Jharkhand High Court
Employers In Relation Through Birendra ... vs Central Govt Industrial Tribunal No I ... on 17 August, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 6820 of 2012
Employers in relation to the Management of Karo Project of M/s
C.C.L, B & K Area, Bokaro, P.O., P.S. & DistrictBokaro through
Birendra Trivedi, G.M. (Admn.), C.C.L., Ranchi, Darbhanga House,
P.O. & P.S.Morabadi, Ranchi ... ... Petitioner
Versus
1. Central Government Industrial Tribunal No. 1, Dhanbad, P.O.,
P.S. & DistrictDhanbad
2. Their workman Sri Shivraj Sao, son of Baghupat Saw, resident
of Jawahar Nagar, resident of Bermo, P.O. & P.S.Bermo, District
Bokaro ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. A.K. Das, Advocate
For the Respondent No. 2 : Mr. Atanu Banerjee, Advocate
Mr. Suman Kumar Ghosh, Advocate
Order No. 11 Dated: 17.08.2017
Heard the learned counsel for the parties.
2. The present writ petition has been filed challenging
the Award dated 22.02.2012 passed by the Presiding Officer,
Central Government Industrial Tribunal No. I, Dhanbad, in
Reference No. 291 of 2000, whereby the learned Tribunal has
answered the reference in favour of the workman and directed the
management to promote/regularise the respondent no. 2 -
workman as Shovel Operator GradeII, GroupB from the date of
promotion of the junior with arrears of wages.
3. The factual background of the case as stated in the
present writ petition is that the respondent no. 2 - workman
(Shivraj Saw) was originally appointed as a trainee in CategoryI,
Mazdoor on 25.09.1989. He was promoted to the post of
CategoryII Mazdoor on 01.12.1993 and was
promoted/regularised as Shovel Operator GradeII, GroupB w.e.f.
17.11.1996although, he was working on the said post since 25.03.1992. The petitionermanagement, however, promoted one 2 S. Kabi, who was junior to Shivraj Saw w.e.f. 18.04.1995. The respondent no. 2 -workman raised industrial dispute which was referred to the Industrial Tribunal, Dhanbad vide Reference No. 291 of 2000. The term of the reference was "whether the action of the management in not promoting Shivraj Saw along with his juniors is justified or not and if not then what relief is the workman entitled to and from what date". The learned Tribunal vide award dated 22.02.2012 answered the reference in favour of the workman by holding that the attitude of the management is discriminatory against the respondent no. 2 in not promoting him to the post of Shovel Operator GradeII, GroupB along with his junior S. Kabi, thus, the respondent no. 2 is entitled for promotion and difference of wages from the date of promotion of S. Kabi. Aggrieved by the said award, the petitionermanagement has filed the present writ petition.
4. The learned counsel for the petitionermanagement submits that merely because the respondent no. 2 was allowed to work on a higher post, he cannot claim to be promoted on the said post substantively, as the same requires consideration of eligibility and vacancy position. Unless the Departmental Promotion Committee recommends the name of any workman to be promoted on the higher post on which he was earlier allowed to work, he cannot be given substantive promotion. The learned Tribunal committed an error in answering the reference in favour of the respondent no. 2 only on the ground that one S. Kabi was regularised on the post of Shovel Operator GradeII w.e.f. 18.04.1995. The onus was upon the respondent-workman to make a case of discrimination as against S. Kabi, which he failed to prove. In fact, the petitionermanagement neither discriminated the respondent no. 2 nor victimised him by not regularising him on the post of Shovel Operator GradeII, GroupB from the date S. Kabi was promoted/regularised and appointed i.e., 18.04.1995.
3The learned Tribunal committed an error while passing the award with an observation that the attitude of the petitioner management has been discriminatory against the respondent no. 2 in not promoting him along with his junior (S. Kabi). In fact, the respondent no. 2 has already been promoted/regularised on the post of Shovel Operator GradeII w.e.f. 17.11.1996 after observing the requirements for promotion on the said post and, therefore, the respondent no. 2 cannot be said to be entitled for promotion on the higher post of Shovel Operator GradeII, GroupB from any date prior to 17.11.1996. The learned counsel for the petitioner management puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of "Ramanuj Prasad Vs. Coal India Ltd. & Ors." reported in (2003) 10 SCC 152 and submits that the claim based on the officiation on the promotional post does not entitle any person to be appointed on the said promotional post substantively. The learned counsel also relies upon the judgment rendered by the Hon'ble Supreme Court in the case of "Pinaki Chatterjee & Ors. Vs. Central Administrative Tribunal & Ors." reported in (2009) 5 SCC 193 and submits that the regularisation on the promotional post is impermissible in law. Thus, the learned counsel for the petitionermanagement submits that the impugned award being erroneous is liable to be setaside.
