Adjudicatory authorities under the I.D. Act not bound by technical procedures unlike Civil Courts: Delhi High Court

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 7600 2019 & CM No.31605 2019 Judgement reserved on 18.02.2021 Judgement pronounced on 30.04.2021 Through : Mr. Ashish Virmani Adv. .....Petitioner M S J.M.J. SIGNAGE .....Respondent Through : Ms. Dolly Nair Adv. HON BLE MR. JUSTICE RAJIV SHAKDHER Judgement pronounced via videoconferencing on account of COVID 19] RAJIV SHAKDHER J. Table of Contents Preface: ..........................................................................................................2 Background facts: ..........................................................................................2 Submissions on behalf of the parties: ...........................................................8 Reasons and Analysis: ................................................................................ 10 Conclusion: ................................................................................................. 15 W.P.7600 2019 Preface: This writ petition is directed against the award dated 12.02.2018 passed by the concerned labour court in LIR No. 3538 17. The principal grievance of the petitioner is that the labour court has ruled on the reference made to it although he had made a plea for withdrawing the reference. The record shows that the petitioner advanced the plea for withdrawing the reference on two grounds. 2.1 First that his name had been wrongly recorded as “Rakesh” in the reference whereas his name is “Rakesh Ghosh” on the aadhar card. 2.2 Secondly the name of his employer i.e. the respondent herein had been recorded in the order of reference as “J.M.J. Signage” whereas the correct name was “JMJ Signage7600 2019 08.01.2017 which ultimately led to his termination from service. It is averred by the petitioner that his services were terminated without prior notice or payment of due salary. According to the petitioner arrears of salary for the period spanning between 01.01.2014 and 01.12.2016 were not paid to him when his services were terminated albeit without inquiry. It is thus averred that there was a violation of the provisions of Section 25 F of the Industrial Disputes Act 1947P.S. Karol Bagh. 4.1 Although the petitioner has also averred that he dispatched a letter on 08.02.2017 to the respondent via speed post demanding payment of outstanding salary and reinstatement of his services a copy of this letter has not been placed before the court. Be that as it may it appears that the conciliation proceedings were carried out before the conciliation officer which having failed propelled the Deputy Labour Commissioner to pass an order on 20.12.2017 referring the dispute for adjudication to the concerned labour court. The terms of the reference as framed in the order dated 20.12.2017 are set forth hereafter: “Whether services of Sh. Rakesh S o Sh. Naru Gopal Age 25 years have been terminated illegally and or unjustifiably by the management if so to what relief is he entitled and what directions are necessary in this respect ” W.P.7600 2019 6. Resultantly on 22.12.2017 notice was issued by the labour court to both the parties which was made returnable on 12.01.2018. On 12.01.2018 both the parties were represented before the labour court. The petitioner in particular was represented by one Mr. Pyare Lal. 6.1. On that date Mr. Pyare Lal filed on behalf of the petitioner the statement of claim along with the documents apart from a letter of authority issued by the petitioner. 6.2 The labour court having taken on record the filings made on behalf of the petitioner granted time to the respondent‟s representative to file a written statement in the matter along with a letter of authority issued in his favour. The matter was thus posted for further proceedings on 23.01.2018. 6.3 On 23.01.2018 the petitioner moved an application for withdrawing the reference in view of the fact that not only was his name wrongly set out in the order of reference dated 20.12.2017 but also the name of the respondent had wrongly been noted in the said order. In support of his plea that his name was “Rakesh Ghosh” and not “Rakesh” the petitioner had placed reliance on the Aadhar card filed with the application. 7. The labour court though rejected the application for withdrawal of reference preferred by the petitioner on the ground that the dispute had been referred to it by the Government of NCT of Delhiand therefore it was only that authority who could withdraw the reference. The labour court thus went on to conclude that the petitioner was incompetent to withdraw the reference. However even while directing dismissal of the petitioner‟s application the labour court observed that the petitioner could move an appropriate application with the labour department W.P.7600 2019 for carrying out the necessary corrections in the order of reference. Importantly the order dated 23.01.2018 respondent‟s representative had sought further time to file a written statement in the matter. 