$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 20.11.2024
Judgment pronounced on: 29.11.2024
+ W.P.(C) 5664/2010
SATISH KUMAR .....Petitioner
Through: Mr. Sarfaraz Khan, Advocate.
versus
HOLISTIC CHILD DEVELOPMENT INDIA AND OTHERS
.....Respondents
Through: Mr. Babu Malayil, Advocate.
CORAM:
HON'BLE MR. JUSTICE GIRISH KATHPALIA
J U D G M E N T
GIRISH KATHPALIA, J.:
1. This writ action, brought under Artic le 226 of the Constitution of
India assails the Labour Court Award dated 13.04.2010, whereby the
Reference was answered against the petitioner, hold ing that he had failed to
prove the relationship of employee and employer between him and the
respondent. The petitioner has imp leaded New Delhi and Pune offices of
M/s. Holistic Child Development Ind ia as two separate respondents, though
basically they are only one entity. Therefore, the respondents in the present
judgment are collectively referred to as “the respondent”. Upon issuance of
notice, the respondent entered appearance through counsel. I heard learned
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counsel for both sides and examined the d igitized record of the Labour
Court.
2. Succinctly stated, circumstances leading to the present case are as
follows.
2.1 The petitioner filed directly before the Labour Court his Statement of
Claim dated 27.01.2006 against the respondent, challenging the termination
of his services and seeking reinstatement with consequential benefits. In his
Statement of Claim, the petitioner pleaded that since 29.03.1995 he had been
continuously working with the respondent on permanent job at a monthly
salary of Rs. 3,120/-, but was shown by the respondent as daily wager and
was not being provided statutory benefits, as provided to the other
permanent emp loyees; that since he raised a dispute seeking regularization
of his services, which dispute was referred to the Industrial Tribunal vide
Reference dated 17.01.2006, the respondent got annoyed and on 13.10.2005
verbally refused to take him back on employment and did not even pay his
earned wages; that he issued Demand Notice dated 04.11.2005, which was
ignored by the respondent; and that termination of his services by the
respondent was illegal, so he is entitled to reinstatement with full back
wages.
2.2 On service of notice, the respondent appeared before the Labour
Court and filed their written statement denying the p leadings of the
petitioner. In their written statement, the respondent pleaded that they are
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public charitable trust, duly registered by the Registrar of Cooperative
Societies and their aims and objects are to show compassion to the poor,
orphaned, abandoned and destitute children, so they are not an “industry”
within the meaning of Section 2(j) of the Industrial Disputes Act; that no
formal appointment letter was issued to the petitioner as the respondent
never intended to take him in emp loyment; that the New Delhi office of the
respondent is in small premises where the petitioner used to work for short
duration by cleaning floors and dusting the office premises within two hours
and no other work was taken from him, so he was free to work elsewhere to
earn money; that the petitioner was not emp loyed against any permanent
post or vacancy and his wages were paid day to day on consolidated basis
for the number of days he worked in a month; that as regards the
regularization dispute, the same culminated into award dated 18.02.2006 of
the Industrial Tribunal against the petitioner as he did not file any Statement
of Claim; that the entire staff of the respondent at Delhi office comprises of
only one office manager and no other employee, so there was no occasion of
granting any statutory benefits to anyone; that s ince the petitioner was
extend ing threats to the office manager and using filthy language, the
respondent told him that he was not required for the work of sweep ing and
dusting the office from 13.10.2005; that on account of conduct of the
petitioner, his complaint was disposed of by the Labour Inspector; that the
petitioner never completed 240 days of continuous service under the
respondent in any calendar year; and that there is no substance in the case
set up by the petitioner.
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2.3 The petitioner filed a rejo inder, denying the pleadings of the
respondent and reaffirmed his claim contents.
2.4 On the basis of rival plead ings, the learned Labour Court framed the
following issues on 24.08.2006:
“(i) Whether the management is an ‘industry’?
(ii) Whether there is relationship of employer and employee
between the parties?
(iii) Whether the workman is entitled to reinstatement with
consequential benefits including full back wages?
(iv) Relief.”
2.5 On the basis of above issues, the Labour Court conducted trial in
which both sides examined one witness each. After hearing both sides, the
Labour Court passed the award impugned in the present case. In the
impugned award, on the basis of analysis of the rival pleadings and evidence
the Labour Court delivered the find ings that there is no evidence to establish
that the present respondent is “industry” within the meaning of Section 2(j)
of the Industrial Disputes Act; and that there was no relationship of
employer and employee between the parties; and that consequently there
was no occasion for the respondent to terminate services of the petitioner.
