*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31st May, 2011
+ W.P.(C) 3836/2011
SURYA NARAIN TIWARI ..... Petitioner
Through: Mr. Ashok Kumar, Adv.
Versus
M/S SAMARTH SHIKSHA SAMITI MATA LEELAWATI
BALIKA VIDHYA MANDIR ..... Respondent
Through: None
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner workman claims to have been employed as a School
Bus Driver with the respondent School. An industrial dispute was raised
by him and on which the following reference under Section 10 of the I.D.
Act was made:
W.P.(C)3836/2011 Page 1 of 8
“Whether Sh. Surya Narain Tiwari S/o Sh. Ram Sunder Tiwari
left his job after receiving his full and final dues from the
management and if not, whether his services have been
terminated illegally and /or unjustifiably by the management
and if so, to what sum of money as monetary relief along with
other consequential benefits in terms of existing Laws/Govt.
notifications and to what other relief is he entitled and what
directions are necessary in this respect?”
2. The Industrial Adjudicator has vide award dated 1st July, 2010 held
the petitioner workman to have left the services of the respondent
employer on his own after taking full and final settlement and
axiomatically disbelieved that the services of the petitioner workman were
illegally terminated. Aggrieved therefrom the present writ petition has
been filed.
3. It was inter alia the case of the respondent School that there were
repeated complaints against the petitioner workman of rash and negligent
driving while ferrying School children and the petitioner workman was
also found in a drowsy state while driving the bus; that upon the petitioner
workman being confronted with the same, he stated that he could not
perform his job better than what he was performing and opted to leave the
employment and in which regard a document was prepared and signed by
W.P.(C)3836/2011 Page 2 of 8
the petitioner workman.
4. The case of the petitioner workman was that the respondent
employer had been obtaining his signatures on blank papers and had
misused such blank papers for preparing the document aforesaid.
5. The Industrial Adjudicator on appreciation of evidence and other
material before him has reached the conclusion aforesaid. The said
conclusion is a finding of fact not ordinarily interferable in exercise of
jurisdiction under Article 226 of the Constitution of India unless shown to
be not based on any material on record or perverse or unreasonable
considering the entire material on record. (see Kirloskar Brothers Ltd. Vs.
The Presiding Officer, Labour Court ILR (1976) 1 Del 565,
DTC Vs. Delhi Administration ILR (1973) 1 Del 838, Jawahar Singh Vs.
Financial Commissioner MANU/DE/8396/2007 & Kishan Chand
Bhatia Vs. UOI MANU/DE/0265/2005). This Court cannot re-appreciate
evidence as an Appellate Court. (see Union of India Vs. M/s Mustafa and
Najibai Trading Co. (1998) 6 SCC 79, Poorna Singh Kain Vs. UOI
MANU/DE/1292/2008, Suresh Kumar Vs. the Management of
Monsanto Enterprise Pvt. Ltd. MANU/DE/8303/2007, Ram Narain Jha
W.P.(C)3836/2011 Page 3 of 8
Vs. T.M. Apartments Pvt. Ltd. 2007 (99) DRJ 724 and MCD Vs. Satish
Kumar (2005) 81 DRJ 344 (DB))
As such it has been enquired from the counsel for the petitioner workman
as to how the said finding of fact of the Industrial Adjudicator is
impugned.
6. Though in the writ petition a number of grounds have been taken but
the counsel for the petitioner workman has only urged that the finding of
the petitioner workman of his own having left the employment on 16 th
December, 2005 is not believable since the petitioner workman continued
to perform his duties till 24th December, 2005. It is contended that
notwithstanding the said assertion by the petitioner workman in his
evidence, the petitioner workman was not cross-examined with respect
thereto.
7. However, a perusal of the affidavit by way of examination-in-chief
of the petitioner workman and the cross-examination shows all that the
W.P.(C)3836/2011 Page 4 of 8
petitioner deposed was that his services were terminated in December,
2005 and he had not been paid emoluments of the last month of
employment also. The authorized representative of the respondent
employer in cross-examination recorded on 16th January, 2009 (at page 56
of the paper book) put to the petitioner workman as to whether the
petitioner workman had any evidence to show that he worked with the
management of the respondent employer even after 16th December, 2005.
The reply of the petitioner workman was in the negative. It is thus not as if
the respondent employer did not challenge at all the statement in the
examination-in-chief of the petitioner workman of his services terminated
in December, 2005.
8. The counsel for the petitioner workman has also urged that the
witnesses of the respondent employer in his examination-in-chief nowhere
stated that the petitioner workman had not worked after 16th December,
2005. However, the said argument is also not borne out from the record.
Mr. Dev Narain Tiwari office superintendent of the respondent employer
in para 13 of affidavit by way of examination-in-chief deposes that after
16th December, 2005, the petitioner had never worked with the respondent
W.P.(C)3836/2011 Page 5 of 8
School.
9. It was enquired from the counsel for the petitioner workman as to
whether the petitioner workman in the cross-examination of the witnesses
of the respondent employer had put to the said witnesses that the petitioner
workman had continued to work after 16th December, 2005 also. The
counsel had contended that since the witnesses had not deposed anything
in examination-in-chief, there was no need for the petitioner to cross-
examine on the same. However as aforesaid, the witnesses in examination-
in-chief did so depose and the petitioner workman did not challenge the
said part of the testimony of the witnesses of the respondent employer.
10. The counsel for the petitioner workman has also contended that
Section 106 of the Indian Evidence Act would be attracted and the
proof/documents of the continuance in employment of the petitioner
workman with the respondent employer even after 16th December, 2005
was in exclusive possession of the respondent employer only. It is
contended that the attendance register, salary register etc. of the respondent
employer would have shown that the petitioner workman was in
employment after 16th December, 2005 also but all of which have not been
W.P.(C)3836/2011 Page 6 of 8
produced.
11. It has been enquired from the counsel for the petitioner workman
whether the petitioner workman at any time called upon the respondent
employer to produce the said records. The answer is in the negative.
Section 106 would not be attracted in the aforesaid state of evidence; while
the respondent employer had cross-examined the petitioner workman on
the said aspect, the petitioner workman did not even choose to cross-
examine the witnesses of the respondent employer on the aforesaid aspect.
Had the respondent employer inspite of being called upon, not produced
the records, an adverse inference could have been drawn. Reference in this
regard may be made to the recent dicta in Krishna Bhagya Jala Nigam
Ltd. Vs. Mohammed Rafi (2009) 11 SCC 522 reiterating that the initial
onus is on the workman.
12. I may also notice that the Industrial Adjudicator has also referred to
yet another document also showing the petitioner to have left the
employment of his own and on which also the petitioner workman had
taken the same stand that his signatures have been taken in blank papers.
Rather, the Industrial Adjudicator has observed that the petitioner in his
W.P.(C)3836/2011 Page 7 of 8
cross-examination was in denial mode even qua the admitted signatures.
13. No case for interference with finding of fact arrived at by the
Industrial Adjudicator is made out.
The writ petition is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 31, 2011
bs
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