workmen have to prove that they are covered within the definition of Section 2(s) of the 1.0. Act. AR for workmen states that since the workmen have stated themselves to be workmen and the management had denied the stand, the burden of proof is on the management.
In view of the above judgments by the Courts, it is for the claimant to prove that he is a workman as defined u/s 2(s) of the I.D. Act. Unless and until, it is proved by the workman or admitted by the management, this court has no jurisdiction to further to entertain or decide the dispute. Hence, my conclusion is that it is for the claimant to prove that he is a workman.

III) Nature of Duties
a) Both the claimants stated that they were not appointed in managerial or in administrative or supervisory capacity whereas the management stated that both the claimants were appointed on supervisory, managerial and administrative
post.
(b) Whether a person is doing supervisory work or not depends on the nature of duties and functions assigned to them. Supervisor means a person who oversees the work of others. Hence, it means overseeing. A person can be said to be supervisor if there are persons working under him over whose work he has to keep a watch. Hence, supervisor keeps a watch over the work of person and if they err in any way, corrects him/them. It is the duty of the supervisor to see that the work is done by the person under his control in accordance with the manual or in accordance with the usual proceedings. It is not his function to take any managerial decision but it is the duty of the supervisor to see that the person over whom he is, suggests to supervise the work assigned to them according to rule and regulations. Hence, Supervisor need not be a Manager or an Administrator. A person may not be a Manager or Administrator still he can be outside the purview of ‘workmen’ as he may be doing supervisory function.
(c) In Industrial adjudication the essence of duties is the primary factor to say that a claimant is doing supervisory/managerial/Administrative function or not. Designation of person is not given undue importance nor on the name assigned to the class to which he belongs. [Lloyd Bank Ltd. Vs. P.L Gupta (1961) 1 LLJ 18 (SC)].
(d) In Mathur Aviation Vs. LG Delhi {1977) 2 LLJ 255 (Del), it was held that when one talks of a person working as Supervisor, one understands it to mean a person who is watching the work be done by others to see that it is being done properly.
(e) To come to a conclusion that a person is working in the Supervisory capacity, it is necessary to prove that there were at least some persons working under him whose work he is required to supervise.
(f) Merely because apart from supervisory functions, claimant might be doing some clerical work, what is to be seen is predominant nature of work. His predominant nature of work was as Shift lncharge [Anand Bazar Patrlka Pvt. Ltd. Vs. Its Workmen (1969) LLJ 670 (SC)].
(g) In the conclusion, designation of a person is not a deciding factor. In LKP Merchant Financing Ltd. vs. Govt. of NCT, Delhi & Ors, 2003 LLR 367, it was held that the claimant was Executive (Customer Support). Without evidence, it cannot be held that the claimant was in managerial or administrative capacity. The question is of mix law and fact and has to be decided after evidence by both the parties. Similarly, in Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah, 2006 LLR 1052, it was held that though the designation of the claimant was Assistant Executive, still he was not having any supervisory or managerial duties as he was not authorized to initiate any departmental proceedings against his subordinates. Similarly, in Sharad Kumar vs. Govt. of NCT. Delhi & Ors. 2002 LLR 545, it was held by their Lordships of Supreme Court that to prove whether the designation of Area Sales Executive is supervisory or managerial function or not, evidence is required and can be decided only after evidence.
(h) What is to be seen whether a person is working in supervisory or managerial capacity and as to what is his primary duty. If the primary duty of a claimant is supervisory or managerial, then merely because he was doing some incidental clerical work, will not make him workman. In S.K. Main/ V§. Carona Sahu Co. Ltd. Ors. 1994 LLR 321, 1994 (68} FLR 1101 1994(3) SC P510. it was held by their Lordship of Supreme Court that for determining the status of workman, his primary duty must be seen. In Shanker Bhal Nathalal Prajapatl vs. Maize Products 2003 LLR 192 Gui, it was held by their Lordship of Gujarat High Court that where a person was appointed as Starch Chemist and he was also given the work of supervision of subordinate staff but his primary duty was of workman i.e. Starch Chemist and it was held that he was workman. Similarly are the findings of the court in Management of May & Baker m Ltd. vs. Workman, 1967 SC 678 and S.S. OIi & Dlstt. Co. vs. Management Staff Association, 1970 131 SC 378. In Heaw Engineering Corporation Ltd. Vs. P.O. 11 sec 236, it was held that if many duties of claimant is of supervisory, his incident work of manual and clerical cannot take him out for the category of supervisor. In this case, the claimant was supervising the work of sweepers and was also countersigning on casual leave register. It was held by their Lordships of Supreme Court that he was working in supervisory capacity. The above principle has to be applied in case of both the claimants.

