JUDGMENT : SANDEEP SHARMA, J. CMP(M) No.145 of 2018 For the reasons set out in the application, delay of one year, one month and 25 days in filing the appeal, which in our considered view has been sufficiently explained, is condoned. Application stands disposed of. Appeal be registered. LPA No. 15 of 2018 Instant Letter Patent Appeal is directed against the judgment dated 15.11.2016, passed by learned Single judge, in CWP No.9825 of 2013, whereby writ petition having been preferred by the appellant, laying therein challenge to the Award dated 15.10.2013, passed by learned Labour Court-cum-Industrial Tribunal Dharamshala, H.P., in reference No.281 of 2012, has been dismissed. 2. Briefly stated facts, as emerge from the record are that the respondent (for short ‘workman’) was employed as Beldar on 25.11.1997 and he worked as such upto 24.04.1998, whereafter his services were dispensed with by the appellant without following due procedure, as envisaged under Industrial Disputes Act,1947 (for short ‘Act’). The workman claimed before the learned Tribunal below that though he was engaged on and w.e.f. 25.11.1997 as Beldar, but he was intentionally and purposely given fictional breaks to prevent him for completing 240 days in a year and ultimately on 25th April, 1998, his services were terminated by the appellant. Before the alleged termination of his services, neither any notice was served upon him nor he was charge sheeted. Similarly, there is no dispute that neither any inquiry for misconduct, if any, on the part the workman was ever conducted nor compensation, if any, was paid to him by the employer at the time of his termination. As per the workman, his services were terminated only on the pretext that works and funds are not available and he will be reengaged as and when work is available. However, fact remains that when the workman was not reengaged despite repeated requests, he was compelled to approach the H.P. State Administrative Tribunal by way of Original Application, which subsequently came to be dismissed on 27.2.2002 for want of jurisdiction. 3. However, fact remains that when the workman was not reengaged despite repeated requests, he was compelled to approach the H.P. State Administrative Tribunal by way of Original Application, which subsequently came to be dismissed on 27.2.2002 for want of jurisdiction. 3. It also emerge from the record that appropriate Government failed to refer the dispute to the learned Industrial Tribunal on the ground that the workman did not complete 240 days preceding his retrenchment, however, this Court vide judgment dated 14.05.2012 setaside the order dated 4.4.2008, passed by the Labour Commissioner, Shimla and directed the appropriate Government to refer the matter to learned Tribunal below for determination and adjudication. Appropriate Government in terms of Section 10 of the Act, made following reference to the Tribunal:- “Whether termination of the services of Shri Jagdish Chand s/o Sh. Tulsi Ram, Village & Post Office Chalarag, Tehsil Joginder Nagar, District Mandi by the Executive Engineer, H.P.S.E.B. Electrical Division, Joginder Nagar, District Mandi, H.P. w.e.f.25.4.1998 without following the provisions of the Industrial Dispute Act, 1947, is legal and justified? If not, to what amount of back wages, seniority, past service benefits and compensation the above workman is entitled to from the above employer?” 4. Appellant-Department though specifically admitted the factum with regard to engagement of workman as Beldar on 25.11.1997 and his serving the department upto 24.4.1998, but claimed that the workman was never disengaged, rather he left the job voluntarily and never approached the Assistant Engineer or Junior Engineer for his reengagement. Learned Tribunal below having perused the evidence led on record by the respective parties, found termination of services of the workman by the appellant-department w.e.f. 25.4.1998 to be illegal and unjustified and accordingly, setaside and quashed the same with further direction to reengage the workman forthwith. Learned Tribunal below further held the workman entitled to seniority and continuity in service from the date of his illegal termination i.e. 25.4.1998 except back wages. Apart from above, learned Tribunal also directed the appellant department to consider the case of the workman for regularization of his services as per the policies framed by the State Government/Board from time to time and directed that if the services of any person junior to the workman have already been regularized, the workman shall be entitled to regularization from the date/month of the regularization of the services of his juniors. 5. 5. Being aggrieved and dissatisfied with the aforesaid award, passed by the learned Tribunal below, appellant-Department approached this Court by way of Civil Writ Petition, as referred hereinabove, but same was dismissed as has been stated hereinabove. 6. Having carefully perused the impugned judgment passed by the learned Single Judge visavis material adduced on record by the respective parties, this Court finds no illegality and infirmity in the impugned judgment passed by the learned Single Judge, rather same appears to be based upon the correct appreciation of the evidence/material adduced on record. 