The Chief Secretary, State of Jharkhand Project Building, P.S v. Jagarnathpur, District Ranchi, Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 205 of 2024 ----- Institute of Science and Management (formerly known as Indian Institute of Science and Management), having its registered office at ISM Campus, Pundag, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi, Jharkhand (834004) through its Director Dr. Sushil Kumar aged about 67 years, son of Late Sheo Govind Sahay, Resident of Road No. 4, Kusum Vihar, Morabadi, P.O. and P.S. Morabadi, District Ranchi, Jharkhand … … … Appellant 1. The Chief Secretary, State of Jharkhand Project Building, P.S. Versus Jagarnathpur, District Ranchi, Jharkhand 2. The Secretary, Department of Labour and Employment training, Nepal House, Doranda, Ranchi, P.O. and P.S. Doranda, Ranchi, Jharkhand 3. Suraj Bhushan, son of Rang Bihari Singh, Resident of 192, A.G. Colony, Kadru, P.O. and P.S. Hinoo, Ranchi, Jharkhand (834002) … … … Respondents ------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant For the Respondent ------ : Ms. Chandana Kumari, Advocate : Mr. Rahul Kamlesh, AC to SC - IV ------ Order No. 06/Dated 30th July, 2024 I.A. No. 4944 of 2024 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 01 day in preferring this Letters Patent Appeal. 2. 3. Heard the parties. Having regard to the averments made in the instant application and submission made on behalf of the appellant, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 01 day in preferring the appeal is hereby condoned. 4. I.A. No. 4944 of 2024 stands allowed. L.P.A. No. 205 of 2024 5. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order/judgment dated Page 1 13.02.2024 passed by learned Single Judge in W.P. (L) No. 1185 of 2016 whereby and whereunder the award dated 30.09.2015 in Reference Case no. 03 of 2002 passed by the Presiding Officer, Labour Court, Ranchi has been refused to interfere with, and the award has been modified, so far as the payment of the back wages and all consequential benefits to the respondent – workman is concerned, only up to 31.03.2012. Facts of the case: 6. The brief fact of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under: 7. The workman (respondent herein) was initially, appointed by the management (appellant herein) with effect from 01.12.1988. The workman was performing duties i.e. managing the class in addition to the clerical jobs for special allowance of Rs 100/- per month. 8. The management redesignated the workman as Personal Assistant to the Director (Studies) from the post of the Assistant vide letter dated 05.10.1994. The workman was transferred to a different organization known as Institute of Professional Studies, (IPS) vide letter dated 23.02.1999. The workman continued to be under the administrative control of IISM for all purposes and was required to look after other activities of IISM. 9. The management issued a charge sheet on 12.08.1999 mentioning allegations against the workman. The workman submitted an explanation on 13.08.1999 by giving detailed explanation of the charges levelled against him. On 08.11.1999, the termination order of his services was issued.
