C.W.P.No.3595 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.3595 of 2010 Date of Decision:- 28.05.2010 Jagtar Singh ....Petitioner(s) vs. Labour Court, Patiala and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Ms.Anju Arora, Advocate for the petitioner. *** AUGUSTINE GEORGE MASIH J. In the present writ petition, the Award dated 12.10.2009 (Annexure P-1) is under challenge whereby the petitioner-workman has been held entitled to compensation of Rs.25,000/- to be paid by the respondent-management in view of the fact that his services were terminated in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Learned counsel for the petitioner-workman contends that the Labour Court has returned a specific finding in the light of the admission made by MW-1, namely, P.L.Sayal, Deputy Controller (Finance and Accounts) that the workman had completed more than 240 days in service with the respondent-management in the last calendar year immediately before the termination of his services and further that the petitioner- workman had continuously worked with the respondent-management from C.W.P.No.3595 of 2010 -2- 29.11.1996 to 28.7.1999 as part-time Water Carrier and further, the termination of services of the workman was in violation of Section 25-F of the Act. The Labour Court ought to have ordered reinstatement of the petitioner-workman in service. She contends that the respondent- management had not taken a specific stand before the Labour Court that the admission of the petitioner-workman was de hors the statutory rules governing his service and therefore, the Labour Court has wrongly proceeded to hold that the admission of the petitioner-workman being not in consonance with the statutory rules and his appointment being on ad- hoc/temporary basis, he would not be entitled to reinstatement in service. In support of her contention, she relies upon a judgment of the Hon’ble Supreme Court in the case of Ramesh Kumar v. State of Haryana, 2010 (2) RSJ-166, wherein it has been held by the Hon’ble Supreme Court that the management having not taken a stand with regard to the initial appointment of the workman being contrary to the recruitment rules and the constitutional Scheme of employment before the Labour Court or before the High Court at the first instance, cannot be allowed to be raised before the High Court when the matter was remitted by the Hon’ble Supreme Court for fresh adjudication. Reliance has also been placed upon a Single Bench judgment of this Court in the case of Kashmir Singh v. Director, State Transport Corporation and others, 2010 (2) SCT-61. I have heard the learned counsel for the petitioner and have gone through the records of the case. When the case came up for hearing on 2.3.2010, learned counsel for the petitioner had sought time to place on record the evidence which the petitioner had led before the Labour Court showing his C.W.P.No.3595 of 2010 -3- appointment to be according to the statutory rules governing the service, as the stand by the counsel for the petitioner was that the appointment of the petitioner was in accordance with law. After availing of two opportunities, Civil Misc. No. 5450 of 2010 was filed by the petitioner wherein Annexures P-2 to P-5 were placed on record. None of these documents show that the petitioner was appointed as per statutory rules governing the service. Rather, Annexure P-3 dated 24.3.1998 shows that there was no sanctioned post of water carrier. Annexure P-4 dated 24.3.1999 shows that the sanction was accorded by the respondent for appointment of part-time water carrier from 1.5.1999 to 28.7.1999 on daily-wage rates, at Rs.1585/- per month. Annexure P-5 dated 17.5.1999 shows that a reference was made by the Additional Director-cum-Principal to the Director (Treasury and Accounts) Finance Department, Punjab, Chandigarh, for sanction of the post of full- time water carrier for the year 1999-2000. All these documents, reliance whereupon has been placed by the learned counsel for the petitioner, do not indicate that the appointment of the petitioner-workman was against a sanctioned post or was on regular basis or in accordance with the statutory rules governing the service or as per constitutional scheme for employment to the post. It is not in dispute that the petitioner-workman was appointed on daily-wage basis as part-time water carrier. As per evidence led by the respondent-management, MW-1 P.L.Sayal, Deputy Controller (Finance and Accounts), he had stated in his affidavit that no post of water-carrier was in existence in the Accounts Training Institute, Mohali. Nothing has been brought on record by the petitioner-workman that there did exist a post of water-carrier against which he could be reinstated in service. The C.W.P.No.3595 of 2010 -4- petitioner has also failed to show that his appointment was in accordance with the statutory rules governing the service. For violation of the provisions of the Act while terminating the services of the petitioner- workman, the learned Labour Court has rightly granted compensation of Rs.25,000/- instead of passing an order of reinstatement with back-wages. A reference in this regard can be made to the judgment of the Hon’ble Supreme Court in the case of District Telecom Manager and others v. Keshab Dev, 2008 (4) S.C.T. 33 and a Division Bench judgment of this Court in the case of State of Haryana v. Ishwar Singh and another, 2008 (3) S.C.T. 788. The jurisdiction of the High Court is restrictive as has been explained by the Hon’ble Supreme Court in para 7 of its judgment in the case of Syed Yakoob v. K.S.Radhakrishanan, AIR 1964 SC 477, which reads as follows:- “7. 