Madhya Pradesh High Court
M.P. State Road Transport Corporation vs Rajendra Singh And Ors. on 14 November, 1991
Equivalent citations: (1992)IILLJ789MP
JUDGMENT V.D. Gyani, J.
1. This petition is directed against the judgment dated March 16, 1989, passed by the Industrial Courtt, Indore, in Appeal No. 607 of 1985, thereby maintaining the order dated June 5, 1986, passed by the Labour Court, Ujjain, in Labour Case No. 229 of 1983, directing reinstatement in service of respondent No. 1 with full backwages, who was employed as bus conductor in the employment of the appellant Transport Corporation and was dismissed from service on March 4, 1983, which the respondent had challenged under Section 31(3) of the Madhya Pradesh Industrial Relations Act, before the Labour Court Ujjain.
2. Undisputed facts of the case are that the respondent No. 1 was in the employment of the petitioner-Corporation as a conductor. He was posted on duty as conductor on bus No. MBF 1840 plying between Neemuch and Bhopal. On May 20, 1983, around 3.40 a.m. this bus, in which the respondent No. 1 was posted as conductor, was checked by the Central Flying Squad of the petitioner-Corporation. Out of 62 passengers, 57 were found to be travelling without tickets fron Ujjain to Aasta although the respondent had collected a total fare of Rs. 553.35 from them. These passengers were members of a marriage party and they had already covered a distance of about 79 kms. From the place of their boarding the bus. A panchnama prepared on the spot and the coliection sheet bears an endorsement to this effect. These documents are filed with the petition as Annexures A and B. A checking report was submitted by the Flying Squad. Considering the gravity of misconduct committed by respondent No. 1 coupled with the fact that he had already been punished and fined earlier on as many as seven occasions for similar misconduct, his services were terminated, vide order dated August 4, 1983 (Annexure C), to the petition.
The stand taken by the respondent conductor was that these 57 ticketless passengers gained forcible entry into the bus by stopping the same and were still haggling for paying the fare when the Flying Squad entered the bus. It is the respondent's case that he was also cbargesheeted for an offence punishable under Sections 409 and 420, IPC, for having committed criminal breach of trust and cheated the petitioner Corportion. Later on, he was discharged on thebasis of the Labour Court's order and the statements of the witnesses made before it.
Considering the gravity of misconduct and the past record of the conductor, he was dismissed from service by order dated August 4, 1983 (Annexure C). It may be noted that the respondent coductor had been punished and fined as many as seven times in the past for similar charges and despite repeated opportunities there was no improvement in his conduct.
The respondent No. 1 challenged his termination before the Labour Court. Annexure D is the application under Section 31 of the MPIR Act read with Sections 61 and 62 thereof. The petitioner, in its reply, Annexure E, denied the allegations made by the respondent in his application, Annexure D. The respondent No. 1 examined himself as a witness as also one Santosh Kumar, in his support before the Labour Court. The petitioner has filed these statements as Annexures F and G to the petition.
The Corporation also examined the checker, Babulal Soni, as DW-2, one Manoharsingh, as DW-1, in whose presence the panchnama was prepared and Karansingh, the Depot Manager, as DW-3. Their statements have also been placed on record marked as Annexures H, I and J.
The Labour Court, by its order dated June 5, 1985, held that the order of dismissal dated August 4, 1984, was illegal and directed the respondent No. 1 to be reinstated with full back wages. The Labour Court's order is on record as Annexure K. The petitioner filed an appeal against the Labour Court's order. The appeal memo is Annexure L, and Industrial Court's judgment is Annexure M to the petition.
3. Shri Dhupar, learned counsel for the petitioner, strenuously urged that the Courts below have committed a gross error of law in holding that the misconduct for which respondent No. 1 was charged was not proved. It was also urged that the Labour Court failed to exercise jurisdiction vested in it by not permitting the petitioner to declare witness Manoharsingh hostile and cross-examine him, although he had admitted the fact that the panchnama, Annexure B, was prepared in his presence and he had signed the same.
4. Shri Puntambekar, counsel for respondent No. 1, placing reliance on the following two decisions of the Supreme Court in Mohammed Yunus v. Mohammed Mustaqim, (AIR) 1984 SC 38, and Sadhu Ram v. Delhi Transport Corporation (1983-II-LLJ-383), submitted that a finding of fact cannot be challenged in a petition under Article 227 of the Constitution.
