Himachal Pradesh High Court
(Maharashtra)-40151 And Having Its ... vs M/S Hindalco Industries Ltd. Air Scw ... on 17 August, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CIVIL WRIT PETITION NO. 1794 OF 2017
Between:-
GABRIEL INDIA LIMITED,
A COMPANY DULY INCORPORATED UNDER COMPANY'S ACT,
HAVING ITS REGISTERED OFFICE AT
29TH MILE STONE, PUNE NASHIK HIGHWAY,
VILLAGE KURULI, TALUKA KHED, PUNE
(MAHARASHTRA)-40151 AND HAVING ITS UNIT/
WORKS AT PARWANOO, DISTRICT SOLAN, (HP)
THROUGH ITS COMPANY SECRETARY AND AUTHORIZED SIGNATORY
SHRI ANSHUL BHARGAVA
SONOF SHRI S.L. BHARGAVA,
RESIDENT OF EMPIRE ESTATE, L 1-302,
OLD PUNE-MUMBAI HIGHWAY, CHINCHWARD,
PUNE (MAHARASHTR)-401510
... PETITIONER
(BY MR. BHUPENDER GUPTA, SENIOR ADVOCATE WITH
MR. AJEET JASWAL, ADVOCATE)
AND
1. PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
SHIMLA, DISTRICT SHIMLA (HP)-171001
2. SHRI SHAKTI CHAND
SON OF SHRI ROHAL RAM,
RESIDENT OF VILLAGE DUDHAR, P.O. BIJHARI,
TEHSIL BARSAR, DISTRICT HAMIRPUR (HP).
3. SHRI RAGHUBIR DASS
SON OF SHRI JAI CHAND,
RESIDENT OF VILLAGE AND P.O. SAKRI,
TEHSIL DEHRA, DISTRICT KANGRA (HP)
4. SMT. SHAKUNTLA DEVI, WIDOW]
5. SHRI RAJINDER SINGH, SON]
6. SHRI SURJIT SINGH, SON]
::: Downloaded on - 31/01/2022 22:53:49 :::CIS
2
7. MS. AJNITA THAKUR, DAUGHTER] OF LATE SHRI PRITHI SINGH,
ALL RESIDENT OF VILLAGE AND P.O. TIERA,
TEHSIL AND DISTRICT KANGRA (HP)
8. SMT. SUKH VARSHA SHARMA, WIDOW]
.
9. MS. SONIA SHARMA, DAUGHTER]
10. SHRI MUNISH SHARMA, SON]
11. SHRI VINEET SHARMA, SON ] OF LATE SHRI OM PRAKASH
ALL RESIDENTS OF VILLAGE KHERA SITARAM
P.O. AND TEHSIL KALKA, DISTRICT PANCHKULA
(HARYANA)
12. SHRI JAG MOHAN
SON OF SHRI BACHAN RAM,
RESIDENT OF VILLAGE TIPRA,P.O. AND TEHSIL KALKA,
DISTRICT PANCHKULA (HARYANA)
13. SHRI BAKSHI RAM
SON OF SHRI HARI SINGH,
RESIDENT OF VILLAGE KHERA SITARAM,
P.O. AND TEHSIL KALKA, DISTRICT PANCHKULA,
(HARYANA)
.. RESPONDENTS
(NEMO FOR R-1
MR. V.D. KHIDTTA, ADVOCATE, FOR R-2 TO R-13)
Whether approved for reporting?
This petition coming on for orders this day, the court passed the following:
ORDER
By way of instant petition filed under Art. 226 /227 of the Constitution of India, challenge has been laid to Award dated 5.5.2017, passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court in Ref. No. 86 of 2005, whereby learned Tribunal below, while allowing the claim petition of the respondent Nos. 2 to 13/workmen (hereinafter, 'workmen'), directed the petitioner-employer (hereinafter, ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 3 'employer') to pay full wages, alongwith all consequential benefits to the workmen, with effect from the date they were given retirement by employer on completion of age of 55 years till they attained the age of .
