Orissa High Court
Managing Director/Directors vs Mousumi Mohanty ..... Opp. Party on 30 January, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.19583 of 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India
----
Managing Director/Directors ..... Petitioners
M/s Kalinga Media &
Entertainment Pvt. Ltd.
Bhubaneswar and another
Vs.
Mousumi Mohanty ..... Opp. Party
Advocates appeared through hybrid mode
For Petitioners : Mr. Gopinath Sethi
For Opp. Party : Mr. Susanta Kumar Dash
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
__________________________________________________________
Date of Hearing: 8.12.2022 & Date of Judgment:30.01.2023
__________________________________________________________
S.K. Mishra, J.
Being aggrieved by award dated 28.12.2021 passed in I.D. Case No.59 of 2018 by the Labour Court, Bhubaneswar, the petitioners have preferred the writ petition basically on the following grounds.
(i) The findings of the Labour Court are perverse, illegal, arbitrary and whimsical.
(ii) The petitioners were not afforded sufficient opportunity at the time of hearing by the Labour Court to produce evidence and to have their say in the matter as per law and the impugned award is violative of principles of natural justice.
(iii) The District Labour Officer being the Conciliation Officer, no application being made to the Conciliation Officer, such proceeding is not maintainable as per the mandate of law as laid down under Section 2-A(2) of the Industrial Disputes Act, 1947.
(iv) While deciding Issue No. IV, the Labour Court has miserably failed to take into consideration the factums pertaining to the post of opposite party, she having been appointed as 'Anchor Head' and drawing salary of Rs.48,700/-, cannot be regarded as workman as per Section 2 (s) of the Act from its proper perspective.
(v) The Labour Court, while adjudicating Issue No. V as well as while passing the impugned award, has not assigned any valid, cogent and specific reason for granting compensation of Rs.4,50,000/-(rupees four lakhs fifty thousand) and as such, relief granted being without any basis and without any materials, the impugned award is illegal, arbitrary and whimsical and liable to be quashed.
(vi) Engagement of the opposite party being on contractual basis w.e.f. 20.05.2015 for a period of two years only, her service automatically Page 2 of 30 expired on 19.05.2017 and thereafter, she was continuing purely on oral contract basis and her services were terminated with one month salary after meeting the official formalities and clearance from the H.R. cell. The Labour Court, while passing the impugned award, has miserably failed to take into consideration the said factums, from its proper prospective, and thereby has committed gross miscarriage of justice.
2. As it seems from pleadings made in the writ petition, most of the facts pleaded, are beyond pleadings made by the management before the Labour Court and hence, are not germane for adjudication of the present lis. However, it has been pleaded for the first time before this Court that opposite party was engaged as "Anchor Head" on contractual basis for a period of two years under the petitioner No.1-company vide Order dated 20.05.2015. While working as such, on 01.08.2018 the Chief Editor of the petitioner No.1-Company by his e-mail dated 01.08.2018, asked the opposite party to have her reply on the issue of "arrogance" as shown in the parking place, to which the opposite party by her e-mail dated 02.08.2018 replied that she has every right to react over the situation and her reaction was not harsh. However, on receiving Page 3 of 30 many complaints pertaining to disobedience and not taking responsibility of work assigned to the opposite party, management, having sustained heavy pecuniary loss, was constrained to terminate the service of opposite party by Order dated 18.08.2018. Pursuant to the same, the opposite party raised an industrial dispute before the District Labour Officer, Khurda, by Registered Post on 13.09.2018. As the said dispute could not be resolved amicably during the stipulated period of 45 days, the opposite party preferred I.D. Case No.59 of 2018 before the Labour Court, Bhubaneswar, resorting to provision enshrined under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short 'the Act') seeking, inter alia, for declaring her termination Order dated 18.08.2018 to be illegal and unjustified and with a prayer to reinstate her with full back wages, so also to compensate her for such illegal action taken by the management.
3. Being noticed by the Labour Court, the petitioners- management appeared and filed its written statement challenging the maintainability of the said case on various Page 4 of 30 grounds, such as appropriate Government in respect of the establishment of the management is Central Government, the opposite party is not a workman and has not made an application to the Conciliation Officer relating to her dispute, her appointment being purely on contractual basis valid for two years w.e.f. 20.05.2015 till 19.05.2017, her service expired automatically on 19.05.2017 and thereafter, she was continuing purely on oral contract basis. However, in terms of condition No.11 of letter of engagement, her service was terminated on 18.08.2018 for the interest of the management and there was no necessity for domestic inquiry and hence, there is no illegality on the part of the management in terminating the service of the opposite party-workman.
