HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- WRIT - C No. - 15739 of 2012 Petitioner :- State Of U.P. Thru' Executive Engineer, P.W.D. Respondent :- Vijay Prakash And Another Counsel for Petitioner :- Shekhar Kumar Counsel for Respondent :- Jamal Khan AND Case :- WRIT - C No. - 15740 of 2012 Petitioner :- State Of U.P. Thru' Executive Engineer, P.W.D. Respondent :- Chander Pal And Another Counsel for Petitioner :- Shekhar Kumar Counsel for Respondent :- S.C.,Jamal Khan AND Case :- WRIT - C No. - 15741 of 2012 Petitioner :- State Of U.P. Thru' Executive Engineer, P.W.D. Respondent :- Virender Singh And Another Counsel for Petitioner :- Shekhar Kumar Counsel for Respondent :- S.C.,Jamal Khan Hon'ble Surya Prakash Kesarwani,J.
1. Heard Dr. Madhu Tandon, learned counsel for the petitioner and Sri Jamal Khan, learned counsel for the respondent no. 1.
2. Subject matter of all the above three noted writ petitions is the impugned common award and as such these writ petitions are being heard together.
3. After the start of arguments a counter affidavit dated 15.4.2014 has been filed today after about a year of its swearing and without disclosing that why the counter affidavit is being filed so belatedly.
4. The respondent-workmen raised industrial dispute after about 17 years of their alleged disengagement, before the respondent no. 2 who passed the impugned award dated 26.4.2011 in Adjudication Case No. 8 of 2009, Adjudication Case No.9 of 2009 and Adjudication Case No. 10 of 2009 as under : -
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5. Before the respondent no. 2 the petitioners have clearly stated that the respondent no.1 was engaged temporarily for a fixed period between 26th January, 1991 to 25th May, 1992 and after expiry of the said period the engagement of the respondent-workmen automatically came to an end. The industrial dispute was raised after about 17 years. The respondent-workmen stated before the Labour Court that they were retrenched after giving notice. By the oral evidence also the petitioner tried to establish that the respondent-workmen were engaged on daily wage basis to get done the miscellaneous work in the event of need. However, Presiding Officer, Labour Court passed the impugned award abruptly recording conclusion as aforequoted that the retrenchment of the respondent-workmen on 25.5.1992 is illegal and , therefore, they are reinstated in service with full back wages. Thus, the impugned award being without reasons for the conclusions reached, can not be sustained. Consequently order for payment of back wages can also not be sustained.
6. Apart from above, the respondent-workmen have not stated that what are the size of their family, how they sustained their family and themselves for such long period of about 20 years without any employment and what were the means of their livelihood. The respondent- workmen have not even stated or led any evidence that they were not engaged in any gainful employment during the long period of about 20 years. These are the relevant factors which should be considered for determination of quantum of back wages to a daily wager in case of his retrenchment in breach of the provisions of Section 6N of the U.P. Industrial Act Dispute, 1947, if he is found to be entitled for back wages. Presiding Officer, Labour Court granted full back wages without recording any finding or discussion on the relevant factors in the impugned award. Under the circumstances, the grant of back wages by the impugned award is wholly arbitrary and illegal.
7. There can be no quarrel with the argument of learned counsel for the respondent no.1 that the scope of interference under Article 226 of the Constitution of India against an award is limited and the Court cannot go into the questions of fact decided by the labour court or the Tribunal, which is the final fact finding authority / court. Interference can be made only if a finding of fact is perverse or if the same is not based on legal evidence. In the case of Management of Madurantakam Co-operative Sugar Mills Vs. S. Vishwanathan, (2005) 3 SCC 193, Hon'ble Supreme Court held in para 12 as under :
"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."
8. In the case of M/s. Hindustan Steels Ltd. Rourkela Vs. A.K. Roy and others, (1969) 3 SCC 513, Hon'ble Supreme Court held in para 16 as under :-
"12. On a consideration of all the circumstances, the present case, in our view, was one such case. The Tribunal exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion -at all. There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. [See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324-325]. One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well- settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted. The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction. Its order, therefore, becomes liable to interference."
(Emphasis supplied by me)
9. In the case of Omar Salay Mohd. Sait Vs. Commissioner of Income Tax, Madras, AIR 1959 SC 1238, Hon'ble Supreme Court held in para 42 as under :-
"42. We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were was the reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court."
10. In the case of Udhav Das Kewat Ram Vs. CIT 1967 (66) ITR 462, Hon'ble Supreme Court held that Tribunal must consider with due care all material facts and record its findings on all contentions raised before it and the relevant law.
11. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. Highlighting this rule, Hon'ble Supreme Court held in the case of The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and ors., JT 2010(2)SC 566 para 31 to 33 as under :
"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. " [Vide State of Orissa Vs. Dhaniram Luhar (JT 2004(2) SC 172 and State of Rajasthan Vs. Sohan Lal & Ors. JT 2004 (5) SCC 338:2004 (5) SCC 573].
32. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].
33.Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person 23 who is adversely affected may know, as why his application has been rejected.
(Emphasis supplied by me) 12 Non recording of reasons, non consideration of admissible evidence or consideration of inadmissible evidence renders the order to be unsustainable. Hon'ble Supreme Court in the case of Chandana Impex Pvt. Ltd. Vs. Commissioner of Customs, New Delhi , 2011(269)E.L.T. 433 (S.C.)(para 8) held as under :
"8. Having bestowed our anxious consideration on the facts at hand, we are of the opinion that there is some merit in the submission of learned counsel for the appellant that while dealing with an appeal under Section 130 of the Act, the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. It needs to be emphasised that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums. In State of Orissa Vs. Dhaniram Luhar2 this Court, while reiterating that reason is the heart beat of every conclusion and without the same, it becomes lifeless, observed thus :
"8.......Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made;......."
(Emphasis supplied by me)
13. No finding has been recorded in the impugned award either with respect to notice of retrenchment as admitted by the respondent-workmen themselves or on the point of completion of continuous service of 240 days by them in any calender year.
14. In view of the above discussions, the impugned award cannot be sustained and is, therefore, set aside.
15. In result, writ petitions succeed and are hereby allowed. The impugned award dated 26.4.2011 passed by the Presiding Officer, Labour Court, U.P. Firozabad in Adjudication Case No. 08 of 2009, Adjudication Case No. 09 of 2009 and Adjudication Case No. 10 of 2009 are hereby set aside. The matter is remitted back to the concerned Labour Court for decision afresh in accordance with law, as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order.
Order Date :- 29.4.2015 Mukesh (Surya Prakash Kesarwani,J. )