RITZ THEATRE PRIVATE LIMITED vs RAMESH CHANDRA

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 2nd May, 2024
+ W.P.(C) 6173/2024 & CM APPL. 25679/2024 & CM APPL. 25680/2024
RITZ THEATRE PRIVATE LIMITED ….. Petitioner
Through: Appearance not given (Through VC)

versus

RAMESH CHANDRA ….. Respondent
Through: Nemo

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:
“i. allow the writ petition with costs.
ii. issue a writ of certiorari or any other appropriate writ, order and quash/set aside the impugned award dated 22.02.2024 passed by Sh. Arun Kumar Garg, POLC-III, Rouse Avenue Court, New Delhi, in LIR No. 465/2016 for the interest of justice.
iii. pass such other or further order(s) as this Hon’ble Court deems fit and necessary in the facts and circumstances of the case.”

2. The petitioner is a private limited company was entrusted to run a cinema hall, namely, Ritz cinema. The respondent was employed with the petitioner entity as peon since 1981.
3. In the year 2009, the cinema hall run by the petitioner entity was closed down vide notice dated 26th March, 2009 and the workmen were advised to find another job. In the said year, the respondent workman also filed a claim before the Conciliation Officer for payment of bonus, leave encashment etc, however, the said proceedings did not materialize leading to referring of the dispute to the Labour Court (‘Court below’ hereinafter).
4. Pursuant to completion of the proceedings, the learned Court below passed the award dated 22nd February, 2024, thereby, holding that the removal of the respondent workman without notice and due compensation was illegal and therefore, the learned Court below granted lump sum compensation to him.
5. Aggrieved by the same, the petitioner entity has preferred the instant petition.
6. The learned counsel appearing on behalf of the petitioner submitted that the learned Court below erred in not appreciating that the petitioner had duly informed the respondent workman about the temporary closure of the cinema hall, and therefore, the respondent workman ought to have arranged alternative job for himself.
7. It is submitted that the learned Court below did not appreciate the fact that the cinema hall run by the petitioner entity was closed, therefore, to term the removal of the respondent as “illegal” is not as per the provisions of law.
8. It is submitted that the respondent workman failed to prove that he was illegally terminated by the petitioner w.e.f. 2nd July, 2009.
9. It is submitted that the respondent workman concealed the fact that another case was filed by him under the Payment of Wages Act, 1936 which was duly dismissed vide order dated 20th November, 2018.
10. Therefore, in view of the foregoing submissions, the learned counsel appearing on behalf of the petitioner submitted that the present petition be allowed and reliefs be granted as prayed.
11. Heard the learned counsel for the parties and perused the records.
12. The petitioner entity has approached this Court against the impugned order passed by the learned Court below, whereby, the termination of the respondent workman was held illegal and he was granted a lump sum payment of Rs.1,30,000/-.
13. The relevant parts of the impugned award reads as under:
“Issue no. (ii): As per terms of reference i.e. Whether services of Sh. Ramesh Chandra S/o Sh. Kharag Bahadur have been terminated illegally and/or unjustifiably by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect?”
and
Additional issue (settled vide order dated 18.11.2014): Whether the management establishment is closed permanently or not, if so, its effects?

29. Onus to prove the illegal termination of his services by the management was upon the workman and in order to prove the same the workman has examined himself as the sole witness in support of his case. The workman has specifically alleged that he had been working with the management since 04.02.1981. The aforesaid plea of the workman had not been specifically denied by the management in its written statement. Rather, the plea of the workman in Para 1 of his statement of claim regarding length of his service, designation and last drawn salary was stated to be a matter of record by the management in Para I of its reply on merits in the written statement. Even the testimony of workman to this effect has remained uncontroverted during his cross-examination. Thus, in my considered opinion, the workman has been able to prove the existence of employer and employee relationship between the parties w.ef. 04.02.1981.