4. It is further case of the petitioners-management that based on the pleadings of the parties five issues were settled by the Labour Court, but without giving sufficient opportunity to the petitioners-management ultimately a perverse award was passed on 28.12.2021 erroneously coming to a conclusion that the action of the management Page 5 of 30 in terminating the service of the workman is neither legal nor justified.
5. In addition to the grounds taken in the written statement, the learned Counsel for the petitioners submitted that even if for the sake of argument it is accepted that the termination of the opposite party- workman is illegal and unjustified, the Labour Court lacks power to grant compensation in lieu of the reinstatement and back wages.
Relying on the judgment of the apex Court dated 04.02.2005 in case of Municipal Committee, Sirsa v. Munshi Ram, the learned Counsel for the Petitioners also submitted that since it is a case of termination simplicitor, it was not obligatory on the part of the management to comply pre-conditions prescribed under Section 25(F) of the Act or to conduct an enquiry.
6. Learned Counsel for the opposite party-workman submitted that all the grounds agitated in the writ petition were taken note of in the impugned award and the Labour Court, while passing the award, answered all the issues Page 6 of 30 correctly and there being no perversity in the said award dated 28.12.2021, the writ petition is liable to be dismissed with exemplary cost.
He further submitted that before passing the impugned award, the Labour Court gave sufficient opportunity to the Petitioners-employer to have its say, so also to cross-examine the workman witnesses and lead evidence to substantiate its pleadings. But the petitioners- management failed to avail the said opportunity. Learned Counsel for the workman further submitted that the findings of the Labour Court that she is a workman and her engagement is not contractual and rather, the action of the management is punitive and her termination is illegal and unjustified as before terminating her service no domestic inquiry was conducted by the management and thereby no perversity in the impugned award, the writ petition deserves to be dismissed in limine.
In response to the judgment cited by the learned Counsel for the Petitioners, he submitted that the said judgment of the apex Court in Municipal Committee, Page 7 of 30 Sirsa (supra) is not applicable to the present case as in the said case, the Respondent, who was appointed on probation basis as "Octroi Moharrir", was discharged from his duty during the period of probation with a noting that his services are no more required by the Municipal Committee and the facts and circumstances of the said case are different than the case of the present opposite party-workman.
To substantiate his argument, Mr. Dash, learned Counsel for the opposite party relied on the judgments of the apex Courts in case of K.K. Saksena vs. International Commission on Irrigation and Drainage, reported in (2015) 4 SCC 670, Devinder Singh vs. Municipal Council, Sanapur, reported in (2011) 2 SCC (Labour and Service) 153 : AIR 2011 SC 2532, Central Inland Water Transport Corporation Limited and Others vs. Brojo Nath Ganguly and others, reported in AIR 1986 SC 1571, Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others, reported in AIR 1991 SC 101, Chakradhar Page 8 of 30 Tripathy vs. State of Orissa and others, decided by a Division Bench of this Court on 6.08.1991.
7. As to the ground of violation of principles of natural justice, as is revealed from the order-sheet in I.D. Case No.59 of 2018 appended to the writ petition, the same well demonstrates that though the petitioners-management filed its written statement on 27.08.2019 and thereafter issues were settled on 11.09.2019, w.e.f. 30.11.2019 the management either remained absent or sent petitions for time. Finally, on the prayer of the opposite party-workman, on filing of requisites, on 09.12.2020 the Labour Court ordered to issue notice to the management fixing the matter to 21.01.2021 for examination of W.W. No.1. Though on being so noticed, the management No.2, who is the authorized representative of management No.1, remained present on 21.01.2021, but did not take any steps. However, in view of the accommodation sought for by the Labour Law Lawyers Association, matter got adjourned to 23.02.2021 and again to 23.03.2021, on which dates the management No.2 attended the Court. However, from Page 9 of 30 15.04.2021 onwards, though the opposite party-workman remained present, none appeared for the management and no steps were taken on behalf of the management. Finally, on 26.11.2021, the opposite party-workman, who deposed as W.W. No.1, was further examined on recall and documents were marked as exhibits and the case got adjourned to 04.12.2021 for evidence from the side of management. However, as on 04.12.2021 the management was found absent on repeated calls, evidence from the side of management was closed and the case was posted to 21.12.2021 for argument. Finally, the impugned award was passed on 28.12.2021 and the original copy of the said award along with one spare copy was sent to the Government in Labour & ESI Department for publication. Though a plea has been taken in the writ petition as to violation of principles of natural justice, no cogent reason has been assigned in the writ petition as to non-appearance of the management before the Labour Court beyond 15.04.2021. Further, though it has been averred in the writ petition that the impugned award is an ex-parte award, Page 10 of 30 admittedly no step was taken by the petitioners to recall the alleged ex-parte award before approaching this Court in form of present writ petition.