5. Per contra, the learned counsel for the respondent no. 2 submits that the respondent no. 2 was appointed on the post of categoryI, Mazdoor on 25.09.1989 and joined on the said post on 27.09.1989. He was authorised to work as Shovel Operator on 25.03.1992 and was promoted to CategoryII along with S. Kabi on 01.12.1993. The petitionermanagement started paying difference of wages of Shovel Operator GradeII, GroupB from 19.12.1994, whereas the management had been paying the difference of wages of Shovel Operator GradeII, GroupB to S. Kabi earlier than the respondent no. 2 i.e., w.e.f. 17.09.1994 4 itself, though both the respondent no. 2 and S. Kabi were promoted to CategoryII w.e.f. 01.12.1993. Further, S. Kabi was promoted on the post of Shovel Operator GradeII, GroupB w.e.f. 18.04.1995, whereas respondent no. 2 was promoted on the said post w.e.f. 17.11.1996. This shows a clear discrimination by the petitionermanagement against the respondent no. 2 without any cogent reason. The learned Tribunal on consideration of evidences adduced on behalf of the parties has rightly reached a conclusion that the approach of the petitionermanagement has been discriminatory as against the respondent no. 2 in not promoting him along with his junior S. Kabi and, thus, it has been held by the learned Tribunal that the respondent no. 2 is at least entitled for promotion and for payment of difference of wages from the date of promotion of S. Kabi, because the respondent no. 2 is admittedly senior to S. Kabi. Accordingly, the reference has been answered in favour of the respondent no. 2. The learned counsel for the respondent no. 2 puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "Iswarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Limited & Anr." reported in (2014) 6 SCC 434 and submits that the High Court while exercising jurisdiction under Article 226 and 227 of the Constitution of India should refrain itself from reappreciating the evidence to form its own view and to record the finding on contentious issues. The learned counsel also relies upon the judgment rendered by the Division Bench of this Court in the case of "Workmen being represented by Janta Mazdoor Sangh Vs. Employers in relating to the Management of Bhalgora Area of M/s BCCL" reported in 2016 (2) JBCJ 617 [HC] and submits that the High Court while exercising the powers of Writ Court does not sit in appeal over the decision of the Tribunal. The adequacy or sufficiency of evidence led on a point is within the exclusive jurisdiction of the Tribunal. The High Court can interfere with the order/award passed by any Court/Tribunal if any impropriety or a 5 question of lack of jurisdiction is noticed. However, appreciation of evidence cannot be reopened or questioned in the writ proceeding. The learned counsel for the respondent no. 2 further submits that since the award passed by the learned Tribunal is based on proper appreciation of evidence supported by cogent reasons, the same does not require any interference by this Court.
6. Having heard the learned counsel for the parties and on going through the relevant documents placed on record, the admitted facts which emerge from the material available is that the respondent no. 2 was appointed in Central Coalfields Ltd. as CategoryI Mazdoor on 25.09.1989 and he joined on the said post on 27.09.1989. The respondent no. 2 was authorised to work as a Shovel Operator GradeII, GroupB w.e.f. 25.03.1992 (Ext.I). He completed the training programme meant for Shovel Operator in the year 1993 and he was promoted to CategoryII w.e.f. 01.12.1993. The petitionermanagement paid the difference of wages of CategoryII, GroupB w.e.f. 19.12.1994. However, the respondent no. 2 was regularised and promoted substantively to the post of Shovel Operator GradeII GroupB w.e.f. 17.11.1996. On the other hand, S. Kabi was appointed in the Central Coalfields Ltd. as CategoryI Mazdoor on 06.02.1991. He was authorised to work as Shovel Operator GradeII GroupB w.e.f. 24.04.1992. He completed his training programme of Shovel Operator in the year 1993. He was also promoted to CategoryII from the date the respondent no. 2 was promoted i.e., w.e.f. 01.12.1993. However, he was paid difference of wages between GroupB and CategoryII w.e.f. 17.09.1994. S. Kabi was regularised and substantively appointed on the post of Shovel operator GradeII, GroupB w.e.f. 18.04.1995. He was further promoted to the post of Shovel Operator GradeI w.e.f. 12.03.1998.
7. On comparative perusal of the aforesaid dates, it 6 would be evident that the respondent no. 2 was initially appointed on the post of CategoryI Mazdoor on 25.09.1989 whereas, S. Kabi was appointed on the said post on 06.02.1991. Admittedly, the respondent no. 2 was carrying inter se seniority over S. Kabi. Further, the respondent no. 2 was authorised to work as Shovel Operator GradeII GroupB w.e.f. 25.03.1992, whereas S. Kabi was authorised to work on the said post about one month latter than the respondent no. 2 i.e., w.e.f. 24.04.1992. Both the respondent no. 2 and S. Kabi completed training programme of Shovel Operator in the year 1993 and both of them got promoted to CategoryII from the same date i.e., 01.12.1993. However, the difference of wages between the post of GroupB and CategoryII was paid to the respondent no. 2 w.e.f. 19.12.1994. However, S. Kabi was being paid the said difference few months prior i.e., w.e.f. 17.09.1994. The discrimination is apparent from the fact that the regularisation of the respondent no. 2 on the post of Shovel Operator GradeII, GroupB was done w.e.f. 17.11.1996, whereas S. Kabi was regularised on the said post w.e.f. 18.04.1995 itself. On the basis of the evidences adduced on behalf of the petitionermanagement as well as the respondent no. 2, the learned Tribunal reached a conclusion that the attitude of the petitionermanagement had been discriminatory as against the respondent no. 2 in not promoting him along with his junior (S. Kabi) and, therefore, the respondent no. 2 is entitled to be promoted and for getting the difference of wages from the date of promotion of S. Kabi, as the respondent no. 2 is admittedly senior to S Kabi and there has been no material on record against the respondent no. 2 for drawing any other inference.
