Himachal Pradesh High Court
The Managing Director & Anr vs Kiran Pal on 16 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No: 10582 of 2011
.
Date of Decision: 16th September, 2016
The Managing Director & Anr. ....Petitioners.
Versus
Kiran Pal ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Naresh Kaul, Advocate.
rt
For the Respondents: Mr. R.L.Chaudhary, Advocate.
Sandeep Sharma, Judge (Oral)
By way of present writ petition filed under Articles 226 & 227 of the Constitution of India, petitioners have laid challenge to the impugned award dated 30.5.2011, passed by learned Presiding Judge, Industrial Tribunal-Cum-Labour Court, Dharamshala, H.P., in Reference Petition No.11 of 2008, whereby claim petition filed by the present respondent has been allowed and he has been ordered to be reinstated in service with seniority and continuity from the date of termination without back wages. The petitioners, being aggrieved with the aforesaid impugned award, have Whether reporters of the local papers may be allowed to see the judgment?
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approached this Court by way of present writ petition seeking therein following reliefs:-
.
(i) That writ petition may kindly be accepted and a writ of certiorari may kindly be passed and the impugned awarded dated 30.5.2011 may kindly be quashed and set-aside and the claim petition may also be dismissed.
of
(ii)
2. Briefly stated facts, as emerged from the record are that the appropriate Government referred the rt matter in terms of Section 10(1) of the Industrial Disputes Act to the Labour Court and made following reference to the learned Industrial Tribunal- Cum-Labour Court for adjudication:-
" Whether the termination of services of Sh. Kiran Pal S/o Shri Mahavir Singh workman by the Area Manager, H.P. Tourism Development Corporation, Jawalamukhi, Tehsil Dehra, District Kangra, H.P. w.e.f. May, 2005 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?"
3. The respondent (hereinafter referred to as 'workman') by way of claim petition stated before the ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...3...
learned Industrial Tribunal-cum-Labour Court, Dharamshala (in short 'Tribunal') that he had been continuously working with the petitioners (in short .
'Corporation') till his retrenchment on 9.6.2005. Workman also averred that he was appointed by the Corporation as a daily waged Sweeper in the year, 1998 and as such, he continued working till May, 2005. He further stated that he of proceeded on one moth's leave with the permission of the Corporation to his native place at Gaziabad but when he rt was on leave, he suffered from typhoid and remained under treatment at Civil Hospital i.e. Major Asha Ram Tyagi Zila Panchayat Hospital Fatehpur, Gaziabad w.e.f.
2.6.2005 to 15.8.2005. He further stated that he duly informed the Corporation through telegram and also telephonically regarding his illness. He further stated that on 16.8.2005 when he reported for duty, he was told that his name stand struck from the roll of the Corporation pursuant to the directions of the Managing Director of the corporation. The workman further claimed that his termination was illegal, arbitrary and unjust being in violation of the provisions of Sections 25-T, 25-U and Section 29 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D. Act').
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4. Petitioners-Corporation by way of reply filed to the claim petition, stated that respondent has no locus standi to file dispute, if any, before the learned Tribunal, .
since he was appointed on contract basis for specific period. Petitioners-Corporation further stated that since services of the workman were governed by the contract and he failed to join his duty after the expiry of of authorized/ sanctioned leave, his services stood automatically terminated. Petitioners-Corporation further rt stated that the respondent was engaged on contract basis for 89 days and that too for seasonal work. Petitioners-
Corporation further claimed that contract of the respondent- workman was renewed on the same terms and conditions as per the requirement of work. Petitioner -
corporation denied that the workman had proceeded on one month's leave with prior permission of the petitioners-
corporation. Petitioners-Corporation further claimed that the respondent workman had applied only for 8 days leave w.e.f.24.5.2005 to 31.5.2005, but he was only allowed five days leave in view of the peak tourist season. Petitioners-
Corporation also claimed that the workman was informed telephonically that his request for extension of leave has been rejected and he was directed to report for duty ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...5...
immediately. The Petitioners-Corporation denied receiving any telegraph sent by the workman. Petitioners-
Corporation also stated that when the workman failed to .
report for duty even after specific directions, the Corporation had sent a telegram on 9th June, 2005 to him.
Petitioners-Corporation further claimed that despite aforesaid communication, workman visited the office of of the Corporation after three months and that too for settling his account. Corporation further claimed that rt workman himself stated that he is no more interested to work and as such, he himself abandoned the job.
