Jharkhand High Court
G.L. Reddy vs The State Of Jharkhand Through The ... on 2 March, 2020
Equivalent citations: AIRONLINE 2020 JHA 1210
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.648 of 2019
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G.L. Reddy, Son of G. Narayan Reddy, Resident of Qr. No. ST-982, H.E.C. Town Ship, P.O. & P.S. Dhurwa, District-Ranchi .... .... Appellant Versus
1. The State of Jharkhand through the Secretary Labour, Training & Employment Department, Nepal House, P.O. & P.S. Doranda, District Ranchi
2. The Management of Heavy Engineering Corporation Ltd., Plant Plaza Road, Dhurwa, P.O. Dhurwa, P.S. Hatia, District Ranchi, through its Chairman-cum-Managing Director, having its office at Plant Plaza, Dhurwa, P.O.-Dhurwa, P.S.-Hatia, District-Ranchi.... .... Respondents With L.P.A. No.672 of 2019 With I.A.No.2385 of 2020
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The Management of Heavy Engineering Corporation Ltd., Plant Plaza Road, Dhurwa, P.O. Dhurwa, P.S. Hatia, Ranchi 834004 through Amit Kumar Srivastav I/c Law, S/o Late (Dr) Hari Shankar Verma, resident of Q.No.182/Sector II, P.O. and P.S.-Dhurwa, Dist.-Ranchi .... .... Appellant Versus
1. The State of Jharkhand through the Secretary Labour, Training & Employment Department, Nepal House, Doranda P.O. & P.S.-Doranda, District Ranchi
2. G.L. Reddy, Son of G. Narayan Reddy, Qtr. No. ST-982, HEC Township, P.O. & P.S.-Dhurwa, Ranchi 834004.... .... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Mahindra Kr. Sinha, Advocate
For the Resp.-State : Mr. Krishna Shankar, S.C. (L&C)-II
For the H.E.C. : Mr. Rajiv Ranjan, Sr. Advocate
: Mr. Jyoti Prasad Sinha, Advocate
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Oral Judgment
07/Dated: 02.03.2020
I.A.No.2385 of 2020 in L.P.A.No.672 of 2019
This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 185 days in preferring this Letters Patent Appeal.
Heard.
In view of the submissions made on behalf of the parties and the 2 averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation.
Accordingly, I.A.No.2385 of 2020 is allowed and delay of 185 days in preferring the appeal is condoned.
L.P.A.No.648 of 2019 & L.P.A.No.672 of 2019 Both the intra-court appeals under Clause 10 of the letters patent is against the judgment rendered by the learned Single of this Court in W.P.(L) No.2118 of 2006.
2. The L.P.A.No.648 of 2019 has been preferred by the respondent- workmen, while L.P.A.No.672 of 2019 has been filed by the Heavy Engineering Corporation Limited-Management.
3. The appellant-respondent no.2 (In L.P.A.No.648 of 2019) is aggrieved with the judgment of the learned Single Judge of this Court on the ground that since the workman has already attained the age of superannuation and therefore, no purpose would be served in passing an order of reinstatement as per the award and hence, the direction for making compensation of Rs.2 lakhs towards service dues over and above the retiral dues payable to the workman on the strength of service has been directed to be paid.
4. According to the appellant-workman, the learned Single Judge has failed to appreciate the admitted fact that the writ petitioner has not been retired from service as on the date of passing of the order by the learned Single Judge rather his date of superannuation is sometime in the year 2021 but on wrong presumption, the order of reinstatement passed by the labour court answering the reference in connection with reference case no.05 of 1994, reaching to the conclusion about making payment of compensation without appreciating the actual date of superannuation 3 which is sometime in the year 2021 and therefore, the judgment rendered by the learned Single Judge, is not fit to be sustained.
