Gujarat High Court
Ahmedabad vs Govindbhai on 22 February, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/21762/2006 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 21762 of 2006
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AHMEDABAD
MUNICIPAL TRANSPORT SERVICE - Petitioner(s)
Versus
GOVINDBHAI
ISHWARBHAI BRAHMBHATT - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
MR PRABHAKAR UPADYAY for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/02/2011
ORAL
ORDER
Heard learned Advocate Mr. HS Munshaw for petitioner Ahmedabad Municipal Transport Service and Mr. Prabhakar Upadhyay learned Advocate for respondent.
In this petition, petitioner AMTS has challenged award passed by labour court, Ahmedabad in Reference No. 1560 of 1998 dated 3.4.2006 wherein labour court has converted dismissal order dated 24th July, 1997 in simple discharge so that the respondent workman may not be disqualified for new service or fresh service. Respondent workman has reached age of superannuation on 1st March, 1998 and he was dismissed from service on 24th July, 1997. Brief facts means list of events as stated by petitioner in present petition are quoted as under:
* The respondent herein was an employee of the petitioner and serving in the cadre of conductor. That the respondent was in habit of remain in absent on duty unauthorizedly apart from other defaults.
* 1993-94- It is stated that, the respondent remain unauthorizedly absent on duty for 174 days in the year 1993 and 135 days in the year 1994.
* 31.1.1995- That, as the respondent remain absent continuously, therefore, a charge sheet was given to the respondent on 31.1.1995.
That thereafter, a departmental inquiry held against the respondent wherein though informed to remain present, but the respondent had not attend the departmental inquiry.
* 24.7.1997
- That, considering the record available with the inquiry officer along with statement of reporter,as charges levelled against the respondent were proved and, therefore, by order dated 24.7.1997, the respondent was dismissed from service.
* Year 1998 - Against the dismissal order, the respondent had approached the Hon'ble Labour Court, Ahmedabad and filed a Reference (LCA) No. 1560/1998 and filed a statement of claim.
* 28.6.2000- That the said reference was resisted by the petitioner and a detailed reply was filed in the reference.
* 3.4.2006- After hearing the reference the Learned Judge,Labour Court, Ahmedabad had allowed the reference and quash and set aside the dismissal order dated 24.7.1997 through which the respondent was disqualified for new service and converted into simple discharge. Hence this petition.
I have heard learned Advocate Mr. HS Munshaw for petitioner and learned Advocate Mr. Prabhakar Upadhyay for respondent. Learned Advocate Mr. Upadhyay for respondent employee has submitted that respondent is a member of Pension Scheme framed by petitioner Ahmedabad Municipal Transport Service.
Section 11-A of Industrial Disputes Act, 1947 is quoted as under:
11A.
Powers of Labour Courts, Tribunals and National, Tribunals to give appropriate relief in case of discharge or dismissal of workman. -
Whereas an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to workman including award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
Provided that in any proceeding under this section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
Labour Court has, after considering misconduct committed and proved against workman, came to conclusion that looking to gravity of misconduct, punishment of dismissal is shockingly harsh and disproportionate. Labour Court has considered explanation given by workman for remaining absent for long period and also considered fact that within eight months from the date of dismissal, he was retiring from service, therefore, labour court has exercised powers under section 11-A of ID Act, 1947 which is giving discretionary power to labour court, in case, if punishment of dismissal is shockingly disproportionate or unjustified, then, labour court can certainly interfere with such punishment and pass appropriate orders as it thinks just and proper.
I have perused award passed by Labour Court, Ahmedabad. I have also considered reasoning given by labour court in its award and allegations made against workman and that has been found to be proved against workman. Respondent workman has made specific argument before labour court that now only 8 to 9 months remained for him to retire from date of dismissal and, therefore, without giving any amount of back wages for interim period, if dismissal order is converted into an order of simple discharge, he may be able to get retirement benefits on the basis of such an order of simple discharge. Labour Court has also considered past record which was not found to be good and thereafter, came to conclusion that there was no serious charge in respect to dishonesty and misappropriation levelled against workman and only misconduct which was alleged against workman and proved was that he remained absent without prior permission and, therefore, labour court has modified order of dismissal dated 24.7.1997 as an order of simple discharge, so, workman may not be disqualified for fresh service or job. Considering it, according to my opinion, labour court has rightly exercised discretionary powers under section 11-A of ID Act, 1947. For that, labour court has not committed any error which would require interference by this Court. Labour Court has rightly considered that punishment of dismissal in case of absenteeism and remaining 8 to 9 months service for retiring from the date of dismissal is shockingly disproportionate and unjustified and for that, detailed reasons have been given by labour court with application of mind, therefore, labour court has rightly examined industrial dispute referred for adjudication and for that, labour court has not committed any error either on facts or in law which would require interference of this Court while exercising extra ordinary jurisdiction under Article 227 of Constitution of India.