Petitioners-corporation in view of the aforesaid background, sought dismissal of the claim put forth on behalf of the workman.
5. Learned Industrial Tribunal-cum-Labour Court on the basis of evidence as well as pleadings, claim and counter claim filed on behalf of the respective parties framed following issues:-
1. Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief of service benefits and the amount of compensation the petitioner is entitled to ? OPP.
2. Whether the petitioner was engaged as seasonal workman on contract basis and his services automatically stood terminated on account of his failure to join his duties after the expiry of leave got sanctioned by him.OPR.::: Downloaded on - 15/04/2017 21:14:38 :::HCHP
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3. Whether the petitioner was gainfully employee after the termination of services. If so, to what effect? OPR.
.
4. Relief:-
6. Learned Tribunal below on the basis of the evidence adduced on record by the respective parties allowed the reference partly in favour of the workman and of directed the petitioners-Corporation to re-engage the workman forthwith with the benefit of continuity and seniorityrt in services from the date of his illegal disengagement, however fact remains that no back wages were allowed to the workman. Learned tribunal also ordered that in case petitioners-corporation failed to reengage the workman within two months of the order, the petitioners-corporation would be liable to pay 25% back wages to the workman from the date of his disengagement till regularization thereof.
7. Being aggrieved and dissatisfied with the aforesaid impugned award dated 30.5.2011, passed by learned Tribunal, present petitioners-Corporation filed instant writ petition seeking therein relief(s) as have been reproduced hereinabove.
8. Mr. Naresh Kaul, learned counsel representing the Petitioners-Corporation, vehemently argued that the ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...7...
impugned award, passed by learned Tribunal is not sustainable as the same is against the facts and law and as such, deserve to be quashed and set-aside. Mr. Kaul, .
strenuously argued that learned tribunal below has failed to exercise jurisdiction vested in it judiciously rather over stepped the same while directing the corporation to reinstate the workman in service despite the fact that the of respondent- workman was engaged for a specific period on contract basis for 89 days which was further renewed rt from time to time as per availability of work. Mr. Kaul, further contended that since specific agreement was executed between corporation and the workman, learned tribunal had no jurisdiction to entertain the dispute, rather workman had an alternate remedy, if any, for redressal of his grievance under the Contract Labour (Regulation and Abolition) Act, 1970 and as such, impugned award passed by learned tribunal is not sustainable and the same deserve to be quashed and set-aside.
9. Mr. Kaul, forcibly contended that learned tribunal below failed to appreciate that the provisions of Industrial Disputes Act,1947, are not applicable in the present case, especially in view of the fact that respondent could not be termed as 'workman' in terms of ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...8...
definition of 'workman' as provided in the Act. He also stated that dis-engagement after expiry of contract period could not be termed as termination. Moreover, learned .
tribunal had no authority to set-aside the same while invoking power under the provision contained in Industrial Disputes Act, 1947. During arguments having been made him, Mr. Kaul, invited attention of the Court to the of impugned award to demonstrate that tribunal below has failed to frame proper issues arising out of the pleadings rt of the parties and vide impugned award, learned tribunal had unsettled the settled law with regard to applicability of the Industrial Disputes Act. While concluding his arguments, Mr. Kaul, forcibly contended that this is a fit case where this Court may exercise its power under writ jurisdiction because impugned award passed by the learned Labour Court below is based on surmises and conjectures and as such, same deserve to be quashed and set-aside.
10. Mr. R.L. Chaudhary, learned counsel representing the workman, supported the impugned award passed by learned Industrial Tribunal-cum-Labour Court and stated that bare perusal of the impugned award, suggest that same is based upon the correct ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...9...
appreciation of the evidence as well as law available on record. Mr. Chaudhary, while inviting the attention of the Court to the impugned award, passed by the court below, .
strenuously argued that bare perusal of the impugned award, suggests that learned Labour Court has dealt with each and every aspect of the matter very meticulously and no interference, whatsoever, of this Court is of warranted in the present and circumstances of the case.
With a view to refute the submissions with regard to non-
rt applicability of provisions of Industrial Disputes Ac, as raised by the learned counsel representing the petitioners-
Corporation, Mr. Chaudhary, invited the attention of the Court to Section 2 of the Contract Labour (Regulation and Abolition) Act, 1970, to demonstrate that any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, is to be termed as 'workman'. As per Mr. Chaudhary, it is undisputed that workman was engaged as Sweeper, meaning thereby he for all intents and purposes falls within the definition of workman as prescribed under the aforesaid Act. He also invited the attention of this Court to Section 2 of the Industrial ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...10...