5. The appellant-management (In L.P.A.No.672 of 2019) has preferred the appeal assailing the order/judgment passed by the learned Single Judge in W.P.(L) No.2118 of 2006 inter-alia on the ground that the learned Single Judge has failed to appreciate the perversity in the finding recorded by the labour court to the effect that the labour court has rejected the plea of the management about commission of offence which amounts to misconduct as per the condition stipulated under Clause 28(X) of the Certified Standing Order.
L.P.A.No.672 of 2019
6. According to the appellant, the workman has been found to have committed misconduct which is coming under the fold of Clause 28(X) of the Certified Standing Oder, since he has been found to be in drunken stage and also caught red-handed with a pistol and hence his act is subversive of discipline and as such, the domestic enquiry was conducted after framing of charge, wherein the charge has found to be proved and ultimately the decision was taken for dismissal from service which has been answered by the labour court in favour of the workman.
7. The appellant-management has questioned the appeal inter-alia on the ground that the fact about commission of misconduct has not properly been appreciated by the labour court while coming to the conclusion by answering the issue no.(ii) holding the order of dismissal as illegal cannot be approved, which is on the ground that even accepting that the workman has committed irregularity/offence outside the premises of the factory even then, it is incumbent upon an employee to maintain the discipline and as such, while declaring about non-applicability of the 4 offence as referred under Clause 28(X) of the Standing Order, the labour court has committed gross illegality.
8. According to the appellant, even if the said offence has been committed by the workman outside the premises of the factory but since, he is an employee of the management, it is his duty to maintain discipline even outside the premises of the factory, the said aspect of the matter has been negated by the labour court which has been affirmed by the learned Single Judge, against which, the present intra-court appeal has been preferred by the Management.
9. We, in order to reach to the conclusion, thought it proper to consider the stipulation made under Sub-clause (X) of clause 28 of the Standing Order which reads as hereunder:-
"(X) Gambling, drunkenness, fighting riotous, disorderly or indecent behavior in the works premises or any act subversive of discipline."
The admitted case of the management herein is that an attempt to commit robbery has been made by the workman. In consequence thereof, the memorandum of charge-sheet was issued against the workman to explain as to why the punishment, be not imposed, why a domestic enquiry be not initiated and appropriately, he be not dealt with.
10. As would appear from the charge, wherein it has been alleged that the workman attempted to rob the sum of Rs.65,000/- from Shri Nirmal Khalko, son of Shir Gunda Khalko, Cash Overseer (Postman) of Dhurwa Post Office with the help of a loaded country made revolver at 11 a.m. on 19.04.1986 on the road leading from HMBP Fire Station to Dhurwa and was over powered and caught with the revolver by Shri Giridhari Singh and Pal Singh, CISF Personnel, on hearing Nirmal Khalko shouting for help when they were on their patrolling duty.
The acts as alleged above render the workman accountable for 5 misconduct under Clause 28 of the Standing Orders for Industrial Establishments belonging to the H.E.C. Ltd., Ranchi.
Simultaneously, one FIR was also instituted for commission of offence under Section 393 of the Indian Penal Code and under Sections 25A and 27 of the Arms Act being G.R. Case No.1520 of 1986 and G.R. Case No.1540 of 1986 respectively.
The workman was put under suspension and subjected to the domestic enquiry, where the evidence was led on behalf of the parties after filing the written statement by the management.
The labour court have framed out three issues i.e., maintainability of the reference, the termination of the concerned workman is proper and justified and to what relief or reliefs, is the concerned workman entitled?
It would be evident from the award that the labour court after appreciating the evidence led before it, has answered the reference in favour of the workman.
It appears from the award, wherein the evidence of the management witnesses were recorded, who have deposed about place of occurrence, which according to them, was a public road which is outside of the campus of the factory.
The labour court considered the applicability of the misconduct as reflected under Clause 28(X) of the Certified Standing Order. As would appear from Sub-clause (X) of clause 28 that gambling, drunkenness, fighting riotous, disorderly or indecent behavior in the works premises or any act subversive of discipline, have been considered to be a misconduct.
The aforesaid clause, thus, contains; if a workman would found to be involved in gambling, drunkenness, fighting riotous, disorderly or indecent behavior in the works premises or any act subversive of 6 discipline, then only the penal provision would be attracted as per the Certified Standing Order.
