Himachal Pradesh High Court
The State Of Himachal Pradesh And ... vs Sh. Santosh Kumar And Another on 29 December, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 11042 of 2011
Decided on: 29.12.2015
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The State of Himachal Pradesh and another ...Petitioners.
Versus
Sh. Santosh Kumar and another ...Respondents.
of
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the petitioners: Mr. Shrawan Dogra, Advocate General,
with Mr. Anup Rattan & Mr. Romesh
Verma, Additional Advocate Generals.
For the respondents: Mr. Ranjan Sharma, Advocate, for
respondent No. 1.
Mansoor Ahmad Mir, Chief Justice (Oral)
By the medium of this writ petition, the writ petitioners have questioned the judgment and award, dated 04.06.2011, made by the Presiding Judge, Industrial Tribunal cumLabour Court, Dharamshala, H.P. (for short "the Labour Court") in Reference No. 402/2008, titled as Santosh Kumar ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 2 : versus The Executive Engineer, I&PH Division Dalhousie, whereby the reference came to be partly allowed, (for short "the .
impugned award") on the grounds taken in the memo of writ petition.
2. The moot question is whether the writ petition can of be granted on the grounds taken in the writ petition, which are factual in nature and have been thrashed out by the Labour rt Court after framing the issues? The answer is in the negative for the following reasons:
3. After receiving the reference, the Labour Court has framed the issues and after examining the entire record, allowed the reference in favour of the workmanrespondent herein.
4. It has been specifically mentioned in paras 15 and 16 of the impugned award that the Statewrit petitioners have retained juniors to the workmanrespondent herein and that is why the Labour Court granted the relief in favour of the workmanrespondent herein.
5. The said act of the writ petitioners is in violation of Section 25G of the Industrial Disputes Act, 1947 (for short "the ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 3 : Act") and the Labour Court has rightly made the observations in paras 15 and 16 of the impugned award, which read as under:
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"15. However the supplementary affidavit of the respondent shows that one Rattan Chand s/o sh. Chamaru Figuring at Sr. No. 19 was reengaged in pursuance by the other of Administrative Tribunal and he has since been regularized w.e.f. 212007.
of Admittedly Rattan Chand was junior to the petitioner being immediately below him (Sr. No. 18). The respondent has also rt placed on record the order dated 229 1999 and 1942001 which primarily shows that proper notices under Section 25F has not been issued to the said Rattan Chand.
16. The Ld. Dy. D.A. would thus contend that since the said Rattan Chand had been engaged in pursuance to the orders of the Court. It cannot be said that the respondent had retained persons juniors to the petitioner, while disengaging him. the petitioner had been issued a notice on 25 102000 to be effective from 30112000.
The service of the said Rattan Chand were also disengaged on 16th Nov., 2000. Their retrenchment had been ordered simultaneously, even as per the orders passed by the Hon'ble Administrative Tribunal. No proper notice had been issued to the said Rattan Chand. In another words disengagement of the said Rattan Chand was void and illegal. That being so it to be inferred the respondent had not followed the principle of "Last Come First Go" in the right perspective. Even if the said disengagement of Rattan Chand had been set aside by the Court on technical ground, the respondent should ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 4 : have again disengaged the service of the Rattan Chand by resorting to the proper procedure, is envisaged under Law. No .
such steps were taken by the respondent.
Rather the said Rattan Chand has since been regularized in the year 2007. The reasons for retrenchment had remained the same for both Rattan Chand and the petitioner. Thus the respondent had to take further steps as were done in the case of the petitioner and other work Inspector of reflected at Sr. No. 17 to 20 in the seniority list. Had the petitioner being junior to Rattan Chand his reengagement would not have mattered. Admittedly the rt petitioner is senior to Rattan Chand. The reengagement of said Rattan Chand is thus fatal to the respondent. Even if he (Rattan Chand) was engaged in pursuance to the order of the Court, facts remain that he was junior to the petitioner. A junior work Inspector having been retained is violative to the provisions of Section 25G. As already discussed above no steps were taken by the respondent for having again removed Rattan Chand after completing all the codal formalities. The respondent did not resort to any retrenchment thereupon. Thus admittedly Rattan Chand being junior to the petitioner his reengagement, for whatsoever reasons is against the principle of "Last Come First Go". To this limited extent the disengagement of the petitioner cannot be sustained. Consequently the respondents are directed to reengage the petitioner. For the peculiar circumstances narrated hereinafter and more particular because the reengagement of the petitioner has been ordered keeping in view the reengagement of Rattan Chand his junior, ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 5 : no backwages are being ordered in favour of the petitioner. The petitioner shall continue to be reflected in the same .
position as he was placed earlier to the said Rattan Chand as far as seniority and continuity of service is concerned. The issue is accordingly decided partly in favour of the petitioner."