Disputes Act, 1947, wherein 'workman' has been defined under Section 2 clause (S) of the Act to substantiate his argument that even under Industrial Dispute Act, workman .
has been similarly defined as under Section 2 of the Contract Labour (Regulation and Abolition) Act, 1970. Mr. Chaudhary, further argued that even the workman as defined under Contract Labour (Regulation and Abolition) of Act, has been termed to be species of workman and for redressal of his grievance, he is entitled to raise dispute rt before the Industrial Tribunal under the I.D. Act. In this regard, he also placed reliance upon the judgment of Hon'ble Apex Court in Steel Authority of India and others Versus National Union Waterfront workers and others;
(2001)7 SCC 1. The relevant para-71 of the judgment is reproduced as under:-
" By definition the term" contract labour" is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by through a contractor, with or without the knowledge of the principal employer. A workman may be hired (1) in an establishment by the principal employer or (2) in connection with the work of an establishment by the principal employer through a contractor or by a contractor with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...11...
employer through a contractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in .
connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplied workman for any work of the establishment, a question might arise whether the contractor is a mere camouflage as in Hussainbhai of case (1978)4 SCC 257 and in Indian Petrochemicals Corpn. Case (199)6 SCC 439 etc; if the answer is in the affirmative, the workman will be in fact an rt employee of the principal employer; but if the answer is in the negative, the workman will be a contract labour."
11. Reliance is also placed upon the judgment passed by Hon'ble Apex Court in case titled case International Airport Authority of India Versus International Air Cargo Workers' Union and another (2009) 13 Supreme Court Cases 374. The relevant para No.36 and 37 of the judgment is reproduced as under:-
"36. But where there is no abolition of contract labour under Section 10 of the CLRA Act, but the contract labour contend that the contract between the principal employer and the contractor is sham and nominal, the remedy is purely under the ID Act. The principles in Gujarat Electricity Board Vs. Hind Mazdoor Sabha,(1995)5 SCC 27 continue to govern the issue. The remedy of the workmen is to ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...12...
approach the industrial adjudicator for an adjudication of their dispute that they are the direct employees of the principal employer and the agreement is sham, nominal and merely a .
camouflage, even when there is no order under Section 10(1) of the CLRA Act.
37. The industrial adjudicator can grant the relief sought if it finds that contract between the principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits of to the employer and that there is in fact a direct employment, by apply tests like: who pays the rt salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short, who has direction and control over the employee. But where there is no notification under Section 10 of the CLRA Act and where it is no proved in the industrial adjudication that the contract was a sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise."
12. Mr. Chaudhary, further contended that it stands duly proved on record that the respondent- workman was initially appointed for 89 days and after giving him fictional breaks he was again re-appointed for 89 days.
This process continued till his illegal termination in May, 2005 and this whole exercise was conducted by the ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...13...
petitioners-Corporation solely to defeat the provisions of Section 25-F of the I.D.Act. Mr. Chaudhary, further contended that workman was repeatedly engaged after .
completion of 89 days and as such, it cannot be said that he was appointed on contract basis, rather he was given fictional breaks solely with a view to defeat his claim for regularization, if any, in near future. Hence, petitioners-
of corporation before terminating his services ought to have issued notice under Section 25-F of the Act. Mr. rt Chaudhary, further contended that, if for the sake of arguments, it is presumed that services of the workman were hired on contract basis, in that event also his services could not be dispensed with without affording him opportunity of being heard. But in the present case, it stands duly proved on record that no notice, whatsoever, was issued calling upon him to explain that why his services be not terminated and as such there is complete violation of provisions of the I.D. Act and hence, learned tribunal rightly ordered for his reengagement. Mr. Chaudhary, while concluding his arguments also contended that this Court has very limited power under Articles 226/227, to re-appreciate the findings of fact ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...14...
recorded by Labour Court while examining the genuineness and correctness of the award passed by the learned Labour Court.
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13. I have heard learned counsel for the parties and have carefully perused the entire record.
14. In the present case, it is an admitted case of the parties that the workman was engaged as Sweeper, of however the stand of the petitioners-corporation is that respondent was engaged on contract basis for 89 days for rt seasonal work, which was renewed from time to time.