This Court is having limited jurisdiction under Article 227 of Constitution of India while considering award in question. This Court can interfere with award while exercising power under Article 227 of Constitution of India if serious dereliction of duty and flagrant violation of fundamental principles of law or justice and grave injustice remained uncorrected. This Court cannot exercise powers as an appellate court or substitute its own opinion in place of that of subordinate court for correcting error which is not found apparent on the face of record. This court cannot disturb finding of fact as examined by Labour Court. This view has been taken by apex court in case of Jai Singh & Ors. v. Municipal Corporation of Delhi and Anr. With Municipal Corporation of Delhi v. Sh. Jai Singh and Ors., 2010 AIR SCW pg. 5968.
Relevant para 25 of said judgment is quoted as under:
25.
Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:
"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
In our opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No:2, Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.
In MA Azim v. Maharashtra State Road Transport Corporation, 2011-I-CLR 283, it has been observed by Bombay High Court as under in para 11 and 12:
11. At this stage, it would be appropriate to refer to few important judgments of Hon'ble Supreme Court and this Court laying down therein the scope to entertain petition under of Article 226 and 227 of the Constitution of India. The Hon'ble Supreme Court in a case of Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam & Ors., reported in AIR 1958 SC 398 in para No. 30 held thus:-
30.
the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.
Yet in another case, in a case of Surya Dev Rai v. Ram Chander Rai, reported in AIR 2003 SC 3044 the Hon'ble Supreme in its conclusion held :-
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
And in a case of Babulal S/o. Navalmal Pipada v. Dropadbai W/o.Manohar Gore & Others reported in 2010(5) Mh. LJ, this Court has held thus:
One cannot be oblivious of the parameters required to be observed for the purpose of exercising supervisory jurisdiction under Article 227 of the Constitution of India. Unless it is demonstrated that the impugned judgment suffers from vice of perversity, arbitrariness or is rendered without considering material evidence or is rendered on the basis of no material interference with the finding of Courts/Tribunals is impermissible. The writ jurisdiction cannot be invoked for reappreciating of the evidence or for the purpose of rectification of minor errors committed by the Tribunals. Unless it is demonstrated that the view taken by the MRT is per se against the settled principles of law, it is difficult to interfere with the findings recorded by the Tribunals below.
12. Therefore, it is clear from the pronouncements of Supreme Court and this Court which are referred supra that the Writ Jurisdiction cannot be invoked for reappreciating the evidence or for the purpose of rectification a minor errors committed by the Tribunals. Supervisory jurisdiction under Article 227 cannot be invoked unless it is demonstrated that the impugned judgments suffers from the vice of perversity, arbitrariness or is rendered without considering material evidence or is rendered on the basis of no material evidence or is rendered on the basis of no material, interference with the findings of Courts/Tribunals is impermissible. Therefore, in light of above, it is relevant to summarized here in below the findings recorded by the Labour Court on the basis of evidence brought on record by the parties.
In view of above observations made by this court, contentions raised by learned advocate Mr. HS Munshaw for petitioner cannot be accepted. Same are, therefore, rejected. Hence, there is no substance in this petition. Accordingly, this petition is dismissed. Rule is discharged. Interim relief, if any, shall stand vacated. No order as to costs.
Learned Advocate Mr. Prabhakar Upadhyay submitted that even in dismissal order dated 24th July, 1997, petitioner Transport Service has not forfeited or attached contribution of PF Amount and has also not attached amount of Gratuity, therefore, in case of converting dismissal into simple discharge, all retirement benefits including pension are available to respondent employee. Therefore, there may not be further financial burden upon Transport Service because of converting order of dismissal to simple discharge. In dismissal order also, it is made clear that if respondent employee is a member of Pension Scheme, then, on basis of Pension Scheme and Rules made thereunder, necessary procedure is to be followed for making payment of pension amount. However, he submitted that looking to date of birth of respondent, 9th February, 1940, and age of retirement of respondent 28th February, 1998 and considering date of birth as referred above, at present, respondent employee has crossed age of 71 years and he is a senior citizen, even though, Transport Service has paid only amount of Gratuity to present respondent and has not paid any amount of pension because of pendency of matter and operation of stay against impugned award. He emphasized that present respondent is facing financial crisis, having no source of income and it is very difficult for him to meet with day to day expenses and, therefore, some suitable directions may be issued to petitioner Transport so that they may fix pension of respondent employee on basis of award passed by Labour Court, Ahmedabad which has been confirmed by this Court as early as possible and pay difference of pensionary benefits immediately to respondent employee. He submitted that if any delay is occurred in paying pensionary benefits, it may happen that respondent employee may not survive for long time looking to age of 71 years of respondent employee.
Therefore, it is directed to petitioner Ahmedabad Municipal Transport Service to pay all due amount on basis of considering simple discharge including pensionary benefits to respondent employee with arrears within period of one month from date of receiving copy of present order.
(H.K. Rathod,J.) Vyas Top