State Of H.P. & Others vs Basant Singh

L. Narayana Swamy, CJ

Reference made by the respondent-employee was adjudicated by the Industrial Tribunal, Dharamshala in Reference No.142/2003. The Reference is " Whether termination of services of Shri Basant Singh son of Shri Dhani Ram, daily wages beldar w.e.f. May 1994 by the Executive Engineer, H.P. Irrigation and Public Health Division Sarkaghat, District Mandi without any notice, charge sheet and enquiry and without complying the section 25-F of the Industrial Disputes Act, 1947 is legal and justified." This reference has been answered in favour of the respondent-employee by the Industrial Tribunal vide its award dated 01.10.2005. In the award, it was held that the termination of the employee is held to be violative of the provisions of Articles 14, 16 and 21 of the Indian Constitution and also violative of mandatory requirements of Section 25-F of the Industrial Disputes Act, 1947 (for short, "the Act") and therefore, the respondent-employee was held entitled for his reinstatement on the same terms and conditions in which he was working prior to his illegal termination with all consequential service benefits and payment of back wages to the extent of 30%. The employer was further directed to re-engage the services of the respondent-employee within a period of 90 days.

Feeling aggrieved, the order of the Industrial Tribunal was assailed by the employer, the appellants herein, before this Court in CWP No.9 of 2006. The said writ petition was dismissed by the learned Single Judge on 22.06.2016, against which the appellants- employer preferred the present appeal.

The submission of the learned Additional Advocate General is that the employer has taken two important grounds before the Industrial Tribunal. Firstly, that the employee himself has abandoned the post and remained absent from the service for more than 6 years and Secondly, he had approached the Industrial Tribunal belatedly. This aspect has not been gone into by the Industrial Tribunal. Hence, the substantial question of law has not been answered rightly. However, though those two grounds were also urged before the learned Single Judge, but the same have not been taken into account by the learned Single Judge. While dismissing the writ petition, the learned Single Judge directed the petitioners, appellants herein, to reinstate the respondent-employee with other consequential benefits w.e.f. May 1994 and the respondent-employee shall not be entitled for any back wages in terms of the impugned award.

Learned Additional Advocate General submits that the employer has placed material before the Industrial Tribunal that the respondent-employee himself has abandoned the post and he remained absent without any leave or permission. Without having any recourse, the employer discontinued the services of the employee. Hence, the case of the respondent-employee does not attract Section 25-F of the Act. Even if it is assumed that the employee has been illegally terminated or dismissed, he should have approached the Industrial Tribunal within reasonable time. Thus, the unreasonable and unexplained delay has not been taken into account by the Industrial Tribunal. Accordingly, the learned Additional Advocate General prays for allowing the present appeal by setting aside the order passed by the learned Single Judge. In support of her submissions, learned Additional Advocate General has drawn our attention to paras 11 and 12 of the judgment passed by this Court in Nagar Parishad Bilaspur vs. Bone Ram and another, 2005(1) Shim. L.C. 79. She has also drawn our attention to another judgment passed by this Court in CWP No.1486 of 2007 decided on 06.01.2011.

On the other hand, learned counsel appearing for the respondent-employee submits that the learned Single Judge has rightly passed the impugned order. Though the appellants have taken two grounds before the Industrial Tribunal, but, the Industrial Tribunal has not considered the same as in support of said grounds none has been examined and no material has been placed before it. The Industrial Tribunal after adjudicating the matter, passed the award by directing the employer to reinstate the services of the employee with 30% back wages. The learned Single Judge in the light of the submission made by the learned counsel for the employee, payment of 30% back wages has been given up and only reinstatement has been awarded. Though this order has been passed in the year 2016, but till date the respondent-employee has not been reinstated. Hence, the learned counsel appearing for the employee prays for dismissal of the present appeal.

We have heard learned counsel for the parties and gone through the record. The case of the appellants is that the respondent-employee abandoned the post and voluntarily remained absent from the work, which has caused discontinuation of the services of the respondent-employee for which the respondent-employee attributed on the employer as if the appellants had dismissed him from service in an arbitrary manner without any reason much less the enquiry. It is true that in view of the judgment passed in CWP No.1486 of 2007 (supra) the respondent-employee should have approached the Industrial Tribunal within reasonable time but the time has not been specified for the purpose of approaching the Court.