Herein, the reflection made in the aforesaid clause about behaviour of the workman in the works premises or any act subversive of discipline.
11. We, therefore, thought it proper to deal with aforesaid clause about its applicability, holding the writ petitioner of commission of charge of misconduct.
"Whether the said misconduct has been conducted in the works premises or any act subversive of discipline"?
Admittedly, as the labour court has reached to the conclusion on the basis of the evidence recorded by the management witnesses that incident took place and hence, it cannot be said about any indecent behaviour or any act as has been referred under Clause 28(X) said to have committed in the works premises.
Further, any act subversive of discipline, this Court has also scrutinized as to whether the said misconduct is coming under the fold of the act said to be subversive of discipline, which according to us, is also not being attracted, it is for the reason that the discipline always construed in course of discharge of service, if it will be considered in the pretext of the discipline and appeal rules applicable.
If the public servant or an employee or workman is found to be involved in any misbehaviour or illegal deeds outside the premises of the office of the factory and off-duty period, the same will not attract under the discipline and appeal rules rather the same will be dealt with appropriately under the penal provisions.
Further, the discipline in course of discharge of duty always deals with discipline in course of official duty and if an employee or workman is 7 committing any indiscipline in course of discharge of duty, it will be said to be an act of subversive of discipline.
We have fortified ourselves in reaching to such conclusion on the basis of the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab and Ors. Vrs. Ram Singh Ex-Constable, reported in (1992) 4 SCC 5, wherein the definition of 'misconduct' has been interpreted.
The Hon'ble Apex court has considered the definition of word 'misconduct'. Although, the misconduct not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct.
The paragraph-6 thereof is being referred hereinbelow for ready reference:-
"6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
Further, in the said judgment, the definition of 'misconduct' as has been defined in Black's Law Dictionary, Sixth Edition at page 999 has also been referred which reads thus:-
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"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
It is further relevant to refer paragraph-9 of the aforesaid judgment, where the police personnel was seen roaming in the open market along with service revolver in a drunken stage and in that condition, the Hon'ble Apex Court has been pleased to hold that heavy drinking of alcohol by the police personnel while on duty is a gravest misconduct.
Thus, it is evident from the aforesaid proposition laid down in paragraph-9 thereof that the misconduct will be said to have committed by the public servant, if any conduct which is contrary to the discipline would be committed in course of discharge of duty.
It is further evident from the aforesaid proposition laid down in paragraph-9, wherein it has been taken into consideration that taking to drink by itself may not be a misconduct. Out of office hours one may take 9 to drink and remain in the office but being on duty in a disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty, for ready reference paragraph-9 of the said judgment is being referred as hereunder:-
"9. The next question is whether the single act of heavy drinking of alcohol by the respondent while on duty is a gravest misconduct. We have absolutely no doubt that the respondent, being a gunman having service revolver in his possession, it is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable. Taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty in a disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty. The fact is that the respondent after having had heavy drink, was seen roaming or wandering in the market with service revolver. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Thus it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The courts below failed to properly appreciate the legal incidence and the effect of the rules."
12. We, after going across the award of the labour court has found that the aforesaid fact about the applicability of Sub-clause (X) of clause 28 of the Standing Order has been appreciated by considering the evidence of the management witnesses, wherein the management witnesses have deposed about the place of occurrence, which according to them was in the public road as also it was off-duty period and therefore, neither the said conduct nor the said behaviour, is within the work premises or in course of the service leading to indiscipline.
The labour court has reached to the conclusion on the basis of the fact holding non-applicability of charge as stipulated under Clause 28(X) of the Certified Standing Order against the workman and when the said finding is based upon the well-considered reason and further based upon the deposition of the witnesses holding the order of dismissal, as not sustainable.
