State of Rajasthan v. P. W. D. Karamchari Sangh — 1998 DIGILAW 659 (RAJ)

Honble SHETHNA, J.—The petitioner State of Rajasthan has challenged in this petition the impugned award dated 5.8.1995 (Annex. 3) passed by the learned Industrial Tribunal, Udaipur. (2). There is a checkered history of this case. The respondent no. 1 is a Union of P.W.D. Employees at Doongarpur, which filed an application under Sec. 33(c)(2) of the Industrial Disputes Act, 1947 (for short ``the Act) claiming that while declaring the semi permanent w.e.f. 1.10.1983 they were not given the pay scale and the arrears. The learned Industrial Tribunal accepted the application by an order dated 5.8.1995 (Annex. 3). Their demand was on the basis of order dated 22.10.1983 passed by the Executive Engineer, whereby, the semi permanent status was conferred to 208 workmen of the Union w.e.f. 1.10.1983. However, on the very next date i.e. 23.10.1983 same officer cancelled the order dated 22.10.1983 stating that under threat and duress he has passed that order. Aggrieved by that a dispute was raised by the Union and ultimately a settlement was arrived at between the parties on 27.10.1983/7.11.1983 by which the workmen were given semi permanent status w.e.f. 1.10.1983. Lateron, Executive Engineer, P.W.D. (B & R) Doongarpur unilaterally terminated the settlement with immediate effect. Aggrieved of that the Union filed S.B. Civil Writ petition No. 2990/83 before this Court and challenged the same, which was allowed on 19.7.1994 by this Court (Honble V.S. Kokje, J.). The operative part of the order dated 19.7.1994 (Annex. R/2 to the reply) reads as under:- ``The result is that settlement dated October 27, 1983 would revive. Whether, the petitioners have been given relief under that settlement or not, cannot be decided by this Court. If the petitioners are aggrieved by that, they may take appropriate step in the matter. (3). Accordingly, the Union approached the learned Industrial Tribunal by filing an application under Section 33(c)(2) of the Act, which was decided in favour of the Union by the Tribunal by impugned order dated 5.8.1995, which is challenged in this petition by the State of Rajasthan. (4). Learned counsel Shri Vyas for the petitioner-State submitted that the learned Tribunal not only misinterpreted the Judgment of the High Court, but also the settlement. He also submitted that the Tribunal had no jurisdiction to entertain and decide such application made under Section 33(c)(2) of the Act. (4). Learned counsel Shri Vyas for the petitioner-State submitted that the learned Tribunal not only misinterpreted the Judgment of the High Court, but also the settlement. He also submitted that the Tribunal had no jurisdiction to entertain and decide such application made under Section 33(c)(2) of the Act. He, therefore, submitted that though this is a petition under Article 227 of the Constitution of India, this Court should interfere with the impugned order. As against that learned counsel Shri Mathur for the respondent no. 1 vehemently submitted that no error much less error on law or jurisdictional error was committed by the learned Tribunal in allowing the application, therefore, this Court should not interfere with the order in exercise of powers under Article 227 of the Constitution of India. He submitted that though this petition is labelled under Article 226 of the Constitution, but strictly speaking it is a petition under Article 227 of the Constitution of India and the scope of which is very narrow and limited as also held by the Honble Supreme Court in Mohd. Yunus vs. Mohd. Mustaqim (1). (5). Going through the reasons assigned by the learned Tribunal in its impugned order it is clear that the application under Section 33(c)(2) was maintainable and the Tribunal has rightly entertained that application. However, Mr. Vyas, learned counsel for the petitioner relied upon the latest Supreme Court decision in case of Chief Superintendent, Govt. Livestock Farm Hissar vs. Ramesh Kumar (2) and submitted that the remedy under Section 33(c)(2) of the Act was available only when there was no dispute about the entitlement of the workman. He submits that the State has specifically objected to this. The facts of the case before the Supreme Court in Ramesh Kumars case (Supra) were totally different. I have set out the facts in brief in the earlier portion of this order. It is true that the order dated 22.10.1983 passed by the Executive Engineer was immediately cancelled by him on the next date i.e. on 23.10.1983. It is also true that the cancellation order was not directly challenged before any authority, but the fact remains that as per the settlement there was a demand from the Union and the said demand was accepted on 22.10.1983 by the Executive Engineer. It appears that after conceding the demand he cancelled the same on the next day. It is also true that the cancellation order was not directly challenged before any authority, but the fact remains that as per the settlement there was a demand from the Union and the said demand was accepted on 22.10.1983 by the Executive Engineer. It appears that after conceding the demand he cancelled the same on the next day. Such action of the Executive Engineer is highly deplorable. He has stated in the order that he passed the order on 22.10.1983 under duress and coercion. If it is true then such Executive Engineer is not fit to the continued in service. Whether his earlier order was right or the later, this