The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.30 of 2020 With I.A. No.9846 of 2022 ------ Secretary, M/s Chhotanagpur Khadi Gramodyog Sansthan Tiril Ashram, through its secretaryBhawna @ Bhawna Choudhary, W/o Abhay Kumar Choudhary, R/o Tiril Ashram Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi …. …. Appellant Versus Ashok Kumar Das, C/o-Dipali Sarkar, R/o-Kumhar Toli, Parnala, P.O. & P.S.-Hazaribagh, District-Hazaribagh .... .... Respondent CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND ------ For the Appellant For the Respondent : : Mr. Kalyan Roy, Advocate ------ 08/Dated: 21.03.2023 Per Sujit Narayan Prasad, J. I.A. No.9846 of 2022 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 215 days in preferring this Letters Patent Appeal. 2. 3. Heard. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. 4. Accordingly, I.A.No.9846 of 2022 is allowed and delay of 215 2 days in preferring the appeal is condoned. L.P.A. No.30 of 2020 5. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 18.05.2019
Legal Reasoning
passed by the learned Single Judge of this Court in W.P.(L) No.1221 of 2008, whereby and whereunder, the writ petition has been dismissed refusing to interfere with the award dated 23.11.2007 passed in reference case no.07 of 2006. 6. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder:- It is the case of the petitioner-appellant that during the tenure of the workman as Cashier, an FIR was lodged against him by the Mangement for committing theft of cash and garments and after lodging of the FIR, the workman was put under suspension w.e.f. 17.10.1995. A final form was submitted in favour of the workman and the workman immediately rushed the office of the management and requested him to accept his joining. Since the management did not accept his joining of workman, the workman moved before this Court by filing writ petition being W.P.(S) No.378 of 2002. Vide order dated 05.03.2002, the aforesaid writ petition was disposed of directing the management to pass a reasoned order in respect of representation of the workman. In the departmental enquiry, the workman was given ample opportunity to defend his case. The inquiry officer after considering the oral and documentary evidence has found the workman guilty of the charges and he was dismissed from service. The workman, respondent being aggrieved with his dismissal 3 from service has raised the dispute, which has been referred for its answer by making reference to the effect that: “Whether the dismissal of Sri Ashok Das, Cashier by Secretary, Khadi Gramodyog Sangh, Hazaribagh and Secretary, Chhotanagpur Khadi Gramodyog Sansthan, Sarbodaya Ashram, Tiril, Ranchi is justified? If not, what relief he is entitled to?” The learned Labour Court after having framed the issue, i.e., (a) Whether the Management is an Industry as defined u/s 2(j) of the Industrial Disputes Act, 1947? (b) Whether the dismissal of the workman is justified? (c) To what relief the workman is entitled to? The learned Labour Court after taking into consideration the rival submission has answered the issue no.(i) holding the petitioner Chhotanagpur Khadi Gramodyog Sansthan, Ranchi and Khadi Gramodyog Sansthan, Hazaribagh to be an industry within the meaning of section 2 (j) of the Industrial Disputes Act, 1947. So far as the issue no.(ii) is concerned, i.e., Whether the dismissal of the workman is justified, the Labour Court has been pleased to answer the said issue by coming to the conclusive finding that the workman since was dismissed from service without holding any departmental enquiry and as such, decision of dismissal passed against the workman since is in violation of the principle of natural justice and hence, the same has been decided in favour of the workman. So far as the issue no.(iii), i.e., to what relief the workman is entitled to, has been answered in favour of the workman by deciding 4 the award holding the workman to be entitled for reinstatement along with the back wages. The said award has been challenged before this Court by filing
Decision
the writ petition being W.P.(L) No.1221 of 2008 under Article 226 of the Constitution of India but the learned Single Judge of this Court by taking into consideration the finding recorded by the Labour Court, has refused to interfere with the award in question by dismissing the writ petition, which is the subject matter of the instant appeal. 7. Mr. Kalyan Roy, learned counsel for the appellant-petitioner has taken the ground that the learned Single Judge while refusing to interfere with the award has not taken into consideration the fact in right perspective that the establishment is not an industry as defined under Section 2(j) of the Industrial Disputes Act, 1947 and without any justifiable reason, the establishment has been held to be industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and as such, the aforesaid finding since was decided by way of preliminary objection by the Labour Court. Further, argument has been advanced by answering the issue no.