8. So far as the maintainability of the complaint made under Section 2-A(2) of the Act, taking into consideration the pleadings made by the Parties, so also documentary evidences on record, the Labour Court, while answering Issue No.III, observed as follows:
"To fortify the above assertion, the second party laid much emphasis on Ext.3 to Ext.3/b. On perusal of Ext.3, the Xerox copy of complaint petition of the second party addressed to DLO, Khurda at Bhubaneswar, it reveals that with regard to her termination she made such complaint before concerned DLO. On perusal of the materials available on the case record, it is found that though the second party has filed the Xerox copy of postal receipts showing sending of Ext.3, but the same has not been exhibited on her behalf as the same is a Xerox copy. However, taking on judicial notice, it is found that Ext.3 has been sent to DLO, Unit-3, Bhubaneswar. Further, from Ext.3/b, it denotes that Ext.3 has been delivered on 15.09.2018. In the case at hand, the second party has filed the presence case before this Court on 24.11.2018 i.e. more than 45 days on receipt of her complaint petition by the concerned authority. From the discussions as made hereinabove, it is held that the instance case is maintainable."
9. So far as the issue of workman is concerned, admittedly excepting filing of the written statement, the Page 11 of 30 petitioners-management did not laid any evidence (both oral and documentary). To the contrary, the opposite party- workman specifically pleaded in her claim statement as to her nature of job, which is reproduced below.
"That the 2nd party was appointed to work as full time employee vide letter of appointment Ref No. KMEPL/HR/174/TV DT.20.5.15 issued by the M.D. of the 1st party management and was designed as a "Anchor Head" under the 1st party Management with an initial salary of Rs.47,000/- and she was deployed to work at Bhubaneswar under the control and supervision of M.D. of 1st party. Although 2nd party was designated as Anchor Head for name sake, but her primary, basic and dominant nature of duties were manual technical and operational in nature in the field of Anchoring different programmes of the Kalinga Tv."
(Emphasis supplied)
10. Though in response to the claim statement the petitioners-management filed its written statement, there was no specific denial to the said averments made in paragraph-3 of the claim statement filed by the opposite party-workman excepting to the effect that the opposite party was not a workman and EPF and ESI number were not assigned to her. So far as the nature of job is concerned, which is the decisive factor to bring a disputant under the purview of Section 2(s) of the Act, which defines Page 12 of 30 "Workman", neither there is any denial in response to averments made in paragraph-3 of the claim statement nor it has been specifically pleaded by the petitioners- management as to the nature of jobs performed by the opposite party-workman to be supervisory or managerial. Rather, contrary to the stand taken in paragraph-5 of the written statement filed by the Management, the opposite party-workman exhibited document as Exhibit-4 to demonstrate that her EPF UAN number was 100232124810 pertaining to her coverage under Employees Provident Fund in terms of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Accordingly, the Labour Court, with regard to Issue No.IV, observed as follows:
"WW No.1 during her evidence categorically stated that though she was appointed as Anchor-Head, she was deployed to work under the control and supervision of M.D. of first party. She further testified that although she was designated as 'Anchor Head' for name sake, but her primary, basic and dominant nature of duties were manual, technical and operational in nature in the field of Anchoring different programmes of the Kalinga TV and preparing the manual work of scheduling the programmes."
(Emphasis supplied) Page 13 of 30
11. That apart, referring to various judgments of the apex Court in National Engineering Industries Ltd. v. Shri Kishan Bhageria and others, reported in AIR 1988 SC 329, Muralidharan K. v. Management of M/s. Circle Freight Intl. India Pvt. Ltd, reported in (2007) III-LLJ 953, Ananda Bazar Patrika (P) Ltd. v. Workmen, reported in (1970) 3 SCC 248, and S.K. Maini v. M/s. Carona Sahu Company limited and others, reported in 1994 3 SCC 510, the Labour Court answered the said issues as follows:
"In the case in hand the second party was serving under the managements as Anchor-Head. The managements who are supposed to prove the supervisory, managerial or administrative nature of duties, if any, performed by the second party have not substantiated the same through evidence adduced before this Court. Besides, the joint written statement is silent about the work discharged by the second party. The evidence of the second party on that score remained unchallenged. In absence of any evidence that the second party being an Anchor-Head was doing supervisory, managerial or administrative nature of duties, it is held that the second party is a 'workman' In view of the discussions made above, the case is held to be maintainable. Issue No.3 is answered accordingly."