3. Hence, the present writ petition.
4. During arguments, learned counsel for petitioner took me through the
rival p lead ings and evidence and contended that the impugned award is not
sustainab le in the eyes of law. Learned counsel for petitioner contended that
the evidence adduced on behalf of petitioner c learly shows that he was
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engaged by the respondent as full time emp loyee against permanent
vacancy, so the find ings in that regard are not sustainab le. Further, learned
counsel for petitioner also contended that since now the respondent has
closed down, there is no scope of reinstatement, as such a reasonable
amount of compensation be awarded to the petitioner.
5. On the other hand, learned counsel for respondent supported the
impugned award and contended that the present writ petition is completely
devoid of merits. Learned counsel for respondent also laid emphas is on the
settled legal position as regards limited scope of interference by the High
Court as regards appreciation of evidence already done by the Labour Court.
6. To begin with, it would be apposite to briefly traverse through the
scope of interference by this court under Artic le 226 of the Constitution of
India while dealing with d isputes of the present nature. The jurisdiction
available to the High Court under Article 226 of the Constitution of India is
not in the nature of appellate or revis ional jurisdiction. It is an extraordinary
jurisdiction in which the discretion can be exercised within the limited
parameters, delineated by the Supreme Court.
6.1 In the case of Sangram Singh vs Election Tribunal, Kotah & Anr.,
1955 SCC OnLine SC 21, the Supreme Court examined the jurisdiction
under Artic les 226 and Artic le 136 of the Constitution of India thus :
“13. The jurisdiction which Articles 226 and 136 confer entitles
the High Courts and this Court to examine the decisions of all
Tribunals to see whether they have acted illegally. That
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jurisdiction cannot be taken away by a legislative device that
purports to confer power on a tribunal to act illegally by
enacting a statute that its illegal acts shall become legal the
moment the tribunal chooses to say they are legal. The legality
of an act or conclusion is something that exists outside and
apart from the decision of an inferior tribunal. It is a part of the
law of the land which cannot be finally determined or altered by
any tribunal of limited jurisdiction. The High Courts and the
Supreme Court alone can determine what the law of the land is
vis a vis all other courts and tribunals and they alone can
pronounce with authority and finality on what is legal and what
is not. All that an inferior tribunal can do is to reach a tentative
conclusion which is subject to review under Articles 226 and
136. Therefore, the jurisdiction of the High Courts under Article
226 with that of the Supreme Court above them remains to its
fullest extent despite Section 105.
14. That, however, is not to say that the jurisdiction will be
exercised whenever there is an error of law. The High Courts
do not and should not, act as Courts of appeal under Article
226. Their powers are purely discretionary and though no
limits can be placed upon that discretion it must be exercised
along recognised lines and not arbitrarily; and one of the
limitations imposed by the Courts on themselves is that they
will not exercise jurisdiction in this class of case unless
substantial injustice has ensued, or is likely to ensure. They
will not allow themselves to be turned into Courts of appeal or
revision to set right mere errors of law which do not occasion
injustice in a broad and general sense, for, though no
legislature can impose limitations on these constitutional
powers it is a sound exercise of discretion to bear in mind the
policy of the legislature to have disputes about these special
rights decided as speedily as may be. Therefore, writ petitions
should not lightly entertained in this class of case.”
(emphasis supplied)
6.2 In the case of Indian Overseas Bank vs. IOB Staff Canteen Workers
Union and Anr., AIR 2000 SC 1508, the Supreme Court held thus:
“The learned single Judge seems to have undertaken an
exercise, impermissible for him in exercising writ jurisdiction,
by liberally reappreciating the evidence and drawing
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conclusions of his own on pure questions of fact, unmindful,
though aware fully, that he is not exercising any appellate
jurisdiction over the awards passed by a Tribunal, presided
over by a Judicial Officer. The findings of fact recorded by a
fact-finding authority duly constituted for the purpose and which
ordinarily should be considered to have become final, cannot be
disturbed for the mere reason of having been based on materials
or evidence not sufficient or credible in the opinion of the writ
Court to warrant those findings at any rate, as long as they are
based upon some material which are relevant for the purpose or
even on the ground that there is yet another view which can be
reasonably and possibly one taken. The Division Bench was not
only justified but well merited in its criticism of the order of the
learned single Judge and in ordering restoration of the Award of
the Tribunal. On being taken through the findings of the
Industrial Tribunal as well as the order of the learned single
Judge and the judgment of the Division Bench, we are of the
view that the Industrial Tribunal had overwhelming materials
which constituted ample and sufficient basis for recording its
findings, as it did, and the manner of consideration undertaken,
the objectivity of approach adopted and reasonableness of
findings recorded seem to be unexceptionable. The only course,
therefore, open to the writ Judge was the relevant criteria laid
down by this Court, before sustaining the claim of the canteen
workmen, on the facts found and recorded by the fact-finding
authority and not embark upon an exercise of re-assessing the
evidence and arriving at findings of ones own, altogether
giving a complete go-bye even to the facts specifically found by
the Tribunal below.”
