Himachal Pradesh High Court
Bal Krishan Sharma vs Punjab And Sind Bank And Another on 13 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA N. 218 of 2016 Reserved on: 17.11.2022 Decided on: 13th January, 2023 .
Bal Krishan Sharma .......appellant
Versus
Punjab and Sind Bank and another ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the appellant: Mr. Prantap Sharma, Advocate.
For the respondents: Mr. Raman Prashar, Advocate for respondent No.1.
Virender Singh, Judge Appellant Bal Krishan Sharma has filed the present appeal under Clause 10 of Letters Patent Appeal of Delhi High Court as applicable to the H.P. High Court against the judgment dated 07.11.2016 passed by the learned Single Judge in CWP No. 5057 of 2010.
2. By way of judgment dated 07.11.2016, the learned Single Judge has dismissed the writ petition of the appellant filed against the award dated 12.04.2010 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-
Labour Court-1, Chandigarh.
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/01/2023 20:33:46 :::CIS 23. The parties to the present appeal are hereinafter referred, in the same manner, in which, they were referred to by the learned writ Court.
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4. Petitioner Bal Krishan Sharma has sought the indulgence of the High Court under Article 226 of the Constitution of India for the issuance of writ of certiorari against the award dated 12.04.2010 passed by the Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court-1, Chandigarh (hereinafter referred to as the 'Labour Court).
5. As per the award assailed by way of writ, the learned Labour Court has awarded a sum of Rs. 1,00,000/- to the petitioner as compensation. The operative part of the award is reproduced as under:-
".....Considering all the above factors, I am of the view that Rs. 1,00,000/-(one lakh only) will be appropriate compensation to the workman. Accordingly, management of respondent bank is directed to pay Rs.
1,00,000/- (one lakh only) within one month from the date of publication of award to the workman. If the management pays/deposited this amount within one month from the date of publication of award, no interest need to be paid. If the management fails to comply with the direction the workman will also be entitled for the interest at the rate of 8 per cent per annum from the date of filing the claim petition till final payment. Let Central Government be approached for ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 3 publication of award, and thereafter, file be consigned to record room."
6. The writ petition has been filed on the ground that .
the petitioner was appointed as daily rated Peon by respondent No.1-bank, in its branch at Amb on 14.02.2001 and his services were terminated on 31.03.2002. Thereafter, the petitioner had raised the industrial dispute before the Conciliation Officer-cum-Assistant Labour Commissioner (Central) Kendriya Sadan, Sector-9, Chandigarh by moving a demand notice dated 17.10.2004 (Annexure P-2). By virtue of the reply (Annexure P-3), the said notice was contested.
Efforts for conciliation were made, but could not materialize, as such, the Labour Court-cum- Conciliation Officer has submitted the report under Section 12(4) of the Industrial Disputes Act to the competent authorities. Consequently, the following reference has been made by the appropriate Government:-
"Whether the action of the management of Punjab and Sind Bank Chandigarh, in terminating the services of Balkrishan Sharma with effect from 1.4.2002 is illegal and unjustified? If so to what relief the concerned workman is entitled to and from which date?"::: Downloaded on - 13/01/2023 20:33:46 :::CIS 4
7. On notice, the petitioner has filed claim petition.
After completion of the pleadings and after hearing the learned counsel for the parties, the learned Labour Court has .
concluded that the petitioner workman has completed 240 days in the preceding year.
8. It has also been held that the services of the petitioner were terminated illegally against the provisions of the Industrial Disputes Act.
9. According to the petitioner, once the learned Labour Court has concluded that the services of the petitioner were terminated illegally, then two courses were available.
Firstly, to reinstate the petitioner with back wages for services and in exceptional circumstances, the petitioner can be awarded a reasonable compensation. The learned Labour Court has awarded compensation of Rs.1,00,000/- with the condition that in case the said payment is not made within one month, then the petitioner would be entitled to interest @ 8% per annum from the date of filing of the claim petition.
10. The award has further been challenged on the ground that the learned Labour Court has wrongly awarded the compensation, rather the petitioner is entitled for the re-
instatement with full back wages. The award has further been ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 5 assailed on the ground that the learned Labour Court has not considered the fact that the petitioner is the sole bread earner of his family, as such, he is in dire need of job. The learned .
Labour Court has wrongly endorsed the act of the respondent-
bank to dispense with the services of the petitioner being surplus work force.
11. On the basis of above facts, a prayer has been made to allow the writ petition by setting aside the award dated 12.04.2010, demanding the re-instatement with full back wages along-with interest @ 18%.
12. When put on notice, respondent No.1-bank has contested the writ petition by supporting the award passed by the learned Labour Court. The factual position regarding the employment of the petitioner as daily rate Peon on temporary basis w.e.f. 14.02.2001 to 31.03.2002 has not been disputed.
The order of the leaned Labour Court, awarding the compensation of Rs.1,00,000/- has been supported on the ground that the learned Labour Court has rightly awarded the compensation to the petitioner.
13. Petitioner filed the rejoinder, denying the preliminary objections as well as the contents of the reply, by virtue of which, the same has been contested/controverted.
::: Downloaded on - 13/01/2023 20:33:46 :::CIS 614. The learned Single Judge has dismissed the writ petition on the ground that the petitioner was appointed by the authorities without advertising the post and without .
following the prescribed norms. According to the learned Single Judge, the legality of the appointment of workman is an important circumstance, which is liable to be considered at the time of deciding his claim for re-instatement along-with wages or otherwise.