60 years, within a period of three months from the date of passing of award till realization failing which, the same shall carry interest at the rate of 9% per annum, from the date of petition till realization.
2. For having bird's eye view of the matter, certain undisputed facts as emerge from the pleadings as well as documents available on record, are that workmen No. 2, 3, 12 and 13 and predecessor-in-
interest of respondents Nos. 4 to 7 and 8 to 11 (hereinafter, 'workmen') were employed with the petitioner company and they joined services of petitioner during 1978-79. On attaining age of 55 years, the workmen were retired from the service of the petitioner during the year 1998 to 2002, as detailed in para-4 of the writ petition. First Standing Order of the petitioner company came into force with effect from 5.4.1982 which was certified by the Certifying Officer under the provisions of S.5 of Industrial Employment (Standing Orders) Act, 1946. Under Clause 25 of the Standing Order, date of retirement/superannuation of workman was fixed at 55 years as is evident from Clause 25 of the work Certified Standing Order (Annexure P-3). Clause 25 of annexure P-3 provides as under:
"25. Superannuation/retirement:-
The employee shall automatically retire from the service of the company on attaining age of 55 years in accordance with the date of ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 4 birth given by him at the time of appointment and as appearing in the Company's record(s).
The management may at the discretion extend the service of an employee for a period not exceeding one year at a time subject to .
maxim of 3 years."
3. On 18.7.1998, workmen working with the petitioner-company, including present workmen,, applied to the Certifying Officer for changing age of retirement of workmen by modifying the Standing Order from 55 to 60 years. Certifying Officer, approved the modification sought by worker's union on 17.11.1998 and communicated the same to petitioner company vide letter dated 19.11.1998 (Annexure P-4).
4. Being aggrieved with the aforesaid order dated 17.11.2018 passed by the Certifying Officer modifying the age of retirement from 55 to 60 years, in the Standing Orders, petitioner preferred an appeal before the appellate authority on 13.12.1998 however, such appeal was dismissed on 10.1.2003, as is evident from Annexure P-5. Petitioner Company preferred CWP No. 263 of 2003 before this court assailing therein order dated 10.1.2003 passed by appellate authority. Division Bench of this Court vide judgment dated 23.5.2005, disposed of the petition permitting the petitioner to withdraw the writ petition with liberty to approach the Certifying Officer for certification of draft Standing Order including items relating to age of retirement of employees/workmen.
While granting aforesaid liberty to the petitioner company, Division Bench of this court set aside order dated 19.11.1998 passed by ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 5 Certifying Officer as well as order dated10.1.2003 passed by the appellate authority with respect to modification effected in Standing Order of the company. Copy of the said order stands annexed as .
Annexure P-6. Petitioner company in light of aforesaid liberty granted to it by Division Bench of this Court, submitted a draft proposal on 18.6.2005 for modification of Standing Order, to the Certifying Officer and proposed following modification with respect to age of retirement/superannuation "superannuation/retirement: - the age of retirement or superannuation of a workman shall be as may be agreed between the management and workmen through a contact or as specified in the settlement award of both workman and management. The employee shall automatically retire from service of the company on attaining the age as provided herein before to be calculated in accordance with date of birth given by him at the time of appointment and appearing in company's record. Management may at its discretion extend service of the employee for a period not exceeding one year at a time subject to maximum of 3 years."
5. Before the Certifying Officer could take decision if any on the draft proposal of modification of Standing Order submitted by petitioner company in terms of order dated 23.5.2005 passed by Division Bench of this court, workmen including respondents Nos. 2 to 13 who stood retired, raised an industrial dispute alleging therein that they have been wrongly retired from service of petitioner at the age of 55 years, in violation of Certified Standing Orders and claimed reinstatement with full back wages. Since conciliation inter se parties failed, appropriate ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 6 Government under S.10 of Industrial Disputes Act, formulated following point of reference for adjudication by Labour Court-cum-Industrial Tribunal:
.
