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2022 DIGILAW 395 (JHR)

Dewa Singh v. State of Jharkhand

2022-04-05

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2022
ORDER : The instant intra-court appeal is directed against the order/judgment dated 06.01.2022 passed by Learned Single Judge of this Court in W.P. (L) No. 6614 of 2010 whereby and whereunder the award dated 16.01.2010 passed in Reference Case No. 01 of 2002, by which the reference was answered against the petitioner, was refused to be interfered with. 2. The brief facts of the case, as per pleadings in the writ petition, which require to be enumerated, are as hereunder: The writ petitioner, namely, Dewa Singh, who claims himself to be workman, appointed on 01.04.1996 on the post of General Foreman and was assigned to do job/work personally and through workers. It is the case of the petitioner that he was illegally terminated/superannuated w.e.f. 15.07.1999, which ultimately culminated into drawing of reference, being Reference Case No. 01 of 2002 whereby the Labour Court has negated the reference by passing award dated 16.01.2010 holding therein that the writ petitioner is not entitled for the relief in the instant reference. The writ petitioner being aggrieved with the said award approached to this Court, invoking the power conferred to this Court under Article 226 of the Constitution of India, by preferring writ petition being W.P. (L) No. 6614 of 2010, on the ground that the status of writ petitioner comes within the definition of Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘Act, 1947’) as he was performing duty as General Foreman and was doing all types of work assigned to him and, further he was dismissed/retrenched at the age of 55 years contrary to the rules of the company where the age of superannuation is 60 years. The learned Single Judge, appreciating the argument advanced on behalf of parties and considering the scope to interference with the fact finding recorded by the Tribunal, refused to interfere with the award passed by the Tribunal by dismissing the writ petition, which is the subject matter of present intra-court appeal. 3. Mr. The learned Single Judge, appreciating the argument advanced on behalf of parties and considering the scope to interference with the fact finding recorded by the Tribunal, refused to interfere with the award passed by the Tribunal by dismissing the writ petition, which is the subject matter of present intra-court appeal. 3. Mr. Indrajit Sinha, learned counsel for the petitioner has taken the ground that the learned Single Judge has failed to appreciate the fact that the writ petitioner was discharging his duty with supervisory capacity but without considering that aspect of the matter the Tribunal came to the finding holding in the award that the writ petitioner is not coming under the fold of ‘workman’ as per the definition contained under Section 2(s) of the Act, 1947. The second ground upon which award has been passed against the writ petitioner is that the age of superannuation of employee was 55 years and as such considering that aspect of the matter the Tribunal has passed the award against the petitioner holding therein that the action of the management in retiring the workmen on attaining the age of superannuation i.e. 55 years cannot be said to be justified, which according to learned counsel for the petitioner is contrary to the rules where the age of superannuation is 60 years. 4. According to learned counsel for the respondents, the petitioner has failed to produce any evidence so as to exclude him from exception (iv) of Section 2(s) of the Act, 1947 suggesting that he is workman of the management and if the Tribunal taking into consideration that aspect of the matter had answered the award against the petitioner, the same cannot be said to be unjustified. The learned Single Judge since taking into consideration that aspect of the matter has declined to interfere with the fact finding recorded by the Tribunal, which cannot be said to be improper. 5. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge. The learned Single Judge since taking into consideration that aspect of the matter has declined to interfere with the fact finding recorded by the Tribunal, which cannot be said to be improper. 5. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge. Admittedly, the petitioner, namely, Dewa Singh retired on attaining the age of superannuation i.e. at the age of 55 years, i.e., 15.07.1999 but according to petitioner, he ought to have retired on attaining the age of 60 years, as such dispute arose, which finally culminated into reference to be answered by the Tribunal in Reference Case No. 01 of 2002 to the effect that: “Whether to give retirement to Shri Deva Singh since 07.02.2000 by the management M/s Teksons Cooling System Pvt. Ltd.; Industrial Area, Larze sector, Gamhariya, West Singhbhum, is justified? If not, what relief the above workman is entitled to? Before the Tribunal, the petitioner was denied to be workmen by the respondent-Management, while, the petitioner claimed himself to be workman within the meaning of workmen as contained under Section 2(s) of the Act, 1947. The workman further contended that 55 years age has not been provided as the age of superannuation rather the age of superannuation is 60 years; while the learned counsel appearing for the respondent based upon the service rule had shown before the Tribunal the age of superannuation to be 55 years. The Tribunal, considering the material produced before it, passed award answering the reference against the workman, which was assailed before this Court by invoking jurisdiction conferred under Article 226 of the Constitution of India but the learned Single Judge refused to interfere with the same, hence, the present intra-court appeal has been preferred. 