14. Regarding claimant No.1 Satyapal Singh :-
a) Appointment :- In view of the evidence on record, my impression is that the claimant Satyapal Singh was working in supervisory and managerial capacity on the following grounds:
i) Ex. WW1 /5 is a certificate of Satyapal Singh, which shows that he was awarded the diploma in Electrical Engineering that specialized in Thermal Power Plant. The management had employed two engineers. Sr. Engineer is the claimant Satyapal Singh. The other persons are machineman, helpers and skilled persons. If Satyapal Singh is a workman then who can supervise the other workmen. The application dated 14.02.86 by which claimant Satyapal Singh applied to the management is on the record. Perusal of this application shows that his appointment is as an Electrical Supervisor. This document is an admitted document. It is explained by claimant Satyapal Singh that he left some space blank which was later on filled by the management and hence it is forged and fabricated documents. Claimant is not an illiterate person. He is having diploma in Electrical Engineering and if he has signed a blank document, which is later on alleged to be filled, then he is to be blamed. It is further a fact that during cross examination, Satyapal Singh has admitted that the word “Electrical Supervisor” is in his own handwriting.
ii) Ex. W1/M1 is an application for leaving the job of one Sushma Grover Seth. This is duly and admittedly signed by claimant Satyapal Singh. It was tried to be explained by claimant Satyapal Singh that he merely received the application and the resignation was accepted by the management. However, the careful perusal of this document shows that there is no other writing except the signature of Satyapal Singh and this shows that Satyapal Singh accepted the resignation of Sushma Grover Seth on 27.08.89. The application is dated 27.05.89.
iii) Ex. WW1/M2 is admittedly signed by claimant Satyapal Singh at point A. By this document, Sh. Jai Prakash Gupta, management authorized Satyapal Singh to sign all the documents pertaining to his department with the Supdt. Central Excise, New Delhi. Hence, this shows that management has given the authority to the claimant Satyapal Singh to deal with the Excise Department which makes that he was working in Supervisory capacity.
iv) Ex. WW1 /M3 is again admittedly signed by claimant Satyapal Singh which is stock taking report as on 26.02.93 received by Inspector Central Excise Deptt. On 26.02.93. This further shows that the claimant Satyapal Singh worked in supervisory/managerial capacity. Ex. WW1 /M11 is a report in Form 1 to the Excise Department admittedly signed by claimant Satyapal Singh.
v) Ex. WW1 /M6 is a resignation letter of Nimmi Sharma showing that resignation was received by claimant Satyapal Singh. There is no other noting on this document. Ex. WW1/M12 is a letter to Supdt. Central Excise Department to claimant Satyapal Singh by which the gate pass was surrendered and this again was taken on behalf of management showing that he was given supervisory and managerial functions.
vi) Ex. WW1/M13 is a letter to Supdt. Engineer, DESU seeking copy of tender documents. This further shows that claimant Satyapal Singh was acting in supervisory capacity. Ex. WW1/M16 is again a letter by claimant Satyapal Singh seeking tender documents.
vii) Document has placed on record showing the designation of Satyapal Singh as Engineer-cum-manager. It is argued by AR for workman that this word was written later on. However, the fact remains that the claimant Satyapal Singh was the senior most Engineer and he used to accept resignation of other workers, represent the management to Excise department, Sales Tax department and also to call tender form from various government departments and tie was also authorized by the management to even collect statutory form as shown in Ex. WW1/M7.
In view of the above, my conclusion is that claimant Satyapal Singh was working in supervisory, managerial and administrative capacity and hence he is not a workman U/s 2(s) of the I.D. Act 1947. Since, he is not a workman, this court has no further jurisdiction to decide.

15. Regarding claimant Ashok Kumar Sharma :- In view of the evidence as well as documents on record, my impression is that claimant Ashok Kumar Sharma is a workman as defined U/s 2(s) of I.D. Act 1947.
i) The management tried to prove that Ashok Kumar Sharma was working in a managerial and supervisory capacity by placing on record document mark X, X1, X2, X3, X4 and XS. These documents cannot be confronted during cross examination to the claimant Ashok Kumar Sharma as only the original documents can be confronted to a witness. Hence, the confrontation of these documents are apparently not regular.
