✦ High Court of India · 06 Dec 2019

Its D.g.m. (Legal). vs Sanjay Yadav S/o Hukumchand Yadav, Resident Of Village And

Case Details High Court of India · 06 Dec 2019

Court

High Court of India

Decided

06 Dec 2019

Bench

Not available

Length

2,491 words

Cited in this judgment

Order

1. Laying a challenge to the award made on 06th December 2019 in Reference No.LCR 49/2013, Alchem International Limited approached the Writ Court in S.B. Civil Writ Petition No.2904/2020.

2. The writ petition was dismissed holding that the stand taken by the Employer that the termination order was served to the workman was not established before the Tribunal. The Writ Court referred to the decision in the case of Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. [(2020) AIR SC 1776] and held that the award made by the Tribunal granting full back- wages to the workman was justified.

3. Mr. Veyankatesh Garg, the learned counsel appearing for the appellant- Alchem International Limited has raised manifold [2025:RJ-JP:17461-DB] (2 of 8) [SAW-861/2020] contentions and one of such contentions is that the Employer made an offer in the conciliation proceedings that it was ready to take back the workman in service but, instead, the workman raised an industrial dispute which was erroneously referred for adjudication by order dated 4th June 2013. The learned counsel for the appellant-Company further submits that a copy of the transfer order was duly served upon the workman, a fact duly proved before the Tribunal, but the Tribunal ignored the materials on record and recorded a finding against the Employer and made the award dated 6th December 2019 which is liable to be quashed. In support of his submissions, Mr. Veyankatesh Garg, learned counsel for the appellant-Company has made reference to the decisions in the following cases:-

1. Abani Kanta Ray v. State of Orissa [(1995) Supp (4) SCC 169

2. Tej Pal v. Gopal Narain [(2006) SCC Online Del 966] 3. Sonal Garments v. Trimbak Shankar Karve [(2002) SCC Online Bom 819]

4. Trina Engineering Co. (P) Ltd. v. Secretary (Labour) [(2005) SCC Online Del 1456]

5. Tirloki Nath v. Dharam Paul Arora [(2006) SCC Online Del 1640]

6. State of Haryana v. Om Prakash [(1998) 8 SCC 733] 7. Municipal Committee, Tauru v. Harpal Singh [(1998) 5 SCC 635]

8. Rajneesh Khajuria v. Wockhardt Ltd. [(2020) 3 SCC 86]

9. Shiv Singh v. Ansal Properties & Infrastructure Ltd. [(2024) SCC Online Del 1726]

10. Punjab & Sind Bank v. Sakattar Singh [(2001) 1 SCC 214]

11. Vijay S. Sathaye v. Indian Airlines Ltd. [(2013) 10 SCC 253]

12. Shiv Kumar Giri v. Management of Hotel Siddharth Continental [(2014) SCC Online Del 4057]

13. Vijay Kumar Narang v. Union Bank of India [(2015) SCC Online Del 9748]

14. Anand Jain (Dr.) v. State of Rajasthan [(2003) SCC Online Raj 529] [2025:RJ-JP:17461-DB] (3 of 8) [SAW-861/2020]

4. Briefly stated, the workman was employed as a Driver on 07th April 2008 and he was served a transfer order dated 18th May 2012 which according to the Employer was received by the workman on 11th June 2012. The workman declined to join the transferred post and, in fact, denied having received any transfer order. As noticed above, after failure of the conciliation proceedings, a reference dated 4th June 2013 was made in the following terms:- “Has the applicant worker Shri Sanjay Yadav son of Shri Hukumchand Yadav (through District General Secretary, CITU, District Alwar) been terminated from service by the non-applicant Manager, Alchem International Ltd., S.P.2-5, RIICO Industrial Area, Neemrana, District Alwar, with effect from 21.05.2012? If yes, is it proper and legal to do so? If not, what relief is the worker entitled to?”

5. Before the Tribunal, the parties produced documentary evidences such as notice dated 25th May 2012 issued to the respondent by the Labour Department, Alwar (Exhibit W1), copies of applications sent by the respondent to the appellant-Company (Exhibit W2), postal receipt (Exhibit W3), appointment letter dated 01st July 2008 (Exhibit M1), written apology by the respondent to the appellant-Company dated 29th January 2011 (Exhibit M2), Transfer order of the respondent dated 18th May 2012 (Exhibit M3), letter dated 04th June 2012 sent by the appellant-Company to the respondent (Exhibit M4), postal receipt dated 07th June 2012 (Exhibit M5), Registered AD envelope (Exhibit M6), application for employment (Exhibit M7), application for appointment (Exhibit M8), Declaration (Exhibit M8), failure report (Exhibit M9), apology letter of the respondent dated 29th January [2025:RJ-JP:17461-DB] (4 of 8) [SAW-861/2020] 2011 (Exhibit M10), Muster Roll (Exhibit M11) and photocopies of the payment register (Exhibit M12).