15. The findings of the learned Single Judge are assailed before this Court by virtue of the present appeal.
According to the petitioner, the learned Single Judge has held that the termination of the services of the petitioner was illegal and void and those findings have not been challenged by the respondent-bank, as such, the petitioner is liable to be re-
instated with all consequential benefits, including the back wages. The learned Single Judge, according to the petitioner, has not considered the fact that the learned Labour Court should have re-instated him instead of awarding the compensation.
16. On the basis of the grounds of appeal, Mr. Prantap Sharma, learned counsel appearing the appellant has prayed that the appeal may kindly be accepted by setting aside the ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 7 order passed by the learned Single Judge and prayed for the relief as claimed in the claim petition filed before the learned Labour Court, in pursuance to the reference made by the .
appropriate Government.
17. The petitioner has filed the writ petition for the following substantive reliefs:-
"(iii) That writ in the nature of certiorari may kindly be issued and the impugned award dated 12.4.2010 may kindly be moulded and the respondent Bank may very kindly be directed to reinstate the petitioner on job with full back wages at the rate of 18% interest with all consequential benefits including continuity in service and seniority benefits instead of compensation amounting to Rs. 1.00 lac with rate of interest.
(iv) That the compensation, as this Hon'ble Court may kindly consider just for the poor and low-paid workman who suffered and still is suffering mental agony for loss of his livelihood and was compelled for this forced litigation; may be paid to the petitioner."
18. Perusal of the order passed by the learned Labour Court shows that the termination of the petitioner has been held to be illegal, being against the provisions of the Industrial Disputes Act. The said findings of the learned Labour Court have not been assailed by the respondent-bank, as such, those findings attained finality.
::: Downloaded on - 13/01/2023 20:33:46 :::CIS 819. The petitioner has sought the relief that instead of awarding compensation, his services may kindly be re-instated as per his prayer.
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20. The scope of issuance of writ of certiorari has elaborately been discussed by the Hon'ble Supreme Court in T.C. Basappa versus T. Nagappa and another, AIR 1954 S.C. 440 (Vol. 41, C.N. 106). Relevant paragraphs 7 to 11 of the judgment are reproduced as under:-
"7. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the. writ can be (I [1953] S.C.R. 1114 at 1150, of judicial acts. The expression "
judicial acts " includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L. J.
thus summed up the law on this point in Rex v. Electricity Commissioners (1) : " Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling Jurisdiction of the King's Bench Division exercised in these writs."
The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial Tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior Court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 9 evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those .
of the inferior Tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person(2), vide Per Lord Cairns in-Walsal's overseas v. L. & N W. Rly. Co.'(1879) 4 AC 30 at p.39(D).
8. The supervision of the superior Court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King v. Nat. Bell Liquors Limited (3). One is the area of inferior jurisdiction and the qualifications and conditions of its exercise ; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.
9. 'Certiorari' may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances(1). When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess. Vide- 'Bunbury vs. ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 10 Fuller' (1854) 9 Ex.111 (F);-R. vs. Income Tax Special Purposes Commissioners', (1889) 21 QBD 313. (G).
10. A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant .
disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal(3). The Lord Justice says:
It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."
11. In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms, Vide Veerappa Pillai v. Ramon & Raman Ltd., AIR 1952 SC 192 at pp. 195- 196(I) and said:
::: Downloaded on - 13/01/2023 20:33:46 :::CIS 11"Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or .
in violation of the principles of natural justice, or refuse to exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution."
21. The learned Single Judge has dismissed the writ petition, by holding that the relief, which has been awarded to the petitioner, is just and proper. The Hon'ble Apex Court in Rashtrasant Tukdoji Maharaj Technical Education Sanstha, Nagpur vs. Prashant Manikrao Kubitkar (2018) 12 SCC 294 has held that where the termination is found to be in violation of Sections 25-F & 25-D of I.D. Act, reinstatement is not the Rule, but an exception and ordinarily grant of compensation would ::: Downloaded on - 13/01/2023 20:33:46 :::CIS 12 meet ends of justice. The relevant para 2 of the judgment is reproduced as under:-
"2. The respondent workman had worked under the .
appellant for a period of two years and three months whereafter he was terminated on 1-6-1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25-F and 25-G of the Industrial Disputes Act, 1947, reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice."
22. The Labour Court is the Court of facts and it has specifically been held that the reinstatement of the petitioner is not justifiable as in the year 2010, the respondent-bank has started VRS for the purpose of reducing work force. Thousands of workers took VRS. The learned Labour Court has considered all these facts and then decided to award the compensation.
23. Learned counsel appearing for the appellant could not point out any fault in the criteria adopted by the learned Labour Court to assess the compensation, which has been granted to the petitioner. The petitioner had worked only for about one year and considering his length of service, the amount of compensation of Rs.1,00,000/- has been awarded to him.
::: Downloaded on - 13/01/2023 20:33:46 :::CIS 1324. The learned Single Judge has rightly considered all these facts and then dismissed the writ petition.
25. In view of the aforesaid discussion, this Court is in .
full agreement with the view taken by the learned Single Judge and the same is not required to be interfered with.
Accordingly, the appeal is dismissed. Pending applications, if any, also stand disposed of.
r to ( Tarlok Singh Chauhan )
Judge
January 13, 2023 ( Virender Singh )
(naveen) Judge
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