7. Sh. Atul Mehta, Executive Engineer, HPSEB, Jogindernagar (RW1), while tendering his affidavit Ex.RW1/A, categorically admitted in his cross-examination that no notice was served upon the workman for resuming the duties and no departmental proceedings were initiated. Above named official also admitted that persons junior to the workman are serving under him till date. Most importantly, this witness admitted in his cross-examination that after 25.4.1998 i.e. when services of the workman were terminated, new/fresh hands have been employed and no opportunity of reemployment was afforded to the workman. 8. Mr. T.S.Chauhan, learned counsel representing the appellant-department, while referring to the pleadings adduced on record by the respective parties, made an endeavour to persuade this Court to agree with his contention that services of the workman were not terminated, rather he himself abandoned the job of his own. But having carefully perused the evidence led on record by the appellant-department, this Court is not inclined to agree with the aforesaid contention put forth by learned counsel representing the appellant. By now it is well settled that abandonment is to be established and not be presumed. In the case at hand, as has been noticed above, no notice was ever served upon the workman by the appellant calling upon him to resume his duties and as such, learned Single Judge, rightly arrived at a conclusion that abandonment cannot be attributed to the workman. Similarly, this Court finds that at no point of time proceedings, if any, were ever initiated against the workman by the appellant for willful absence from duty and as such, learned Single Judge rightly arrived at a conclusion that plea of willful abandonment by the workman raised by the employer is not proved, in accordance with law. Similarly, this Court finds that at no point of time proceedings, if any, were ever initiated against the workman by the appellant for willful absence from duty and as such, learned Single Judge rightly arrived at a conclusion that plea of willful abandonment by the workman raised by the employer is not proved, in accordance with law. Though, appellant-Department set up a case before the learned Tribunal below that workman himself abandoned the job, but as has been noticed hereinabove, Sh. Atul Mehta, Executive Engineer, HPSEB (RW1), nowhere stated that after alleged abandonment of job, notice, if any, was ever served upon the workman for resuming the duties. There is no document available on record suggestive of the fact that at any point of time after alleged abandonment of work by the workman, notice, if any, was ever issued by the employer asking/advising workman to resume duty, failing which action shall be taken against him. In this regard, reliance is placed upon the judgment passed by Bombay High Court in case titled Ocean Creations Vs. Manohar Gangaram Kamble 2013 SCC Online Bom 1537: 2014 140 FLR 725. It is profitable to reproduce paras No.8, 9 and 10 of the judgment herein:- “8. The legal position is also settled that ‘abandonment or relinquishment of service’ is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact which is to be determined in the light of surrounding circumstances of each case. It is well settled that even in case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to resume duties, to hold an enquiry before terminating services on such ground. 9. In somewhat similar circumstances a Division Bench of this court comprising P.B.Sawant, J.(as he then was) and V.V.Vaze, J. in the case of Gaurishanker Vishwakarma v. Engle Spring Industries Pvt. Limited. Observed thus: “…..it is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. Observed thus: “…..it is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service….. It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company’s partner Anand had kept on promising him that he would be taken in service, he was not given work and hence he was forced to approach the Government Labour Officer. In the circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer….” 10. Again a learned Single Judge of this court R.M.Lodha, J( as he then was) in the case of Mahamadsha Ganishah Patel v. Mastanbaug Consumers’ Coop. Wholesale & Retail Stores Ltd. Observed thus:- “….The legal position is almost settled that even in the case of abandonment of service, the employer has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up despite such notice, the employer should hold inquiry on that ground and then pass appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. Moreover, abandonment of service is always a matter of intention and such intention in the absence of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under Item-I, Schedule IV of the MRTU & PULP Act…..” 