(emphasis supplied)
6.3 Most recently in the case of State of Rajasthan & Ors. vs. Bhupendra
Singh, 2024 SCC OnLine SC 1908, the Supreme Court recapitulated the
legal position on the scope of Artic le 226 of the Constitution of India thus :
“23. The scope of examination and interference under Article
226 of the Constitution of India (hereinafter referred to as the
‘Constitution’) in a case of the present nature, is no longer res
integra. In State of Andhra Pradesh v. S Sree Rama Rao, AIR
1963 SC 1723, a 3-Judge Bench stated:
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435f97626cacca, postalCode=110003, st=DELHI,
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‘7. … The High Court is not constituted in a proceeding
under Article 226 of the Constitution a Court of appeal
over the decision of the authorities holding a departmental
enquiry against a public servant : it is concerned to
determine whether the enquiry is held by an authority
competent in that behalf, and according to the procedure
prescribed in that behalf, and whether the rules of natural
justice are not violated. Where there is some evidence,
which the authority entrusted with the duty to hold the
enquiry has accepted and which evidence may reasonably
support the conclusion that the delinquent officer is guilty
of the charge, it is not the function of the High Court in a
petition for a writ under Article 226 to review the evidence
and to arrive at an independent finding on the evidence.
The High Court may undoubtedly interfere where the
departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the
rules of natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have
arrived at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there be some
legal evidence on which their findings can be based, the
adequacy or reliability of that evidence is not a matter
which can be permitted to be canvassed before the High
Court in a proceeding for a writ under Article 226 of the
Constitution.’ (emphasis supplied)
24. The above was reiterated by a Bench of equal strength in
State Bank of India v. Ram Lal Bhaskar, (2011) 10 SCC 249.
Three learned Judges of this Court stated as under in State of
Andhra Pradesh v. Chitra Venkata Rao, (1975) 2 SCC 557:
‘21. The scope of Article 226 in dealing with departmental
inquiries has come up before this Court. Two propositions
were laid down by this Court in State of A.P. v. S. Sree
Rama Rao [AIR 1963 SC 1723 : (1964) 3 SCR 25 : (1964)
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2 LLJ 150]. First, there is no warrant for the view that in
considering whether a public officer is guilty of
misconduct charged against him, the rule followed in
criminal trials that an offence is not established unless
proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be
not applied by a domestic tribunal of inquiry the High
Court in a petition under Article 226 of the Constitution is
not competent to declare the order of the authorities
holding a departmental enquiry invalid. The High Court is
not a court of appeal under Article 226 over the decision
of the authorities holding a departmental enquiry against
a public servant. The Court is concerned to determine
whether the enquiry is held by an authority competent in
that behalf and according to the procedure prescribed in
that behalf, and whether the rules of natural justice are
not violated. Second, where there is some evidence which
the authority entrusted with the duty to hold the enquiry
has accepted and which evidence may reasonably support
the conclusion that the delinquent officer is guilty of the
charge, it is not the function of the High Court to review
the evidence and to arrive at an independent finding on
the evidence. The High Court may interfere where the
departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the
rules of natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have
arrived at that conclusion. The departmental authorities
are, if the enquiry is otherwise properly held, the sole
judges of facts and if there is some legal evidence on
which their findings can be based, the adequacy or
reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court in a
proceeding for a writ under Article 226.
xxx
23. The jurisdiction to issue a writ of certiorari under
Article 226 is a supervisory jurisdiction. The Court
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exercises it not as an appellate court. The findings of fact
reached by an inferior court or tribunal as a result of the
appreciation of evidence are not reopened or questioned in
writ proceedings. An error of law which is apparent on the
face of the record can be corrected by a writ, but not an
error of fact, however grave it may appear to be. In regard
to a finding of fact recorded by a tribunal, a writ can be
issued if it is shown that in recording the said finding, the
tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted
inadmissible evidence which has influenced the impugned
finding. Again if a finding of fact is based on no evidence,
that would be regarded as an error of law which can be
corrected by a writ of certiorari. A finding of fact recorded
by the Tribunal cannot be challenged on the ground that
the relevant and material evidence adduced before the
Tribunal is insufficient or inadequate to sustain a finding.
The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are
within the exclusive jurisdiction of the Tribunal. See Syed
Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477 : (1964)
5 SCR 64].
24. The High Court in the present case assessed the entire
evidence and came to its own conclusion. The High Court
was not justified to do so. Apart from the aspect that the
High Court does not correct a finding of fact on the
ground that the evidence is not sufficient or adequate, the
evidence in the present case which was considered by the
Tribunal cannot be scanned by the High Court to justify
the conclusion that there is no evidence which would
justify the finding of the Tribunal that the respondent did
not make the journey. The Tribunal gave reasons for its
conclusions. It is not possible for the High Court to say
that no reasonable person could have arrived at these
conclusions. The High Court reviewed the evidence,
reassessed the evidence and then rejected the evidence as
no evidence. That is precisely what the High Court in
exercising jurisdiction to issue a writ of certiorari should
not do.
xxx
26. For these reasons we are of opinion that the High
Court was wrong in setting aside the dismissal order by
reviewing and reassessing the evidence. The appeal is
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accepted. The judgment of the High Court is set aside.
Parties will pay and bear their own costs.’
25. In State Bank of India v. S.K. Sharma, (1996) 3 SCC 364,
two learned Judges of this Court held:
‘28. The decisions cited above make one thing clear, viz.,
principles of natural justice cannot be reduced to any hard
and fast formulae. As said in Russell v. Duke of Norfolk
[[1949] 1 All ER 109 : 65 TLR 225] way back in 1949,
these principles cannot be put in a strait-jacket. Their
applicability depends upon the context and the facts and
circumstances of each case. (See Mohinder Singh Gill v.
Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR
272]) The objective is to ensure a fair hearing, a fair deal,
to the person whose rights are going to be affected. (See
A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC
(Cri) 152] and Swadeshi Cotton Mills v. Union of India
[(1981) 1 SCC 664].) As pointed out by this Court in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262], the
dividing line between quasi-judicial function and
administrative function (affecting the rights of a party) has
become quite thin and almost indistinguishable — a fact
also emphasised by House of Lords in Council of Civil
Service Unions v. Minister for the Civil Service [[1984] 3
All ER 935 : [1984] 3 WLR 1174 : [1985] A.C. 374, HL]
where the principles of natural justice and a fair hearing
were treated as synonymous. Whichever the case, it is from
the standpoint of fair hearing — applying the test of
prejudice, as it may be called — that any and every
complaint of violation of the rule of audi alteram partem
should be examined. Indeed, there may be situations where
observance of the requirement of prior notice/hearing may
defeat the very proceeding — which may result in grave
prejudice to public interest. It is for this reason that the
rule of post-decisional hearing as a sufficient compliance
with natural justice was evolved in some of the cases, e.g.,
Liberty Oil Mills v. Union of India [(1984) 3 SCC 465].
There may also be cases where the public interest or the
interests of the security of State or other similar
considerations may make it inadvisable to observe the rule
of audi alteram partem altogether [as in the case of
situations contemplated by clauses (b) and (c) of the
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GIRISH
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Signing Date:29.11.2024
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proviso to Article 311(2)] or to disclose the material on
which a particular action is being taken. There may indeed
be any number of varying situations which it is not
possible for anyone to foresee. In our respectful opinion,
the principles emerging from the decided cases can be
stated in the following terms in relation to the disciplinary
orders and enquiries : a distinction ought to be made
between violation of the principle of natural justice, audi
alteram partem, as such and violation of a facet of the said
principle. In other words, distinction is between “no
notice”/“no hearing” and “no adequate hearing” or to
put it in different words, “no opportunity” and “no
adequate opportunity”. To illustrate — take a case where
the person is dismissed from service without hearing him
altogether (as in Ridge v. Baldwin [[1964] A.C. 40 :
[1963] 2 All ER 66 : [1963] 2 WLR 935]). It would be a
case falling under the first category and the order of
dismissal would be inv alid — or void, if one chooses to
use that expression (Calvin v. Carr [[1980] A.C. 574 :
[1979] 2 All ER 440 : [1979] 2 WLR 755, PC]). But where
the person is dismissed from service, say, without
supplying him a copy of the enquiry officer's report
(Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC
727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]) or
without affording him a due opportunity of cross-
examining a witness (K.L. Tripathi [(1984) 1 SCC 43 :
1984 SCC (L&S) 62]) it would be a case falling in the
latter category — violation of a facet of the said rule of
natural justice — in which case, the validity of the order
has to be tested on the touchstone of prejudice, i.e.,
whether, all in all, the person concerned did or did not
have a fair hearing. It would not be correct — in the light
of the above decisions to say that for any and every
violation of a facet of natural justice or of a rule
incorporating such facet, the order passed is altogether
void and ought to be set aside without further enquiry. In
our opinion, the approach and test adopted in B.
Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] should govern all cases where the
complaint is not that there was no hearing (no notice, no
opportunity and no hearing) but one of not affording a
proper hearing (i.e., adequate or a full hearing) or of
violation of a procedural rule or requirement governing
W.P.(C) 5664/2010 Page 12 of 16 pages
GIRISH
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb483
5d435f97626cacca, postalCode=110003, st=DELHI,
Signature Not Verified KATHPALIA serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD
2EEE60402C487965FF801E26FA, cn=GIRISH KATHPALIA
Date: 2024.11.29 14:23:09 -08'00'
Digitally Signed
By:NEETU N NAIR
Signing Date:29.11.2024
17:22:59
the enquiry; the complaint should be examined on the
touchstone of prejudice as aforesaid.’
26. In Union of India v. K.G. Soni, (2006) 6 SCC 794, it was
opined:
‘14. The common thread running through in all these
decisions is that the court should not interfere with the
administrator's decision unless it was illogical or suffers
from procedural impropriety or was shocking to the
conscience of the court, in the sense that it was in defiance
of logic or moral standards. In view of what has been
stated in Wednesbury case [Associated Provincial Picture
Houses Ltd. v. Wednesbury Corpn., [1948] 1 K.B. 223 :
[1947] 2 All ER 680 (CA)] the court would not go into the
correctness of the choice made by the administrator open
to him and the court should not substitute its decision to
that of the administrator. The scope of judicial review is
limited to the deficiency in the decision-making process
and not the decision.
15. To put it differently, unless the punishment imposed by
the disciplinary authority or the Appellate Authority
shocks the conscience of the court/tribunal, there is no
scope for interference. Further, to shorten litigations it
may, in exceptional and rare cases, impose appropriate
punishment by recording cogent reasons in support
thereof. In the normal course if the punishment imposed is
shockingly disproportionate, it would be appropriate to
direct the disciplinary authority or the Appellate Authority
to reconsider the penalty imposed.’
27. The legal position was restated by two learned Judges in
State of Uttar Pradesh v. Man Mohan Nath Sinha, (2009) 8 SCC
310:
‘15. The legal position is well settled that the power of
judicial review is not directed against the decision but is
confined to the decision-making process. The court does
not sit in judgment on merits of the decision. It is not open
to the High Court to reappreciate and reappraise the
evidence led before the inquiry officer and examine the
findings recorded by the inquiry officer as a court of
appeal and reach its own conclusions. In the instant case,
the High Court fell into grave error in scanning the
W.P.(C) 5664/2010 Page 13 of 16 pages
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DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT,
GIRISH KATHPALIA 2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d43
5f97626cacca, postalCode=110003, st=DELHI,
serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EEE6
Signature Not Verified
0402C487965FF801E26FA, cn=GIRISH KATHPALIA
Date: 2024.11.29 14:22:49 -08'00'
Digitally Signed
By:NEETU N NAIR
Signing Date:29.11.2024
17:22:59
evidence as if it was a court of appeal. The approach of
the High Court in consideration of the matter suffers from
manifest error and, in our thoughtful consideration, the
matter requires fresh consideration by the High Court in
accordance with law. On this short ground, we send the
matter back to the High Court.’
