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2011 DIGILAW 190 (GUJ)

Govindbhai Kathadbhai Mayaid v. State of Gujarat

2011-03-10

J.B.PARDIWALA, S.J.MUKHOPADHAYA

body2011
ORDER : J.B. Pardiwala, J. The present appeal is directed against the judgment and order dated 17th February 2010 passed by the learned Single Judge in allowing the petition preferred by the original petitioner - State of Gujarat whereby the learned Single Judge quashed and set aside the order and award dated 29th December 2009 passed in Reference (LCR) No.254 of 1997, which was in favour of the appellant herein. 2. The question arising in this appeal is as under:- “How far can the High Court, in exercise of the power under its writ jurisdiction under Article 227 of the Constitution of India interfere with the findings of facts by the appropriate authorities?” 3. Brief facts relevant for the purpose of deciding this appeal can be summarised as under:- 4. The appellant-workman had to raise industrial dispute as his services came to be terminated on 22nd February 1997 without following the due procedure of law and especially without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short, 'the Act'). The appellant workman requested for reinstatement. He raised the dispute which was referred to the competent court, wherein it was registered as Reference (LCR) No.254 of 1997. In the statement of claim the appellant contended that he has worked for more than one year as a watchman and he was drawing daily wage of Rs.44.10. He further contended that his services were abruptly terminated on 27th February 1997 without following the due process of law and without complying with the provisions of Section 25F of the Act. He further contended that he had put up continuous service of one year and therefore provisions of Section 25F are not attracted and therefore his services ought not to have been terminated without paying him retrenchment compensation and one month's notice or notice pay in lieu of the notice for bringing about an end to his service. He also contended that while terminating his service, his juniors were retained and after termination fresh hands were recruited. 5. In counter, the respondent herein contended that the appellant's work was not permanent in nature. It was contended that the reference was not maintainable and as and when there was work, the appellant was engaged and his services were taken and once the work was over, the workman was not retained. 5. In counter, the respondent herein contended that the appellant's work was not permanent in nature. It was contended that the reference was not maintainable and as and when there was work, the appellant was engaged and his services were taken and once the work was over, the workman was not retained. The main contention before the authority was that the appellant never completed 240 days in a given year and therefore it was the duty cast upon the appellant to produce the evidence and proof to justify the stand taken in the statement of claim. 6. The reference was adjudicated and after taking into consideration the submissions made by both the sides and the entire evidence led by both the sides reference was partly allowed by the labour court. The labour court ordered that the respondent herein shall pay 20% back wages with continuity of service and benefit flowing from Government Resolution dated 17th October 1988 and costs of Rs.1,000/-. 7. The State of Gujarat being aggrieved by the award, which was passed by the Labour Court challenged the same in a writ petition before the learned Single Judge being Special Civil Application No.12247 of 2009 and the learned Single Judge quashed and set aside the award, which was passed in favour of the appellant. 8. Learned counsel appearing for the appellant would contend that the learned Single Judge ought not to have disturbed the award which was passed by the Labour Court after considering the entire evidence on record. He would further contend that the learned Single Judge ought not to have disturbed the well reasoned award taking into consideration all the relevant aspects. His main bone of contention is that the learned Single Judge, in exercise of the powers under Article 227 of the Constitution, ought not to have re-appreciated the evidence, which was led before the authority below and which was taken into consideration while partly allowing the reference of the appellant. He would contend that even if two views are possible on the same set of evidence, the learned Single Judge could not have substituted his own view with the view which has been taken by the labour court. Learned counsel would further contend that the appellant had produced documents and had led cogent evidence to establish his case that he was in continuous service from 1988 to 1997. 9. Learned counsel would further contend that the appellant had produced documents and had led cogent evidence to establish his case that he was in continuous service from 1988 to 1997. 9. Per contra, learned AGP, appearing for the State defended the order passed by the learned Single Judge and submitted that the learned Single Judge rightly quashed and set aside the award as the learned Single Judge found that the Tribunal decided the matter without any evidence on record to the fact that the appellant had worked for more than 240 days in a year. 10. Having heard learned counsel for the respective parties, we are of the view that the learned Single Judge has committed an error in disturbing the well-reasoned award passed by the Tribunal. We are inclined to interfere on a short point and that is, on the point of supervisory jurisdiction of the learned Single Judge of this Court under Article 227 of the Constitution of India. Before we assign reasons as to why we are disturbing the order it would be expedient to mention the parameters laid down by the Apex Court in exercise of the jurisdiction or by the High Court under Article 226/227 of the Constitution of India. In case of Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477 , the Apex Court delineated the scope of writ of certiorari in the following words:- “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 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 dispute is opposed to principles of natural justice. 