30. The workman has alleged that the management had illegally terminated his services w.ef 02.07.2009. The workman has taken a plea that the Ritz Cinema, where he was working as a peon, was closed by the management w.ef 24.03.2009 purportedly on the pretext that the same was closed as per the directions of Entertainment Tax Department of the Govt.. The workman has also admitted that he had merely worked at Ritz Cinema and had never worked at Novelty Cinema or Jagat Cinema, contrary to his deposition in his evidence by way of affidavit.

31. Thus, in view of the aforesaid admissions on the part of workman, in my considered opinion, the workman has failed to prove that his services were illegally terminated by the management w.e.f. 02.07.2009.

32. Be that as it may, on the basis of admissions on the part of management as well as the workman, it is apparent that the services of the workman were dispensed with by the management consequent upon closure of the cinema on 25.03.2009. Although, it has been alleged by the management that the workman has himself left the services of the management having obtained. alternative employment, however, considering the fact that admittedly, the management had displayed the notice of temporary closure of the cinema for the first time on 26.03.2009. after closure of the cinema on 25.03.2009, in my considered opinion, the management can’t be allowed to take a plea of voluntary abandonment of services by the workman.

33. It is not even the case of the management that the closure of the establishment le. Ritz Cinema was on account of unavoidable circumstances beyond the control of the management within the meaning of proviso to Section 25 FFF(1) of the Industrial Disputes Act, 1947. Thus, in my considered opinion, since the services of the workman were dispensed with consequent upon closure of establishment of the management w.e.f. 25.03.2009, the workman shall be deemed to have been retrenched and would have been entitled to notice and compensation in accordance with the provisions of Section 25 F.

34. As has already been observed hereinabove, no notice, as required under Section 25F(a) of the Industrial Disputes Act, 1947 had been served by the management upon the workman, nor, any compensation in terms of Section 25F(b) of the Act was paid to the workman. Termination of services of the workman by the management in the present case, in my considered opinion, is thus in violation of provisions of Section 25FFF of the Industrial Disputes Act, 1947 and hence is illegal.

35. Issue regarding illegal termination of services of the workman by the management, in terms of reference, is thus decided in favour of the workman, while holding that the services of Sh. Ajab Singh S/o. Sh. Jeet Singh have been terminated by the management illegally.

36. Now, coming to the relief, to which, the workman is entitled in the present case. It is significant to note that since admittedly the retrenchment of workman was on account of closure of establishment we.f. 25.03.2009, no relief of reinstatement of the workman in his job, with or without back wages, can be granted by this Court.

37. So far as the claim of the workman regarding non-payment of wages of the workman by the management for the period April, 2005 to 01.07.2009 is concerned, the management has placed on record a certified copy of order dated 20.11.2018 of Ld. POLC-V. Dwarka Courts, Delhi/competent authority under Payment of Wages Act, 1936 in PWA No. 2288/16, wherein, the aforesaid claim of the workman had been rejected by the competent authority. Although, the workman has concealed the aforesaid order, however, today, after production of the aforesaid order by the management, when the workman and the AR were confronted with the same, they have acknowledged that the claim of the workman in respect of payment of earned wages for the period April, 2005 to 01.07.2009 was rejected by the competent authority under Payment of Wages Act vide order dated 20.11.2018.

38. Under the aforesaid circumstances, in my considered. opinion, workman can’t re-agitate the same claim qua his earned wages again before this Court, more so, when no such dispute has been referred to this Court vide reference order dated 12.03.2010.

39. In view of the aforesaid discussion, in my considered opinion, since the services of the workman have been illegally terminated by the management in violation of provisions of Section 25FFF r.w. Section 25F of the Industrial Disputes Act, 1947 without notice and without payment of retrenchment compensation in terms of Section 25F of the Act, the workman is entitled to the relief of compensation. Since it has already been observed by this Court that the workman has worked with the management continuously w.e.f. 04.02.1981 till 24.03.2009 and his last drawn wages were admittedly Rs. 4,100/- per month, considering the period during which he had to wait for adjudication of his claim, in my considered opinion, ends of justice would be served by awarding a lump-sum compensation of Rs. 1,30,000/- in favour of the workman. Management i.e. Ritz Theaters Pvt. Ltd is thus directed to make the payment of Rs. 1,00,000/- to the workman within a period of eight weeks from today failing which the aforesaid amount shall be payable alongwith simple interest @ 9% per annum. So far as the claim. of the workman against the management no. 2 is concerned, in my considered opinion, in view of admission on the part of workman that he had never worked at any other establishment of the management, except Ritz Theaters, the claim of the workman against M/s. Jagat Talkies Distributors Pvt. Ltd. is not sustainable is hereby rejected.