"Whether the retirement of S/Shri Shakti Chand S/o Shri Rohal Ram, Raghubir Dass S/o Shri Jai Chand, Prithi Singh S/o Shri Jhandha Singh, Om Prakash S/o Shri Sant Ram, Jag Mohan S/o Shri Bachan Ram and Bakshi Ram S/o Shir Hari Singh by the management of M/s Gabriel India Ltd., Parwanoo, District Solan, HP in violation of Certified Standing Orders and Sub Rule 3 of Rule 10-A of the Model Rules, the Industrial Employment (Standing Orders) Rules, 1973, Amendment 1991 framed under Industrial Employment (Standing Orders) Act, 1946 on the plea of stipulation of retirement age 55 years in the appointment letters of the aforesaid workmen is legal and justified? If not, for what service benefits including reinstatement in service the above workmen are entitled to?"
6. Aforesaid reference came to be registered as Ref. No. 86 of 2005 on 7.7.2005 (Annexure P-7). During the pendency of the aforesaid reference before Labour Court-cum-Industrial Tribunal, Certifying Officer, in terms of order dated 23.5.2005 passed by Division Bench of this Court, considered the draft Standing Order submitted by petitioner company afresh and agreed to the demand of the union and certified as under:
"In view of the facts and legal provisions and the Rulings of the Hon'ble Courts, I agreed to the Demand of the Union and accordingly, certified that the age of retirement of workers/employees, on attaining the age ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 7 of superannuation, shall be on completion of 6 years by the workmen/employees in conformity with the provision of age of retirement as prescribed in Sub-Item (3) of Item 10=A of Schedule 1-A of Model Standing Orders under Rule 3 of the above said Rules framed under Industrial Employment (Standing Orders), Act, 1946"
.
7. Being aggrieved and dissatisfied with the aforesaid order passed by Certifying Officer, petitioner filed an appeal under S.6 of Industrial Employment (Standing Orders) Act, 1946 which came to be allowed vide order dated 5.4.2006 (Annexure P-9). Aforesaid order passed by appellate authority further came to be laid challenge in CWP No. 389 of 2006 having been filed by the Employees Union. Learned Single Judge of this court vide judgment dated 22.6.2007, quashed and set aside the findings returned by the appellate authority and upheld the order passed by Certifying Officer enhancing the age of retirement from 55 to 60 years. (Annexure P-10). Being dissatisfied with the judgment passed by learned Single Judge, petitioner company preferred LPA. No. 73 of 2007 before the Division Bench of this Court, which however, came to be dismissed on 28.11.2007 (Annexure P-11). Thereafter, an SLP No9163 of 2008 was filed by the petitioner before Hon'ble Apex Court, but the same was also dismissed on 5.1.2016 (Annexure P-12), as a consequence of which, order dated 29.8.2005 passed by Joint Labour Commissioner-cum-Certifying Officer Himachal Pradesh Annexure P-8 accepting the demand of Employees Union for enhancement of age of retirement of the employees of petitioner company from 55 to 60 years, came to be upheld.
::: Downloaded on - 31/01/2022 22:53:49 :::CIS 88. After disposal of SLP having been filed by the petitioner company, Labour Court-cum-Industrial Tribunal, Shimla decided the reference petition No. 86 of 2005, and allowed the claim petition filed by .
the petitioners therein (respondents Nos. 2 to 13 herein). In the aforesaid background, petitioner-company has approached this court in the instant proceedings praying therein to set aside the impugned award, inasmuch as petitioner-company has been directed to pay full wages to the workmen by considering age of retirement to be 60 years.
