Employer in relation to the Management of 10/12 Pits Colliery v. Their workman Sri Ram Chandra Sah being

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the Respondent : Mr. Anoop Kr. Mehta, Advocate : Md. Shadab Ansari, Advocate ….. By the Court:-

2. Heard the parties. This Writ Petition has been filed under Articles 226 of the Constitution of India with the prayer to quash the award dated

13.01.2016 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No. 44 of 2011, the copy of which has been annexed as annexure-4 of this writ petition by which the learned tribunal answered the reference by holding that the action of Management in not promoting the sole respondent in 2 W.P. (L) No.2303 of 2017 Category-VI as Mechanical fitter is not fair and justified and hence the workman is entitled to promotion to Category-VI from the date from which others have been given promotion.

3. The brief facts of the case is that the appropriate Government referred the following dispute under Section 10 of the Industrial Disputes Act, 1947 to the Central Government Industrial Tribunal No.1, Dhanbad:- “Whether the action of the management of 10/12 pits, K.B. Colliery under P.B. Area of M/s BCCL in not promoting Shri Ramchandra Sah in Category-VI as Mech. Fitter is fair and justified? To what relief the workman concerned is entitled to?”

4. The case of the respondent-workman respondent-workman appeared before the D.P.C. in the year 2008 for getting his next promotion in Cat-VI. When the result of the departmental promotional committee was published, respondent-workman was not promoted and one Ramdhani Bouri was declared successful candidate and he was promoted to Category-VI. It is evident from the marks allotted to the workmen who appeared before the departmental promotional committee kept in the lower court record that Ramdhani Bouri was also a Category–V workman since 14.11.1994. His educational qualification was literate. The respondent-workman was also a Category-V workman since 07.08.2000. The qualification of Ram Chandra Sah was I.A./I.T.I. In respect of seniority, two marks were allotted for each year in the Cadre-V. Since the DPC was held on 09.09.2008, so the respondent-workman was to be given 3 W.P. (L) No.2303 of 2017 16 marks under the heading ‘seniority’ but he was given 14 marks. So far as the educational qualification is concerned, literate workmen were given 05 marks, persons with Matric & I.T.I. were given 08 marks, persons with Matric were given 05 marks and persons with I.A. were given 07 marks. So it goes to show that for an educational qualification of I.A., 02 more marks than the Matriculate was given and for the qualification I.T.I., 03 marks were given. So the respondent-workman being I.A./I.T.I. ought to have been given 10 Marks under the heading ‘qualification’ instead he was given 08 marks and thus he has been given 04 marks less i.e. two marks less under the ‘Seniority’ head and two marks less under the ‘qualification’ head. So the total marks obtained by him became 58 marks even though he was entitled to 62 marks and Ramdhani Bouri who got 60.5 Marks that is less than the marks which ought to have been received by the respondent-workmen i.e. 62; was promoted. The learned tribunal considering the irregularity as mentioned above held that the action of the management in not promoting the respondent- workman in Category-VI as Mechanical Fitter is not fair and justified. Hence, the workmen be given promotion to the Category-VI from that date obviously meaning the date in which Ramdhani Bouri was given to Category-VI and accordingly the seniority list be corrected from that date.

5. It is submitted by the learned counsel for the petitioner that the respondent-workman was much junior to Ramdhani Bouri, therefore the recommendation was made in the DPC in 4 W.P. (L) No.2303 of 2017 respect to Ramdhani Bouri is justified and he does not have any occasion for victimization or discrimination. It further submitted that as the workmen declined to examine himself during the course of hearing of the case and he having not adduced any evidence to prove his aggregate marks was more than Ramdhani Bouri, the learned Tribunal has committed a gross error in directing promotion of the respondent-workman and even assuming that the respondent-workman is entitled to 02 more marks i.e. 16 marks in total in the matter of seniority, still he ranks below Ramdhani Bouri as his total marks becomes 60 whereas the marks of Ramdhani Bouri is 60.5. Hence, it is submitted that the learned tribunal committed a grave illegality in ignoring this fact. It is further submitted by the learned counsel for the petitioner that the learned tribunal failed to consider the fact that there is no other vacancy available after promotion of Ramdhani Bouri and directed the management to promote the respondent as Mechanical Fitter, Category –VI from the date Ramdhani Bouri has been promoted and the same is illegal. In support of his contention that only one Post in Category-VI, Mechanical Fitter was vacant on the date of promotion of Ramdhani Bouri on 04.09.2008, the learned counsel for the petitioner draws the attention of this Court to Ext. W/1. Therefore, it is submitted that the prayer as made for in this writ petition be allowed. 5 W.P. (L) No.2303 of 2017

6. The learned counsel for the respondent-workman on the other hand vehemently opposes the prayer to quash the award dated 13.01.2016 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No. 44 of 2011. It is submitted by the learned counsel for the respondent that the learned tribunal in no uncertain manner has expressed its finding of there being irregularity in the promotion of Ramdhani Bouri. As an example, the learned tribunal has mentioned the short comings in awarding two marks less under the heading ‘seniority’ but the fact remains undisputed and also as is evident from the list of marks under the heading ‘seniority’ but the fact remains undisputed as is evident from the list of marks under the different heading and total marks awarded to all the workmen who appeared before the DPC that the respondent-workman being I.A./I.T.I. was entitled to 10 marks under the heading ‘qualification’ though he has been awarded only 08 marks. Thus in total, 62 marks i.e. more than the marks obtained by Ramdhani Bouri who has still been promoted with only 60.5 marks. Hence, it is submitted that no illegality has been committed by the learned tribunal and as essentially the finding of the tribunal is a finding of the fact and there is no perversity in such finding nor there is any illegality, there is no justifiable reason to interfere with the award made by the Central Government Industrial Tribunal No.1, Dhanbad. Hence, it is submitted that this writ petition being without any merit be dismissed. 6 W.P. (L) No.2303 of 2017

7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent mention here that the scope of interference with an award for the purpose of issuing the writ of certiorari has been laid down by the Hon’ble Supreme Court of India in the case of Syed Yakoob v. K.S. Radhakrishnan, reported in AIR 1964 SC 477, para -7 of which reads as under:- “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 properly, as for instance, it decides a question without giving an opportunity, 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 finding. influenced the 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 Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed impugned 7 W.P. (L) No.2303 of 2017 Ahmad Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]” (emphasis supplied)

8. Now coming to the facts of the case, upon perusal of the Lower Court Records, this Court finds that there is a glaring illegality committed by the writ petitioner-management awarding 14 marks instead of 16 marks under the heading ‘seniority’ and awarding 8 marks instead of 10 marks under the heading ‘qualification’. Therefore, this Court do not find any illegality in the finding of fact arrived at by the learned tribunal and there is no inadmissible evidence which has been admitted by the learned tribunal nor there is any admissible evidence which has been ignored by the tribunal. Further there is no perversity or any error of law committed by the learned tribunal. Accordingly, this Court do not find any justifiable reason to interfere with the award.

10. Accordingly, this writ petition being without any merit is dismissed. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 8th February, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)