5. True it is that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited and, as pointed out in Sadhu Ram's, case (supra) the jurisdiction under Article 226 of the Constitution, though wide, but for that very reason it has to be exercised with great circumspection. In Sadhu Ram's case, (supra) the Delhi Administration had made a refernce to the Presiding Officer of the Labour Court, Delhi, before whom the management contended that the workman had not made any demand with the management and that there was, therefore, no industrial dispute. The reference was accordingly claimed to be incompetent. The Labour Court overruled the contention holding as a fact that the Union had raised a valid demand with the management. On merits, the Labour Court gave its finding that the termination order in respect of the workman was illegal and mala fide amounting to colourable exercise of power. On the above-mentioned jurisdictional facts and findings recorded by the Labour Court, the High Court went into an elaborate discussion. It was in this context that the Supreme Court pointed out that the jurisdiction under Article 226 of the Constitution of India is truly wide, but for that very reason it has to be exercised with great circumspection. The relevant portion of the judgment is also quoted below: (pp.384-385):
"We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide, but for that very reason it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But, where the Tribunal gets jurisdiction only if a reference is made and it is, therefore, impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was conciliation proceedings, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was jusitified in thinking that there was an industrial dispute and referring it to the Labour Court."
6. It would be worthwile to quote paragraph 5 from the same judgment as it has material bearing on the present case :
"Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under Article 226 on a mere technicality. Article 226 is a device to secure and advance justice and not otherwise."
7. In Mohammed Yunus' case, (supra), the Supreme Court has observed as follows :
"The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited 'to seeing that an inferior Court or Tribunal functions within the limits of its authority' and not to correct an error apparent on the face of the record much less an error of law. In this case, there was, in our opinion, no error of !aw, much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or correct the errors of law in the decisions."
8. It may now be stated in the light of the above two judgments that we are not predeciding on a technicality nor indulging in any reappraisal of evidence so as to arrive at a different conclusion. Our endeavour is to secure and advance the cause of justice within the narrow ambit and scope permissible to us.
9. The grounds on which a writ of certiorari may issue are (a) want of or excess of jurisdiction, (b) violation of procedure or disregard of principles of natural justice and (c) error of law apparent on the face of the record.
It is the last ground with which we are concerned at the moment. I am fully conscious of the principle that certiorari will not issue to correct a mere error of law as pointed out by the Supreme Court in Ujjambai v. State of M.P., (AIR) 1962 SC 1621, the error must be apparent on record. What is error apparent on record has again been explained by the apex Court in Beant v. Union of India, (AIR) 1977 SC 388. There must be something more than a mere error and su'ch error must be apparent on the face of the record.
10. It is in the light of these principles as laid down by the Supreme Court that the legality of the impugned order is to be judged. The acid test of soundness of an order is not whether it is technically perfect. It is indeed behind this facade of technicality that the impugned order is sought to be saved by learned counsel for the respondents with reference to the above two decisions.
11. It cannot be disputed that the Courts below were expected to act judicially, it is not a case of quasi-judicial functioning, and even in such a case the test would be applicable.
12. Fifty-seven passengers in the whole "Barat" being carried without tickets by the conductor, respondent No. 1, and the Labour Court as welt as Industrial Court taking a view as if it was a very minor matter, the petitioner is not allowed to corss-examine the attesting witness after declaring him hostile, thus violating an established procedure of law. The error of law is obvious and self-evident and does not require an argument to establish it. It is patently clear and glaring. The Industrial Tribunal whose duty it was to act judicially has overlooked this patently glaring error of law.
13. The statement of witness, Manoharsingh, before the Labour Court has been filed as an-nexure H to the petition. The Labour Court disallowed petitioner's prayer for declaring him hostile. The reason assigned by the Labour Court is that the stage of examination-in-chief was over and the witness had stated nothing in the examination-in-chief to the detriment of the party calling him, but in his cross- examination he turned volte-face and deposed about the defence story admitting every suggestion made to him in his cross-examination.
14. It was only on completion of his cross-examination that the animus of hostility was revealed and the prayer to put him questions which might be put in cross-examination was made, but it was turned down on a curious ground that the stage had already gone by. While it is true that it is entirely in the discretion of the Court, the same has to be judiciously examined. It could be no ground to turn down the request by saying that the stage of examination-in-chief was over. As has been held by the Supreme Court, permission to cross-examine one's own witness may be granted even during the stage of cross-examination by the advesary. (See Dayabhai v. State,(AIR) 1964 SC 1563, and Rabindra Dey v. State, (AIR) 1977 SC 170). It was patently an erroneous approach betraying rudimentary knowledge of the law of evidence and the learned member of the Industrial Tribunal when this point was raised, says, to quote his own words:
"Shri Dhupar, learned counsel for the Corporation, agrued that this witness had become hostile and the learned Labour Court ought to have declared this witness as hostile. I do not find any force in this contention."
15. As if it was not enough, the learned member seeks support from the evidence of such a witness. It is the patent illegality and error of law, apparent on the face of the record, coupled with the perversity of approach, which vitiates the finding of the Courts below. It is the perversity of approach, non-observance of essential form and procedure of law and the patent error of law apparent on the face of the record, which affords a compelling ground for interfering with the impugned order.
16. In view of the foregoing discussion, this petition deserves to be allowed. It is, accordingly, allowed with costs. Counsel fees Rs. 2,000. The impugned orders dated June 5, 1985 (annexure K), and February 27, 1989 (annexure M), passed by the Labour Court and the Industrial Tribunal respectively are quashed.