9. I have heard learned counsel for the parties and gone through the record. r
10. Since the draft Standing Order, with respect to item relating to the age of retirement of the workers, submitted by petitioner-company, to the Certifying Officer, pursuant to order dated 23.5.2005, stands rejected by Certifying Officer vide order dated 29.8.2005 and such order of the Certifying Officer has been upheld in appeal till the Hon'ble Apex Court, there cannot be any dispute that as of today all the employees of the petitioner-company are entitled to be superannuated at the age of 60 years and not at the age of 55 years. However, in the case at hand precise dispute inter se parties is with regard to date of application of order dated 29.8.2005, whereby age of retirement came to be fixed by Certifying Officer as 60 years.
11. Shri Bhupender Gupta, learned senior counsel representing the petitioner, while fairly admitting that the award dated 29.8.2005 passed by Certifying Officer has attained finality, contended that since ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 9 the workmen herein stood retired much prior to passing of order dated 29.8.2005, petitioner-company cannot be directed to pay full back wages alongwith consequential benefits from the date when they were .
given retirement by the petitioner-company till the age of 60 years. Mr. Gupta, learned senior counsel argued that though finality came to be attached to the order dated 29.8.2005 passed by the Certifying Officer on 5.1.2016, when SLP having been filed by the petitioner-company came to be dismissed, but even otherwise, if it is presumed that order dated 29.8.2005 had come into force on 29.8.2005, even then, workmen/respondents Nos. 2, 3, 12 and 13 and predecessor-in-interest of respondents Nos. 4 to 7 and 8 to 11, would not be entitled to any benefit because by that time, they all stood retired from the petitioner-
company. Lastly Mr. Gupta, learned senior counsel argued that all the respondents Nos. 2 to 13/workmen stood retired from the employment of the petitioner-company prior to the year 2001, after having attained age of 55 years and no protest, if any was lodged by them at the time of their retirement and as such, industrial dispute raised by them after an inordinate delay, otherwise could not have been entertained by the Industrial Tribunal-cum-Labour Court therefore, the award impugned in the present proceedings deserves to be quashed.
12. Mr. V.D. Khiddta, Advocate, while refuting aforesaid submissions made by learned senior counsel representing he petitioner-
company, vehemently argued that there is no illegality and infirmity in the award passed by learned Tribunal below and same deserves to be ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 10 upheld. Mr. V.D. Khidtta, Advocate, argued that though the workmen stood retired prior to passing of impugned award as well as order dated 29.8.2005 passed by Certifying Officer but since employees union of the .
petitioner-company had applied for modification of Standing Orders, with respect to increase in age of retirement, much prior to their retirement, they rightly came to be given benefit of the same by the learned Tribunal below, while passing the impugned award. Mr. V.D. Khiddta, Advocate further argued that on 18.7.1998, when all the workmen were in service, Employees Union had applied for modification of Standing Order, which prayers of theirs came to be ultimately accepted vide order dated 19.11.1998, passed by Certifying Officer-
cum-Joint Labour Commissioner (Annexure P-4) and as such, otherwise also all the workmen including respondents Nos. 2 to 13 are entitled to be superannuated at the age of f60 years after passing of order dated 19.11.1998, Lastly, Mr. V.D. Khiddta, Advocate argued that since the very arrangement of petitioner-company made in Standing Order to retire its employees at the age of 55 years, was in violation of Industrial Employment (Standing Orders) Act, 1946, wherein specific provision has been made to retire employees/workmen on attaining the age of 60 years, action of petitioner-company in superannuating the workmen on their having attained the age of 55 years, cannot be allowed to sustain being in violation of statutes and as such, no interference is called for.