6. From perusal of award it appears that the award has been answered by the Tribunal on two grounds, i.e., (i). Regarding the status of the petitioner, i.e., as to whether he is workman within the meaning of Section 2(s) of the Act, 1947 and; (ii).What is the age of superannuation as per the service condition prevalent under the respondent-management? 6. From perusal of award it appears that the award has been answered by the Tribunal on two grounds, i.e., (i). Regarding the status of the petitioner, i.e., as to whether he is workman within the meaning of Section 2(s) of the Act, 1947 and; (ii).What is the age of superannuation as per the service condition prevalent under the respondent-management? So far as the first issue i.e., regarding status of the writ petitioner as workman within the meaning of Section 2(s) of the Act, 1947 is concerned, the Tribunal has given a finding after perusing the evidence, oral as well as documentary, adduced in this regard on behalf of parties. Dewa Singh, the petitioner himself examined before the Tribunal as W.W. 1, and deposed that he was working on the post of ‘General Foreman’ since 01.06.1994 and was doing all types of job by his own hand, and denied that he was doing supervisory work. On the other hand, the Management witness, M.W. 1 has deposed that the petitioner was working as supervisor in the company and was appointed on the post of General Foreman. He had proved the appointment letter dated 01.06.1994 of the petitioner and marked as Exhibit M. The job responsibilities of the petitioner prepared by the Project Manager was marked as Exhibit M/1, in which, list of work assigned duty/responsibilities for the post of general foreman, the post which the petitioner was occupying, was given which includes the work of selection of skilled workers, carry out duties of workers working under him, identity of fabrication parties and carry out preliminary investigations/negotiations for equipment to be fabricated at Jamshedpur and to take interview/select the workers and to make a team to carry out initial foundation work and to do other work. The confirmation letter of the appointment of the petitioner was proved and marked as Exhibit M/2. This witness had further deposed that the petitioner does not operate machine by his own hand rather his main work was as a supervisor and assigning duty to workers. The confirmation letter of the appointment of the petitioner was proved and marked as Exhibit M/2. This witness had further deposed that the petitioner does not operate machine by his own hand rather his main work was as a supervisor and assigning duty to workers. In order to establish this fact he had proved the duty chart prepared by petitioner and marked as Exhibit M/5 and, M/5-A to M/5-C. This witness had further deposed that the confidential reports, resignation letter of other workman as also leave application were being forwarded by the petitioner, which was proved and marked as Exhibit M/6, M/7 to M/7-C, M/8, M/9, M/10-M/10-I. The management witness, M.W.2, also supported the case of the Management and deposed that the petitioner used to grant leave to the workmen, assign job/duty and distribute work of the factory to other workers working under him. The Tribunal, on perusal of the oral and documentary evidence, came to conclusive finding on this issue that ‘the principal job of the Sri Dewa Singh was to oversee the work of the employees working under him who were subordinate and were lower ladder of the hierarchy and the said Sri Dewa Singh had independent discretion and to take decision obviously on behalf of the company and as such he would fall within the category of supervisor and would be exempted from the definition of workman within the meaning of section 2(s) of the I.D. Act, 1947.’ The Tribunal further came to the conclusive finding that ‘Sri Dewa Singh was vested with a power to discharge his duty as supervisory capacity, and which excludes him within the meaning of section 2(s) of the I.D. Act, 1947. And is further held that Sri Deva Singh is not a workman within the meaning of I.D. Act, 1947.’ So far issue no. (ii) i.e., the age of superannuation as per the service condition prevalent under the respondent-management, is concerned, the petitioner had deposed before the Tribunal that he was supposed to retire on attaining the age of 60 years, however, in cross-examination he failed to produce any chit of paper showing the age of superannuation 60 years. While, on the other hand, the management witness, M.W. 1 has proved the service rule, which was marked as Exhibit M/4. While, on the other hand, the management witness, M.W. 1 has proved the service rule, which was marked as Exhibit M/4. The management witness, M.W. 2 had also supported the rule mentioned in the Service Rule of the company, and deposed that as per the service rule, the petitioner was superannuated on attaining the age of 55 years. The tribunal had also taken note of Clause 20 of the Employees Service Rules, which stipulates that: “Clause 20-The age of superannuation of an employee shall be 55 years reckoned with reference to the records of the company relating to the age as maintained under rule 19. The company reserves the right to require an employee to report to company’s approved Medical Officer for periodical medical check-up to determine his fitness to continue in service and in case an employee is found unfit he is liable to be terminated. Refusal to appear before the Medical Officer, if and when required by the company, shall constitute a misconduct and will be dealt with in accordance with these rules.” The Tribunal had further considered the notice of superannuation dated 1.12.1994 in which it was intimated that the employees shall be regulated through service rules and conditions of the company and copy of the service rules was also displayed on the company’s notice board and the said service rule came into force w.e.f. 01.01.1995, which discloses about the notice dated 01.12.1994. The tribunal, taking into consideration the documents, oral and documentary, had come to the conclusion by answering the issue against the writ petitioner. 7. Since the tribunal has answered the reference on the basis of relevant documents, both documentary and oral evidences, and as such in such circumstances this Court is required to look into as to whether the High Court sitting under Article 226 of the Constitution of India can reverse the fact finding recorded by the Tribunal? 8. The position of law is well settled, as has been held by Hon’ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, reported in A.I.R. (1964) 477 Supreme Court, wherein at paragraph no. 7 their Lordships have been pleased to held as follows:- “7. 8. The position of law is well settled, as has been held by Hon’ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, reported in A.I.R. (1964) 477 Supreme Court, wherein at paragraph no. 7 their Lordships have been pleased to held as follows:- “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 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 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. 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 11 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 Art. 226 to issue a writ of certiorari can be legitimately exercised.” In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh & Anr. Vrs. State of Punjab & Ors reported in (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 for issuance of writ of certiorari, has been please to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, “this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, “this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a 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.” “13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” Likewise, in the case of Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been pleased to hold placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at paragraph 14 as under:- “14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [ (1986) 4 SCC 447 ], held as under: “17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [ (1975) 1 SCC 858 : AIR 1975 SC 1297 ] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows: ‘7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [ AIR 1954 SC 215 ] (AIR p. 217, para 14) that the “power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [ AIR 1951 Cal 193 ] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors”. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [ AIR 1958 SC 398 ] and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30) “30. … It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.” It is thus, evident from bare perusal of the judicial pronouncement, as referred hereinabove, that the award if passed by the tribunal based upon the cogent evidence, it could not be proper for the writ Court to re-appreciate the evidence by substituting the view already taken by the Tribunal while answering the reference, otherwise the High Court in exercise of power conferred under Article 226 of the Constitution of India will be said to be exercising the appellate jurisdiction. 9. It has been settled by the Hon’ble Apex Court about the jurisdiction of the writ Court for interference with the award, i.e., only in case if there is perversity of finding or award is based on erroneous evidence. According to our considered view, after going through the award, it cannot be said that the award passed by Tribunal while answering the reference is based upon the perverse finding or on the extraneous consideration of the evidence produced by the parties rather according to our considered view the award is based upon consideration of the documentary as well as oral evidence produced before it. 10. The learned Single Judge since has declined to interfere with the award which according to our considered view cannot be said to suffer from any error on the basis of discussions made herein above. 11. Accordingly, the appeal fails and is dismissed.