State of Punjab & Anr. v. Mr. P.K. Jain, Addl. AG, Punjab

Judgment

1. 2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? Yes Yes M.M. KUMAR, J.

1. The instant appeal filed under Clause X of the Letters Patent is directed against judgment dated 3.7.2009 rendered by the learned Single Judge of this Court reversing the findings recorded by the Labour Court in its award dated 24.3.1987 (P-5).

2. According to the Labour Court the workman-respondent was found guilty of the charges which were established in a departmental inquiry. It is appropriate to mention that the workman-respondent was charge sheeted alleging that on 26.11.1983 when he was on duty he came to the workshop at about 6.15 p.m. He tried to throw across the wall of the workshop five old pattas (Kamanis) and tried to take them away by crossing the wall. The L.P.A. No. 916 of 2010 (O&M) 2 aforesaid charge was established in the departmental inquiry and the Labour Court recorded a categorical finding that the inquiry was fair and proper. Accordingly, the termination of the service of the workman-respondent was

justifiable and in order. It would be appropriate to first set out the findings recorded in the inquiry, which reads thus:- “ The last contention is that the principal witness Amarjit Singh S.S.I. could not have witnessed the occurrence because the statement of allegations says that the employees of the workshop who had witnessed the occurrence had caught the workman red handed and had produced him before Amarjit Singh alongwith the stolen property and had informed him so. I do not agree with this contention. The report of incident by the Chowkidar on which the enquiry was initiated itself says that Amarjit Singh SSI had witnessed the entire incident at the spot. The statement of allegations says that some employees had witnessed the incident, Amarjit Singh S.S.I. being an employee of the Punjab Roadways on duty at the workshop on that day is not excluded from that allegation. Amarjit Singh deposed on oath in the enquiry that he was on duty and that he was a witness to the theft and had caught the workman red handed with the help of others. Cross- examination of amarjit Singh did not disclose any illwill or enmity on his part against the workman. In my opinion the enquiry was fair and proper and the termination of the service of the workman was justified and in order. The issue is decided against the workman.”

3. When the workman-respondent challenged the award by filing the L.P.A. No. 916 of 2010 (O&M) 3 writ petition, he succeeded in persuading the learned Single Judge to hold that the findings are not well based by urging that the statement of Shri Amarjit Singh, S.S.I., incharge of the workshop could not be relied upon as he could not be eye-witness to the incident. The learned Single Judge accepted the version of the workman-respondent and rejected the findings recorded by the Labour Court by observing in paras 6 and 7 as under:- “6. I do not propose to deal with the issue of the prejudice or otherwise caused to the employee for not being apprised of his right to avail of the service of a co-worker since two of the co- workers did not give any evidence in support of the management that they had themselves seen the pattas being thrown over the wall or caught the delinquent red handed. The finding against the delinquent was made by the Enquiry Officer and affirmed by the Labour Court only on the statement of Amarjit Singh. The Labour Court had believed Amarjit Singh to be an eye-witness by making reference to an alleged report of the incident by the Chowkidar. Curiously, the report of the incident by the Chowkidar itself was never before the Court. Chowkidar had not even been examined as an witness. Neither the charge-sheet nor the statement of allegations make reference to either the report of the Chowkidar or named the Chowkidar as a person, who had been a witness to the incident. The expressions found in the statement of allegations was: “................they raised an alarm and brought him to the workshop along with the pattas and told Shri Amarjit Singh, S.S.I., Incharge of the Workshop.............” If Amarjit Singh had been an witness, there was no need for him to be told of the incident. A person who L.P.A. No. 916 of 2010 (O&M) 4 was not a witness could not have stated before the Enquiry Officer or the Labour Court that he caught him red handed. The Labour Court's finding that the charge against the delinquent had been established by the evidence of Amarjit Singh, therefore, in my view, perverse and against the grain of the chargesheet that had been levelled against the delinquent.

7. While this Court exercising the jurisdiction under Article 226 of the Constitution of India will not normally interfere on a point of fact in an enquiry, the Court cannot be a mere spectator to a perverse finding made on an important aspect of theft which none of the witnesses who were said to have been present at the incident said so. A person who was not a witness was brought before the Court to state something which was not stated either in the statement of allegations or in the charge-sheet. It is not merely a case of misappreciation of evidence but it is a case of complete lack of evidence relating to the incident of throwing the pattas over the wall or an attempt to take them away with an intent to commit theft. The award of the Labour Court finding him guilty and confirming the order of dismissal from service, is erroneous and it is set aside.”

4. Mr. P.K. Jain, learned State counsel has vehemently argued that the statement of Shri Amarjit Singh as recorded by the Labour Court has been placed on record as Annexure A-1 with the affidavit of Shri Sukhvir Singh, General Manager, Punjab Roadways, Moga, dated 20.8.2010. According to the learned counsel the statement of Amarjit Singh made before the Enquiry Officer does not show that the workman-respondent was ever brought before the eye- witness Amarjit Singh and that he himself had caught him. Therefore, he has L.P.A. No. 916 of 2010 (O&M) 5 argued that the eye-witness account revealed by Shri Amarjit Singh, S.S.I., could not have been discarded by the learned Single Judge, particularly while exercising certiorari jurisdiction.

5. Mr. Govind Rai, learned counsel for the workman-respondent has, however, stated that after the judgment of this Court, the appellant has passed an order on 4.8.2010 reinstating him in service, which of course is subject to the decision of the instant appeal. He has also argued that the findings recorded by the learned Single Judge do not suffer from any legal infirmity and could not be set aside by the Letters Patent Bench.