::: Downloaded on - 31/01/2022 22:53:49 :::CIS 1113. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning assigned in the impugned Award while allowing the claim petition having been filed by .
the workmen, this court finds that there is no dispute inter se parties, with regard to employment of workmen/respondents Nos. 2 to 13 with the petitioner-company. It is also not in dispute that respondents Nos. 2 to 13, stood retired from their service during 1998 to 2002. Further it is not in dispute that the first Standing Order of petitioner-company came into force with effect from 5.4.1982, which was certified by Certifying Officer under S.5 of Industrial Employment (Standing Orders) Act, 1946, Under Clause 25 of said Standing Order, and in that the age of retirement of the workman was fixed at 55 years. It is also not in dispute that all the respondents /workmen came to be appointed with the petitioner-company in terms of aforesaid first Standing Order dated 5.4.1982, wherein admittedly the age of retirement was fixed at 55 years.
14. Though In terms of Clause 25, management may at its discretion could extend the service of an employee for a period not exceeding one year at a time subject to maxim of 3 years, but in the case of all the respondents, petitioner-company did not exercise aforesaid discretion and as such, all the respondents stood retired at the age of 55 years. This court also finds from record that union of the petitioner-company prior to retirement of all the respondents/workmen vide representation dated 18.7.1998, applied for modification of ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 12 Standing Order with respect to increase in age of retirement. Since aforesaid prayer of the workmen was not acceded to by the petitioner-
company, dispute inter se petitioner-company and employees union .
landed before Certifying Officer-cum-Joint Labour Commissioner, who vide order dated 19.11.1998 (Annexure P-4), accepted the proposal submitted by employees union for modification in age of retirement from 55 to 60 years . However, before aforesaid order came to be passed by Joint Labour Commissioner-cum-Certifying Officer, respondent No. 1 Shakti Chand had retired, whereas all the other respondents came to be retired thereafter. r
15. Shri V.D. Khiddta, Advocate appearing for the respondents Nos. 2 to 13 argued that since order dated 19.11.1998 modifying the age of retirement from 55 to 60 years was passed during the subsistence of service of respondents Nos. 3 to 13 except respondent No.2, Industrial Tribunal-cum-Labour Court rightly held them entitled for wages for the period from the date when they were superannuated on attaining age of 55 years and till the time they attained the age of 60, years alongwith consequential benefits.
16. However, this court finds no force in the aforesaid submission of Mr. V.D. Khiddta, Advocate, for the reason that aforesaid order dated 19.11.1998 was laid challenge in appeal by petitioner-company, which was dismissed on 10.1.2003. However, fact remains that order dated 10.1.2003 passed by appellate authority in appeal having been filed by petitioner-company, alongwith order dated 19.11.1998 passed by Certifying Officer/Joint Labour Commissioner, Himachal Pradesh, ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 13 whereby he accepted the proposal to modify the age of retirement from 55 to 60 years, came to be stayed vide order dated 23.5.2005 passed by Division Bench of this Court in CWP No. 263 of 2003 filed by the petitioner-company.
.
17. Though vide aforesaid judgment, petitioner-company was permitted to withdraw the petition filed by it with liberty to approach Certifying Officer for certification of draft Standing Order, containing therein item relating to age of retirement of the workmen working with the petitioner but Division Bench of this court, also set aside orders dated 10.1.2003 passed by appellate authority and dated 9.1.1998 passed by Certifying Officer subject to the condition that the petitioner shall approach the Certifying Officer for certification of draft Standing Order within four weeks from the date of passing of order dated 23.5.2005. Vide order dated 23.5.2005, Division Bench of this court clarified that in case, draft Standing Order is submitted by petitioner-
company to the Certifying Officer within four weeks from the date of passing of order dated 23.5.2005, impugned orders dated 10.1.2003 and 9.11.1998 passed by appellate authority and Certifying Officer shall be treated to have been set aside.
18. Since pursuant to aforesaid liberty reserved by Division Bench on 23.5.2005 in CWP No. 263 of 2003, petitioner-company submitted draft Standing Order for certification with the Certifying Officer, within the time stipulated by the court, order dated 9.11.1998 of Certifying Officer and 10.1.2003 passed by appellate authority came to be set aside.