Facts
10. The workman challenged the same raising an Industrial Dispute under Section 2A of the Industrial Disputes Act, 1947 and placed the matter for conciliation and conciliation officer Page 2 instituted the conciliation proceeding which culminated in the settlement of the dispute due to intervention of the conciliation officer and in view of the settlement, the Director, IISM, by virtue of his letter dated 18.02.2000, withdrew the order of termination of the service of the workman and the workman was directed to report to Dr. U. N. Choudhary, with immediate effect and collect his wages payable to him, treating his services to be continuous after 08.11.1999 and accordingly, the workman submitted his joining report on 15.03.2000 but the same was refused. 11. Later on, with the intervention of the conciliation officer to whom the workman informed about the refusal of the management to permit him to join, the workman ultimately joined his services on 16.03.2000 at 4.05 PM. The workman was not granted any receipt of his joining letter nor allotted any work till 20.03.2000. 12. Thereafter, the workman wrote a letter to the Director, IISM (Studies), demanding his pay and back wages but the management levelled charges including the previous charges, against him, although the previous charges were revoked by the management. 13. Finally, the management served a charge sheet vide letter dated 27.05.2000 containing 22 charges. The workman also replied to the same by submitting his explanation on 03.06.2000. Upon submissions of the reply by the workman to the charges, a domestic enquiry was conducted by the Enquiry Officer; who submitted a report against the workman. 14. After conclusion of the enquiry, the workman was informed to file a written argument but the written argument was not accepted by the management. On the basis of this, the Page 3 management finally dismissed the workman vide order dated 19.12.2000. 15. When the matter could not be resolved by way of conciliation, between the workman and the management, the reference has been made by the appropriate government which reads as under: “Whether the dismissal of the service of Suraj Bhushan, Assistant, Indian Institute of Science and Management, Campus Pundag, Ranchi is justified? If not then what relief the related workman is entitled to?” 16. The evidences were laid by both the Management and workman before the Tribunal. After appreciation of evidences, the learned Tribunal had passed the award with order of reinstatement along with the back wages in favour of workman. 17. The Management being aggrieved, has approached to this Court by filing writ petition being W.P.(L) No. 1185 of 2016. 18. The learned Single Judge of this Court has modified the award with respect to the issue of back wages by restricting it up to 31.03.2012, without interfering with the award pertaining to the reinstatement in service, which is the subject matter of the present appeal. 19. It is evident from the factual aspect that the respondent- workman while working in the Indian Institute of Science and Management, Pundag Ranchi was dismissed from his service by virtue of the letter dated 19.12.2000. Earlier also, the said workman was dismissed on 08.11.1999 but the previous dismissal was withdrawn vide letter dated 18.02.2000. When the workman joined in compliance of the letter dated 18.02.2000, allegations were levelled against him. 20. The management issued charge-sheet, charges were levelled against him. On 03.06.2000, the workman submitted his Page 4 reply which was not considered satisfactory, and domestic enquiry was conducted. After domestic enquiry, the Enquiry Officer, found the charges to be true in his enquiry report. The Director (Studies) being the appointing authority of the workman, accepted the enquiry report and found the workman guilty of most of the charges. The respondent workman was dismissed from his service. 21. It is further evident from the factual aspect that the dispute has been raised by the appellant regarding his termination from service by invoking the jurisdiction conferred under Section 2A of the Industrial Disputes Act, 1947. The ground has been taken by the workman before the tribunal that the Domestic enquiry which was conducted by the management was merely a formality because no reasonable opportunity was accorded to him to defend himself and he was dismissed from the service. 22. It is the case of the workman that after conclusion of the enquiry, the workman was informed to file a written argument but the written argument was not accepted by the management. The workman sent written argument through post and sent a copy thereafter to the management which was also not accepted. On the basis of this, bad enquiry, the management finally dismissed the workman vide order dated 19.12.2000, hence, it was contented by the workman that the action of the dismissal on him, was pre-determined one. 23. The management before learned Labour Court, pleaded in their written statement, that Indian Institute of Management is not an industry but an educational institution, only engaged in imparting education. So, the provisions of the Industrial Disputes Act, 1947 does not apply to the writ petitioner-management. However, the management accepted that the workman Suraj Page 5 Bhushan was employed with the institution as an Assistant from 23.02.1990 to 12.08.1999 and he was deputed to work in Institute of Professional Studies, Ranchi and during the period of his deputation, he committed several acts and omission and commission of which constituted act of mis-conduct on his part in violation of provision of Administrative Conduct Rules and Regulation, which are applicable to him. 24. The learned Tribunal has placed the matter for conciliation but the conciliation failed and, thereafter, the Tribunal proceeded further for adjudication of the issue. 25. The evidence was laid by both the parties and accordingly award was passed of reinstatement along with the back wages. 26. The Management being aggrieved, has approached to this Court by filing writ petition being W.P.(L) No. 1185 of 2016. 27. The learned Single Judge of this Court has modified the award with respect to the issue of back wages by restricting it up to 31.03.2012, but the learned Writ Court has not interfered with the award pertaining to the reinstatement of the workman in service, which is the subject matter of the present appeal.