(ii), i.e., whether the order of dismissal of the workman is justified or not, the Labour Court has gone into the fact that merely because the departmental proceeding was not conducted, hence, the dismissal order which has been interfered by the Labour Court, cannot be said to be justified, reason being that, the workman himself has not chosen to participate in the departmental proceeding and as such, he cannot be allowed to take the ground of violation of principle of natural justice. Learned counsel for the appellant, on the basis of the aforesaid 5 ground, has submitted that since all these aspects of the matter have not been considered by the learned Single Judge in right perspective, therefore, the impugned order suffers from patent illegality and hence, not sustainable in the eye of law. 8. We have heard the learned counsel for the appellant, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order. 9. This Court before entering into the legality and propriety of the impugned order, deems it fit and proper to refer the scope of judicial review to be exercised by the High Court sitting under Article 226 of the Constitution of India, as has been held in the case of Syed Yakoob Vrs. K.S. Radhakrishnan and Ors., A.I.R. 1964 Supreme Court 477, wherein at paragraph no.7 Their Lordships have been pleased to hold 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 6 influenced 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 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 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 (vide Hari Vishnu Kamath v. 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. Reference in this regard also may be made to the judgment rendered by the Hon’ble Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, it has been held at Paragraph-21, as hereunder :- “…….as to the character and scope of the writ of ‘certiorari’ and the conditions under which it could be issued. The question has been considered by this Court in ‘Parry and Co. v. Commercial Employees’ Association, Madras,’ AIR 1952 SC 179 (L):- ‘Veerappa Pillai v. Raman and Raman Ltd.’ AIR 1952 SC 192 (M); ‘Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi,’ AIR 1952 SC 319 (N), and quite recently in AIR 1954 SC 440(C). On following these authorities, the propositions may be taken as established: (1) ‘Certiorari’ will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate 7 jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in “certiorari”…….” In another judgment of Hon'ble Apex Court in Sawarn Singh and Anr. Vrs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been pleased 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 certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be the exercise of issued only 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's case (supra)……… in 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.” Now reverting to the facts of the given case, it is evident that the workman after having been dismissed from service, a dispute was raised which has been referred for its answer before the Labour Court for answering the reference to the effect: 8 “Whether the dismissal of Sri Ashok Das, Cashier by Secretary, Khadi Gramodyog Sangh, Hazaribagh and Secretary, Chhotanagpur Khadi Gramodyog Sansthan, Sarbodaya Ashram, Tiril, Ranchi is justified? If not, what relief he is entitled to?” It appears from the record that the issue of industry is not coming under the fold of industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, was raised by way of preliminary objection. The aforesaid preliminary objection was dealt with by the Labour Court and decided the same in favour of the workman, vide order dated 09.09.2006 by putting reliance upon the judgment rendered by the Hon’ble Apex Court in the case of Gopalji Jha Shastri Vs. State of Bihar, reported in (1983) PLJR (SC) 21. The fact about adjudication of the preliminary objection regarding the fact that the Management is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, even though, was decided by the Labour Court on 09.09.2006, but the said order has been challenged by filing the writ petition being W.P.(L) No.6535 of 2006. It appears from the order passed by the learned Single Judge, wherein, the thoughtful consideration has been given regarding the finding recorded by the Labour Court holding the establishment to be industry within the meaning of Section 2(j) of the Act, 1947 after taking into consideration the judgment rendered by the Hon’ble Apex Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa & Ors., reported in (1978) 2 SCC 213 and Gopalji Jha 9 Shastri (supra) and has come to the conclusive finding that the Chhotanagpur Khadi Gramodyog Sansthan, Ranchi and Khadi Gramodyog Sansthan, Hazaribagh are industry within the meaning of Section 2(j) of the Act, 1947. 10. We have considered the finding recorded by the Labour Court in the award, wherefrom, it is evident that the learned Labour Court has considered the fact “as to whether the Management is an establishment or not” and after taking into consideration the fact that no material was placed before the Court to suggest that the constitution and activities of the management is in anyway different than that of Bihar Khadi Gramodyog Sangh. Such view was taken on the basis of the judgment rendered by the Hon’ble Apex Court in the case of M/s Northern Carriers Pvt. Ltd. Vs. Jullundur Improvement Trust, Jullundur and Ors., reported in AIR 1983 SC 282, wherein, the Hon’ble Apex Court has been pleased to hold that Bihar Khadi Gramodyog Sangh is an Industry within the meaning of the expression of Section 2(j) of the Industrial Disputes Act, 1947, holding therein that Tamilnadu Khadi and Village Industries Board is also an Industry. Further, the Labour Court has also taken into consideration the judgment rendered by the Hon’ble Apex Court in the case of Gopalji Jha Shashtri (supra), wherein, it has been held that in view of the wide sweep of the expression ‘industry’ as given by the constitution bench of the Supreme Court, Bihar Khadi Gramodyog Sangh is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. 