(Emphasis supplied)
12. So far as the ground with regard to contractual engagement of the opposite party for a fixed tenure and Page 14 of 30 termination of service of the opposite party in terms of Clause-11 of her letter of appointment dated 20.05.2015, taking into consideration the pleadings made by the parties, so also judgments of various Courts and Apex Court, in cases of Chakradhar Tripathy v. State of Orissa and others, reported in 1992 L.I.C. 1813, Central Inland Water Transport Corporation v. Brojo Nath Ganguly and another, reported in AIR 1986 SC 1571, Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, reported in AIR 1991 SC 101, West Bengal Electricity Board v. Desh Bandhu Ghose, reported in (1985) I-LLJ- 315 SC, the Labour Court came to a conclusion, which is reproduced below.
"So, in view of the principle of law laid down by the Hon'ble Apex Court, this Court is of the opinion that the stipulation contained in Clause-11 of Ext.1 is against the law of the land and as such void. Rather, this Court is of the opinion that the termination of second party by the first party falls within the ambit of definition of 'retrenchment' as enumerated in sec.2(oo) of the Act. Further if the management intends to terminate the service of second party, then it must have to follow the provisions of Sec.25-F of the Industrial Disputes Act, 1947."
Further, with regard to compliance of Section 25-F of the Act, the Labour Court held as follows:
Page 15 of 30
"But not a single scrap of paper has been produced from the side of managements evidencing that the second party workman has been given one month's prior notice in writing indicating the reason of retrenchment or has been paid on 18.08.2018 in lieu of such notice and paid the compensation as required under Sec.25-F of the Industrial Disputes Act, 1947.
In view of the discussion made above, the conclusion is inevitable that in spite of rendering continuous service of more than 240 days under the first party managements, the service of the second party workman has been terminated in clear contravention of the provisions of the Industrial Disputes Act, 1947. Reliance is placed on the reported decision of the Hon'ble High Court in the case of Executive Engineer, Badanala Irrigation Division, Kenduguda, Dist.:
Rayagada Vrs. Sri Ratnakar Sahoo and another [2011 (Supp.1) OLR 556]. Accordingly, this Court holds that the action of the first party managements to be neither legal nor justified."
(Emphasis supplied) Though it was never pleaded so before the Labour Court by the management, it is well evident from the pleadings made in the Writ Petition, so also the Order of discharge, marked as Exhibite-2, the action of the management in discharging the opposite party from service is punitive. Hence, the judgment of the apex Court in case of Municipal Committee Sirsa (supra) cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case.
Page 16 of 30
13. The averments made in the written statement that the services of the petitioner were contractual and for a specific period were disputed by the opposite party-workman. Hence, it is to be examined by this Court, as to whether the petitioners-management can take shelter under Section 2(oo)(bb) of the Act. Section 2(oo)(bb) of the Act reads as follows:
"(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) xx xx xx
(b) xx xx xx
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein."
This provision definitely has no application to the case at hand as the services of the opposite party-workman has not been terminated as a result of non-renewal of contract nor it has been terminated under a stipulation in that behalf as the Order of termination dated 18th August, 2018 does not demonstrate so. Law is well settled that the Order of Page 17 of 30 retrenchment/termination itself must show that the employer had resorted to Section 2(oo)(bb) of the Act. The protection under Section 2(oo)(bb) of the Act is not available to the petitioners-employer as it has taken a stand before the Labour Court that opposite party is not a workman. Since the very applicability of the Industrial Disputes Act was disputed by the management before the Labour Court, it cannot and should not be permitted to demonstrate its action in terminating services of the workman to be covered under Section 2(oo)(bb) of the Act. Moreover, the termination Order, which was marked as Exhibit-2 in I.D. Case No.59 of 2018, and has also been annexed as Annexure-4 to the Writ Petition, well demonstrates that the opposite party's services were brought to an end making certain allegations as to receiving many complaints with regard to her disobedience and not taking responsibility of work assigned to her, for which the management allegedly sustained heavy pecuniary loss. Hence, relying on the judgment in case of Modella Woolens Ltd. v. P.O., Labour Page 18 of 30 Court, reported in LLR-1993-876, the Labour Court held as follows:
"Admittedly, no enquiry was conducted by the managements against the workman for the above allegations owing to the fact that the engagement of the claimant was being fully contractual and terminable in the interest of the organization, there was no need to conduct any enquiry against her. In this connection, it is useful to refer the decision of the Hon'ble Punjab and Haryana High Court in the case of Modella Woolens Ltd. v. P.O., Labour Court, reported in LLR-1993-876 wherein it has been held that "No termination is permissible on the ground of misconduct unless proper enquiry is held according to principles of natural justice." In the premises, the action of the managements viewing from any angle cannot be sustained.