ii) Claimant Ashok Kumar Sharma had denied his signatures on these documents. Mark X is an application by one Mr. lnderpal, mark X1 is a letter alleged by Ashok Kumar Sharma regarding certain statement of accounts for the year 1992-93, Mark X-2 is again sending of statement of accounts, mark X-3 is regarding road permit. This document was alleged to be signed by claimant Ashok Kumar Sharma. Mark X-4 is an authority letter alleged to have been given by the management to claimant Ashok Kumar Sharma. Mark X-5 is a general power of attorney alleged to have been issued in favour of Ashok Kumar Sharma. The signatures on these documents have been denied by claimant Ashok Kumar Sharma. After denial, it was the duly of the management to prove the signature of Ashok Kumar Sharma. However, the management has failed to prove that the signature on these documents were of Ashok Kumar Sharma.
iii) At the time of final arguments, an application was filed by the management to prove the signature by comparing the admitted signature of Ashok Kumar Sharma through Handwriting Expert. Since, the application was filed after five years of examination/cross examination of claimant Ashok Kumar Sharma, it was rejected as the case was of 1997 also. Even otherwise, there were no admitted signature on record similar to as done in those documents and in absence of any admitted signature on record, the exercise of comparing by Handwriting Expert
would be futile.
iv) For comparison and examination of the signatures on the document with the admitted signatures, the original document is required to be filed in the court. The documents placed on record are only photocopies. Legally, a Handwriting Expert cannot examine photocopy of the signatures.
v) I have seen the wages register of April 1996 where the designation of Ashok Kumar Sharma has been written as Manager Accounts. Except on this register, nowhere the designation of Ashok Kumar Sharma has been written as Manager Accounts. Even in document mark X1 to mark XS nowhere it is written that Ashok Kumar Sharma signed as Manager Accounts. There are series of judgment that even an accountant is a workman if his main duty is to maintain the accounts and ledger. Management has failed to prove that the management has given any work to the claimant Ashok Kumar Sharma of supervisory or managerial.
Hence, my impression on the basis of evidence is that the claimant Ashok Kumar Sharma has proved that he was working as workman and the management has failed to prove that the claimant Ashok Kumar Sharma was not working as workman.

16. Regarding Issue No.2 : Abandonment Issue
On the basis of claim, reply, evidence and documents, my inference is that the issue be decided in favour of workman Ashok Kumar Sharma and against the management on the following grounds:
i) So far as Satyapal Singh is concerned, it is already held in issue no. 1 that he is not a workman and hence not covered under Section 2(s) of Industrial Dispute Act 1947. So far as workman Ashok Kumar Sharma is concerned, it is already held in issue no.1 that he is a workman U/s 2(s) of the I.D. Act 1947 and hence beneficiary of the Act.
ii) It is a fact that the workman Ashok Kumar Sharma completed 240 days continuously and hence beneficiary of the labour law.
iii) I have seen the original attendance register/muster roll register under the Factory Act in in Form 26 under Rule (103). The name of the workman Ashok Kumar Sharma for the first time appeared in the month of May 1996 while the statement of management is that workman Ashok Kumar Sharma joined on 01.04.95. I have seen this register from May 1995 till April 1996. The name of the workman Ashok Kumar Sharma does not find place in this register. This contradicts the story of the management that workman Ashok Kumar Sharma joined only on 01.04.95 with the management.
iv) It is stated by the workman Ashok Kumar Sharma that he worked with the management till 28.11.96 and management states that w.e.f. 29.11.96 workman abandoned the job of the management. I have seen the original register/muster roll for the month of November 1996 which shows that workman Ashok Kumar Sharma is shown present on 26.11.96 and thereafter repeatedly he has been shown to be absent. If the workman is shown present on 26.11.96 and from 27.11.96 he is shown absent, it should have been shown that workman Ashok Kumar Sharma abandoned his job w.e.f. 27.11.09 while the management states that the workman abandoned the job on 29.11.96. Hence, by its own version, management is contradicting about last date of working.
v) I have seen the attendance register/muster roll which is prepared w.e.f. April 1994. The attendance marked shows that the whole month’s attendance has been marked by one person, by one pen and also in one handwriting. This shows and proves that the management is not marking the attendance of the workman on day to day basis. If a person is marked presence or absence on day to day basis, then the impression of ink has to be different but the impression of the ink on the whole register shows that the presence or absence is marked in one go i.e. by one pen and by one person.
vi) There is allegations against the workman Ashok Kumar Sharma that he embezzled the material of the management. This is an allegations, which to my mind, appears to be an afterthought. It appears to be a calculative way of the management to terminate the workman.
vii)I have seen the leave register of the management which is filed in original for the year i 996. This register in the end i.e. P.12 shows the name of Ashok Kumar Sharma without any designation while his name is shown with designation at serial no.2 in the muster roll/attendance register. Writing from Page 1 to Page 11 is by one person and page i 2 is by different persons. Anyhow, this register shows 9 E.L. with a balance of 11 E.L. The various columns in a register of leave with wages is blank. This shows that the management is not following labour laws.