6. On behalf of the management of the appellant-Company, Ashok Kumar was examined as N.A.W.-1 who admitted in the cross-examination that no communication regarding the absence of the workman was sent to him. He further stated that the transfer order was given to the workman through some boy. This witness also stated in his evidence that there is no endorsement by the respondent-workman that he had refused to take the transfer order. This is also the statement of N.A.W.-1 that the postal envelope through which the transfer order was sent to the respondent-workmen had returned undelivered. N.A.W.-2 also admitted in his evidence that the respondent-workman did not refuse to take the transfer order in his presence. This is also a matter of record that no other person was examined before the Tribunal to substantiate the stand of the Employer that the transfer order was delivered to the workman. The Tribunal has also recorded a finding that the transfer order was produced for the first time before the Conciliation officer after the service of notice on 12th June 2012.

7. After having considered the materials on record, the Tribunal rendered a finding that the transfer of the workman was a concocted story projected by the appellant-Company as a cloak to the order of termination. In para No.14 of the award dated 6 th December 2019, the Tribunal has recorded the findings in the following manner:- “On behalf of the non-applicant, the attendance register of the applicant Exhibit M10 of 10th May 2012 has been presented in which the applicant’s presence [2025:RJ-JP:17461-DB] (5 of 8) [SAW-861/2020] is recorded in both the shifts on 19th. Thereafter, on 20.05.2012, W is recorded and transfer is written from 21.05.2012. As recorded in the Unsuccessful Negotiation Report Exhibit M9, 21.05.2012 was Monday and 20.05.2012 was Sunday. When the transfer order of the applicant was issued on 18.05.2012 itself and it is also mentioned in it that the applicant will be relieved immediately, then the recording of the applicant’s attendance in Neemrana on 19.05.2012 is laughable and it again confirms the arguments of the applicant and goes against the case of the non-applicant.”

8. Now it is a well settled law that the writ Court shall not interfere with the findings recorded by the inferior Tribunal unless it is demonstrated before the Court that the findings so recorded are perverse. In Syed Yakoob vs K.S. Radhakrishnan & Ors., Hon’ble Supreme Court has held in para Nos.8 & 9 as under:- “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-inter-pretation 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 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 [2025:RJ-JP:17461-DB] (6 of 8) [SAW-861/2020] 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 case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened. 9. In the present case, the question raised by the appellant presents no difficulty whatever. The point which was raised before the High Court by respondent No. 1 lies within a very narrow compass; it is a very short and simple question of fact. It appears that in dealing with the rival claims of the appellant and respondent No. 1 for the second permit on the route in question, the Appellate Tribunal was ultimately influenced by the fact that the appellant had a workshop at Madras which is one terminus of the route in question, whereas respondent No. 1 had a workshop and a place of business only at Cuddalore which is an intermediate station on the route and did not posses a workshop at either of the terminii of the route; the other terminus being Chidambaram. In fact, that appears to be the effect of the finding made by the Authority also. Respondent No. 1 urged before the High Court that in coming to the conclusion that he had no workshop at Chidambaram, the Appellate Tribunal had failed to consider material evidence adduced by him. It is on this narrow ground that a writ has been issued in favour of respondent No. 1. Mr. Setalvad contends that the question as to whether respondent No. 1 had a workshop at Chidambaram is a pure question of fact and the High Court had no jurisdiction to interfere with the finding recorded by the Appellate Tribunal and seek to correct it by issuing a writ of certiorari. In this connection, he relies on the fact that both the Authority and the Appellate Tribunal have, in substance, found that respondent No. 1 had no workshop at either of the two terminii on the route and the fact that no reasons have been given in support of the said finding would not justify the interference of the High Court in its jurisdiction under Art. 226. It may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chadambaram, but we do not think that the failure of the Appellate Tribunal to five a reason in that behalf, or to refer specifically to the evidence adduced by respondent No. 1, would, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under Art.226. In this connection, we ought to add that it has not been suggested by respondent No. 1 that in dealing with his claim for a permit, admissible evidence which he wanted to adduce had been excluded by the Tribunal from the record; the argument that some evidence was not duly considered by the Tribunal, [2025:RJ-JP:17461-DB] (7 of 8) [SAW-861/2020] would normally pertain to the realm of the appreciation of evidence and would, as such, be outside the purview of an enquiry in proceedings for a writ of certiorari under Art. 226.”

9. On the above issue, we may also refer to P.G.I. of M.E. & Research, Chandigarh vs Raj Kumar [(2001) 2 SCC 54].

10. In P.G.I. of M.E. & Research, Chandigarh (supra) in para No.9, it has been held as under:- “9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenge in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though however perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishna MANU/SC/0184/1963: [1964] 5 SCR 64.”

11. This is also well settled that the Industrial Tribunal shall make all efforts and may make an order that ensures industrial peace and tranquility. This Court also finds that no notice was given to the respondent-workman before he was terminated from service. This also stands established that no charge-memo was served upon the respondent-workman nor one month’s notice was given to him nor he was paid one month’s salary in lieu thereof.

12. Having regard to the law on the subject, we are of the opinion that the writ Court correctly proceeded in the matter and decided not to interfere with the award dated 06th December 2019 [2025:RJ-JP:17461-DB] (8 of 8) [SAW-861/2020] after making reference to the evidence tendered by the management’s own witnesses.

13. The Special Appeal stands dismissed. (ANAND SHARMA),J (SHREE CHANDRASHEKHAR),J SAHIL SONI /201