7.2 The lis was thus at that point at a nascent stage. It may also be relevant to note that during the course of the arguments the petitioner‟s representative had accepted the fact that the respondent‟s name had changed to “J.M.J. Signage” and was no longer “JMJ SignageRelief. 8.1 By the very same orderthe matter was posted by the labour court on 12.02.2018 for filing of the petitioner‟s evidence. 8.2 The petitioner filed a brief affidavit whereby he reiterated that he wanted to withdraw the reference with liberty to move afresh for the said purpose. There was nothing else stated by the petitioner in his affidavit of On 12.02.2018 the labour court took several significant steps one after the other. Firstly the labour court took on record the affidavit of evidence filed by the petitioner after it was formally tendered by him. Secondly it closed the evidence of parties. And lastly W.P.7600 2019 after hearing final arguments in the matter he proceeded to pass a final order in the matter. 9.1 The documents which were relied upon by the petitioner were also noticed by the court in its order dated 12.02.2018 which comprised the application filed before the court i.e. Ex.WW1 1 a copy of the complaint dated 09.01.2017 i.e. Mark W1 and copies of complaint with some documents i.e. Mark W27600 2019 matter it appears took place on 22.01.2020. On that date the learned judge recorded her unhappiness with the stand taken by the learned counsel for the respondent which was that she wished to withdraw the statement made by her on 20.11.2019 as it was made without instructions. 11.1 Notwithstanding her disapproval with the approach adopted in the matter the learned judge permitted the learned counsel for the respondent to recant and thereafter proceeded to issue notice in the petition with liberty to the respondent to file its counter affidavit. 12. The respondent since then has filed its counter affidavit in which it has taken the following pleas. That the petitioner was a daily wager who was engaged by the respondent whenever the work was available. ii) The petitioner‟s claim that he had not been paid his wages since iii) Because the petitioner was a daily wager he was paid wages as and when the work was available there were no arrears towards wages payable January 2014 was false. by the respondent. iv) Since the petitioner was not working on a regular basis with the respondent there cannot arise any question of removing him from service. v) The petitioner s application for withdrawing the reference was dismissed on 23.01.2018 and despite an opportunity being given to have the reference corrected he chose not to approach the labour department at vi) The petitioner did not challenge the order dated 23.01.2018 which his peril. entailed consequences. vii) The assertions made on behalf of the petitioner are contradictory in W.P.7600 2019 the sense that on the one hand he avers that the jurisdiction of the labour court is confined to the reference made to it and on the other hand he asserts that the labour court ought to have exercised its jurisdiction albeit beyond the terms of the reference. viii) The labour court had correctly rejected the reference as the petitioner had failed to prove that his termination was brought about illegally and or unjustifiably. evidence filed by the petitioner. ix) The labour court reached its conclusion based on the affidavit of The petitioner had neither worked with the respondent since 2010 as a field worker for a monthly wage of Rs. 12 000 nor the petitioner worked for the respondent for nearly 12 hours each day. Submissions on behalf of the parties: 13. With this state of the pleadings and the material on record arguments were advanced on behalf of the petitioner by Mr. Ashish Virmani while submissions on behalf of the respondent were made by Ms. Dolly Nair. 14. Mr. Virmani submitted that the labour court acted rather technically in dismissing the petitioner‟s application for withdrawing the reference made in the first instance. 14.1 According to him instead of dismissing the application the labour court could have read the reference as one made in the name of “Rakesh Ghosh” as against “Rakesh” having regard to the complaint dated 09.01.2017 made to the Deputy Labour Commissioner based on which the reference order dated 20.12.2017 was issued by the GNCTD. 14.2 In any event since the reference had not been decided on merits as W.P.7600 2019 the petitioner only reiterated his stand in his affidavit of evidence dated 12.02.2018 that he wished to withdraw the reference there can be no bar in a fresh request being made by the petitioner to the GNCTD for referring the dispute once again to the concerned labour court. 