viii) I have also seen the bonus register for the accounting year 1994-95. Despite the blank pages in the end of this register, there is a separate register for the bonus for the year 1995-96. It is very strange that for one year there is one register while for remaining year there is another register. For the accounting year 1995-96, there was no bonus to Ashok Kumar Sharma while there was a bonus for similarity situated employee Satyapal Singh.
ix) I have also seen the wages payment register. In the November 1996, there is a balance of Rs. 2586/- in favour of Sh. Ashok Kumar Sharma which remains unpaid. Except Satyapal singh and Ashok Kumar Sharma, the designation of other employees has not been written. Why not written, it is for the management to explain and it appears that only the column of designation of Satyapal Singh and Ashok Kumar Sharma were filled. Others were left blank, which appears the practice of the management.
x) There is a allegation by workman Ashok Kumar Sharma that he continuously visited the management but he was not given work nor allowed to mark his attendance and then only in December, he moved to the Labour Authority.
In view of the above, I feel that the management has failed to prove that the workman Ashok Kumar Sharma abandoned the management on 29.11.96 and thereafter
17. Regarding issue no.3: Terms of reference In view of my findings on issue no.1 and 2, terms of reference is answered in favour of workman Ashok Kumar Sharma on the following grounds:
i) By issue no.1 it has already been proved that Ashok Kumar Sharma is a workman and covered under the Industrial Dispute Act 1947. It is also proved that he completed 240 days for the purpose of applicability of labour laws. It is also proved by issue no.2 that the management has failed to prove that workman Ashok Kumar Sharma has abandoned his services by not resuming his duties of his own sweet will w.e.f. 29.11.96.
ii) Law demands that for terminating a workman, an enquiry should be conducted or if enquiry has not been conducted, the allegations against the workman should be proved so as to make out the ground for termination. It is a fact that no enquiry was conducted by the management. The allegations against the workman has also not been proved so as to dismiss the employee by the management.
iii) After 28.11.96, there was outstanding wages in favour of Ashok Kumar Sharma, which remains unpaid. Management could have called the workman or paid wages by any means. As the management was found appeared before Conciliation Officer or other legal authorities, then why the wages or other legal dues were not paid, has not been explained.
Hence, it is proved that Ashok Kumar Sharma has been terminated illegally and unjustifiably by the management.

GAINFUL EMPLOYMENT
In the cross examination, workman Ashok Kumar has stated that at that time he was unemployed. He is residing in his own house. He is married and having two kids and wife. He is dependent upon his father. He tried to search the job. Due to over age he could not get his name registered in Employment Exchange. He tried to get the job at Balodia Oil Mill, House No. 202 Karawal Nagar but he did not apply in writing. He could not get the job because of present litigation. It is stated by AR for workman that the workman Ashok Kumar is entitled to full back wages as he not not been employed during these years. On the other hand, AR for management has stated that workman was given an offer to join the management and since he has not joined he is not entitled to back wages.
1 have seen the WS. There is no unconditional offer to the workman Ashok Kumar to join the management. Hence, the ground of the management is not tenable. Management has also not shown that the workman was gainfully employed anywhere.

RELIEF:-
1) It has been proved that workman Ashok Kumar Sharma worked with the management for about 1 ½ years. Hence, in lieu of his illegal termination, he is entitled to a compensation of Rs. 1,00,000/-. This compensation shall be paid within 30 days otherwise shall be paid with interest @ 12% till the amount is paid.
2) (a) Register of the management shows that he was not paid salary for number of days he worked in the month of November 1996. He is entitled to that salary which is shown in the register to be Rs. 2,586/-.
(b) He has also not been paid bonus for the year 1995-96 and 1996-97. He is also entitled for the same.
(c). The register of leave also shows that there is, outstanding leave of 11 days, Workman Ashok Kumar Sharma is also entitled to the payment of 11 days.
(d) Workman is entitled to amount as mentioned in (a), (b) and (c) with interest@ 12% from 1997 till amount is paid….”

19. Upon perusal of the extracts from the aforementioned Award, it can be summarily stated that the learned Labour Court, while answering the issue no.1 as to whether the respondent workman falls within the ambit of the Act, observed that since the management failed to prove that he was working in a managerial, supervisory or administrative capacity as purported, he is a workman as per the definition of Section 2(s) of the Act.
20. The learned Court below, whilst placing reliance upon mark X1 to X5, noted that neither has the designation of the claimant been specified as ‘Manager Accounts’ apart from the register of wages for the month of April, 1996, nor has the claimant signed in the said capacity. The learned Court further noted that as it has been observed in numerous judgments even an accountant is a workman hence, the claimant is a workman under the Act.
