Gujarat High Court
Dhoraji Municipality vs Vinod Nathalbhai Tatmiya & on 27 February, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/2342/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2342 of 2015
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DHORAJI MUNICIPALITY....Petitioner(s)
Versus
VINOD NATHALBHAI TATMIYA & 1....Respondent(s)
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Appearance:
MR PREMAL R JOSHI, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/02/2015
ORAL ORDER
Heard learned advocate Mr. N. R. Kayani for learned advocate Mr. Premal R. Joshi for the petitioner-Municipality.
2. What is called in question is judgment and award dated 23.01.2014 passed by Labour Court No.1, Rajkot, in Reference (LCR) No.355 of 2001, whereby the Labour Court directed reinstatement of the respondent-workman on his original post, but without backwages.
3. It appears that the respondent was employed as driver under the petitioner-Municipality. As per his case in the Statement of Claim, he was getting Rs.1900/- as monthly salary. It was his case that despite continuous service, his services came to be terminated orally with effect from 31.03.2000. Contending that the termination of his services was bad in law and was in breach of mandatory provisions of the Industrial Disputes Act, 1947, the workman invoked the jurisdiction of the Labour Court and Page 1 of 6 C/SCA/2342/2015 ORDER prayed for relief of reinstatement with backwages. The petitioner-Municipality contested the reference by filing written statement at Exh.9, contending inter alia that the workman had not completed 240 days and that he was not employed permanently.
3.1 Before the Labour Court, the workman gave his evidence at Exh.15 and was cross-examined on behalf of the first party employer. The workman produced documents at Exh. 17 showing the details and status of his services which were obtained under the Right to Information Act, 2005. The details of services of the workman as available from the said documents indicated that he worked since May 1997 to February 2000. The Labour Court, with reference to Exh.17, observed that the documents produced thereunder reflected the details of services month-vise. The Labour Court arrived at a finding on the basis of said documents Exh.17 that for the relevant period preceding 12 months from the date of termination of the workman' services, the workman had worked for total 284 days.
4. Therefore, the factum of the workman having worked for 240 days within the relevant period of 12 months preceding the date of termination and thus, having put in continuous service within the meaning of Section 25B of the Industrial Disputes Act, 1947, was amply established on the basis of clear and cogent evidence. The Labour Court recorded a finding about the workman having rendered continuous services by appreciating the said evidence Exh.17 and the oral evidence led. It was a finding of fact based on proper Page 2 of 6 C/SCA/2342/2015 ORDER appreciation of evidence and the same did not book any error. It was a finding properly recorded that in termination of services of the workman, the employer violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947.
5. In Syed Yakoob vs. K. S. Radhakrishna [AIR 1964 SCC 477], the Constitution Bench of the Supreme Court considered the scope of the High Court's jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi-judicial functions under the Motor Vehicles Act, 1939. The Court held, "a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; there 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 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 a result of the appreciation of evidence cannot be 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."
Page 3 of 6 C/SCA/2342/2015 ORDER5.1 It was further observed that, "In regard to a finding of fact recorded by the Tribunal, a 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 in admissible 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 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, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."
5.2 The principles with regard to the scope and permissible limits for exercise of jurisdiction under Article 226 and the supervisory jurisdiction under Article 227 came to be set out by the Supreme Court in Surya Dev Rai vs. Ram Chander Rai [2003 (6) SCC 675]. It was held and observed that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirement are satisfied, (i) the error is manifest and apparent on the face of the proceedings such as when it is based Page 4 of 6 C/SCA/2342/2015 ORDER on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. In a more recent judgment in case of Bhuvnesh Kumar Dwivedi Vs M/s. Hindalco Industries Limited, [AIR 2014 SC 2258], the Supreme Court reiterated limited arena of jurisdiction which the High Court could exercise in a writ petition under Articles 226 and 227 while dealing with a challenge to judgment and award of Labour Court or Industrial Tribunal.
6. The termination of services in breach of Section 25F renders the action to be void and relief of reinstatement would entail for the workman. Recording finding of breach of said mandatory provisions on the basis of clear and cogent evidence, the Labour Court accordingly directed reinstatement, however it did not grant any backwages.
6.1 Another aspect which is not in dispute and was stated by the workman in the Statement of Claim may also be taken note of. It appears that the workman had filed reference proceedings beings Reference (IT) No.324 of 1997 before the Industrial Tribunal, seeking regularization of his services. When the action of terminating services which was the subject matter of industrial dispute in Reference (LCR) No.355 of 2001 and which culminated into the impugned order passed, during the pendency of the proceedings in the said reference, it could not be gainsaid that the employer was required to take out necessary proceedings as per the provisions of the Act before it could terminate Page 5 of 6 C/SCA/2342/2015 ORDER the services of the workman. In any case, the finding about continuous service and resultant breach of Section 25F is based on clear evidence and could not be faulted in any way.
7. For the aforesaid reasons, the impugned judgment and award of the Labour Court did not book any error, much less an error of law in exercise of jurisdiction so as to call for any interference in the writ jurisdiction by this Court. The petition is liable to be dismissed. The same is accordingly dismissed.
(N.V.ANJARIA, J.) chandrashekhar Page 6 of 6