6. The Apex Court in the case titled as Bhuvnesh of Kumar Dwivedi versus M/s. Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, held that the findings of fact rt recorded by the Tribunal as a result of the appreciation of evidence cannot be questioned in writ proceedings and the Writ Court cannot act as an Appellate Court. It is profitable to reproduce para 18 of the judgment herein:
"18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 6 : jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the .
appellant."
7. This Court has also laid down the same principle in a batch of writ petitions, CWP No. 4622 of 2013, titled as M/s Himachal Futuristic Communications Ltd. versus State of of HP and another, being the lead case, decided on 04.08.2014. It is worthwhile to reproduce para 13 of the judgment herein:
rt "13. Applying the test to the instant case, the question of fact determined by the Tribunal cannot be made subject matter of the writ petition and more so, when the writ petitioner(s) have failed to prove the defence raised, in answer to the references before the Tribunal. "
8. This Court in a series of cases, being CWP No. 4622 of 2013 (supra); LPA No. 485 of 2012, titled as Arpana Kumari versus State of H.P. and others, decided on 11th August, 2014; LPA No. 23 of 2006, titled as Ajmer Singh versus State of H.P. and others, decided on 21st August, 2014;
and LPA No. 125 of 2014, titled as M/s. Delux Enterprises versus H.P. State Electricity Board Ltd. & others, decided on 21st October, 2014; while relying upon the latest decision of ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 7 : the Apex Court in Bhuvnesh Kumar Dwivedi versus M/s .
Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, has held that question of fact cannot be interfered with by the Writ Court. However, such findings can be questioned if it is shown that the Tribunal/Court has erroneously refused to admit of admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced the impugned rt findings. It is apt to reproduce paras 16, 17 and 18 of the judgment rendered by the Apex Court in Bhuvnesh Kumar Dwivedi's case (supra) herein:
"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 ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 8 : 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 of 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 rt 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 Article 226 to issue a writ of certiorari can be legitimately ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 9 : exercised.....................
17. The judgments mentioned above can be .
read with the judgment of this court in Harjinder Singh's case (AIR 2010 SC 1116) (supra), the relevant paragraph of which reads as under:
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles of 226 and/or 227 of the Constitution in matters like the present one, the High Courts are dutybound to keep in mind rt that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:
"10. ... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State."(State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 p.928, para 10.) ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP : 10 :
18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the .
procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence of illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under rt Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant."
[Emphasis added]
9. The same principle has been laid down by this Court in LPA No. 143 of 2015, titled as Gurcharan Singh (deceased) through his LRs versus State of Himachal Pradesh and others, decided on 15th December, 2015.
10. Our this view is also fortified by the judgment rendered by the Apex Court in Iswarlal Mohanlal Thakkar versus Paschim Gujarat Vij Company Ltd. & Anr., reported in 2014 AIR SCW 3298. It is apt to reproduce para 9 of the judgment herein:
::: Downloaded on - 15/04/2017 19:36:41 :::HCHP: 11 : "9. We find the judgment and award of the labour court wellreasoned 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 of 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 rt 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, which has served the ends of justice.
It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329, with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that "The power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."
::: Downloaded on - 15/04/2017 19:36:41 :::HCHP: 12 : It was also held that "High Courts cannot, at the drop of a .
hat, in exercise of its power of superintendence under Art. 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it.
Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it."
of Thus it is clear, that the High Court has to exercise its power under Article 227 of the rt Constitution judiciously and to further the ends of justice.
In the case of Harjinder Singh v. Punjab StateWarehousing Corporation, (2010) 3 SCC 192, this Court held that, "20. ..... In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation."
11. Having glance of the above discussions, no interference is required, the writ petition merits to be dismissed and the impugned award is to be upheld. Accordingly, the writ petition is dismissed and the impugned award is upheld.
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12. Pending applications, if any, are also disposed of accordingly.
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(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) of Judge December 29, 2015 ( rajni ) rt ::: Downloaded on - 15/04/2017 19:36:41 :::HCHP