Legal Reasoning
“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 issued only in the exercise of supervisory jurisdiction which is jurisdiction. The Court exercising special different 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) from appellate 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.” 40. In Heinz India (P) Ltd. v. State of U.P., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos. 66 and 67 as under: “66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant “the feel of the expert” by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. 67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.” 41. In General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Giridhari Sahu, (2019) 10 SCC 695 the Hon’ble Page 10 Apex Court has delved upon the issue about scope of issuance of writ of certiorari by the High Court and has laid down that, if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside. 42. The Hon’ble Apex Court in the case of General Manager, Electrical Rengali Hyrdo Electric Project, Orissa v. Giridhari Sahu, (2019) 10 SCC 695 has interfered with the award on the basis of perversity and the incorrect appreciation of the document by the adjudicator as would appear from the finding so recorded by the Hon’ble Apex Court which reads as under: “26. In Durga Das Basu’s Commentary on the Constitution of India, 9th Edn., in regard to the concept of no evidence, we find the following discussion: ““No evidence” does not mean only a total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding, or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. This “no evidence” principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires. An order made without “any evidence” to support it is in truth, made without order made without “any evidence” is worthless, it is equal to having “no evidence” jurisdiction.” in the decision relied upon by the applicants viz. S. 27. In fact, Sugar Mills Ltd. v. S. Viswanathan Viswanathan, (2005) 3 SCC 193 : 2005 SCC (L&S) 372], it is, inter alia, held as follows : (SCC p. 196, para 12) [Madurantakam Coop. “12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon.” (emphasis supplied) 28. On the conspectus of the decisions and material, we would hold as follows : the jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of certiorari will not don the cap of Page 11 an appellate court. It will not reappreciate evidence. The writ of certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a writ of certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter “off bounds” for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of the record. As held by [Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233], as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down (see Parry & Co. Ltd. [Parry & Co. Ltd. v. P.C. Pal, AIR 1970 SC 1334 : (1969) 2 SCR 976]).” in Hari Vishnu Kamath this Court 43. It is evident from the aforesaid proposition of law that the Writ Court has got very limited jurisdiction in showing interference with the award while answering the reference by the adjudicator either the Labour Court or the Industrial Tribunal. The limited jurisdiction is only if the finding so recorded by the learned Tribunal or the Labour Court as the case may be, can be reversed if the order suffers from perversity, meaning thereby, there is no consideration of the documentary evidence by the adjudicator or to be erroneous consideration of the same. 44. The perversity is one of the grounds of showing interference by the High Court in exercise of power conferred under Article 226 of the Constitution of India and as Page 12 such, the meaning of “perversity” is required to be considered herein. 45. The definition of perversity has been taken note of in the judgment rendered in Arulvelu and Another v. State represented by the Public Prosecutor and Another [(2009) 10 SCC 206] at paragraph 27, which is quoted hereunder: - 27. The expression “perverse” has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner’s Dictionary of Current English, 6th Edn. “Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.” 2. Longman Dictionary of Contemporary English, International Edn. Perverse.—Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English, 1998 Edn. Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. The New Lexicon Webster’s Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn. “Perverse.— A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.” 46. Further, the Hon’ble Apex Court in yet another judgment rendered in Kuldeep Singh v. Commissioner of Police and Others [(1999) 2 SCC 10] has held under paragraph 10 which reads as under :- “10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.” Page 13 47. Further, the meaning of “perverse” has been examined in H.B. Gandhi, Excise and Taxation Officer-cum Assessing Authority, Karnal and Others v. M/s Gopi Nath & Sons and Others [1992 Supp (2) SCC 312] wherein, at paragraph 7, the Hon’ble Apex Court has observed as under : “7. ------. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.” 48. Thus, it is evident that the perversity means if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. 49. This Court, in order to access the ground of perversity, has gone across the order of the learned Tribunal has found that the award has been passed based upon the evidence and the testimony of the witnesses recorded in course of adjudication. 