Writ Petition No. 11258 of 1991 · Punjab And Haryana High Court · 2010

It is averred in the writ petition that the respondent-workman reported in the Company premises on 29th January, 1986 and submitted an application that after his marriage, he fell sick and therefore, his over Civil Writ Petition No.11258 of 1991 2 stay, be condoned. Case of the petitioner-Company is that the respondent-workman had not submitted any certificate of sickness or fitness and had simply made an application, wherein he sought condonation of his mistake. The petitioner-Company, relying upon Clause 7 of the Industrial & Employment Act, 1946 (hereinafter referred to as, ‘the Standing Orders’), construed that the respondent-workman has abandoned his job. Rule 7 of the Standing Orders reads as under: “Rule 7. Irrespective of what is laid down elsewhere in regard to overstaying sanctioned leave, an employee not reporting for duty within eight days of the expiry of any leave granted to him shall be deemed to have left the Company’s service from the date on which he was due to return to work. Likewise, if any employee absents himself from duty for eight days without any notice or without furnishing adequate reasons it shall be taken that he has left the service of the Company as from the first day of absence.” The respondent-workman raised an industrial dispute. State of U.T. Chandigarh referred the matter for adjudication to the Labour Court, U.T. Chandigarh, which on 5th February, 1991 gave an award in favour of the workman and held that he was entitled to be reinstated into service with effect from 24th December, 1985 onwards. It further held that the workman would be deemed to be in service of the management and he would be entitled to the benefit of continuity of service right from 1978. However, the back wages were restricted to 50 per cent. Counsel for the petitioner-Company has challenged the award passed by the Labour Court, U.T. Chandigarh and has sought quashing of the same in the present writ petition. It is not disputed that the respondent-workman was appointed as a Machine Operator on 25th May, 1978. He proceeded on station leave from 4th December, 1985 to 23rd December, 1985 for his Civil Writ Petition No.11258 of 1991 3 marriage. He had to report back on duty on 24th December, 1985. According to the respondent-workman, he became ill and could not report on the duty. It is noticed in the award that the workman was given a fresh appointment with effect from 5th February, 1986 for a period of two months but he had not received the letter of appointment till 7th March,

1986. The respondent-workman applied for two days’ casual leave. When the management held that he was not entitled to any casual leave, a leave without pay was sanctioned to him for 8th March, 1986 and 9th March, 1986 was a rest day. On 10th March, 1986, according to the respondent-workman, he was asked to receive a fresh appointment letter, which he did not accept and left the petitioner-Company. After completion of pleadings, the Labour Court formulated following issues: “1. Whether the services of the workman were terminated illegally by the management. If so, to what effect and to what relief, he is entitled to, if any? OPW.

2. Relief.” The Labour Court noticed that the workman had produced a medical certificate Ex.A3 issued by the Medical Officer, Incharge Civil Dispensary, Jaisinghpur, District Kangra. The certificate Ex.A3 stated that the workman was suffering from a disease with effect from 23rd December, 1985 to 27th January, 1986. The Labour Court further noticed that the workman had produced postal receipt Ex.A1 to show that a telegram was sent on 23rd January, 1986 to the management. The workman had placed reliance upon the medical prescription dated 2nd January, 1986 issued by the Civil Dispensary at Kangra. After appreciation of the evidence, the Labour Court returned a finding of fact that the workman had not willfully absented himself from the duty and the management had resorted to unhealthy labour practices Civil Writ Petition No.11258 of 1991 4 by giving a fresh appointment to him. The following portion of the award contains the finding of fact returned by the Labour Court: “19. There is another angle of vision to look this case. Once the medical certificate issued on 27th January, 1986 by the Medical Officer of Civil Dispensary was considered proper and was delivered by the authorities on 29th January, 1986, then it did not lie in the mouth of the respondent to offer fresh appointment as the case made out in the written statement. I also do not approve the contention of Shri R.L. Gupta that the petitioner became willfully absent with effect from 10th March, 1986. Rather the management put forth unhealthy service conditions and the workman reasonably refused to accept the same and he did not want to became a fresh employee of the company with effect from 5th February, 1986 by loosing his confirmed job from 1978 to

1987. In this view of the matter, I hold that the management illegally terminated the services of the petitioner with effect from 24th December, 1985 and that the petitioner will be deemed to be in the service of the respondent right from 1978 onwards and he will be entitled to the back wages and also the continuity of service. It is also adjudicated that the petitioner did not willfully became absent with effect from 10th March, 1986. Rather the management was responsible when it did not allow the petitioner to join the duty on 11th March,

1986. This issue is decided in favour of the petitioner and against the management.” After having held that the workman had overstayed for a valid reason, the Labour Court examined Rule 7 of the Standing Orders and relied upon a judgment rendered by Hon’ble the Apex Court in ‘Jai Shanker v. State of Rajasthan’ 1966 SC 492, wherein it was held that by mere enacting Standing Orders, principles of natural justice cannot be dispensed with. In support of this, Mr.Ashwani Bakhshi, Amicus Curiae appearing on behalf of the respondent-workman, has further placed reliance upon a judgment rendered by Hon’ble the Apex Court in ‘D.K. Civil Writ Petition No.11258 of 1991 5 Yadav v. J.M.A. Industries Ltd.’ 1993(1) G.L.H.174 to say that before the procedure for termination of services was followed, the management was bound to abide by the principles of natural justice and the same cannot be read in the Standing Orders. The Labour Court had held that in the present case, no show-cause-notice was issued, no enquiry was held and straightaway the services of the workman were dispensed with and he was given a fresh appointment, which was not a justifiable course. Mr.Bakhshi has further urged that this Court, while exercising writ jurisdiction, cannot act as a Court of appeal and reverse the finding of fact given by the Labour Court. It is submitted that under Article 226 of the Constitution of India, this Court only enjoys a supervisory jurisdiction. Learned Amicus Curiae for the respondent-workman has further relied upon ‘Harjinder Singh v. Punjab State Warehousing Corporation’ JT 2010(1) SC 598, wherein a further reliance has been placed upon ‘Syed Yakoob v. K.S. Radhakrishnan and others’ AIR 1964 SC 477 and ‘Surya Dev Rai v. Ram Chander Rai and others’ JT 2003 (6) SC 465, and the jurisdiction of a High Court, while entertaining a writ of certiorari under Article 226 of the Constitution of India, has been noticed. It will be apposite here to reproduce the relevant portion of the judgment rendered in Syed Yakoob’s case (supra), which reads as under: “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 Civil Writ Petition No.11258 of 1991 6 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 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 Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed 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].” Civil Writ Petition No.11258 of 1991 7 Therefore, this Court will be hesitant to reverse the finding of fact returned by the Labour Court and at the same time shall also affirm the reasoning adopted by the Labour Court that Clause 7 of the Standing Orders cannot be construed to say that the management will not follow the principles of natural justice. Since, in the present case no show- cause-notice was issued and no enquiry was held by the petitioner- management, no infirmity is found with the well reasoned order passed by the Labour Court. Hence, the present writ petition is hereby dismissed. No costs. December 20, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE