Executive Officer, Municipal Council, Dalhousie v. Anil Kumar
2019-05-29
SANDEEP SHARMA
body2019
DigiLaw.ai
JUDGMENT : Sandeep Sharma, J : 1. Since similar question of facts and law are involved in these petitions, as such, same were tagged together and are being disposed of by this common judgment. However, for the sake of clarity, facts of CWP No. 9814 of 2012 are being discussed herein, which are almost similar in all the petitions. 2. By way of CWP No. 9814 of 2012, challenge has been laid to Award dated 21.1.2012 passed by learned Industrial Tribunal-cum-Labour Court, Dharamshala in Ref. No. 192/2010, holding retrenchment of the respondentworkman (hereinafter, ‘workman’) invalid, consequently holding the workman entitled to continuity and seniority from the date of illegal disengagement. 3. Facts, as emerge from the record are that the appropriate Government made following reference under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter, ‘Act’) to the learned Tribunal below, for determination: “Whether termination of the services of Sh. Anil Kumar S/o Shri Karam Chand, by The Executive Officer, Municipal Council, Dalhousie, Distt. Chamba, H.P. w.e.f. 10.7.2002 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of back wages, service benefits and amount of compensation the above aggrieved workman is entitled to?” 4. In the statement of claim made before learned Tribunal below, workman alleged that he was engaged as a Helper on daily wages in April, 1998. He continued as such, till his disengagement on 10.7.2002. As per workman, petitioner vide notice dated 10.7.2002 dispensed with his services with effect from 10.7.2002 without giving him any retrenchment compensation, as such, his termination being in violation of the provisions of Section 25F of the Act ibid, deserves to be quashed and set aside. Workman further alleged that after his disengagement, persons junior to him were retained and as such, there is violation of provisions of S.25G of the Act. Record reveals that prior to raising dispute before appropriate Government, workman had approached Himachal Pradesh Administrative Tribunal, by way of an Original Application, which was disposed of with a direction that the workman would be considered for reengagement as per availability of work and funds. Subsequently, the workman raised an industrial dispute before the competent Authority, who, exercising power under Section 10(1), made aforesaid reference to learned Tribunal below. 5.
Subsequently, the workman raised an industrial dispute before the competent Authority, who, exercising power under Section 10(1), made aforesaid reference to learned Tribunal below. 5. Record reveals that the petitioner though was served on 5.3.2011, but despite service, none put appearance and as such, it was proceeded against ex parte. Learned Tribunal below, in the totality of evidence led on record by the workman held his termination bad in law and directed the petitioner to reengage him forthwith by giving benefit of seniority and continuity from the date of his illegal disengagement. Learned Tribunal below held the workman not entitled to back wages. Since workman failed to lay challenge, if any, to the aforesaid Award, same has attained finality qua him. 6. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning given by learned Tribunal below, while passing impugned award, this Court is not persuaded to agree with Mr. Adarsh K. Vashista, learned counsel for the petitioner-Council that impugned award is not based upon proper appreciation of the evidence and law, rather, this Court finds from the careful perusal of the material adduced on record by the workman that learned Tribunal below rightly held the termination of the workman illegal and in violation of provisions of the Act. Workman, while appearing as PW-1 reiterated the pleas raised by him in his claim. He deposed that he worked with the petitioner-Council with effect from 30.4.1998 to 9.7.2002 and had completed 240 days in the calendar year prior to his illegal retrenchment. He also stated that his services were disengaged orally without any notice and persons junior to him were retained by the petitioner. Aforesaid version put forth by the workman remained unrebutted because none appeared on behalf of the petitioner. It is ample clear from the statement of claim made by workman, that his services were disengaged without complying with the provisions contained under S.25F of the Act, whereby prior notice was required to be issued to the workman. Hence, learned Tribunal below rightly held action of the petitioner to be violative of provisions of S.25F of the Act ibid. 7.
Hence, learned Tribunal below rightly held action of the petitioner to be violative of provisions of S.25F of the Act ibid. 7. Record also reveals that the workman, in his statement of claim, himself admitted that the workman had issued notice dated 10.7.2002 to disengage him with effect from 9.7.2002, wherein he was further directed to collect retrenchment compensation, if any, on 15.7.2002, meaning thereby that no retrenchment compensation, if any was paid to the workman at the time of termination of his services. 8. As per S.25F(b) of the Act, a workman is required to be paid retrenchment compensation equivalent to 15 days of average pay of every completed year of continuous service or in part thereof in excess of six months at the time of retrenchment. It is clear from the plain reading of aforesaid provision that requirement prescribed under sub-sections (a) and (b) is condition precedent to retrenchment and failure, if any, to comply with the same, would render the retrenchment invalid and inoperative. 9. Hon'ble Apex Court in National Iron and Steel Company Ltd. vs. State of West Bengal (1967) II LLJ 23 (SC) has dealt with similar situation wherein, employer while issuing notice dated 15.11.1958 under S.25F of the Act ibid directed the workman to collect retrenchment compensation on November 20 or thereafter. The Hon'ble Apex Court held that manifestly the provisions of S.25F had not been complied and as such, termination in violation of the same deserves to be quashed and set aside. 10. In the case at hand, though there is nothing to rebut the testimony of the workman, who claimed that no notice ever came to be issued under S.25F before his illegal retrenchment, but even if it is presumed and accepted that prior notice was issued, this Court cannot be lose sight of the fact that since no retrenchment compensation as envisaged under S.25F(b) of the Act ibid was paid alongwith the notice, termination of the services of workman cannot be held in accordance with law. 11. Though having carefully examined/analyzed the evidence, this Court finds no force in the argument of Mr. Adarsh K. Vashista, learned counsel for the petitioner that there is no proper appreciation of the evidence, but, otherwise also, this Court has limited scope to re-appreciate the evidence. 12.
11. Though having carefully examined/analyzed the evidence, this Court finds no force in the argument of Mr. Adarsh K. Vashista, learned counsel for the petitioner that there is no proper appreciation of the evidence, but, otherwise also, this Court has limited scope to re-appreciate the evidence. 12. In this regard, it would be apt to take notice of judgment rendered by Hon'ble Apex Court in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. wherein it has been 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 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 while 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.” 13. Aforesaid exposition of law though clearly reveals that there is no complete bar for a writ Court to examine the correctness and genuineness of the Award passed by the Tribunal below but at the same time, an error of fact cannot be corrected by a writ Court, however grave it may appear to be. 14. Having carefully perused the evidence led on record by the workman vis-à-vis reasoning assigned by learned Tribunal below, while answering reference made to it, this Court finds no illegality or infirmity in impugned award, which deserves to be upheld. 15. Accordingly, all the petitions are dismissed. Awards passed by learned Tribunal below, impugned by way of the instant petitions, are upheld. All pending miscellaneous applications in all the petitions also stand disposed of. Interim directions, if any, are vacated.