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The question herein is that on that pretext if the finding recorded by the labour court is based upon the evidences, applicability of condition of Clause 28(X) of the Standing Order, can it be appropriate for this Court to interfere under Article 226 of the Constitution of India as the same has been declined to be interfered with by the learned Single Judge, so far as the finding and reference having been answered by the labour court.
13. At this juncture, it would be proper for this Court to refer the judgment rendered by the Hon'ble Apex Court in the case of Syed Yakoob Vrs. Radhakrishnan, reported in A.I.R. 1964 477 Supreme Court, wherein at paragraph no.7 their Lordships have been pleased to held as follows:-
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 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 not 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 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. 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 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 adequacy or sufficiency of evidence led on a point 11 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 Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh Vrs. State of Punjab reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 12 has held as under:-
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:
......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case: It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
It is evident from the ratio laid down by the Hon'ble Apex court in the judgments as referred hereinabove that the scope of High Court sitting under Article 226 of the Constitution of India in exercise of power of judicial review on the finding of the labour court is very limited and we having examined the factual aspect based upon the said proposition, are of the considered view that the award having been based upon the evidence led by the parties and the reference having been answered after taking into consideration the implication of the Clause 28(X) of the Certified Standing Order, is not coming under the fold of showing any interference by this Court under Article 226 of the Constitution of India.
However, as is evident from the record that a criminal case for the offence committed by the workman has already been instituted, wherein, 13 although the workman was convicted by the trial Court but the judgment and order of sentence has been reversed by the appellate court.
14. The learned counsel appearing for the Heavy Engineering Corporation, appellant herein has submitted that the learned Single Judge ought not to have taken into consideration the impact of acquittal of the workman in the criminal case, since according to him, at the time of answering the reference, there was no issue about pendency of the criminal case or its result.
15. We, after appreciating the aforesaid argument, are of the view that on the date of adjudication of dispute, the labour court has not considered the fact about institution of FIR and rightly not considered, since the labour court was to answer the reference on the basis of the Certified Standing Order and the evidence led before it in order to reach to the conclusion in course of answering the reference.
16. We, further of the view that even ignoring the part of the order of acquittal as has been recorded by the learned Single Judge in its judgment, no charge is going to be made in the award, since the labour Court has considered the reference strictly on the basis of the evidence led before it based upon the management witnesses vis-a-viz the witnesses of the workman as also the applicability of Certified Standing Order. Further, although the learned Single Judge has made reference of the acquittal in the criminal case.
17. In view of the discussion made hereinabove, this Court is of the view that the learned Single Judge has not committed an error in declining to interfere with the finding recorded by the labour court as also answering the reference in favour of the workman as because the appellant-Heavy Engineering Corporation Ltd. has failed to make out a case bringing the case under the fold of any error apparent on the face of record or any 14 perversity in the finding leading this Court to exercise the power conferred under Article 226 of the Constitution of India, therefore, if the learned Single Judge has not interfered with the finding and the answering reference in favour of the workman, the same cannot be said to have any error rather in the factual scenario, wherein, there is no perversity or no error on the face of record if interference would have been there by the learned Single Judge or even by this Court which is an intra-court appeal, the High Court will be said in that circumstances, a Court of appeal and if the finding would be reversed, it will lead to re-appraisal of evidence which is not permissible, save and except, the conditions if the finding is based upon the perversity or the error apparent on the face of record, as has been held by the Hon'ble Apex Court in the case of Syed Yakoob Vrs. Radhakrishnan (supra).
18. In the result, the instant appeal fails and it is dismissed. L.P.A.No.648 of 2019
19. The appellant-respondent no.2 (In L.P.A.No.648 of 2019) is aggrieved with the judgment of the learned Single Judge of this Court on the ground that since the workman has already attained the age of superannuation and therefore, no purpose would be served in passing an order of reinstatement as per the award and hence, the direction for making compensation of Rs.2 lakhs towards service dues over and above the retiral dues payable to the workman on the strength of service has been directed to be paid, against which, the present intra-court appeal has been preferred by the workman.