Hence, this issue is answered in favour of the second party workman."
14. Further, though Clause-11 of the letter of engagement dated 25.05.2015 provides that contract of engagement may be terminated by the employer in its interest by giving prior notice of one month and similarly, the opposite party may terminate the contract of engagement in her interest by giving one month's notice and there is no stipulation in the said terms and conditions as to "payment of one month salary in lieu of the notice period", though there is a mention as to payment of one month salary to the opposite party-workman vide order of relieve dated 18.08.2018, Page 19 of 30 admittedly neither there was one month's prior notice giving nor one month's salary was paid to her at the time of issuance of the relieve order dated 18.08.2018, which well demonstrates that she was rather intimated that in terms of the conditions of her service agreement she will be paid one month's salary after meeting the official formalities and clearance from the H.R. cell. Further, no where it has been averred in the written statement that pursuant to such communication, she was paid one month's salary in lieu of the notice period, even though there is no such stipulation in clause-11 of her offer of engagement as to paying salary of one month in lieu of the notice period. Rather, Clause-11 of her offer of engagement only stipulates as to giving one month's prior notice before disengaging the workman from service, which is extracted below for ready reference.
"11. The contract of engagement may be terminated by the Employer in its interest by giving prior notice of one month. Similarly you may terminate this contract of engagement in your interest by giving one month's notice."
(Emphasis supplied) Page 20 of 30
15. The law is well settled that if employer wants to disengage a workman, in terms of Section 25-F of the Act, it is obligatory on the part of the employer to give one month's prior notice or pay in lieu of the notice period, so also retrenchment compensation for each completed year of service and the said payment has to be made simultaneously at the time of retrenchment of the workman. A coordinate Bench of this Court in Shyam Sundar Rout v. Orissa State Road Transport Corporation and others, reported in (1990) 69 CLT 357, held that the payment should be made simultaneously along with the order of retrenchment in order to constitute a single transaction. It was further held that compliance of Section 25-F of the Act is required even if employment is contractual or for a specific term. Relevant paragraphs of the said judgment are reproduced below:
"12. The settled position of law is, section 25-F of the Act being a beneficial legislation it has to be strictly complied with and is a mandatory pre- condition. The negative form adopted by the provision, coupled with the use of the work 'until' which introduces the condition, indicates that the conditions must be first satisfied before retrenchment can be validly Page 21 of 30 effected. Non-compliance of section 25-F of the Act renders the order of retrenchment void ab initio. Taking into account all the provisions of law in A.I.R. 1976 S.C.1111, The State Bank of India, v. Shri N. Sundara Money, their Lordships have laid down the dictum that the payment of retrenchment benefits as required under section 25-F(2) of the Act is mandatory and pre-condition to the order of retrenchment. In absence of such compliance it has to be held that the workman continued in service though the order of appointment was for a specific period. Few of the other decision which have laid down this principle are 1960(1) L.L.J.251, State of Bombay and others v. Mazdoor Sabha and others, 1964 (1) L.L.J. 351, Bombay Union of Journalists and others v. State of Bombay and another (S.C.), 1967 (2) L.L.J. 23, National Iron and Steel Company Ltd.
and others v. State of West Bengal and another :
A.I.R. 1967 S.C. 1206, 1983 (1) L.L.J.30, Hute haiah v. Karnataka State Road Transport Corporation. It is no more res integra that acceptance of retrenchment benefit by the employee subsequent to the order of retrenchment will not stop the workman employee to challenge the validity of the retrenchment order on the ground of non- compliance of mandatory provisions of section 25-F of the Act.
