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2017 DIGILAW 1488 (GUJ)

Divisional Controller v. R. S. Vyas

2017-09-01

A.J.SHASTRI

body2017
JUDGMENT : A.J. SHASTRI, J. The present petition is filed for challenging the legality and validity of the impugned judgment and award dated 30.05.2007, passed by the learned Industrial Tribunal, Ahmedabad, in Reference (I.T) No. 446 of 2000. 2. The case of the petitioner is that on account of non-issuance of tickets to the passengers, the respondent being Conductor has committed a misconduct. It has also been pointed out that when the respondent was working as Conductor in a bus going from Diyodar to Ahmedabad, a Check Squad has checked the bus, in which it has been found that though the amount was collected from the passengers from Kamboi Char Rasta to Patan, tickets of less value were given. Resultantly, the respondent workman was proceeded departmentally. 3. The Department Inquiry which was conducted against the respondent workman which ultimately has resulted into a penalty order dated 31.07.1997 whereby the authority has imposed a punishment of stoppage of increments for two years with permanent effect. As a result of which, the respondent-workman had filed First Appeal before the Appellate Authority and having received adverse order, the respondent has filed Second Appeal, which also came to be disposed of vide order dated 02.12.1999 This order was ultimately assailed by way of raising a Reference before the Industrial Tribunal, which was registered as Reference (I.T) No. 446 of 2000. The learned Presiding Officer of the Industrial Tribunal, by an order dated 30.05.2007, was pleased to set aside the order dated 02.12.1999 finding it not sustainable in eye of law and directed the petitioner Corporation to pay all consequential benefits, which are available to him. It is this order which is the subject-matter of challenge in the present petition. 4. Ms. Falguni D. Patel, learned advocate appearing for the petitioner Corporation, has vehemently contended that during the course of inquiry, an opportunity, though afforded to the respondent, was not availed of and the petitioner has not practically defended the case, for which he was proceeded departmentally. 5. Ms. Patel has further submitted that though the guilt is established during the course of inquiry, the learned Presiding Officer has passed an award without assigning any cogent reasons. The learned Tribunal, as contended by Ms. Patel, has not taken into consideration the fact that the charges, which have been levelled, have been admitted in reply to the charge-sheet submitted before the authority. The learned Tribunal, as contended by Ms. Patel, has not taken into consideration the fact that the charges, which have been levelled, have been admitted in reply to the charge-sheet submitted before the authority. As a result of which, the award which has been passed is not sustainable in eye of law and hence Ms. Patel has requested the Court to grant relief as prayed for in the petition. No other submissions have been made. 6. This Court, while considering the contention raised by the petitioner, has gone through the material on record and it has been considered that in the award passed by the learned Presiding Officer, there appears to be a categoric finding that simply because in a reply to the charge-sheet, the respondent workman has admitted the charge, the same cannot deprive him from agitating further during the course of inquiry. In Paragraph-10 of the said order, a specific finding is arrived at by the learned Tribunal, which has considered this aspect and has found specifically that the charges have not been established at all and nor has been specifically admitted. 7. On the contrary, in reply to the question which has been posed before respondent workman, the papers which are produced at Exh.18, clearly reflect that the workman has denied the charges for which he was proceeded. Further, it appears from the reading of the order under challenge that after full-fledge adjudication, the learned Presiding Officer of the learned Industrial Tribunal has come to a conclusion that the report which has been prepared by the Inquiry Officer is perverse and based upon no sound reasons and, therefore, it was found by the Tribunal that it cannot be said to be an intentional conduct on the part of the delinquent. Therefore, the learned Tribunal appears to have gone through the material on record and has found no such contention germane. As a result of which, this finding appears to be not so perverse for this Court to exercise extraordinary jurisdiction. 8. The findings which are arrived at by the learned Presiding Officer appear to be based upon the detailed examination of material on record as well as the inquiry papers which have been produced before it and, therefore, such findings are not possible to be dislodged by exercising extraordinary jurisdiction in absence of any serious infirmity. 9. 8. The findings which are arrived at by the learned Presiding Officer appear to be based upon the detailed examination of material on record as well as the inquiry papers which have been produced before it and, therefore, such findings are not possible to be dislodged by exercising extraordinary jurisdiction in absence of any serious infirmity. 9. In view of the above situation, on recollection of well defined proposition of law on the issue of exercise of extraordinary jurisdiction, the Honourable Apex Court, in a decision in the case of Sameer Suresh Gupta v. Rahul Kumar Agarwal reported in (2013) 9 SCC 374 , has clearly laid down the proposition and considering those principles, this Court is of the opinion that no case is made out by the petitioner to interfere with the order impugned in the petition. Hence, the relevant extract of the said decision needs to be quoted hereinafter: “6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that article were considered by the two-Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai. After considering various facets of the issue, the two-Judge Bench culled out the following principles: (SCC pp. 694-96, para 38) “(1) Amendment by the Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the 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 CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 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 a 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 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 (ii) 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. (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 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 the 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 correct 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 convert 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 practice, 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 super-session or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 7. The same question was considered by another Bench in Shalini Syam Shetty v. Rajendra Shankar Patil, and it was held: (SCC pp. 34 7-49, para 49) “(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 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 Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ‘within the bounds of their authority’. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the 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 High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” 10. Considering the above situation prevailing on record and in view of the proposition of law as stated hereinabove, this Court finds that the petition being devoid of merit deserves to be dismissed. 11. Accordingly, the judgment and award dated 30.05.2007, passed by the learned Industrial Tribunal, is confirmed. The petition stands dismissed. Interim relief, if any, stands vacated. Rule is discharged.