28. Turning our gaze back to the facts herein, we find that the
learned Single Judge and the Division Bench acted as Courts of
Appeal and went on to re-appreciate the evidence, which the
above-enumerated authorities caution against. The present
coram, in Bharti Airtel Limited v. A.S. Raghavendra, (2024) 6
SCC 418, has laid down:
‘29. As regards the power of the High Court to reappraise
the facts, it cannot be said that the same is completely
impermissible under Articles 226 and 227 of the
Constitution. However, there must be a level of infirmity
greater than ordinary in a tribunal's order, which is facing
judicial scrutiny before the High Court, to justify
interference. We do not think such a situation prevailed in
the present facts. Further, the ratio of the judgments relied
upon by the respondent in support of his contentions,
would not apply in the facts at hand.”
7. So far as the claim of the petitioner that the respondent is “industry”,
as mentioned above, the admitted plead ings are to the effect that the
respondent is a public charitab le trust, engaged in amelioration of poor,
orphaned, abandoned and destitute children. The onus to prove that the
respondent is “industry” was on the petitioner but he did not lead any
evidence on this aspect. The situs of the burden to prove as to whether the
establishment in which the claimant was working is or is not an “industry” is
no longer res integra. In the case of State of Gujarat vs Pratamsingh
Narsinh Parmar, (2001) 9 SCC 713, the Supreme Court specifically held
that if a dispute arises as to whether a particular estab lishment or part thereof
wherein an appointment had been made is or is not “industry”, it would be
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Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d
Signature Not Verified 435f97626cacca, postalCode=110003, st=DELHI,
KATHPALIA serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD2EE
E60402C487965FF801E26FA, cn=GIRISH KATHPALIA
Date: 2024.11.29 14:22:14 -08'00'
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By:NEETU N NAIR
Signing Date:29.11.2024
17:22:59
for the person concerned who claims the same to be “industry”, to give
positive facts for coming to conclusion that it was “industry”. In the present
case, since the petitioner did not lead any positive evidence to show that the
respondent constitute an “ industry”. On the contrary, in his chief
examination affidavit, the witness MW1 examined by the respondent
categorically deposed that the respondent is a charitable institution and their
object is to help poor and orphaned children, so it is not an “industry” within
the meaning of Section 2(j) of the Act. Although MW1 was cross examined
substantially, his testimony in this regard was not assailed. Therefore, I find
no infirmity in the findings recorded by the learned Labour Court that the
respondent is not an “industry”.
8. Coming to the other aspect, viz, the relationship of employer and
employee between the respondent and the petitioner, it would be significant
to note that in his Statement of Claim, the petitioner did not specify the post
on which he was appointed or was employed. Admitted ly, the petitioner was
never issued any appointment letter by the respondent and no steps were
taken by the petitioner to summon emp loyment records from office of the
respondent. Towards the records of remuneration, the petitioner placed on
record of the trial court certain payment vouchers. Although those vouchers
were not proved in accordance with law, but the same having been filed by
the petitioner himself, those vouchers can be read against him. Those
vouchers clearly reflect that he was being paid on day to day basis for the
work of cleaning office of the respondent. In other words, there is no reliable
W.P.(C) 5664/2010 Page 15 of 16 pages
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DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI HIGH COURT,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb48
35d435f97626cacca, postalCode=110003, st=DELHI,
Signature Not Verified KATHPALIA serialNumber=D3E86796451EC45C07B5D15570996B40F80CBD
2EEE60402C487965FF801E26FA, cn=GIRISH KATHPALIA
Date: 2024.11.29 14:21:51 -08'00'
Digitally Signed
By:NEETU N NAIR
Signing Date:29.11.2024
17:22:59
documentary evidence to establish the relationship of employer and
employee between the parties.
9. Thence, on both counts, namely the status of the respondent being an
“industry” and the existence of employer-emp loyee relationship between the
parties, no cogent evidence could be brought on record by the petitioner.
10. In view of the aforesaid, I am unable to find any infirmity in the
impugned award, so the same is upheld and the present petition is dismissed.
Digitally signed by GIRISH KATHPALIA
GIRISH DN: c=IN, o=HIGH COURT OF DELHI, ou=DELHI
HIGH COURT,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569
af3962c6fb4835d435f97626cacca,
postalCode=110003, st=DELHI,
KATHPALIA
serialNumber=D3E86796451EC45C07B5D155709
96B40F80CBD2EEE60402C487965FF801E26FA,
cn=GIRISH KATHPALIA
Date: 2024.11.29 14:21:16 -08'00'
GIRISH KATHPALIA
(JUDGE)
NOVEMBER 29, 2024/
ry
W.P.(C) 5664/2010 Page 16 of 16 pages
Signature Not Verified
Digitally Signed
By:NEETU N NAIR
Signing Date:29.11.2024
17:22:59