14.3 The observations made in paragraph 10 of the impugned award dated 12.02.2018 are thus erroneous to that extent. 14.4 The plea for withdrawing the reference ought to have been allowed and that if allowed cannot bar a fresh proceeding under the I.D. Act. 14.5 The principles and or the technical rules of the Code of Civil Procedure 1908cannot come in the way of the petitioner. Thus effectively the labour court via the impugned award has barred the initiation of fresh proceedings by the petitioner under the I.D. Act by holding that. since the matter has been decided on merits a fresh case cannot be filed by the petitioner on the same cause of action. 14.6 The labour court has thus in effect invoked the principles of Section 11 of the CPC which do not apply to a dispute under the I.D. Act. 14.7 Mr. Virmani in support of his plea has relied upon the following Ashoka Marketing Ltd. v. Shri B.D. Gupta & Anr. 1975 Lab I. 1715: 1975 SCC OnLine Del 41. ii) Dimple Ltd. v. Harish Kumar Aggarwal 1998 DRJ 558 : 1997 SCC OnLine Del 950. iii) Guest Keen Williams Pr. Ltd. Calcutta v. P.J. Sterling & Ors. AIR 1959 SC 1279. iv) Radio Manufacturers of India v. State of West Bengal & Ors. 2004 2) L.L.N. 274 : 2003 SCC OnLine Cal 452. W.P.7600 2019 15. Ms. Nair on the other hand has broadly argued in line with the reasoning contained in the impugned award. Ms. Nair submitted that since the petitioner had not taken advantage of the order dated 23.01.2018 passed by the concerned labour court permitting him to approach the labour department for having the reference corrected the labour court could not have come to any other conclusion but only one which it finally reached via the impugned award since the affidavit of evidence filed by the petitioner stated nothing which would prove the case set up by the petitioner that his services were illegally and or unjustifiably terminated. 16. Ms. Nair also submitted that since the petitioner had failed in withdrawing the reference in the first instance his plea was rightly rejected by the labour court via the impugned award 718 :1 SCC 524. ii) Yogesh Daulat Rai Mehta v. Union of India & Ors 2008 Law Suit Del) 1254 passed in W.P. 139 2008 by the High Court of iii) Ashok Kumar Chhabra v. Union of India 1998DLT 291 : 1998 SCC OnLine Del 158. Reasons and Analysis: 18. Having heard the counsel for the parties and perused the record the undisputed position which has emerged and its ramifications are set forth W.P.7600 2019 hereafter: 18.1 The petitioner had filed a complaint with the labour department qua the respondent which alluded to the fact that his dues for various periods had not been paid. This complaint was made by the petitioner by adverting to his complete name i.e. Rakesh Ghosh. 18.2 The conciliation proceedings having failed the Deputy Labour Commissioner GNCTD vide order dated 20.12.2017 made a reference that alluded to the petitioner s first name i.e. Rakesh. 18.3 In this order the respondent was described as “M s J.M.J. Signage". The reference was taken up by the labour court in the first instance on 22.12.2017 when notice was issued to both the parties which was made returnable on 12.01.2018. On that date the representatives of both the sides were present. The petitioner‟s representative filed the statement of claim along with the documents as also his letter of authority. The labour court posted the matter on 23.01.2018 for enabling the respondent‟s representative to file the written statement and letter of authority. 18.4 On 23.01.2018 the petitioner moved an application whereby he sought to withdraw the reference. The reasons given were that not only his name was incorrectly recorded but also the name of the respondent was not correctly shown in the order of reference. The labour court on that very date i.e. 23.01.2018 considered the application and thereafter proceeded to dismiss the same. The reason given by the labour court for dismissal of the application was that only the appropriate authority was competent to withdraw the reference. Liberty was however given to the petitioner to approach the labour department for having the reference W.P.7600 2019 18.5 Concededly the petitioner did not approach the labour department and instead ended up filing an affidavit of evidence wherein a similar plea was taken. This affidavit was filed on 12.02.2018. The petitioner was cross examined on the same date where he simply stated that he wished to withdraw the reference. The labour court though proceeded to hear the final arguments in the matter since the respondent chose not to cite any witnesses. 