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 C.W.P.No.3595 of 2010 -5- 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. 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 C.W.P.No.3595 of 2010 -6- Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 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 Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath vs. Ahmad Ishaque, 1955-1 SCR 1104: (S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.” The Hon’ble Supreme Court however in the case of Harjinder Singh v. Punjab State Warehousing Corporation, 2010 (2) Law Herald SC-1002, in para 11 has held as follows:- “In Surya Dev Rai's case, a two Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions: “(1) Amendment by 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 C.W.P.No.3595 of 2010 -7- 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 or the exercise of C.W.P.No.3595 of 2010 -8- 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. Care, caution and circumspection need to be exercised, when any of the above-said 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 thereagainst and entertaining a petition C.W.P.No.3595 of 2010 -9- 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 there error is such, as, if not corrected 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 a refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory 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 supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” C.W.P.No.3595 of 2010 -10- A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2 (oo) (bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of the corporation was contrary to Section 25-G of the Act which embodies the rule of last come first go basis. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour C.W.P.No.3595 of 2010 -11- Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and overturned an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.” A perusal of the above would show that the Hon’ble Supreme had observed that the Labour Court did not get any opportunity to consider the issue whether reinstatement could be denied to the appellant by applying the new jurisprudence developed by the superior Courts in recent years that the Court should not pass an award which may result in perpetuation of illegality. In the present case, the learned Labour Court had taken the law as has been laid down by the Hon’ble Supreme Court in the changed legal jurisprudence. Further, the Hon’ble Supreme Court in the case of Mahboob Deepak v. Nagar Panchayat, Gajraula and another, (2008) 1 SCC-575 had laid down the following factors which are relevant for determining whether an award of reinstatement should or should not be passed:- (i) whether in making the appointment, the statutory rules, if C.W.P.No.3595 of 2010 -12- any, had been complied with; (ii) the period he had worked; (iii)whether there existed any vacancy; and (iv) whether he obtained some other employment on the date of termination or passing of the award.” In Ghaziabad Development Authority and another v. Ashok Kumar and another, (2008) 4 SCC-261, the Hon’ble Supreme Court has held that when the management before the Labour Court takes a plea that the post on which the workman was working, was not sanctioned and there was nothing on record to suggest that there existed such post, the Labour Court should not direct reinstatement of the workman in service. In the light of the above judgments of the Hon'ble Supreme Court, judgment of this Court in Kashmir Singh’s case (supra), reliance whereupon has been placed by the learned counsel for the petitioner cannot be pressed into service. The judgment in Ramesh Kumar’s case (supra) relied upon by the learned counsel for the petitioner, would not be of much help to the claim of the petitioner-workman as the Hon’ble Supreme Court primarily had passed an order of reinstatement and in para 12 the Hon’ble Court has clearly spelt out that it was a case of clear discrimination where said Ramesh Kumar had been singled out, as per facts involved therein. In the present case, the management-witness has specifically stated that there was no post of water-carrier in existence in the Accounts Training Institute, Mohali, where the petitioner was working and there is no evidence to the contrary, the Labour Court, thus, C.W.P.No.3595 of 2010 -13- could not have passed an order of reinstatement in service of the petitioner. The award under challenge is in accordance with law and accordingly upheld. In view of the above, there is no merit in the present writ petition and the same is hereby dismissed. May 28, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters? Yes/No.