Court would not go into the same. It may be possible that under some duress or threat he might have cancelled his own order on the next date. Be that as it may, the fact cannot be disputed that there was a settlement arrived at between the parties and earlier also the attempt was made to get rid of that settlement for which the Union had to file petition, which was allowed by this Court. (6). Under the circumstances, I do not find any substance in the first submission raised by learned counsel Shri Vyas for the petitioner that the application under Section 33(c)(2) was not maintainable before the Tribunal. (7). As stated earlier, this petition is labelled speaking it is a petition under Article 227 of the Constitution of India, the scope of which is very narrow and limi- ted. In Mohd. Yunuss case (Supra) the Apex Court has clearly held that even an error on law cannot be corrected by the High Court in exercise of powers under Article 227 of the Constitution. However, learned counsel Shri Vyas relied upon the latest Supreme Court decision of Balwinder Kaur vs. Hardeep Singh (3) and in case of Achutananda Baidya vs. Prafullya Kumar Gayen & Ors. (4), which have been con- sidered by the Division Bench of this Court in case of Smt. Tara Devi vs. Smt. Sudesh Chaudhary (5) and, submitted that this court can interfere with the impugned order passed by the Tribunal in exercise of powers under Article 227 of the Constitution of India. (4), which have been con- sidered by the Division Bench of this Court in case of Smt. Tara Devi vs. Smt. Sudesh Chaudhary (5) and, submitted that this court can interfere with the impugned order passed by the Tribunal in exercise of powers under Article 227 of the Constitution of India. In Tara Devis case (Supra) the matter was arising out of the election petition, where the lower court placed the burden of proof on the elected candidate about her age on the date of election and without placing reliance on the evidence in school record as to her age, the orders were passed, which was challenged before the High Court in a petition under Article 227 of the Constitution of India. On facts of that case the Court was fully convinced that it was a fit case to exercise powers under Article 227 of the Constitution of India and accordingly it interfered with the order. In a recent decision in case of Achutananda Baidyas case (supra) the Supreme Court has once again explained the scope of Article 227 of the Constitution of India and the jurisdiction of the High Court. In that case also the Apex Court held on facts of that case that the High was justified in interfering with the order of appellate court that there was no agreement for reconveyance of the alienated land on ground that the appellate courts finding was made without considering evidence on record. The Apex Court further held that if the evidence on record in respect of a question of fact is not at all considered and without reference to such evidence, the finding of fact is arrived at the appellate court or Tribunal then such finding must be held to be perverse. That is not the case here in this petition. (8). In Balwinder Kaurs case (Supra) the Apex Court has also explained the scope of Article 227 of the Constitution of India and the powers of the High Court. There cannot be any quarrel with the principle laid down by the Supreme Court. The power and duty of the High Court under Article 227 of the Constitution is essen- tial to ensure that the courts and Tribunals, inferior to the High Court have done what they were required to do. There cannot be any quarrel with the principle laid down by the Supreme Court. The power and duty of the High Court under Article 227 of the Constitution is essen- tial to ensure that the courts and Tribunals, inferior to the High Court have done what they were required to do. This Court can interfere and exercise its powers under Article 227 of the Constitution of India only in such cases :- (i) Erroneous assumption or acting beyond its jurisdiction. (ii) Refusal to exercise jurisdiction. (iii) Error of law apparent on the record as distinguished from a mere mistake of law. (iv) Arbitrary or capricious exercise of authority or discretion. (v) A patent error in procedure, and there is a perverse finding which is based on no evidence or material, or resulting in manifest injustice. (9). The present case does not fall in any of the aforesaid categories. Hence, the second submission raised by learned counsel Shri Vyas is also rejected. (10). Before parting I must state at the cost of repetition that the workmen of respondent no. 1 Union have been harassed continuously for years and every time they have to approach either this Court or the labour court. While passing the impugned order in their favour the learned Tribunal awarded cost of Rs. 3000/-. The Executive Engineer can have the luxury to file such a false and frivilous petition because they are not required to spend from their own pocket. It is the State who has to pay and ultimately it is a burden on the public exchequer. Hence, appropriate order regarding cost is also required to be passed in this case. (11). Accordingly, this petition is dismissed. The petitioner State shall pay spe- cial cost of Rs. 5000/- to the respondent no. 1 Union within three months from today, which shall be recovered from the Executive Engineer, who is responsible for filing this petition. Copy of this order be sent to the Chief Secretary to the State Govt.