HARRISON THOMAS vs THE EXECUTIVE ENGINEER ACD-111 CPWD AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 26th April, 2024.
+ W.P.(C) 8873/2017

HARRISON THOMAS ….. Petitioner
Through: Mr.Kamal Kant Tyagi, Advocate

versus

THE EXECUTIVE ENGINEER ACD-111 CPWD AND ORS ….. Respondents
Through: Mr.Pradeep Kumar Jha, SPC

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The petitioner vide the present petition under Article 226 of the Constitution of India, seeks the following reliefs:
“i) issue an appropriate writ, order or direction in nature of mandamus to command the Respondent to reinstate the Petitioner w.e.f. 30.8.1992 on post of Khalasi with full back wages and consequential benefits thereof and regularise the Petitioner from their initial period of employment, and ii) issue an appropriate writ, order or direction in nature of mandamus to direct the Respondent to grant temporary status w.e.f 1.9.1993 and
iii) issue an appropriate writ, order or direction in nature of certiorari to quash the impugned award dated 28.3.2017 passed by Presiding Officer, Industrial Tribunal, Karkardooma Courts Complex, Delhi in ID No. 66/2013 and;
iv) pass such further and other orders and directions as this Hon’ble Court may deem fit and proper.”

2. The petitioner (‘petitioner workman’ hereinafter) was working in the respondent management (‘respondent Department’ hereinafter) as khalasi on work-charge basis since the year 1984 in the office situated at Pusa road, New Delhi.
3. In the year 1992, an FIR bearing no. 191/1992 under Section 379 and 411 of the Indian Penal Code, 1860 was lodged against the petitioner workman for his alleged involvement in theft of iron leading to termination of his services from the respondent Department.
4. In the year, 2009, the petitioner was allegedly acquitted from the above said case and thereafter, he sent a letter dated 18th February, 2011 to the respondent no.1 seeking reinstatement on the post from which he was terminated, however, the same was denied.
5. Pursuant to the same, the petitioner filed a claim bearing no. 66/2013 before the Industrial Tribunal (‘Court below’ hereinafter). Upon completion of the proceedings, the learned Court below passed an award dated 28th March, 2017, thereby, dismissing the claim of the petitioner on findings that the petitioner workman failed to file the certified copy of the order of his acquittal.
6. Aggrieved by the same, the petitioner has preferred the instant petition.
7. Learned counsel appearing on behalf of the petitioner submitted that the learned Court below erred in appreciating that the petitioner had filed the photocopy of the certified copy of his acquittal order, therefore, leading to wrongful dismissal of his claim.
8. It is submitted that the learned Court below erred in appreciating that the services of the petitioner were terminated without conducting any domestic enquiry against him, therefore, the petitioner ought to have been reinstated.
9. It is submitted that the learned Court below erred in dismissing the claim filed by the petitioner as the terms of the reference were limited to the question as to whether the petitioner could be reinstated or not.
10. It is also submitted that the services of the petitioner ought to have been regularized as has been done for the similarly placed employees in the respondent Department.
11. Therefore, in view of the foregoing submissions, the learned counsel for the petitioner submitted that the present petition be allowed and the reliefs be granted as prayed.
12. Per Contra, the learned counsel appearing on behalf of the respondent Department vehemently opposed the present petition submitting to the effect that the learned Court below rightly dismissed the claim of the petitioner as the non-filing of the certified copies of his acquittal cannot be termed as a trivial issue in any manner.
13. It is submitted that the petitioner had informed the respondent Department about his acquittal in the year 2011 and requested for resuming his duties, however, his services were not required at that time.
14. It is submitted that the reinstatement as sought by the petitioner could not have been done due to considerable gap of around 19 years, and that too solely on the basis of the claim of acquittal without any substantive proof of the same.
15. It is submitted that the learned Court below rightly dismissed the claim of the petitioner as he was earlier working on a muster roll in one of the offices of the respondent Department, however, the services of the petitioner are no longer required as the said premises is not in possession of the respondent Department anymore.
16. In view of the foregoing submissions, the learned counsel appearing on behalf of the respondent Department prays that the present petition being devoid of any merit may be dismissed.
17. Heard the learned counsel for the parties and perused the records.
18. It is the case of the petitioner that his claim was wrongly dismissed by the learned Court below solely on the ground that he failed to file the certified copies of his acquittal, whereas, he had duly attached the photocopy of the said certified copy with the claim.
19. In rival submissions, the respondent Department has rebutted the contentions advanced by the petitioner submitting to the effect that the petitioner was a muster roll employee and he cannot be reinstated as the inclination to work has been shown after a huge gap of 19 years. Furthermore, it has been also contended that the petitioner had failed to supplement his claim of acquittal by attaching the true copies of his acquittal.
20. Before delving into the issue at hand, this Court deems it appropriate to reiterate that this Court is not sitting as an Appellate Court against the awards passed by the Industrial Tribunal as the said Tribunal is constituted under the special legislations to adjudicate upon particular issues governed under specific statutes. Therefore, by virtue of the limited powers conferred under Article 226 of the Constitution of India, this Court can only look into the jurisdictional errors, if any, committed by the learned Tribunal/Court below.
21. Now adverting to the issue at hand.
22. The learned Court below had passed the impugned award against the petitioner workman mainly on the aspect of non-attachment of the true copy of his acquittal. The relevant extracts of the impugned award reads as under:
“The Central Government in the Ministry of Labour vide Letter No.L- 42012/26/2013(IR(DU)) dated 20.06.2013 referred the following Industrial Dispute to this Tribunal for adjudication:

“Whether the action of the management of CPWD in terminating the services of Sh. Harrison Thomas S/o Kallan John w.e.f. 30.08.1992 is just, fair and legal? To what relief the workman concerned is entitled to?
On 8.7.2013 reference was received in this Tribunal. Which was register as I.D No. 66/2013 and claimant was called upon to file claim statement with in fifteen days from date of service of notice. Which was required to be accompanied with relevant documents and list of witnesses.

On 12.08.2013 workman tiled claim statement before this Tribunal. Where-in he prayed as follows:-
In view of the above facts the circumstances of the case, the workmen most humbly and respectfully prays for the following among other reliefs:
I. To pass an award for reinstatement of the workmen w.e.f. the date of regularization of junior workmen.
II. To pass an award for regularization of his services w.e.f. the date of regularization of junior workmen.
III. Any other relief which may kindly be deemed fit and proper to meet the end of justice
After services of notice management filed written statement on 24.03.2014. Where-in management prayed as follows:-

Management denied the allegations of workman and prayed for dismissal of claim statement.”
Against written statement workman filed rejoinder. Wherein he re-affirmed the contents of claim statement.

On 18.6.2014 following issues were framed:-
1. Whether the action of the management of CPWD in terminating the services of Sh. Harrison Thomas S/o Late Kallan John w.e.f. 30.08.92 is just, fair and legal? If so its effect?
2. To what relief the workman is entitled to? Thereafter Ld. A/R for the workman filed his affidavit in his evidence
Which was tendered by workman as WWl on 13.10.2014 and he was cross-examined & his cross-examination was concluded on 28.01.2015 Management In support or its case filed affidavit of MW1 Sh. A.K. Nagpal. S/o Sh. D.R. Nagpal on 15.10.2015. Who tendered his affidavit and was partly cross-examined on 8.3.2016.
On 4.5.2016 management witness was further cross-examined and his cross-examination concluded.
On 14.06.2016 written arguments filed by workman.
In reply of written arguments of workman, management on 13.02.2017 filed written arguments.
In light of contentions and counter contention I perused the pleadings any evidence of parties including contents of written arguments filed on behalf of workman and management.
My Issue-wise findings are as follows:-
Findings on issue no.1
Burden of prove issue no.1 lies on management. Management in its evidence prove it by way of adducing its evidence. Through which management proved that workman Sh. Harrison Thomas, was challenged u/s 392 IPC (for offence of robbery). He was prosecuted for the said offence.
Workman claimed reinstatement since 30.08.1992 but workman has not filed judgement of acquittal of aforesaid robbery case. Has it been filed by workman. I would have Perused the contents of judgement of acquittal. Through which I could come to a conclusion whether accused was acquitted on the ground of benefit of doubt or due to hostility of witnesses or it was clear cut case of acquittal of accused from the offence of robbery but accused has not filed certified copy of judgement so workman with-hold material evidence. Therefore adverse inference u/s 114 (g) Indian Evidence Act is drawn against accused and it is presumed that accused was not clear cut acquitted. Non filing of codified law that robbery is an offence of moral turpitude due to which major misconduct of accused was not excusable and on the count accused is not entitled for reinstatement in service or for other reliefs.
In the instant case where-in workman was only daily wager. Had he been regular employee his case may be considered up-to some extent but not for his re-instatement.
On the basis of aforesaid discussion I am of considered view that issue No. 1 is liable to be decided against workman and in favour of management. Which is accordingly decided.
Findings on Issue No. 2
The issue is relating to relief to workman so burden to prove it lies on workman.
It is relevant to mention here that material issue in the instant case was issue no. 1. Which has already been decided in favour of management and against workman.
So this issue is also liable to be decided in favour of management and against workman. Which is accordingly decided.
Reference is liable to be decided in favour of management and against workman. Which is accordingly decided. Claim statement is dismissed.
Award is accordingly passed.”