Be that as it may, once the parties have adjudicated their respective cases before the Industrial Tribunal and after having considered the respective cases, the Industrial Tribunal passed an order, ordinarily it should not have been challenged by the Government. The challenge is always restricted only to cases in which the Industrial Tribunal has committed error while deciding the substantial question of law. The appellants, more particularly the State should not act like any other individual who approached the Court even for small things. The Industrial Tribunal is a competent fact finding Court and once it has decided the matter, it is not appropriate to approach this Court on the same disputed facts. Though the appellants had approached this Court by raising two grounds, but from the order of the Tribunal it is found that these two grounds were not substantiated on behalf of the appellants.

The Supreme Court in Babhutmal Raichand Aswal vs. Laxmibai R. Tarte and another, AIR 1975 SC 1297 has held as under:-

"7 The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Art. 227 to disturb the findings of fact reached by the, District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 =- (AIR 1954 SC 215) that the:

".....,power of superintendence conferred by Article 227 is as pointed out by Harries, C.J, in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (S.B.) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora v. The Commr. of Hills Division 1958 SCR 1240 = (AIR 1958 SC 398) and it was pointed out by Sinha, J. as he then was, speaking on behalf of the Court in that case:

"It is thus, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Art. 226 of the Constitution. Under Art. 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L. J., said in Rex v. Northumberland Compensation Appeal Tribunal ( (1952-1 All ER 122) in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Art. 227. That jurisdiction cannot be exercised:

"as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings."

If an error of fact, even though apparent on the face, of the record, can not be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Art.

The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Art.227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."

The Supreme Court in Sugarbai M. Siddiq and others vs. Ramesh S. Babjare (Dead) by LRs, (2001) 8 SCC 477 has also held as under:

"6 There can be little doubt that in an application under Article 227 of the Constitution, the High Court has to see whether the lower courts/tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularity; in other words, the court is concerned not with decision but with decision making process. On this ground alone the order of the High Court is liable to be set aside."

The case of the respondent-employee has been considered by the learned Single Judge on 22.6.2016 and the said order has been assailed by the appellants- employer in the present appeal. Filing an appeal is not a ground to enable the appellants not to comply with the order passed by the learned Single Judge. Once an appeal is filed either they should have sought stay of the order but no such interim order has been granted by this Court and without there being any interim order of stay of operation of the order of the learned Single Judge, the appellants kept idle for more than four years in not considering the case of the respondent-employee for reinstatement. Hence, we find that there is a serious lapse on the part of the appellants in not complying with the order of the learned Single Judge. Once the writ of mandamus is issued, the parties before the Court must have accepted the order and they should have implemented the same forthwith or within the time stipulated by the Court. Here in this case for more than four years no such steps for reinstatement have been taken, which itself is a grave error or lapse on the part of the appellants. In this background, the impugned action of the appellants in not reinstating the respondent-employee for last four years itself goes against the appellants. Under these circumstances, we direct the appellants to comply with the order of the learned Single Judge, without there being any delay, within a period of one week from today.

At this stage, learned counsel for the respondent-employee submits that the employee is entitled for regularization since he has put more than considerable length of service which entitles him for regularization. We find the submission of the learned counsel to be fair, as such, we direct the appellants to reinstate the respondent-employee in service forthwith and also pass necessary orders with regard to his regularization.

Learned counsel for the respondent-employee further submits that he would not press for any payment of wages under Section 17- B of the Act from the date of order of the learned Single Judge and whatever the amount has been paid to the employee, the same shall not be recovered. His submission is taken on record.

In view of the submission made by the learned counsel, the appellants need not to pay wages under Section 17-B of the Act from the date of the order of the learned Single Judge and also shall not make any recovery. This exercise shall be done within a period of 15 days and not later than 31st October, 2020.

However, liberty is reserved to the respondent-employee to file an application for revival of this appeal in case the directions are not complied with.

With these observations, the appeal stands disposed of along with pending application(s), if any.