18.6 Therefore the question which arises for consideration is: does the impugned award deal with the merits of the industrial dispute The fact that it does not is reflected in paragraph 9 of the impugned award which reads as In his affidavit in evidence Ex.WWl A the claimant did not depose about cause of action. Rather he deposed that he was withdrawing the case due to his and management s wrong name in reference order. Such kind of plea has already been decided by this court vide order dated 23.01.2018. He did not mince a single word about termination of his service. Due to that reason he has failed to prove that his service was terminated illegally. Hence this issue is decided in favour of management and against claimant.” 19. The labour court having observed that the petitioner s affidavit of evidence and his deposition merely reiterated that he wished to withdraw the reference could not have then gone on to say in paragraph 101 of the impugned award that he should not be permitted to file a fresh case on the same cause of action as the matter had been decided on merits. 1 “Issue No.2: 10. As the matter has been decided on merit the claimant cannot be permitted to file fresh case on the same cause of action. Hence statement of claim is dismissed. He is not entitled to any relief. Parties to bear their own costs. Award is passed accordingly. W.P.7600 2019 19.1 What has emerged from the record is that the petitioner consistently expressed his desire to withdraw the reference. The fact that the petitioner s earlier application was dismissed on 23.01.2018 when it could have been dealt with more creatively by the labour court by holding that “Rakesh” and “Rakesh Ghosh” were the same persons and thus had assuaged the apprehensions of the petitioner it decided to reject the application. Notwithstanding the fact that the petitioner‟s application was rejected to my mind the labour court could not have via the impugned award foreclosed the remedy available to the petitioner to seek a fresh reference or correction of the reference as that was ultimately the import of the order dated 23.01.2018. 19.2 Although the labour court was right in noting in the proceedings of 23.01.2018 that the petitioner had not moved the appropriate authority for carrying out the corrections in the reference the gap between that date and the date when the matter came up and was finally decided was not much. 19.3 The labour court could have either stood over the matter or permitted the petitioner to withdraw the case with liberty to take recourse to an appropriate remedy under the I.D. Act. The appropriate authority would not have possibly entertained a plea for making a fresh reference unless the case pending before the labour court was withdrawn. 19.4 What made the matters worse is the observation of the labour court that since the matter had been decided on merits therefore a fresh action would not lie on the same cause. 19.5 The I.D. Act is a piece of welfare legislation whereby the labour courts and industrial tribunals have been given vast powers. Section 11A of Reference is answered accordingly.” W.P.7600 2019 the I.D. Act permits the labour court Tribunal or National Tribunal as the case may be if it is satisfied that the order of discharge or dismissal is not justified to set aside such order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit or give such other relief to the workman including awarding lesser punishment in lieu of discharge or dismissal. 19.6 The concerned forum thus can as noticed above bring about industrial peace and end the disputes by fixing when necessary terms and conditions of reinstatement or by meting out lesser punishment. 19.7 Therefore what is evident not only upon a plain reading of this provision but other ancillary provisions of the I.D. Act is that the adjudicatory authorities acting under the said Act are not bound by the technical rules of procedure as provided in the CPC which apply to a civil action. The labour court s obduracy in not permitting the petitioner to withdraw the referencewas to my mind both iniquitous and illogical as also unsustainable in law. This is for the reason that the labour court has dealt with a reference which adverts to “Rakesh” whereas the petitioner is “Rakesh Ghosh”. 19.8 The judgements cited by Ms. Nair do not deal with the issue at hand and therefore are distinguishable on facts. i. The judgement in Ratnagiri Gas case inter alia dealt with the issue as to whether the appellant before the Court had adopted a correct approach in law in challenging by way of a fresh writ petition not only the terms and conditions contained in the amended tender but also those aspects which were embedded in the unamended tender and W.P.7600 2019 formed part of an earlier writ action. The Supreme Court held that this was not permissible as the earlier writ petition had been dismissed as withdrawn. Clearly no such situation arises in the instant case. The labour court in the instant case was required to apply its mind as to whether or not it should go ahead with the matter which was predicated on a