Petitioners-Corporation also placed on record Ex.RW1/A, which clearly demonstrate that initial contract entered between the corporation and respondent was further renewed on 29.4.2005, meaning thereby workman was allowed to work beyond 89 days after execution of the fresh contract. The workman(PW-1), categorically stated before the learned Tribunal that he worked as Sweeper with the petitioners-corporation from 1998 till May, 2005 and aforesaid factum of workman having worked with the corporation was nowhere disputed by the present petitioners-Corporation. Sh.R.D.Kaushal (RW-1), the Controlling Manager, Hotel Hamir, categorically admitted before the Tribunal that after 1998, the workman ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...15...
continued to be engaged for 89 days on contract basis till his disengagement. In view of aforesaid candid admission having been made on behalf of RW-1, contention put forth .
on behalf of the Corporation that the workman was being engaged as per availability of work that too on seasonal basis cannot be accepted because at no point of time Corporation rendered any explanation that why of respondent was allowed to work continuously for more than 7 years i.e.1998 till May, 2005. Hence, in view of rt above, this Court sees no force in the contention put forth on behalf of the Corporation that workman was engaged on contract basis for 89 days. Though, fact remains that initially the workman was engaged for 89 days by way of contract but that contract was renewed from time to time and in this process respondent was allowed to work at Hotel Hamir as Sweeper continuously for more than 7 years. In view of aforesaid, this Court sees no illegality and infirmity in the findings returned by the learned tribunal below that issuance of contract successively was nothing but a camouflage to take out the respondent -workman form the ambit of the provisions of the I.D. Act. This Court, after perusing the material evidence on record is of the view that sole purpose of engaging the respondent for ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...16...
89 days and thereafter to give fictional breaks, was to prevent workman from completing 240 days, if any, in calendar months so that he may not seek regularization in .
near future in terms of the policy framed by the Government, if any, for regularization of such persons.
15. Though, this Court after perusing the evidence available on record is of the view that workman continued of to work for more than 7 years i.e. from May, 1998 till May, 2005 and for all intents and purposes he was "workman"
rt in terms of Section 2(S) of the I.D. Act, but for the sake of arguments, if it is presumed that workman was engaged on contract basis, in that event also Corporation ought to have issued notice to the workman before disengaging him. But in the present case, there is nothing on record to suggest that before terminating the services of the workman, Corporation, at any point of time, issued notice specifically calling upon the respondent to explain that why his services may not be dispensed with since he has failed to join duty beyond sanctioned leave. Interestingly, Corporation in their written statement before the learned tribunal, stated that respondent failed to report for his duty even after specific direction issued by the Corporation vide telegram sent on 9th June, 2005. The ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...17...
petitioners- Corporation further stated that after three months, respondent visited the office and requested to settle his account and informed the corporation that he .
was not interested to work with the Corporation. By making aforesaid statement in the written statement, probably petitioners-Corporation made an attempt to demonstrate that workman himself abandoned the job and of as such, there was no requirement of issuance of notice in terms of provision of I.D. Act, before terminating his services.
rt
16. But as has been discussed above, this Court was unable to lay its hand on any documents suggestive of the fact that at any point of time, petitioners-
Corporation issued communication advising/asking respondent- workman to join duty, failing which he would be inviting termination. It is settled law that mere plea of abandonment, if any, taken by the employer may not be sufficient to prove that workman abandoned the job, rather it is incumbent upon the employer to place on record substantial evidence to prove that specific notice was issued to the workman before alleged abandonment advising/asking workman to join duty within stipulated period. In this regard, reliance is placed upon the ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...18...
judgment passed by Bombay High Court in case titled Ocean Creations Vs. Manohar Gangaram Kamble 2013 SCC Online Bom 1537:2014)140 FLR 725. It is profitable to .
reproduce paras No.8,9 and 10 of the judgment herein:-
"8. The legal position is also settled that 'abandonment or relinquishment of service' is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact which is to be determined in the of light of surrounding circumstances of each case. It is well settled that even in case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to rt resume duties, to hold an enquiry before terminating services on such ground.
9. In somewhat similar circumstances a Division Bench of this court comprising P.B.Sawant, J.(as he then was) and V.V.Vaze, J. in the case of Gaurishanker Vishwakarma v. Engle Spring Industries Pvt. Lted. Observed thus:
".....it is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service..... It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company's partner Anand had kept on promising him that he would be taken in service, he was not given work and hence he was forced to approach the Government Labour Officer. In the ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...19...
circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer...."