::: Downloaded on - 31/01/2022 22:53:49 :::CIS 1419. Though Shri V.D. Khiddta, Advocate argued strenuously that since the petitioner-company failed to submit draft proposal within the time stipulated by Division Bench vide order dated 23.5.2005, passed in .
CWP No. 263 of 2003, specifically containing therein reference with regard to age of retirement, orders dated 19.11.1998 passed by appellate authority and order dated 10.1.2003 passed by Certifying Officer, cannot be deemed to have been set aside, as such, they remained in full force during the pendency of the case before Certifying Officer as well as before appellate authority thereafter. However, having carefully perused order dated 29.8.2005 (Annexure P-8) having been passed by Certifying Officer, rejecting therein draft Standing Order submitted by petitioner-company in terms of order dated 23.5.2005, this court has no option but to reject aforesaid submission of Mr. V.D. Khiddta, Advocate being contrary to record. Order dated 29.8.2005 itself suggests that draft Standing Order dated 17.6.2005 submitted by petitioner-company was received on 18.6.2005 i.e. prior to expiry of four weeks from the date of passing of order dated 23.5.2005. Similarly, aforesaid order further reveals that in draft Standing Order dated 17.6.2005, petitioner-company specifically submitted a proposal regarding age of retirement of the workers/employees contending that in the M/s Hero Honda Motors Ltd. Dhurera, District Mahendergarh Haryana and M/s Eicher Tractors, age of retirement of workers is 55 years. Since both the conditions of order dated 23.5.2005 were duly adhered to by the petitioner-company, it can be safely inferred that ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 15 order dated 10.1.2003 and order 19.11.1998 passed by Certifying Officer and appellate authority respectively stood set aside, meaning thereby order dated 19.11.1998, whereby proposal submitted by .
Employees' Union for enhancing age of retirement from 55 to 60 years was accepted by Certifying Officer, had lost its efficacy and no benefit, if any, could be claimed by the workmen on the basis of aforesaid order regarding enhancement of age of retirement from 55 to 60 years.
20. Mr. V.D. Khiddta, Advocate argued that order dated 19.11.1998 remained in force till passing of order dated 23.5.2005 in CWP No. 263 of 2003 because aforesaid orders came to be set aside on 23.5.2005 and as such, person retired during this period is entitled to be given benefit of order dated 19.11.1998 passed by Certifying Officer enhancing age of retirement from 55 to 60 years, but his plea cannot be accepted for two reason, firstly aforesaid order dated 19.11.1998, came to bet set aside vide order dated 23.5.2005 and secondly, Division Bench of this court vide aforesaid order dated 23.5.2005, permitted petitioner-company to submit fresh draft Standing Order to Certifying Officer for consideration afresh and pursuant to direction contained in order dated 23.5.2005, Certifying Officer passed fresh order dated 29.8.2005, rejecting therein draft Standing Order submitted by petitioner-company containing therein proposed age of retirement as 55 years, instead of 60 years. Since vide order dated 23.5.2005, Certifying Officer passed fresh orders pursuant to order dated 23.5.2005 on the draft Standing Order submitted by petitioner-company, its earlier order ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 16 dated 19.11.1998 stood merged with order dated 29.8.2005 and lost its efficacy. Since order dated 29.8.2005 passed by Certifying Officer enhancing age of retirement from 55 to 60 years, stands accepted till .
Hon'ble Apex Court, there is no occasion for this court to look into the correctness of the same, however, in view of the detailed discussion made herein, this court is of definite view that modification, if any, in Standing Order with regard to age of retirement, can always be said to have come in force with effect from 29.8.2005 (Annexure P-8) and as such, all the employees retired prior to that date, cannot be permitted to claim the benefit of the same after their retirement. If argument having been advanced by respondents is accepted, it would amount to opening Pandora box. All the employees petitioner-company, who stood retired prior to 29.8.2005 would claim that they be also given benefit of modification in the age of retirement made in Standing Order regulating the services of the workers/employees of the petitioner-company.