17. After giving anxious consideration to the mandatory provisions of law and considering the dictum laid down in the above case, in our opinion, when the payment of wages in lieu of notice and retrenchment compensation and retrenchment order can be regarded as constituting a single transaction, then the retrenchment order will not be invalid in the eye of law. One has to see whether there is such co-relation between various steps as to constitute them into a single transaction or whether the time-
lag and intervening circumstances are such as to Page 22 of 30 make it difficult to find out a connection. The compliance of section 25-F(b) of the Act will be there if the payments are made simultaneously along with the order of retrenchment. The bona fide endeavour on the part of the employer to pay the compensation amount and one month's wages in lieu of notice along with the retrenchment order should be taken as due compliance where the workman avoids acceptance of compensation with a view to invalidate the order of retrenchment. The tender must be bona fide and within time."
(Emphasis supplied)
16. So far as the contention of the learned Counsel for the petitioners that the Labour Court, even if comes to conclusion that the action of employer in terminating services of the opposite party-workman to be illegal and unjustified, lacks power to grant lump sum compensation in lieu of reinstatement and back wages, law is well settled in the said regard.
17. The apex Court in the case of Ranbir Singh v. Executive Engineer, P.W.D. reported in 2021 LLR 920, referring to the judgment in the case of BSNL v. Bhurumal reported in (2014) 7 SCC 177, held as follows:
"6. ....... In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that Page 23 of 30 reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy."
(Emphasis supplied) Similarly, in case of Madhya Bharat Gramin Bank v. Panchamlal Yadav reported in 2021 LLR 681, vide paragraph-6, the Apex Court held as follows:
"6. Having considered the submissions made on behalf of the parties, we are of the view that the Respondent is not entitled for reinstatement in view of the law settled by this Court. The judgments relied upon by Mr. Kapur are clear to the effect that violation of Section 25F of the Industrial Disputes Act, 1947, would not automatically entail in the reinstatement with full back wages. The relief to be granted depends on the fact of individual cases."
(Emphasis supplied)
18. It may not be out of place to indicate that the Labour Court, while answering Issue No.V as to what relief the opposite party is entitled to, assigned sufficient reason to award lump sum compensation in lieu of reinstatement and back wages, which is reproduced below:
"The second party workman stated that she has several awards to her credit by working in Media field, but her career and reputation and image in public are seriously damaged due to the malafide and unfair action of the management by such abrupt termination of service w.e.f. 18.08.2018 and her Page 24 of 30 such untimely termination of service destroyed all her future career and expectations and completely devastated her social and financial backbone. That apart, she further stated that after her termination w.e.f. 18.08.2018, she was not gainfully employed in any establishment for more than one year and she was also not paid her salary for her last 18 working days, for which she was facing a lot of difficulty to sustain her livelihood during the said period. It is the contention of the second party that under duress she joined another establishment in the month of April, 2019 for her survival as well as for her family members. In view of the assertion of the second party that she had joined another establishment in April, 29019, it would be improper to grant her the relief of reinstatement in service rather it would be appropriate to grant lump sum compensation in lieu of reinstatement and back wages up to April, 2019 which will meet the ends of justice. But it is difficult to lay down any law in the absolute terms as to how the amount of compensation should be computed as it depends on various factors such as experience, age of the employee, mitigation of harassment and loss sustained due to termination etc. There is no dispute that the last drawn salary of the second party is Rs.48,700/- per month. However, as the action of the first party managements in terminating the service of second party being found illegal and unjustified and taking into consideration the length of her employment under the first party, her last drawn salary and her period of unemployment after her termination, a compensation of Rs.4,50,000/- (Rupees Four lakh Fifty Thousand) only in my considered view, would be the just and proper relief to be awarded in favour of the second party."
(Emphasis supplied)
19. Law is well settled that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior court or tribunal: these cases where orders are Page 25 of 30 passed by inferior court or tribunal 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 a result of the appreciation of evidence cannot be reopened or questioned in writ proceeding. 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 of fact recorded by Page 26 of 30 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.
20. In this regard it is apt to refer to the case of Syed Yakoob v. K.S. Radhakrishnan and others, reported in AIR 1964 SC 477, wherein the Constitution Bench of the apex Court held as follows:
7. 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 jurisdictions. 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 Page 27 of 30 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 a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, 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 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. Ahmed Ishaque, 1955 1 SCR 1104 : ( (S) AIR 1955 SC 233); Nagendra Nath v. Commissioner of Hills Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 S.C. 1168.
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such Page 28 of 30 an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
21. In view of the discussions made above, there being no perversity and infirmity in the impugned award dated Page 29 of 30 18.12.2021, this Court is not inclined to interfere with the award passed in I.D. Case No.59 of 2018.
22. Accordingly, the writ petition stands dismissed. No Order as to costs.
(Arindam Sinha) JUDGE (S.K. MISHRA) JUDGE Padma Page 30 of 30