50. This Court has further proceeded to examine the award on the basis of the aforesaid premise of the legal position. It is evident that while considering the issue of reinstatement, the documentary evidence has well been appreciated by the learned Labour court. 51. Similarly, the issue of back wages has also been taken into consideration in paragraph 25 of the order of award. For ready reference the paragraph 25 is being quoted as under: Page 14 “25.So finally I come to the conclusion that management has not been able to prove charges against the workman before the court on merit rather management has miserably failed in this regard and therefore I come the reasoned conclusion that workman has been victimized by the management and the dismissal of the service of workman Suraj Bhushan, Assistant, Indian Institute of Science and Management, IISM Campus, Pundag, Ranchi is not justified. Since workman has stated in his evidence that after dismissal by the management he is not gainfully employed anywhere and this fact is undisputed because management has not chalienged either during cross examination or argument nor any documentary evidence has been adduced about his re- employment anywhere after dismissal, therefore for re-instatement with back wages and all workinan consequential benefits. In the result, management is directed to re-instate the afore named workman / applicant with back wages and other consequential benefits from the date of raising of the industrial dispute. Accordingly award is made in favour of the workman.” is entitled 52. It is, thus, evident that the order of reinstatement is based upon the appreciation of the documentary evidence and, as such, the order of dismissal has been held to be unjustified holding the workman entitled for the reinstatement along with the back wages. 53. The question of back wages although has been modified by the learned Single Judge by holding the workman entitled for the same. 54. The law has already been settled as per the judgment referred hereinabove that the writ court has got limited jurisdiction in substitution of the finding already recorded as has been done by the learned Single Judge but the said part of the order passed by the learned Single Judge is not under challenged. Hence, we are not making any comment upon the same. 55. Fact remains that there cannot be any consideration of the foreign document by the writ court which is not available before the adjudicator, either the learned labour court or the learned industrial tribunal. However, the same is required to be referred herein since the argument has been advanced on behalf of the learned counsel for the appellant that the workman was gainfully employed and he is not entitled for any back wages. Page 15 56. The issue of back wages has been dealt with by the Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324 wherein while dealing with the aforesaid issue the law has been laid down as under paragraph -38, for ready reference, Paragraph 38 is being referred herein:- “38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the Page 16 to to pay the burden employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-(cid:224)-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches, referred to hereinabove and cannot be treated as good law…..” 57. It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that Page 17 he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments”. 58. It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed. 59. Further, from paragraph-38.4, it would be evident that the Hon’ble Apex Court has been pleased to lay down that the case in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 60. Further, from paragraph-38.5, it would be evident that the cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award Page 18 passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 61. Further, from paragraph-38.6, it would be evident that in a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-(cid:224)-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. Page 19 62. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages. But, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. Likewise, para- 38.5 also stipulates three eventualities of issuing a direction passing an award on back wages if the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. 63. This Court since has made an observation hereinabove that the learned Single Judge has modified the award holding the workman entitled for the back wages 31.03.2012, hence, we are only dealing with the entitlement of the back wages up to 31.03.2012. 64. The issue of the gainful employment is the main thrust of argument but it is evident from the award that no documentary evidence has been produced on behalf of the Management in order to substantiate that the workman was gainfully employed. So it cannot be said in such circumstances that he was not faced with the rigor due to removal/termination from the service. Page 20 65. Therefore, this Court is of the view by taking into consideration the law laid down by the Hon’ble Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (supra) that the entitlement which has been held by the learned Single Judge of the back wages of the workman cannot be said to suffer from an error due to want of any evidence to substantiate that the workman was gainfully employed up to 31.03.2012. 66. This Court, having discussed the facts in detail as above and based upon the proposition laid down by the Hon’ble Apex Court in the judgment referred hereinabove, is of the view that this is not the case where interference is to be shown since the award has been passed on due consideration of the appreciation of the documentary evidence and the oral testimony. 67. In view thereof, the instant appeal fails and the same is dismissed. 68. Pending interlocutory application(s), if any, also stands
