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2015 DIGILAW 1884 (HP)

Gurcharan Singh v. State of Himachal Pradesh

2015-12-15

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Mansoor Ahmad Mir, Chief Justice. 1. Challenge in this Letters Patent Appeal is to the judgment and order, dated 20.05.2015, made by the learned Single Judge/Writ Court in CWP No. 4295 of 2013J, titled as The State of H.P. & others versus Gurcharan Singh & others, whereby the writ petition filed by the State-respondents came to be allowed and the award, dated 02.07.2012, passed by the Labour Court-cum-Industrial Tribunal, Dharamshala, H.P. (Camp at Una) (for short "the Labour Court") was quashed (for short "the impugned judgment"). Brief facts: 2. Deceased-Gurcharan Singh was appointed as Beldar by the respondents and was holding the status of Pump Operator at the relevant point of time, i.e. on the date of his termination. His termination was made without conducting any inquiry and following the mandate of the provisions of the Industrial Disputes Act, 1947 (for short "the Act"), constraining him to approach the concerned authority and reference was made. The Labour Court entered upon the reference. The parties filed pleadings and documents. 3. Following issues came to be framed by the Labour Court on 01.12.2010: "1. Whether the termination of late Sh. Gurcharan Singh w.e.f. 03.8.1990 is violative of the provisions of Section 25F as alleged. If so, to what relief the petitioner is entitled to? OPP 2. Whether the reference is not maintainable as alleged. If so, its effect thereto? OPR 3. Whether the petitioner is estopped from filing present claim as alleged. If so, to what effect thereto? OPR 4. Whether the reference is hit by the vice of delay and laches as alleged. If so, its effect thereto? OPR 5. Relief." 4. Parties have led evidence. After scanning the evidence, oral as well as documentary, the Tribunal decided issue No. 1 in favour of the appellants, issues No. 2 and 3 were not pressed and issue No. 4 was decided against the respondents. 5. It is apt to reproduce para 33 of the award made by the Labour Court herein: "33. As a sequel to my findings on the various issues, the instant claim petition/reference succeeds in part and the same is partly allowed. The retrenchment of the petitioner (late Sh. Gurcharan Singh) is set aside and quashed. Since the petitioner has already died, no orders regarding the reinstatement in service are being passed. As a sequel to my findings on the various issues, the instant claim petition/reference succeeds in part and the same is partly allowed. The retrenchment of the petitioner (late Sh. Gurcharan Singh) is set aside and quashed. Since the petitioner has already died, no orders regarding the reinstatement in service are being passed. He shall be entitled to the seniority and continuity in service from the date of his illegal termination i.e. 03.8.1990 except back wages. The respondent is directed to examine the case of the petitioner(s)/legal heirs of the deceased and whatever benefits are found due and payable to them in terms of this Award, the same shall be made available to them within a period of three months from the date of receipt of a copy of this Award. The amount payable, if any, to the legal heirs of the deceased shall be paid to them in equal hares. Parties to bear their own costs." 6. The respondents questioned the said award by the medium of writ petition, which came to be allowed in terms of the impugned judgment. 7. Deceased-Gurcharan Singh was arrested in FIR No. 220 of 1990 and was later on, acquitted for the commission of offence punishable under Section 376 of the Indian Penal Code (for short "IPC"), but was convicted for the commission of offence punishable under Section 324 IPC, which was upheld by the High Court also and perhaps, that was the foundation for making his termination. 8. The moot question is whether termination can be ordered without conducting any inquiry? The answer is in the negative for the following reasons: 9. It would be profitable to reproduce Section 25F of the Act herein: "25F. Conditions precedent to retrenchment of workmen. 8. The moot question is whether termination can be ordered without conducting any inquiry? The answer is in the negative for the following reasons: 9. It would be profitable to reproduce Section 25F of the Act herein: "25F. Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.]" 10. While going through the impugned award and the writ petition, one comes to an inescapable conclusion that the termination of deceased-Gurcharan Singh was made without following the mandate of law. 11. The Apex Court in a case titled as Ajaypal Singh versus Haryana Warehousing Corporation, reported in (2015) 6 Supreme Court Cases 321, has laid down the same principle. It is apt to reproduce paras 19 and 22 of the judgment herein: "19. Section 25F of the Industrial Disputes Act, 1947 stipulates conditions precedent to retrenchment of workmen. A workman employed in any industry who has been in continuous service for not less than one year under an employer is entitled to benefit under said provision if the employer retrenches workman. Such a workman cannot be retrenched until he/she is given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice apart from compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. It also mandates the employer to serve a notice in the prescribed manner on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette. If any part of the provisions of Section 25F is violated and the employer thereby, resorts to unfair trade practice with the object to deprive the workman with the privilege as provided under the Act, the employer cannot justify such an action by taking a plea that the initial appointment of the employee was in violation of Articles 14 and 16 of the Constitution of India. xxx xxx xxx 22. It is always open to the employer to issue an order of "retrenchment" on the ground that the initial appointment of the workman was not in conformity with Articles 14 and 16 of the Constitution of India or in accordance with rules. Even for retrenchment on such ground, unfair labour practice cannot be resorted and thereby workman cannot be retrenched on such ground without notice, pay and other benefits in terms of Section 25F of the Industrial Disputes Act, 1947, if continued for more than 240 days in a calendar year." 12. The Apex Court in another case titled as Mackinnon Machenzie and Company Limited versus Mackinnon employees Union, reported in (2015) 4 Supreme Court Cases 544, has also taken the same view. It is apt to reproduce para 34 of the judgment herein: "34. Further, with