10. Again a learned Single Judge of this court R.M.Lodha, .
J( as he then was) in the case of Mahamadsha Ganishah Patel v. Mastanbaug Consumers' Co-op. Wholesale & Retail Stores Ltd. Observed thus:-
"....The legal position is almost settled that even in the case of abandonment of service, the employer has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up of despite such notice, the employer should hold inquiry on that ground and then passs appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by rt employee cannot be presumed.
abandonment of service is always a matter of Moreover, intention and such intention in the absence of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under Item-I, Schedule IV of the MRTU & PULP Act....."
17. Another aspect, which came to the notice of this Court is that the Corporation in its written statement before the learned Tribunal submitted that workman had sought leave w.e.f.24.5.2005 to 31..2005 but same was sanctioned w.e.f. 28.5.2005. Workman failed to join ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...20...
duty on 31.5.2005 despite their being telegram sent to him on 9th June, 2005, intimating therein that his services are no more required by the Corporation. But interestingly .
workman has not placed on record any receipt or document to prove that corporation had issued telegram dated 9th June, 2005 advising the workman to join back his duties and as such, learned Court below has rightly of concluded that services of workman was dispensed with without adhering to the provisions of the ID Act.
18. rt Close scrutiny of the documents placed on record, clearly suggest that services of respondent-
workman was terminated in violation of Section 25-F of the ID Act, whereby petitioners-Corporation was under
obligation to issue notice before effecting any termination.
Perusal of Ex.RW1/C i.e. telegram sent by the petitioners-
Corporation itself falsify the stand taken by the petitioners-Corporation in its written statement filed before the learned tribunal, wherein it is stated that despite telegram dated 9.6.2005, workman failed to report back to the duty. Since vide communication/ telegram dated 9.6.2005, respondent was informed that his services are not required, where was the occasion for workman to join duties in terms of telegram as has been referred ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...21...
above. After perusal of Ex.RW1/C, this Court has all reasons to believe that the petitioners- Corporation was hell-bent in throwing out the workman out of job.
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19. At the cost of repetition, it may be again stated that even if the case of the Corporation is accepted that provisions of the Act was not applicable in the present case, especially in view of the contractual appointment of of the workman, corporation ought to have issued show cause notice affording reasonable opportunity to the rt workman to explain his position. But in the instant case, as has been noticed above, there is no document available on record suggestive of the fact that at any point of time, notice was issued by the petitioners-corporation advising the workman to join back his duty, rather vide Ex.RW1/C i.e. telegram dated 9.6.2005, respondent- workman was informed that he is being treated absent from 29th May, 2005 and as such, his services are not required.
20. Hence, in totality of facts and circumstances, this Court finds no reason, whatsoever, to intervene in the well reasoned award passed by the learned Labour Court.
Moreover, this Court has very limited jurisdiction while ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...22...
exercising power under Section 226 to re-appreciate the evidence.
21. Apart from above, findings of fact recorded by .
learned Tribunal below on the basis of appreciation of evidence cannot be questioned in writ proceedings and writ court cannot act as an appellate court. In this regard, reliance is placed upon the judgment passed by Hon'ble of Apex Court in case titled Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157. It is profitable rt to reproduce paras 16, 17 and 18 of the judgment herein:
"16. .........The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is 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 principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is no entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened for questioned in writ proceedings. nA 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 the Tribunal, a ::: Downloaded on - 15/04/2017 21:14:38 :::HCHP ...23...
writ of certiorari 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.
.
Similarly, 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. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The of adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the rt jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
17. The judgments mentioned above can be read with the judgment of this Court in Harjinder Singh's case (supra), the relevant paragraph of which reads as under:
21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and / or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:::: Downloaded on - 15/04/2017 21:14:38 :::HCHP
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10.... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.
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18. A careful reading of the judgments reveals that the High Court can interfere with an order of the Tribunal only on the procedural level and in cases, where the decision of the lower Courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in of coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant."
rt [Emphasis added]
22. Consequently, in view of the aforesaid
discussion, this Court sees no force in the writ petition filed on behalf of Corporation, as such, the same is dismissed being devoid of any merit.
Accordingly, the present petition is disposed of alongwith pending application(s), if any.
(Sandeep Sharma )
September16, 2016 Judge
(shankar)
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