Arguments
Submission on behalf of the learned Counsel for the Appellant 28. Ms. Chandana Kumari, learned counsel appearing for the appellant, has taken the following ground in assailing the impugned order :- (i) The award of reinstatement along with back wages is not sustainable since the same is based upon no evidence. (ii) The learned Tribunal has not appreciated the factual aspect based upon the proper consideration of the evidence laid before it and as such the entire award is perverse and hence not sustainable in the eyes of law. Page 6 (iii) The argument has been advanced so far as the issue of back wages is concerned, wherein the back wages has been restricted up to 31.03.2012 holding the workman entitled for the same by accepting the income tax return up to the assessment year 2014-2015 but while doing so the learned Single Judge has not appreciated the fact that the workman, the respondent herein, was gainfully employed and in that view of the matter he is not entitled for the back wages. 29. The learned counsel appearing for the appellant, based upon the aforesaid grounds, has submitted that the award dated 30.09.2015 passed in Reference Case No. 03 of 2002 as also the order passed by the learned Single Judge, therefore, suffer from an error and hence, not sustainable in the eyes of law. Submission on behalf of the respondent-State 30. Mr. Rahul Kamlesh, learned AC to SC – IV appearing for the State, has defended the impugned order by taking the ground that there is no error in the order passed by the learned Single Judge so far as it relates to the issue of reinstatement in view of the settled position of law that the Writ Court has got very limited jurisdiction under the power of judicial review to reappraise the evidence for the purpose of substituting the view already taken by the learned Tribunal. 31. It has been contended that the Writ Court cannot discharge its duty as an appellate court by reappraising the evidence, rather it is upon the adjudicator to take into consideration the documentary evidence based upon the other evidence which has duly been exercised by the learned Tribunal while dealing with the issue of reinstatement and the back wages which led the learned Tribunal to pass the award and since the Page 7 reference in favour of the workman holding him entitled for reinstatement and back wages. 32. It has been contended that so far as the issue of back wages is concerned, the learned Single Judge has modified the award by taking into consideration the income tax return which was related to the assessment year 2014-2015 and as such the learned Single Judge has come to the conclusive finding that the workman is entitled for the back wages up to 31.03.2012, since, on or after 31.03.2012, the income tax return which was furnished by the workman is the clear cut evidence of he being in the gainfully employment. 33. The learned State counsel based upon the aforesaid argument, has submitted that the order passed by the learned Single Judge, therefore, suffers from no error. Analysis 34. We have heard the learned counsel for the parties and gone across the findings recorded by the learned Single Judge in the impugned order and also the award. 35. This Court has gathered from the material available on record that the reference has been answered in favour of the writ petitioner by holding the workman entitled for reinstatement along with the back wages. 36. The award pertaining to the back wages, however, has been modified by the learned Single Judge by holding the writ petitioner entitled for the back wages up to 31.03.2012. 37. This Court before proceeding to examine the propriety of the award so far as the issue of reinstatement and the back wages which has been modified by the learned Single Judge holding the writ petitioner entitle for the back wages up to 31.03.2012, deems fit and proper to refer the settled position of law in the matter of Page 8 interference with the order passed by the court/tribunal, under Article 226 of the Constitution of India. 38. Reference in this regard may be taken from the judgment rendered by the Hon’ble Apex Court in the case of Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477. Paragraph no. 7 of the said judgment is being reproduced as under: “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. 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. 39. In Sawarn Singh v. State of Punjab, (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Page 9 Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos. 12 and 13 as under:
Decision
disposed of. (Sujit Narayan Prasad, A.C.J.) Umesh/-A.F.R. (Arun Kumar Rai, J.) Page 21