40. Reference dated 12.03.2010 is thus answered in the following terms:-

“Services of workman Ramesh Chandra S/o Sh. Kharag Bahadur have been terminated illegally by the management M/s. Ritz Theaters Pvt. Ltd. in violation 7 of provisions of Section 25FFF read with Section 25F of the Industrial Disputes Act, 1947 and hence, the management/M/s. Ritz Theaters Pvt. Ltd. is directed to pay a lump-sum compensation of Rs. 1,30,000/- to the workman within the period of eight weeks from today failing which the aforesaid management shall be liable to pay the compensation along with simple interest @ 9% per annum. On the other hand, the claim of workman against M/s. Jagat Talkies Distributors Pvt. Ltd. is hereby rejected”.

41. Ordered accordingly.

42. Requisite number of copies of the award be sent to the competent authority for publication as per rules.

14. Upon perusal of the impugned award, it is made out that the learned Court below had adjudicated the question of termination of the workman by referring to the records, whereby, the factum that the workman was engaged with the petitioner entity since 1981 had not been disputed by the petitioner entity.
15. In paragraph 32 of the impugned award, the learned Labour Court discussed the aspect of temporary closure of the cinema hall and held that the same cannot be the ground of voluntary abandonment of the services by the workman.
16. In the subsequent paragraphs i.e. 33 and 34 of the impugned award, the learned Labour Court also held that the petitioner entity failed to provide any notice to the workman and same is in violation of the statutory mandate. Furthermore, the learned Labour Court observed that the petitioner did not provide any compensation to the workman, therefore, leading to conclusion that the services of the workman were illegally terminated.
17. The rule regarding abandonment of services is clear where the onus is on the employee to not turn up for work for either a long time or explicitly leaving the employment.
18. In the instant case, the said aspect is absent where the respondent workman along with the other employees demanded wages and other benefits, and also expressed their willingness to work in the petitioner entity.
19. Therefore, the principle of abandonment of services as claimed by the petitioner entity cannot be made applicable in the instant case as the findings as well as the material placed on record depicts the contrary.
20. In this backdrop, this Court is of the opinion that the learned Court below rightly adjudicated the issue relating to the termination of the workman, where the non-adherence to the statutory norms by the petitioner entity would lead to conclusion that the services of the respondent workman were wrongly terminated.
21. At this juncture, this Court shall briefly revisit the scope of its power under Article 226 of the Constitution of India. The jurisdiction, of the High Court in matters where Article 226 has been invoked, is limited. It is a well settled proposition of law that it is not for the High Courts to constitute itself into an Appellate Court over the decisions passed by the Tribunals/Courts/Authorities below, since, the concerned authority is constituted under special legislations to resolve the disputes of a particular kind.
22. A writ is issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals and such errors would mean where orders are passed by inferior Courts or Tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice.
23. Tersely stated, 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, the Constitutional Court shall not exercise its writ jurisdiction to interfere 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 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 only in cases where there is a gross violation of the rights of the petitioner and the conclusion of the authority concerned 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. Fifthly, if the Court observes that there has been a gross violation of the principles of natural justice.
24. In view of the foregoing discussion, it is made out that the arguments advanced by the learned counsel for the petitioner have been already dealt with by the learned Court below in the above quoted paragraphs.
25. Therefore, this Court does not find any merit in the arguments advanced by the petitioner and the impugned award passed by the learned Labour Court, Rouse Avenue, New Delhi in LIR No. 465/2016 is hereby upheld.
26. Accordingly, the instant petition stands dismissed along with pending applications, if any.
27. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
MAY 2, 2024
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W.P.(C) 6173/2024 Page 1 of 11