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 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 Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque, AIR 1955 SC 233 , Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam, AIR 1958 SC 398 , and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . 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 an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest 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 rounded 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.” 11. 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.” 11. In the case of Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6 SCC 675 the Apex Court after threadbare analysis of Articles 226 and 227 of the Constitution and considering the large number of judicial precedents recorded the following conclusions:- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (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 above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the 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. (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. (9) In practise, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 12. In the case of M/s Parry & Co. Ltd. v. P.C.Pal, Judge of 2nd I.T., Calcutta & Anr. AIR 1970 SC 1334 the Honourable Supreme Court has observed in paragraph 11 as under:- “11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established. In Basappa v. Nagappa it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in the State of Andhra Pradesh & Ors. v.S. Sree Ram Rao this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Article 226 would be justified.” 13. In the matter of Mohd. Yunus v. Mohd. Mustaqim & Ors. AIR 1984 SC 38 The Honourable Supreme Court has observed in paragraphs 6 and 7 as under:- “6. ... A mere wrong decision without anything 216 more is not enough to attract the jurisdiction of the High Court under Article 227. 7. The supervisory jurisdiction conferred on the High Courts udder Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.” 14. In the matter of Mrs Rena Drego v. Lalchand Soni, 1998 (1) GLH 513 SC a Three Judge Bench of the Honourable Supreme Court has observed as under:- “3. In the matter of Mrs Rena Drego v. Lalchand Soni, 1998 (1) GLH 513 SC a Three Judge Bench of the Honourable Supreme Court has observed as under:- “3. According to us, the high Court has traversed far beyond the limit of its supervisory jurisdiction under Article 227 of the Constitution when the learned Single Judge reversed the Decree of eviction which was based on findings of facts arrived at by the fact-finding authority upon the evidence on record. It would have been well for the High court to remind itself that it was not exercising certiorari jurisdiction under Article 226 of the Constitution but a supervisory jurisdiction under Article 227 which obliges the High Court to confine to the Scrutiny of records and proceedings of the lower tribunal. By relying on fresh materials which were not before the tribunal, the High Court should not have disturbed findings of facts in exercise of such supervisory jurisdiction. it is now well high settled that power under Article 227 is one of judicial superintendence which cannot be used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them Way back in 1954, a Constitution Bench of this Court, in Waryam Singh & anr. v. Amarnath & anr. ( AIR 1954 SC 215 ) has pointed out that the power of superintendence conferred by Article 227 should be exercised "most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.” (emphasis supplied) 15. Having regard to the well settled principles of law on the subject, a reading of the impugned order passed by the learned Single Judge shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. The learned Single Judge also did not find that the award was vitiated of any error of law apparent on the face of the record or that there was violation of rules of natural justice. The learned Single Judge also did not find that the award was vitiated of any error of law apparent on the face of the record or that there was violation of rules of natural justice. However, the learned Single Judge interfered with the award on the premise that the appellant workman has not led any cogent evidence before the Labour Court to establish that he had worked for more than 240 days in a year and that he was in continuous service from 1988 to 1997. 16. What weighed with the learned Single Judge in disturbing the findings of facts recorded by the Labour Court, as it appears from the judgment, is the quality of evidence which was led by the appellant - workman. It appears that the learned Single Judge found the evidence deficient so far as the claim of the appellant-workman having worked for continuous period of 240 days is concerned. It cannot be said that the findings recorded by the Labour Court are based on 'no evidence'. The evidence was led by both the sides and after appreciating the evidence the findings of fact have been recorded by the Labour Court which could not have been disturbed on the ground of being perverse. 17. We take notice of the fact that the learned Single Judge has actually re-appreciated the evidence, which was led by the appellant before the Labour Court. Re-appreciation of the evidence on questions of facts is not permissible in exercise of power under Article 227 of the Constitution of India. We also take notice of the fact that the case of the appellant - workman right from inception was that the respondents have not issued any identity card or appointment letter or any other documents and all that materials in this regard were in power and possession of the respondents. In this regard, the learned Single Judge recorded a finding that the paucity of material ought to have been persuaded by the Court and not to accept them and pass order fastening the employer with liability of giving employment to the employee in terms of continuity of service and back wages A finding of fact recorded by the Labour Court 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 the 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. 18. 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. 19. In that view of the matter, we are left with no other option but to quash and set aside the judgment and order passed by the learned Single Judge and the same is hereby quashed and set aside. The award passed by the labour court, Rajkot is revived and the same is confirmed. Appeal stands allowed. Appeal allowed.