Punjab-Haryana High Court
General Manager, Punjab Roadways vs Jarnail Singh And Anr. on 19 December, 2003
Equivalent citations: [2004(102)FLR411], (2004)IIILLJ307P&H, (2004)137PLR339
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT G.S. Singhvi, J.
1. This appeal is directed against order dated 23.5.2001 of the learned Single Judge vide which he modified the award passed by Presiding Officer, Labour Court, Patiala (respondent No. 2) and declared that respondent No. 1-Jarnail Singh (hereinafter described, as the workman) shall be deemed to have been reinstated with 60% back wages from the date of demand notice and continuity of service.
2. The workman was initially engaged as Conductor in Punjab Roadways, Ferozepur Depot on 22.1.1978. His services were terminated on 22.8.1978 without holding any enquiry though the motivating factor which influenced the competent authority to dispense with his service was that at the time of checking of the bus, he was found to have collected Rs. 8.20 from the passengers without issuing tickets. He challenged the termination of the service of the workman as illegal on the ground of violation of rule of last come first go embodied in Section 25G of the Act, but did not order his reinstatement with continuity of service and back wages. Instead, he directed that the workman will be entitled to fresh appointment.
3. Feeling dis-satisfied with the award of the Labour Court, the workman invoked jurisdiction of this Court under Article 226 of the Constitution of India and prayed for grant of relief of continuity of service with full back wages.
4. During the pendency of the writ petition, the service of the workman was again terminated on 25.5.1986 on the ground of misconduct, namely, carrying of passengers without issuing tickets. This time he filed civil suit which was dismissed by the trial Court. The first and the second appeals filed by him were dismissed by the lower appellate Court and this Court respectively. We have not been informed whether any Special Leave Petition has been filed against the judgment of this Court dismissing the second appeal filed by the workman.
5. Before the learned Single Judge, it was urged on behalf of the appellants that relief of continuity of service and back wages be not granted to the workman because his service had been again terminated on account of misconduct. However, by placing reliance on the judgments of the Supreme Court in Mohan Lal v. The Management of Bharat Electronics Ltd., A.I.R. 1981 S.C. 1253 and L. Robert D Some v. The Executive Engineer, Southern Railway and Anr., A.I.R. 1982 S.C. 854, the learned Single Judge modified the award dated 18.8.1982 and declared that the workman will be deemed to have been reinstated with 60% back wages from the date of demand notice and continuity of service.
6. Mrs. Charu Tuli, learned Senior Deputy Advocate General, Punjab argued that the direction given by the learned Single Judge for reinstatement of the workman with continuity of service and 60% back wages suffers from an error of law, in-as-much as, while doing so, he overlooked the most vital factor, namely, the termination of the workman's service w.e.f. 25.5.1986 on the ground of committing similar misconduct.
7. Shri Vikas Singh, learned counsel for the workman supported the order of the learned Single Judge and argued that the direction for reinstatement of the workman does not suffer from any legal infirmity because the subsequent termination of his service did not have any bearing on his claim for reinstatement in the context of earlier termination of service.
8. We have given serious thought to the respective arguments. The parameters for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi-judicial bodies are well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. This is the abstract statement of law, but the vexed question is as to what is an error of law apparent on the face of the record and, in what circumstances a finding of fact recorded by an interior Court or Tribunal or a quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere, possibility of forming a different opinion on re-appreciation of evidence by the parties is not sufficient for issue of a writ of certiorari Syed Yakoob v. K.S. Radhakrishnan and Ors., A.I.R. 1964 S.C. 477; Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and Ors., A.I.R. 1970 S.C. 61; Jitendra Singh Rathor v. Sh. Baidyanath Ayurved Bhawan Ltd. and Anr., A.I.R. 1984 S.C. 976; R.S. Saini v. State of Punjab and Ors., J.T. 1999(6) S.C. 507 and Mohd. Shahnawaz Akhtar and Anr. v. Ist A.D.J. Varanasi and Ors., J.T. 2002(8) S.C. 69.
9. If the case in hand is examined in the light of the above proposition of law, we are convinced that the learned Single Judge was not, at all, justified in interfering with the award passed by the learned Presiding Officer, Labour Court, Patiala. We are sure that if the learned Single Judge had taken into consideration the fact that the service of the workman had been again terminated and the suit and the appeals filed by him had been dismissed up to this Court, he would not have ordered his reinstatement with continuity of service.
10. The matter deserves to be examined from another angle. A reading of the reference made by the State Government under Section 10(1)(c) of the Act shows that the Labour Court was required not only to determine the legality and justification of the termination of the service of the workman w.e.f. 22.8.1978, but also as to what relief and what compensation, if any, he was entitled. In our opinion, the tenor of the reference made by the State Government clearly suggests that respondent No. 2 had the discretion to grant appropriate relief keeping in view the facts and circumstances of the case. He exercised that discretion by directing that the workman shall be entitled to fresh appointment only because, as on the date of termination of his service, the latter had served for less than seven months and, in our opinion, the award passed by respondent No. 2 did not suffer from any jurisdictional error or patent illegality warranting interference under Article 226 of the Constitution of India. In this connection, we may usefully notice the judgment of the Supreme Court in U.P. State Road Transport Corporation and Ors. v. A.K. Parul, (1998)9 S.C.C. 416 on which reliance has been placed by Mrs. Charu Tuli. The facts of that case were that the workman had been removed from service on being found guilty of misappropriation of public fund. The High Court of Allahabad quashed the order of removal and ordered the reinstatement of the workman. While reversing the order of the High Court, the Supreme Court held that in a case involving embezzlement by a public servant, there is no legal sanctity of a direction for reinstatement.
11. Before concluding, we deem it proper to observe that the rule of reinstatement with continuity of service and back wages which is generally applied by the Courts in the cases of wrongful termination of services of the workman is not absolute and in appropriate cases, relief of reinstatement and/or back wages can be denied. Some of the contingencies in which such relief can be denied to the workman have been outlined in the judgment of the Supreme Court in Surendra Kumar Verma v. The Central Government, Industrial Tribunal-cum-Labour Court, New Delhi and Anr., A.I.R. 1981 S.C.
422. In paragraph 6 of that judgment, their Lordships of the Supreme Court observed as under;-
"Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make in roads by making etymological excursions. Void ab initio, invalid and inoperative or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
12. The eventualities and situations noted by the Supreme Court are not exhaustive and there may be many other cases, like the present one in which the Labour Court/Tribunal may deny the relief of reinstatement with continuity of service and full or even partial back wages. In our considered view, the Labour Court was fully justified in denying relief of reinstatement with continuity of service and back wages to the workman because at the time of termination of his service on 22.8.1978, he had worked for less than 7 months. Not only this, during his second stint, his service was terminated on account of serious misconduct.
For the reasons mentioned above, the appeal is allowed. The order of the learnedSingle Judge is set aside. Consequently, the writ petition filed by the workman shall stand dismissed.