6. After hearing learned counsel for the parties and perusing the original record we are of the view that the order of the learned Single Judge is not sustainable in the eyes of law, particularly when the same is examined in the light of certiorari jurisdiction of the Writ Court. The aforesaid issue has come up before Hon’ble the Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477 and delineating the scope of the writ of certiorari their Lordships’ have held 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 improperly, as for instance, it decides a L.P.A. No. 916 of 2010 (O&M) 6 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 L.P.A. No. 916 of 2010 (O&M) 7 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. Ahmad Ishaque, AIR 1955 SC 233; Nagendra Nath v. Commr. of Hills Division, AIR 1958 SC 398; and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168).

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the L.P.A. No. 916 of 2010 (O&M) 8 record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”

7. Again in the case of Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, their Lordships’ of Hon’ble the Supreme Court in para 38 have, inter alia, recorded the following conclusions: “(1) & (2) xxx (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming juris- diction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no proce- dure specified, and thereby occasioning failure of justice. (4) L.P.A. No. 916 of 2010 (O&M) 9 (5) Be it a writ of certiorari or the exercise of supervisory juris- diction, none is available to correct mere errors of fact or of law un- less the following requirements are satisfied: (i) the error is mani- fest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process' of reasoning, Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) (8) The High Court in exercise of certiorari or supervisory juris- diction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in draw- ing inferences or correct errors of mere formal or technical charac- ter. (9) xxx”

8. The aforesaid view has again been reiterated by Hon’ble the Su- preme Court in a recent judgment rendered in the case of Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192. It is, thus, evi- dent from the aforesaid judgments that it is only patent error of law apparent on the face of the record which can be corrected by the Court in certiorari jurisdic- tion. The jurisdiction to issue a writ of certiorari may also extend to correct a jurisdictional error. The Writ Court can issue a writ of certiorari in cases where L.P.A. No. 916 of 2010 (O&M) 10 the inferior Court lacks jurisdiction or has exceeded its jurisdiction. However, the jurisdiction would not extend to re-appreciate evidence, as has been done by the learned Single Judge to re-appreciate the evidence to reach a conclusion other than the one recorded by the Tribunal merely because another view is pos- sible. It is no doubt true that one set of evidence may be appreciated by one in- dividual to reach conclusion ‘X’ and the same set of evidence may be appreci- ated to reach conclusion ‘Y’ by another person but then there would not be any scope for issuance of a writ in the nature of certiorari.

9. Even otherwise, the statement of Amarjit Singh, S.S.I., which has been placed on record as Annexure A-1 is factually correct when compared with the vernacular version recorded in Punjabi. The statement Annexure A-1, in fact, is the true translation of Punjabi version, as disclosed before the Enquiry Officer on 19.7.1984 (page 25 of the Enquiry File). The aforesaid statement of Shri Amarjit Singh, S.S.I., reads as under:- “Statement of Amarjit Singh, SSI, Punjab Roadways Moga, Government witness. State that on 26.11.1983 my duty was in the workshop as SSI. I was in the workshop at 6:15 PM. I had seen Mukhtiar Singh Wash- ing Boy in the drunkard condition in the workshop. He threw five old pieces of patte over the wall. I saw him throwing the said patte. I left a watch on him and stayed there so that when he picks and takes the same, I will catch him. When he jumped the wall and was about to take the said patte, I raised the alaram and he began to run. We, Pritam Singh Electrician, Mangal Singh Blacksmith and Swaran Singh Electrician together caught him. In this way he com- mitted the theft of patte. L.P.A. No. 916 of 2010 (O&M) 11 Sd/- Sd/- Sd/- Sd/- Mukhtiar Singh Washing Boy Govt. Witness PO Enquiry Officer 19.7.84 Cross examination of the state witnesses Question: If I was in drunkard condition whether you got me medi- cally examined. Answer: No. Question: If I had committed a theft of patte, then why I was not handed over to the police. Answer: It was not done. Sd/- Sd/- Sd/- Sd/- Mukhtiar Singh Washing Boy Govt. Witness PO Enquiry Officer 19.7.84”

10. A perusal of the statement would not leave any manner of doubt that Shri Amarjit Singh, SSI, not only saw the occurrence with his own eyes but he along with Pritam Singh, Electrician, Mangal Singh, Blacksmith and Swaran Singh, Electrician, caught the workman-respondent on the spot when he was trying to fled away. Viewed in that context, the findings recorded by the learned Single Judge that it is a case of no evidence would also not be sustain- able.

11. As a sequel to the above discussion, this appeal is allowed. The judgment of the learned Single Judge is set aside and the award of the Labour Court is restored. As a consequence of the aforesaid direction, the order dated

4.8.2010 passed by the General Manager, Punjab Roadways, Moga, would be inconsequential. The original record be sent back. No order as to cost. L.P.A. No. 916 of 2010 (O&M) 12 (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE December 8, 2010 Pkapoor C.M. Nos. 2695-97 of 2010 in LPA No. 916 of 2010 Present: Mr. P.K. Jain, Addl. AG, Punjab, for the appellants. Mr. Govind Rai, Advocate, for the respondent. C.M. No. 2695 of 2010: For the reasons stated in the application, delay of 228 days in filing the appeal is condoned. C.M. stands disposed of. C.M. No. 2696 of 2010: For the reasons stated in the application, delay of 86 days in re- filing the appeal is condoned. C.M. stands disposed of. C.M. No. 2697 of 2010: In view of the fact that main appeal has been disposed of by a separate order of even date, no orders are required to be passed in this application. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE December 8, 2010 Pkapoor