9. Similarly, as has been noticed hereinabove, Executive Engineer, HPSEB, Jogindernagar, has categorically admitted in his cross-examination that after alleged termination of the workman, new/fresh hands have been employed and no opportunity was afforded to the workman and as such, there is complete violation of Sections 25H and 25G of the Act and it stands duly proved on record that services of the workman were illegally terminated on 25.4.1998. Since, the workman worked with the appellant department, appellant is/was under obligation to afford opportunity to the workman-respondent for job, if, available in terms of Section 25H of the Act. 10. Another contention put forth by Mr. T.S.Chauhan, learned counsel representing the appellant that learned Tribunal below ought to have considered and decided the question of delay and latches in raising demand by the workman, deserve out right rejection. It is not in dispute that the respondent-workman, being aggrieved with the action of the appellant-department inasmuch as his prayer for referring the dispute to the Tribunal was rejected, approached this Court by way of Civil Writ Petition, as has been noticed hereinabove, and this Court vide judgment dated 14.5.2012, passed in CWP No.2758 of 2008, directed the appropriate Government to refer the dispute to the learned Industrial Tribunal. It is also not in dispute that in the aforesaid case specific plea with regard to delay and latches was raised by the appellant-department, but same was rejected and direction was issued to the appropriate Government to refer the matter to learned Industrial Tribunal for adjudication. It is also not in dispute that in the aforesaid case specific plea with regard to delay and latches was raised by the appellant-department, but same was rejected and direction was issued to the appropriate Government to refer the matter to learned Industrial Tribunal for adjudication. Aforesaid judgment has attained finality because no appeal was ever filed against the said judgment and as such, at this stage, appellant cannot be allowed to raise plea with regard to delay and latches in raising demand by the respondent-workman. Otherwise also, by now it is well settled that Tribunal below could not go beyond terms of reference sent to it by the appropriate Government. Contention raised by Mr. T.S.Chauhan, learned counsel representing the appellant-department that since there was considerable delay in raising demand by the workman, learned Tribunal below ought to have dismissed their claim, on the ground of delay and latches, has no substance because learned Tribunal below is/ was bound to answer the specific terms of reference, made to it by the appropriate Government, under Section 10(2) 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. Rather, learned Tribunal below was called upon to answer reference that “whether termination of services of the workman without following the provisions of Industrial Tribunal Act, 1947, is legal and justified”. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in Mukand Ltd. V. Mukand Staff & 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. 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 a ward. Even assuming, without admitting, that the Reference covered the nonworkmen, 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.” 11. Otherwise also, learned Tribunal below, taking note of the fact that dispute was raised after considerable time, has denied back wages to the aforesaid workman. Hence, this Court finds no illegality and infirmity in the impugned Award passed by learned tribunal below, which otherwise appears to be based upon the correct appreciation of the evidence and law and as such, learned Single Judge has rightly upheld the same. 12. Hon’ble Apex Court in Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157, has categorically held that writ Court has very limited jurisdiction to reappreciate findings of fact returned by the learned Tribunal below. 12. Hon’ble Apex Court in Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157, has categorically held that writ Court has very limited jurisdiction to reappreciate findings of fact returned by the learned Tribunal below. In the aforesaid judgment, Hon’ble Apex Court has categorically held that courts while examining correctness and genuineness of the award passed by the 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 cannot be questioned in writ proceedings and writ court can not act as an appellate Court. An error of law, if any, 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. It would be profitable to reproduce following paras of the judgment 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. 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. 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 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. 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 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. 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. 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. 13. Consequently, in view of the detailed discussion made hereinabove, this Court sees no reason to interfere in the well reasoned judgment passed by the learned Single Judge, which otherwise appears to be based upon proper appreciation law and as such, same is upheld. Pending application(s) if any, also stands disposed of.