8. The ratio laid down by the Hon'ble Supreme Court in the case of "Ramanuj Prasad" (supra) is that any claim based on officiation in the promotional post cannot be allowed as 7 the employee has no legal right for the said post, however, the present case is of discrimination made by the petitioner management as against the respondent no. 2 visavis S. Kabi, which was decided by the learned Tribunal in favour of the respondent no. 2 on the basis of the evidences adduced by the parties in the industrial adjudication. Thus, the ratio of the said case cannot be applied in the facts of the present case. Further, the ratio laid down in the case of "Pinaki Chatterjee" (supra) to the effect that regularisation on the promotional post is impermissible in law, is also not applicable in the facts of the present case, as it is evident from the reference made by the appropriate Government that the same is specifically in relation to discrimination made by the petitionermanagement against the respondent no. 2 with respect to his junior, which on the basis of the facts of the case, was decided in favour of respondent no. 2.
9. Moreover, the Hon'ble Apex Court in the case of "Iswarlal Mohanlal Thakkar" (supra), while laying down the ratio in relation to scope of the judicial review of an award passed in an industrial adjudication has held as under:
"15. We find the judgment and award of the Labour Court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, 8 which has served the ends of justice.
18. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the Labour Court. In Heinz India (P) Ltd. v. State of U.P. "(2012) 5 SCC 443"
this Court referred to the position held on the power of judicial review in Reid Vs. Secy. of State for Scotland"(1999) 2 WLR 28" wherein it is stated that: (Heinz India (P) Ltd. case SCC pp. 47071, para 68) "68. ... 'Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decisionmaker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.'(Reid case, AC pp. 541 F542 A)."
10. Further, the Division Bench of this Court in the case of "Workmen being represented by Janta Mazdoor Sangh"
(supra), while considering the extent of exercise of writ jurisdiction by the High Court in the matter of award/order passed by the Labour Court/Industrial Tribunal, has held thus:9
"9. It is well settled that the High Court while examining the legality and propriety of a decision rendered by the Tribunal does not sit in appeal over the decision of the Tribunal. A perusal of impugned order dated 31.07.2008 discloses that the learned Single Judge after noticing that, "the management witnessM.W1 Ram Janam Singh categorically said in his evidence that he was posted as Deputy Personnel Manager in Bhowra area at the relevant time. While proving the said Exts. M3 series and M4 series, he categorically said that Ext. M3 series were the lists received from the employment exchange; the candidates were absorbed in Bhowra area as per the said lists and names of those who were left, were forwarded to Bhalgora area; and that from Ext. M4 series only, the appointments were to be made in Bhalgora area but the names of concerned workmen were not there in the said lists forwarded to Bhalgora area.", recorded a finding that the management proved that the workmen concerned were appointed fraudulently. The evidence of the management witnesses and Ext. M3 series and Ext. M4 series were considered by the Tribunal and on an appreciation of evidence led before it, the Tribunal recorded a finding that the charge of fraudulently seeking appointment framed against the concerned workmen was not proved. Now, merely referring to the aforesaid evidence the learned Single Judge could not have arrived at a contrary finding holding that the management proved that the concerned workmen were appointed fraudulently. In our opinion, the learned Single Judge has reappreciated the evidence though, not even an error of fact committed by the Tribunal has been established by the management. In "Swarn Singh and Another Vs. State of Punjab and Others" (1976) 2 SCC 868, the Hon'ble Supreme Court has held as under :
"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 10 result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of."
11. Coming back to the facts of the present case, on careful perusal of the impugned award passed by the learned Tribunal, it appears that the reference was primarily on the issue of discrimination made by the petitionermanagement in not giving promotion to the respondent no. 2 - workman along with his junior. The said reference was answered in favour of respondent no. 2 on the basis of the evidences adduced before the learned Tribunal holding inter alia that the attitude of the petitionermanagement has been discriminatory as against the respondent no. 2 in not promoting him along with his junior and accordingly, it was further held that respondent no. 2 is entitled for promotion and difference of wages from the date of promotion of S. Kabi, as the respondent no. 2 has been senior to him and the petitionermanagement failed to prove that the performance of S. Kabi was better than respondent no. 2 or there was any adverse material against the respondent no. 2.
12. In view of the discussions made hereinabove, I do not find any infirmity in the impugned Award dated 22.02.2012 passed by the Presiding Officer, Central Government Industrial Tribunal No. I, Dhanbad, in Reference No. 291 of 2000 and, therefore, there is no reason to interfere with the same.
13. The writ petition being devoid of merit is accordingly dismissed.
(Rajesh Shankar, J.) Manish/A.F.R.