reference made to it by GNCTD that did not relate to the petitioner. ii. The judgement rendered in Ashok Kumar Chhabra case also to my mind has no relevance given the facts and circumstances obtaining in the present writ petition. In Ashok Kumar Chhabra case a miscellaneous application was moved in a disposed of writ petition the Court held that this was not permissible. iii. The judgement rendered in Yogesh Daulat Rai Mehta case is also distinguishable on facts. This was a case where the petitioner before the Court had challenged the detention order passed qua him under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The writ petition was dismissed as withdrawn as the petitioner had been released. Thereafter the very same detention order was assailed by the petitioner concerning action taken against him under the Smugglers and Foreign Exchange Manipulators Act 1976. The Court ruled that the second writ petition challenging the same detention order was not maintainable. Conclusion: 20. Therefore for the foregoing reasons I am inclined to set aside the impugned award dated 12.02.2018. It is ordered accordingly. W.P.7600 2019 21. The petitioner would thus be free to take recourse to the remedy available under the I.D. Act to agitate his grievances as there was in substance no decision taken by the labour court on merits via the impugned 22. Resultantly the pending interlocutory application shall stand closed. APRIL 30 2021 aj RAJIV SHAKDHER J W.P.7600 2019 

Summary: Adjudicatory authorities like Labour Courts instituted under the Industrial Disputes Act, 1948 are not bound by the technical rules of procedure unlike their civil correspondences. The writ petition in Rakesh v M/S J.M.J. Signage W.P.(C) 7600/2019 before the Delhi High Court bench of Rajiv Shakdher J. was directed against the award dated 12.02.2018 passed by the concerned labour court in LIR No. 3538/17. The principal grievance of the petitioner was, that the labour court ruled on the reference made to it, although, he had made a plea for withdrawing the reference. The petitioner claims that he was employed by the respondent in 2010 and worked as a field worker at monthly wages of Rs. 12,000/-. It is also averred that the petitioner worked for nearly 12 hours a day. It is averred by the petitioner that his services were terminated without prior notice or payment of due salary. According to the petitioner, arrears of salary for the period spanning between 01.01.2014 and 01.12.2016 were not paid to him when his services were terminated, albeit, without inquiry. It was thus construed that there was a violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947. In 2018, on account of the wrong name registered, he tried to have the reference given by the Government to be withdrawn. The labour court however, rejected the application for withdrawal of reference on the ground that the dispute had been referred to it by the Government of NCT of Delhi, and therefore, it was only that authority, which could withdraw the reference. Since the petitioner had failed in withdrawing the reference in the first instance, his plea was rejected by the labour court, via the impugned award and when it was made by the petitioner for the second time, by incorporating the same plea in his affidavit of evidence. The question before the court was whether the impugned award deal with the merits of the industrial dispute? The I.D. Act, is a piece of welfare legislation whereby the labour courts and industrial tribunals have been given vast powers. Section 11A of the I.D. Act permits the labour court, Tribunal or National Tribunal, as the case may be, if it is satisfied that the order of discharge or dismissal is not justified, to set aside such order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, as it thinks fit or give such other relief to the workman including awarding lesser punishment in lieu of discharge or dismissal. The court observed that the labour court could have either stood over the matter or permitted the petitioner to withdraw the case with liberty to take recourse to an appropriate remedy under the I.D. Act. The appropriate authority would not have, possibly, entertained a plea for making a fresh reference unless the case pending before the labour court was withdrawn. The court held that “Not only upon a plain reading of this provision but other ancillary provisions of the I.D. Act, is, that the adjudicatory authorities acting under the said Act are not bound by the technical rules of procedure, as provided in the CPC which apply to a civil action. The labour court’s obduracy in not permitting the petitioner to withdraw the reference was both iniquitous and illogical as also unsustainable in law. This is for the reason that the labour court has dealt with a reference which adverts to “Rakesh” whereas the petitioner is Rakesh Ghosh.”