regard to the allegation against the appellant-Company that its action of retrenchment of the concerned workmen is in contravention with the provisions of Section 25F clauses (a), (b) and (c) of the ID Act. Section 25F clause (a) states that no workmen employed in continuous service for not less than one year under an employer shall be retrenched until the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of notice. In the case on hand, the workman were served with the retrenchment notice on 27.7.1992 stating that their services stand retrenched from the close of business hours on 4.8.1992 in terms of the reasons appended to the said notice and further stated the amount of retrenchment compensation and one month's salary in lieu of notices that would be due to the concerned workmen. However, no cogent evidence has been brought before us by the appellant-Company to prove that the above referred one month's salary of the concerned workmen in lieu of the retrenchment notice has been actually paid to them. Further, the concerned workmen were given notice of retrenchment with Statement of Reasons appended therewith by the appellant-Company only on 27.7.1992 which was effective from 4.8.1992. Therefore, one month notice was not given to the concerned workmen before their retrenchment came into effect nor one month's salary in lieu of the retrenchment notice was paid to the concerned workmen. Therefore, the said action by the appellant-Company is a clear cut breach of the above said provision of condition precedent for retrenchment of the workmen as provided under Section 25F clause (a) of the ID Act. The Industrial Court after examining the facts and evidence on record has rightly answered the question of breach of Section 25F clause (b) in the negative since no evidence has been produced by the respondent-Union to prove the same and further no calculation is brought to our notice as to the amount received by way of retrenchment compensation and also the actual amount sought to have been paid to the retrenched workmen. Further, with regard to the provision of Section 25F clause (c), the appellant-Company has not been able to produce cogent evidence that notice in the prescribed manner has been served by it to the State Government prior to the retrenchment of the concerned workmen. Therefore, we have to hold that the appellant-Company has not complied with the conditions precedent to retrenchment as per Section 25F clauses (a) and (c) of the ID Act which are mandatory in law." 13. In the instant case, deceased-Gurcharan Singh had completed 240 days in a calendar year, as discussed and held by the Labour Court, after scanning the evidence, the inquiry was required, not to speak of only issuance of the notice. 14. In the instant case, deceased-Gurcharan Singh had completed 240 days in a calendar year, as discussed and held by the Labour Court, after scanning the evidence, the inquiry was required, not to speak of only issuance of the notice. 14. The question is whether the Writ Court can sit as an Appellate Court and set aside the award made by the Labour Court, which is based on evidence? The answer is in the negative for the following reasons: 15. The Apex Court in the case titled as Bhuvnesh Kumar Dwivedi versus M/s. Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, held that the findings of fact recorded by 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 jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant.” 16. 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 HP and another, being the lead case, decided on 04.08.2014. It is worthwhile to reproduce para 13 of the judgment herein: "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." 17. It is worthwhile to reproduce para 13 of the judgment herein: "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." 17. 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 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 admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced the impugned 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 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 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 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, 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..................... 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. 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..................... 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 226 and/or 227 of the Constitution in matters like the present one, the High Courts are dutybound to keep in mind 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.) 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 jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant.” [Emphasis added] 18. The High Court granting contrary relief under 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] 18. Having said so, the Writ Court/learned Single Judge has fallen in an error in passing the impugned judgment. 19. 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: "9. We find the judgment and award of the labour court well-reasoned 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 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 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. 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." 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." Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice. In the case of Harjinder Singh v. Punjab State-Warehousing 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." 20. The Labour Court has also held that the deceased-workman had completed 240 days of continuous service, which is not in dispute and which aspect has not been discussed by the Writ Court/learned Single Judge and without returning any findings, in a cursory manner, has set aside the award made by the Labour Court, is not permissible, as per law. 21. Having glance of the above discussions, the impugned judgment is to be set aside, the appeal is to be allowed and the writ petition is to be dismissed. 21. Having glance of the above discussions, the impugned judgment is to be set aside, the appeal is to be allowed and the writ petition is to be dismissed. Accordingly, the appeal is allowed, the impugned judgment is set aside, the writ petition is dismissed and the award made by the Labour Court is upheld. 22. Respondents are directed to release all the benefits in favour of the appellantslegal representatives/heirs of deceased-Gurcharan Singh within eight weeks in terms of the award made by the Labour Court and report compliance. 23. Pending applications, if any, are also disposed of accordingly.