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2017 DIGILAW 495 (HP)

State of Himachal Pradesh v. Mahinder Singh

2017-05-11

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. CMP (M) No. 2234 of 2016 1. By way of present application under Section 5 of Limitation Act, the applicants seek condonation of delay in filing the accompanying letters patent appeal. For the reasons set out in the application, delay in filing the appeal is condoned. Application is disposed of. LPA No. 45 of 2017 2. Be registered. 3. With the consent of the parties, the matter was taken up at this stage, to be disposed of on merit. 4. Brief facts of the case are that the appropriate Government made a reference to the Labour Court-cum-Industrial Tribunal, Dharamshala, HP (Tribunal, hereafter), under Section 10(1) of the Industrial Disputes Act, 1947 (Act, in short) as under: “Whether termination of the services of Shri Mahinder Singh S/o Shri Durga, R/o Village and P.O. Haripur, Tehsil Dehra, District Kangra, H.P. from time to time during year 1996 to 31-12-2005 by the Executive Engineer, I&PH Division, Dehra, District Kangra, H.P. without complying with the provision of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer?” 5. As per the statement of claim filed before the Tribunal, respondent-workman (workman, hereafter) was engaged as daily wage Beldar on muster roll basis by the appellant- employer (employer, hereafter), in 1996. No appointment order was issued in his name by the employer. Workman worked under Assistant Engineer, I&PH Sub Division Haripur upto December, 2005. It is further averred in the claim petition that from the date of appointment till 31.12.2005, fictional breaks in service were given to him. Sometimes, complete muster roll was also not issued in his name. Workman further stated that the period of fictional break is to be counted for the purpose of regularization, as such, he was entitled for regularization from 1.1.2006, with all consequential benefits. 6. The Tribunal framed issues and after appreciating the evidence, partly answered the reference in favour of the workman, by holding him entitled to continuity in service and seniority, with further direction to regularize his services as per policies of the State, in vogue, and in case any junior of the workman had been regularized prior to him, he (workman) shall be regularized from that date. 7. 7. The employer being aggrieved with the award of the Tribunal, preferred a writ petition in this Court, which was registered as CWP No. 3011 of 2015, raking up issue of delay on the part of workman in approaching the authorities. The learned Single Judge, while dismissing the petition filed by the employer, held, on the basis of law settled by the Hon'ble Apex Court in Karan Singh vs. Executive Engineer, Haryana State Marketing Board, (2007) 14 SCC 291 and Raghubir Singh vs. General Manager, Haryana Roadways Hissar, (2014) 10 SCC 301 , that the labour court is bound to answer the reference made to it, without looking into the aspect of delay and laches. Hence, this appeal by the employer. 8. Mr. Shrawan Dogra, learned Advocate General, duly assisted by Mr. J.K. Verma, learned Deputy Advocate General vehemently argued that the learned Single Judge has not appreciated the fact that the workman had approached the authorities after a period of nine years and further the learned Single Judge has not looked into the requirement of completing 240 days in a calendar year. 9. Mr. Rahul Mahajan, learned counsel representing the workman, has supported the judgment of the learned Single Judge. 10. We have heard the learned counsel for the parties and gone through the record carefully. 11. As far as contention raised on behalf of the employer that since there was considerable delay in raising demand by the workmen, learned Tribunal below ought to have dismissed their claim, on the ground of delay and laches, is concerned, same has no substance. Though, it clearly emerges from the pleadings as well as award that aforesaid workman had raised dispute after a considerable time, but that can not be a ground for learned Tribunal below to reject the claim, specifically in view of the fact that it was bound to answer the specific term of reference, made to it by the appropriate Government, under Section 10 of the Act. Objections, if any, with regard to raising demand after considerable delay, could be taken by the employer before framing of term of reference. Term of reference framed in the instant case for adjudication nowhere suggests that the learned Tribunal below was required to decide with regard to delay in raising demand. Objections, if any, with regard to raising demand after considerable delay, could be taken by the employer before framing of term of reference. Term of reference framed in the instant case for adjudication nowhere suggests that the learned Tribunal below was required to decide with regard to delay in raising demand. Rather, learned Tribunal below was called upon to answer reference that whether termination of the workmen by the employer was legal and justified. 12. Though the respondents have taken refuge of law laid down by this Court in CWP No. 1912 of 2016 titled Bego Devi vs. State of H.P. and Others and other analogous matters, decided on 26.10.2016, but the same is applicable in cases where reference has been denied by the appropriate Government to be referred to the Tribunal/labour Court. However, in this case, since a specific term of reference was sent to the Tribunal, it was bound by the same, as it could record its findings only to the extent as per terms carved out in the reference itself. 13. In Mukand Ltd. vs. Mukand Staff and Officers’ Assn. (2004) 10 SCC 460, the Hon'ble Apex Court has held as under: “22. We shall now analyse the submissions made by the learned senior counsel appearing on either side with reference to the pleadings, documents, records and also with reference to the judgments cited. The Reference is limited to the dispute between the Appellant- Company and the workmen employed by it. 23. We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstance of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non- workmen. 95. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non- workmen. 95. The Industrial Tribunal did not have jurisdiction to adjudicate the present dispute inasmuch as it pertains to the conditions of service of non-workmen. The learned single Judge and the Division Bench of the High Court failed to appreciate that parties cannot by their conduct create or confer jurisdiction on an adjudicating authority when no such jurisdiction exists. We have already noticed that the Division Bench has erred in holding that there is community of interest between the workmen and the non-workmen and holding further that the workmen could raise a dispute regarding the service conditions of non-workmen.” 14. It is ample clear from law cited hereinabove that the Tribunal had no authority to adjudicate the matter/dispute, which was not within the purview of dispute actually referred to it by the order of reference and as such this Court sees no force in the argument of learned Advocate General that petition having been filed by the workman ought to have been dismissed on the ground of delay by the learned Single Judge. 15. Similarly, this Court, after having carefully perused the judgment passed by the Hon'ble Apex Court in Prabhakar vs. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1, has no hesitation to conclude that the same has no application in the present case, because in that case, issue was with regard to delay in raising demand by the workman for referring the matter to the labour court. The Apex Court, in the aforesaid judgment has held that very stale claims should not be allowed to be referred to the labour court to maintain the industrial peace. Aforesaid judgment specifically deals with issue where references are made by appropriate Government to the labour court for adjudication after considerable delay. It would be profitable to refer following para of the judgment: “44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the “appropriate Government” to consider whether it is expedient or not to make the reference. It would be profitable to refer following para of the judgment: “44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the “appropriate Government” to consider whether it is expedient or not to make the reference. The words “at any time” used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers’ financial arrangement, and to avoid dislocation of an industry.” 16. In the case at hand, undisputedly, matter was referred to the labour Court, by the appropriate Government, by framing specific term of reference, and, as such, judgment, referred to herein above, has no application in the present case, because, in the aforesaid case, dispute was, whether appropriate Government could refer the dispute after a considerable delay or not? At the cost of repetition, it is stated that labour Court was only bound to answer term of reference made to it by appropriate Government, and not the issue with regard to delay in raising demand by the workman. 17. Otherwise also, learned Tribunal below, taking note of the fact that dispute was raised after considerable time, has denied back wages to the aforesaid workmen. 18. This Court, is in agreement with the arguments having been made by the learned counsel representing the workman that this Court has very limited jurisdiction to re-appreciate findings of fact returned by the learned Tribunal below, while exercising writ jurisdiction under Article 226 of the Constitution of India and it has a limited scope of appreciating findings of fact. In this regard, reliance is placed upon judgment passed in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157. 19. In this regard, reliance is placed upon judgment passed in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157. 19. As far as judgment passed by the Hon'ble Apex Court in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. is concerned, there can not be any quarrel with the settled proposition of law that the Courts while examining correctness and genuineness of the Award passed by Tribunal has very limited powers to appreciate the evidence adduced before the Tribunal below, especially the findings of fact recorded by the Tribunal below and same can not be questioned in writ proceedings and writ court can not act as an appellate Court. Careful perusal of aforesaid judgment having been relied upon by the learned counsel representing the workmen, clearly suggests that error of law, which is apparent on the face of record, can be corrected by writ Court but not an error of fact, however, grave it may appear to be. Hon'ble Apex Court has further held in the aforesaid judgment that if finding of fact is based upon no evidence that would be recorded as error of law, which can be corrected by a writ of certiorari. Hon'ble Apex Court has further held that in regard to findings of fact recorded by Tribunal, writ of certiorari can be issued, if it is shown that in recording said findings, tribunal erroneously refused to admit admissible evidence or erroneously admitted inadmissible evidence, which influenced impugned findings. It would be profitable to reproduce following paras of the judgment: “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 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. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is no 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 for 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 interference 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. The adequacy or sufficiency of evidence led on a point and the interference 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. 20. Hence, we do not see any reason to interfere with the judgment passed by learned Single Judge, which is well reasoned, which is accordingly upheld. The appeal is dismissed. Pending applications, are also disposed of.