21. The learned Labour Court while answering the issue no.2 which is with regard to the abandonment of service, observed that the respondent workman has completed 240 days of continuous service in the preceding year and hence, he falls within the ambit of labour law.
22. Also, upon perusal of the original muster roll for the month of November, 1996, the Court below deduced that the respondent workman was absent from 27th November, 1996 whereas the petitioner entity has contended his abandonment from 29th November, 1996 and the same amounts to clear contradiction in the petitioner entity’s story.
23. The learned Court below further noted that upon perusal of the attendance register w.e.f. April, 1994, it can be concluded that the attendance for the whole month has been marked by one person, by one pen and one handwriting hence, concluding that the management is not marking the attendance on a daily basis. Furthermore, a bare perusal of the wages register shows a balance of Rs.2,586/- in favour of the respondent workman. Moreover, the learned Labour Court opined that since the onus to establish abandonment of services by the respondent workman himself was upon the petitioner entity, it has failed to prove the same. Accordingly, issue no.2 was also decided against the petitioner entity and in favour of the respondent workman.
24. At this juncture, it is imperative to understand the scope of a Writ Court’s jurisdiction in interfering with labour or workman disputes. The Hon’ble Supreme Court in a catena of judgments has reiterated time and again that the Labour Court is the final court of fact in the disputes between the labour/workman and employer/an industry.
25. In this backdrop, this Court deems it imperative to briefly reiterate the scope of a Writ Court’s jurisdiction under Article 226 of the Constitution of India in interfering with findings of the Labour Court/Tribunal qua the following circumstances. Firstly, a High Court shall exercise its writ jurisdiction sparingly and shall act in a supervisory capacity and not adjudicate upon matters as an appellate court. Secondly, in matters wherein the Labour Court has adjudicated after having gone in the details of both fact and law while carefully adducing the evidence placed on record, the High Court shall not exercise its writ jurisdiction to interfere with the award when prima facie the court can conclude that no error of law has occurred. Thirdly, judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. The reasoning must be cogent and convincing. Fourthly, a High Court shall intervene with the order/award passed by a Court below only in cases where there is a gross violation of the rights of the petitioner and the conclusion of the Tribunal/Labour Courts is perverse. A mere irregularity which does not substantially affect the cause of the petitioner shall not be a ground for the court to intervene with the order passed by the concerned court. Fifthly, if the Court observes that there has been a gross violation of the principles of natural justice. Lastly, the punishment imposed can be challenged on the ground of violation of doctrine of proportionality.
26. This Court is of the considered view that, the learned Labour Court has dealt with each of the issues thereby, affording a detailed reasoning after having appraised the evidence placed on record, the cross examination as well as the settled position of law.
27. Thus, in view of the above discussions of law and fact, this Court observes that the learned Labour Court after having perused the evidence and witnessed the cross examination, has rightly arrived at the finding that the services of the respondent workman were terminated illegally and wages pertaining to the month of November, 1996, were denied to him. There exists no evidence on part of the petitioner entity to support that the respondent workman himself abandoned the services and thus, it cannot be construed otherwise.
28. This Court is further of the view that as the scope of its writ jurisdiction is limited and is to be exercised sparingly, this Court cannot undertake an exercise, impermissible for this Court in exercising the writ jurisdiction, by liberally re-appreciating the evidence and drawing conclusions on pure questions of fact, as this Court is not sitting in an appellate jurisdiction over the awards passed by the learned Labour Court.
29. In light of the above, this Court concludes that the instant matter has been heard at length by the learned Labour Court and the petitioner entity was granted sufficient opportunity to justify the abandonment of services by the respondent workman but the finding of the facts narrated a completely different view than that alleged by the petitioner entity. Since no error on account of appraising evidence by he learned Labour Court is noted by this Court, the relief as prayed by the petitioner entity cannot be granted.
30. It is perceptible from the findings of the learned Labour Court that it had gone into depth of the material placed before it, therefore, this Court discerns no material to establish the proposition put forth by the petitioner entity.
31. It is held that there is no material to characterise the impugned Award as perverse and the learned Court below is well justified in passing the same.
32. In view of the foregoing discussions, this Court finds no infirmity in the impugned Award dated 3rd October, 2009, passed by learned Presiding Office, Labour Court XVI, Karkardooma Courts, Delhi in ID No.64/97/09.
33. Based on the aforementioned observations, this writ petition is accordingly dismissed along with pending applications, if any.
34. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
MARCH 7, 2024
rk/da/ryp

W.P.(C) 5515/2010 Page 1 of 24