10 11. This Court, in order to come to the conclusive finding has also considered the judgment rendered by the Hon’ble Apex Court in the case of Northern Carriers Pvt. Ltd. (supra) and Gopalji Jha Shashtri (supra), wherein, the conclusive finding has been given holding the Bihar Khadi Gramodyog Sangh to be an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The Labour Court, after taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Northern Carriers Pvt. Ltd. (supra) and Gopalji Jha Shashtri (supra) and taking into consideration the fact that no material was placed before the Court to suggest that the constitution and activities of the management is in anyway different than that of the Bihar Gramodyog Sangh, has come to the conclusive finding by holding the Chhotanagpour Khadi Gramodyog Sansthan and Khadi Gramodyog Sansthan, Hazaribagh to be an industry. The learned Single Judge has appreciated the aforesaid finding based upon the judgment rendered by the Hon’ble Apex Court in the case of Bangalore Water Supply and Sewerage Board Vrs. A. Rajappa and others (supra), wherein, at paragraph-140, the discussion about the definition of industry has been delved upon, for ready reference paragraph-140 of the aforesaid judgment is being referred as under:- “140. “Industry’, as defined in Section 2(j) and explained in Banerji, has a wide import. “(a) Where (i) systematic activity, (ii) organized by co- operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to 11 satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an ‘industry’ in that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.” Further, in Gopalji Jha Shastri Vrs. State of Bihar (supra) wherein, at paragraph-2, it has been held which reads as under:- “2. The point raised in this appeal would be covered by the decision of the Constitution Bench composed of seven Judges of this Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa1. The wide sweep of expression “industry” as interpreted therein will comprehend Bihar Khadi Gramodyog Sangh and, therefore, following the decision it must be Held that Bihar Khadi Gramodyog Sangh is an industry within the meaning of the expression of Section 2(j) of the Industrial Disputes Act, 1947. Consequently, the contention raised in this appeal must fail. That being the only point, the appeal fails and is dismissed.” 12. Learned Single Judge since has considered the ratio laid down by the Hon’ble Apex Court in the case of Bangalore Water Supply and Sewerage Board Vrs. A. Rajappa and others (supra) and Gopalji Jha Shastri Vrs. State of Bihar (supra) and taking into consideration the finding recorded by the Labour Court in the impugned 12 order which led the Labour Court to come to the conclusion that the Chhotanagpur Khadi Gramodyog Sansthan, Ranchi and Khadi Gramodyog Sansthan, Hazaribagh are industry within the meaning of Section 2(j) of the Industrial Disputes Act, which according to our considered view, cannot be said to suffer from an error. 13. So far as the issue no.(ii) which pertains to the legality and propriety of the order of dismissal, it appears from the impugned award that a criminal case was instituted with respect to theft committed in the establishment of the Management. The police had submitted final form which was accepted by the learned Chief Judicial Magistrate, Hazaribagh. A domestic enquiry was conducted in which the charge of about theft of the articles have been found to be proved basis upon which the order of dismissal has been passed. 14. The question of propriety of the enquiry is the subject matter before the Labour Court wherein the ground was agitated that the domestic enquiry cannot be said to be in pursuant to the observance of the principle of natural justice, since, the workman was never been allowed to cross-examine by the Management to controvert his contention regarding non-holding of the departmental proceeding or being informed to take part in the departmental proceeding. It was contended that the departmental proceeding was initiated behind the back and as such, the workman was not provided adequate and sufficient opportunity to defend and in utter violation of principle of natural justice, the order of dismissal has been passed. The Labour Court after taking into consideration the aforesaid aspects of the matter, has interfered with the order of dismissal by 13 quashing and setting it aside, which according to our considered view, cannot be said to suffer from error, it is for the reason that the dismissal order being a major punishment and as such, the same is required to be taken after observance of the principle of natural justice, i.e., a regular domestic enquiry is to be initiated so as to provide adequate and sufficient opportunity to the concerned workman. 