23. Upon perusal of the impugned award, it is made out that the learned Court below had adjudicated the claim of the petitioner workman on the claim of reinstatement with the respondent Department.
24. On the said aspect, the learned Court below noted that even though the petitioner has claimed to get acquitted from the case of theft, however, the non-supply of the certified copy of his acquittal raises doubt about the same.
25. Furthermore, the learned Court below also stated that the petitioner was working as a muster roll employee in the respondent Department and therefore, seeking reinstatement after a gap of 19 years cannot be acceptable and that working on muster roll does not grant a vested right to be reinstated.
26. Coming to the aspect of filing of the true copy of his acquittal, the petitioner workman has contended that he had filed the photocopy of the said acquittal order, and the same was marked in the Exhibit No. W/W1/1.
27. As per the settled position of law, the photocopy of an evidence does not have any relevance and the same cannot be considered either as a primary or a secondary evidence and therefore, the same is inadmissible in Court of law.
28. The question of evidentiary value of the photocopy of a document has been dealt with by the Hon’ble Supreme Court and this Court time and again, where the judicial dictum makes it clear that such copies cannot be construed to be a supplement to the original copy.
29. In J. Yashoda v. K. Shobha Rani(2007) 5 SCC 730, the Hon’ble Supreme Court crystallized the principles regarding the same and held as under:
“6. In order to consider rival submissions it is necessary to take note of Sections 63 and 65(a). Sections 63 and 65(a) read as follows:
“63. Secondary evidence.—Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
***
65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition or contents of a document in the following cases—
(a) when the original is shown or appears to be in the possession or power—
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the court, or
of any person legally bound to produce it, and
when, after the notice mentioned in Section 66, such person does not produce it;”
7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube [(1975) 4 SCC 664] it was inter alia held as follows : (SCC pp. 666-67, para 7)
“7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.”

30. Upon perusal of the aforesaid decision, it is crystal clear that the party producing an evidence to supplement the primary evidence is duty bound to prove the existence of that primary evidence and its whereabouts.
31. In the instant case, the petitioner has failed to provide any proof which can establish the existence of the original copy of the acquittal order. Furthermore, the petitioner also failed to supply the certified copy of the said order, rather merely attached a photocopy of the same.
32. As said earlier, the said document as attached by the petitioner does not have any evidentiary value, therefore, leading to rejection of the claim of the petitioner on the basis of the same. In light of the same, this Court is of the view that the learned Court below has rightly adjudicated the said aspect against the petitioner workman.
33. Now coming to the aspect of seeking reinstatement by a muster roll employee after a gap of 19 years, the petitioner workman had worked in the respondent Department from the year 1984 till 1992 and his services had been terminated on the basis of a police complaint filed against him for the offense of theft of iron.
34. It is not in dispute that the petitioner workman had been working on the muster roll and his services were never regularized. The muster roll employees in an organization can be reinstated only if it is established that the employer has violated the provisions of social welfare legislation.
35. In the instant case, the factual matrix does not depict the same, therefore, the reinstatement as claimed by the petitioner cannot be sought as a matter of right, rather the same is at the discretion of the employer.
36. On the said aspect, the respondent Department has duly stated that since the premises in which the petitioner workman was working are no longer in possession of the Department, therefore, there is no need of the services of the petitioner.
37. In light of the above discussions, this Court is of the view that the learned Court below has duly adjudicated the issues raised before it against the petitioner as there is no ground for his reinstatement in the respondent Department as neither was the petitioner a regularized employee in the respondent Department, nor did he attach the true copy of his acquittal.
38. Hence, this Court is of the considered view that the grounds raised by the petitioner to seek the reliefs, as prayed, are insufficient and cannot be entertained by this Court.
39. In regard to the discussions of facts of the instant case as well as the law, this Court is not inclined to exercise its extraordinary writ jurisdiction under Article 226 of the Constitution of India as there is no force in the propositions put forth by the petitioner.
40. In view of the same, this Court does not find any infirmity with the impugned award dated 28th March, 2017 passed by the learned Labour Court, Karkardooma, New Delhi in I.D. no. 66/2013.
41. Accordingly, the instant petition stands dismissed, along with pending applications, if any.
42. The Order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
APRIL 26, 2024
SV/AV/RYP

W.P.(C) 8873/2017 Page 14 of 14