20. Since we have already came to conclusive finding by seeing no reason to interfere with the award while considering the aforesaid aspect in L.P.A.No.672 of 2019 as above, the only question which is to be dealt 15 with in the instant appeal is "as to whether the learned Single Judge was justified in modifying the award from that of the order of direction of reinstatement for making payment of compensation of Rs.2 lakhs over and above the retiral dues payable to the workman on the strength of service on the ground that during pendency of the writ petition, the workman has attained the date of superannuation."
21. It is not in dispute that during pendency of a litigation, if the employee will attain his age of superannuation, there cannot be an order of reinstatement, save and except, the post retiral benefits and on the facts, the back-wages. But before reaching to such conclusion, moulding the direction as has been awarded by the labour court while answering the reference on the ground of attaining the age of superannuation, in the facts and circumstance of the case herein, the learned Single Judge ought to have examined this factual aspect as to actually the workman has attained the age of superannuation or not.
But we have found no such finding leading the learned Single Judge to reach to the conclusion that the workman has attained the age of superannuation, which is the sole basis of filing the instant appeal, since according to the workman, he has not attained the age of superannuation rather the age of superannuation would be sometime in the year 2021.
22. This Court in order to do the complete justice to the parties has directed the management, who is respondent in the instant appeal vide order dated 06.02.2020 directing the Heavy Engineering Corporation- respondent to file an affidavit bringing on record the actual date of superannuation, in pursuant thereto, affidavit was filed, wherein stand has been taken that the workman has joined the service of corporation on 22.11.1979 and accordingly, the superannuation of the appellant is due in the year 2021, the said statement is being referred hereinbelow:- 16
"(ii) Because the judgment directing the appellant to give retiral dues to the appellant on the strength of his service treating the continuity of service till the age of superannuation is not valid as the appellant has yet not attained the age superannuation if he has been in the continuous service of the respondent corporation. The appellant has joined the services of the respondent corporation on 22.11.1979 and accordingly, the superannuation of the appellant is due in the year of 2021.
Hence, the appellant is not entitled for any sum against the retiral dues."
23. This Court after going across the statement about the date of superannuation of the workman, which according to the management, is in the year 2021, however, the learned counsel appearing for the Heavy Engineering Corporation, in course of argument has submitted that there is no reference of the month of superannuation, although, the reference of year as of 2021 is there and hence, according to him, this statement is also seems to be not proper but he has submitted that the age of superannuation is in the year 2021.
We, after hearing such argument, are of the considered view that when affidavit has been filed by the Heavy Engineering Corporation in pursuant to the order of this Court, the statement contained therein cannot be disbelieved merely on the ground of oral submission of the learned counsel but even accepting the aforesaid argument of the learned counsel appearing for the Heavy Engineering Corporation, even presuming the age of superannuation of the workman in the month of January, 2021, then also the workman would be entitled for reinstatement for service as because, we are only in the month of March, 2021.
24. In view of the aforesaid fact, we are of the view that the learned Single Judge has committed error in reaching to the conclusion that the workman has attained the age of superannuation but on what basis, that is lacking in the impugned order passed by the learned Single Judge.
25. There is no denial about the fact that the writ Court is to exercise 17 the power on the basis of the admitted position and if there is any doubt about the factual aspect and if there is any conclusive finding about the declaration as the case herein, wherein a declaration about reinstatement in service has been passed which has got mandatory force as per the provision of Section 17 of the Industrial Disputes Act, 1947, and hence, it was incumbent upon the learned Single Judge first to verify the factual aspect before coming to the conclusion which led in modifying the award from reinstatement to that of amount of compensation to the tune of Rs.2 lakhs.
26. Hence according to us, the order passed by the learned Single Judge to the effect of making payment of compensation of Rs.2 lakhs towards service dues over and above the retiral dues payable to the writ petitioner on the strength of service and further holding the workman entitled for retiral dues treating continuity of service till the age of superannuation, is held to be not sustainable in the eye of law, accordingly, quashed.
27. In the result, the instant appeal is allowed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Rohit/-
A.F.R.