15. But here in the facts of the given case as would appear from the discussion made by the Labour Court at paragraph-6 and 7, wherein, the issue of dismissal has been dealt with and from its perusal, it is evident that two witnesses were examined by the workman, namely, Ashok Kumar Motilal who has a retail Saree business stated that the workman was working in Khadi Bhandar since 1982. Earlier to that, the workman was working at Khadi Bhandar at Jhanda Chowk and later on he was transferred to Khadi Bhandar, Bara Chowk. He has stated that the workman was removed from service on the basis of the false allegation of theft. The workman witness no.2, namely, Ashok Das, the workman himself, has deposed on 08.10.1995, a theft was committed in the Bara Bazar. The workman was issued with the charge sheet dated 24.10.1995. A reply was given by the workman marked as exhibit W/2. The FIR was also instituted for theft. The Police investigated the case and found that the fact of theft is true but charge of theft has not been found to be proved by the Police against the workman and accordingly, the Police submitted a final form. The final form was accepted by the learned Chief Judicial Magistrate. After acceptance of the final form by the learned Chief 14 Judicial Magistrate, the workman went to the management for the purpose of joining but his joining was not accepted, rather, he was informed that he was removed from service. The petitioner, thereafter, has raised a dispute and the workman has taken the ground that no domestic or departmental enquiry was ever conducted against him. The learned Labour Court, on the basis of the fact that no domestic enquiry has been conducted, has come to the conclusion by holding the order of dismissal to be unjustified and illegal and accordingly, directed for reinstatement of the workman in service with the entire back-wages. 16. There is no denial about settled position of law that the decision to dismiss an employee from service is a major punishment and as such, the requirement to take such decision is to be followed by the regular domestic enquiry in order to provide adequate and sufficient opportunity to the concerned delinquent so as to provide an opportunity to examine and cross-examine. But the said process has not been followed and even though, the charge of the theft has not been found to be proved by the police in its investigation. 17. This Court, therefore, is of the view that if in such circumstances, the Labour Court has interfered with the order of dismissal and the learned Single Judge after taking into consideration the aforesaid aspects of the matter, if declined to interfere with the aforesaid finding, the same according to our considered view, cannot be said to suffer from an error. 15 The order of dismissal having been interfered with and in such circumstances, the order of reinstatement has been passed along with the back-wages. 18. The issue of back-wages is also required to be considered by this Court. The position of law is well settled that if there is no work, there will be no pay. But, in each and every case, the principle of ‘no work no pay’ will not be applicable but it depends upon the facts and circumstances of the case. The situation would have been different if the delinquent has been deprived from discharging his duty, then in such circumstances, the principle of ‘no work no pay’ will not be applicable but the situation will be contrary if the delinquent willfully has not discharged his duty. 19. The aforesaid issue has been dealt with by the coordinate Division Bench of this Court in L.P.A. No.80 of 2020 by putting reliance upon the judgment rendered by the Hon’ble Apex Court in the case of Union of India & Ors. Vrs. K.V. Jankiraman & Ors., reported in (1991) 4 SCC 109, holding therein that if the employee is forcibly deprived from discharging his duty, the principle of ‘no work no pay’ will not be applicable. The aforesaid order was challenged by the State of Jharkhand by filing SLP being S.L.P. No.16868 of 2022 but the same has been dismissed by the Hon’ble Apex Court vide order dated 10.10.2022. 20. This Court, on the basis of the facts of the given case that the order of dismissal is per-se illegal and in that view of the matter, he has been deprived from discharging his duty and as such, the principle of ‘no work no pay’ will not be applicable and if in that view of the matter, 16 the Labour Court has come to the conclusion by granting relief of reinstatement with back-wages, the same according to our considered view, cannot be said to suffer from an error. 21. This Court, on the basis of the discussion made hereinabove and taking into consideration the order passed by the learned Single Judge in the impugned order and applying the principle laid down by the Hon’ble Apex Court as referred hereinabove regarding the scope of judicial review, is of the considered view that no such ground is made available for showing interference with the impugned order. 22. In the result, the instant appeal fails and is dismissed. 23. Pending Interlocutory Application(s), if any, stands disposed of. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) Rohit/-A.F.Ṛ.