21. Since all the respondents stood retired prior to passing of order dated 29.8.2005, they cannot and could not be held entitled to full wages alongwith all consequential from the date, when they were retired by petitioner-company till they attained the age of 60 years and as such, impugned Award passed by learned Tribunal below does not call for any interference by this court.
22. Having carefully perused material available on record, vis-à-vis reasoning assigned by learned Tribunal below while passing impugned Award this court has no hesitation to conclude that the learned Tribunal ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 17 below has gone totally astray while appreciating the evidence and has miserably failed to appreciate the evidence in its right perspective as such, erroneous findings have come on record.
.
23. At this stage, V.D. Khiddta, Advocate argued that while exercising power under Art. 226 this court has limited power to re-
appreciate the evidence. There cannot be any quarrel with the aforesaid submission made by Mr. Khiddta, learned counsel for the workmen, but, by now it is well settled that the error of law apparent on the face of record, can be corrected by writ court, if finding of fact is based on no evidence, that would be considered an error of law. Reliance is placed on judgment passed by the Hon'ble Apex Court in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. AIR SCW 3157.
Bare reading of aforesaid judgment reveals that the Courts while examining correctness and genuineness of the Award passed by Tribunal has very limited powers to appreciate the evidence adduced before the Tribunal below, especially the findings of fact recorded by the Tribunal below and same can not be questioned in writ proceedings and writ court can not act as an appellate Court. Careful perusal of aforesaid judgment, clearly suggests that error of law which is apparent on the face of record can be corrected by writ Court but not an error of fact, however, grave it may appear to be. Hon'ble Apex Court has further held in the aforesaid judgment that if finding of fact is based upon no evidence that would be recorded as error of law which can be corrected by a writ of certiorari. Hon'ble Apex Court has further held that ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 18 in regard to findings of fact recorded by Tribunal, writ of certiorari can be issued, if it is shown that while recording said findings, tribunal erroneously refused to admit admissible evidence or erroneously .
admitted inadmissible evidence, which influenced impugned findings. It would be profitable to reproduce following paras of the judgment:
"16. .........The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 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 no 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 for 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 and the interference 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 ::: Downloaded on - 31/01/2022 22:53:49 :::CIS 19 High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
24. Perusal of aforesaid findings returned by the Hon'ble Apex .
Court, nowhere completely bars jurisdiction of writ Court to examine the correctness and genuineness of the Award having been passed by the Tribunal, especially when there is an error of law apparent on the face of record.
25. There is another aspect of the matter. As per Section 7 of the Industrial Employment (Standing Orders) Act, 1946, standing orders shall, unless an appeal is preferred under section 6, come into operation on the expiry of thirty days from the date on which authenticated copies thereof are sent under sub-section (3) of section 5, or where an appeal, as aforesaid is preferred, on the expiry of seven days from the date on which copies of the order of the appellate authority are sent under sub-section (2) of section 6. Since in the case at hand, after passing of order dated 19.11.1998, petitioner company preferred an appeal on 13.12.1998, which was dismissed on 10.1.2003 by the appellate authority, against which the petitioner company filed CWP No. 263 of 2003, in which orders dated 19.11.1998 and 10.1.2003 passed by the Certifying Officer and the appellate authority came to be quashed and set aside, it can be safely said that modification in the Standing Orders, certified on 19.11.1998, never came into force, till 29.8.2005, by which time, admittedly all the workmen herein, stood superannuated.
::: Downloaded on - 31/01/2022 22:53:49 :::CIS 2026. In view of the detailed discussion made herein above, present petition is allowed. Award dated 5.5.2017, passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, (H.P.) in Ref. No. .
86 of 2005 is set aside.
All pending applications stand disposed of. Interim directions, if any, also stand vacated.
(Sandeep Sharma),
Judge
August 17, 2021
(vikrant)
r to
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