Municipal Corporation Of Delhi vs Satish Kumar
2005 Latest Caselaw 440 Del

JUDGMENT

B.C. Patel, C.J.

1. This appeal is preferred against the order made by the learned single Judge in WP(C) No. 3242/2002 on 20.7.2004 confirming the order made by the Industrial Tribunal No. III, Delhi in I.D. No. 638 of 1990 decided on 12.3.2001.

2. There is a gross delay in preferring the appeal and we find no proper and satisfactory explanation for 160 days of delay. We find that almost in all the matters the appellant Corporation has no respect for the provisions contained in the law of limitation and instead of taking action against the erring officers, who are negligent in dealing with the matters in this behalf, lightly applications are preferred in the Court for condensation of delay. This is required to be deprecated. The Commissioner has a battery of officers and yet this is happening which is difficult to understand. On flimsy grounds indicated in the application the delay cannot be condoned.

3. With a view to see that there may not be injustice to the Corporation, we examined the matter on merits. It is required to be noted that the issue raised before the Industrial Tribunal was whether the services of Shri Satish Kumar have been terminated illegally and/or unjustifiably and if not to what relief is he entitled and what directions are necessary in this respect?"

4. It is known to the Corporation that the Industrial Disputes Act,1947 is applicable. It is admitted position that the workman was allowed to serve as a substitute. The case is that as and when a permanent employee was on leave, the workman was appointed. It is difficult to believe that a person could get appointment regularly in this fashion. We may reproduce the dates on which the workman was engaged by the Corporation as under:-

i) 18.9.84 to 17.12.84 Against the leave vacancy of Sh. Lahori Safai Karamchari

ii) 14.12.84 to 23.12.84 Against the leave vacancy of Sh. Parmod Kumar, Safai Karamchari

iii) 24.12.84 to 30.6.85 Against the post of Daily Wages Ward Boy.

 4.7.85 to 3.10.85                                  -do-
5.10.85 to 4.1.86                                  -do-
7.1.86 to 6.4.86                                   -do-
9.4.86 to 8.7.86                                   -do-
 

5. Thus, from the aforesaid dates it is not possible to believe that on casual leave some other workman was not available and, therefore, the respondent workman was appointed. No doubt, in the first two appointments it is mentioned that it was against leave vacancy but against the third group of dates it is indicated that the appointment was against the post of Daily Wages Ward Boy. Except the artificial breaks of four days in July,1985, two days in October,1985, three days in January,1986 and three days in April 1986 workman worked continuously from 24.12.1984 to 8.7.1986.

6. It is known to the officers of the Corporation about their responsibility. They are also aware about the industrial law and still if they continued to appoint persons by way of back-door entry, it is for the Corporation to take action against such officers instead of challenging the decision of the Competent Court which has decided the matter on appreciation of evidence. No material was placed before the Tribunal to indicate that the officer was not empowered to make the appointment or that the appointment was made illegally or because of some reason the officer had selected this person for appointment so that the workman could complete the requisite number of days to attract the provisions contained in the Industrial Disputes Act. That apart, the workman was appointed on different dates for different periods as indicated in para 4 of this judgment, and on appreciation of evidence looking to the nature of appointment, work carried out by the workman and artificial breaks, the Tribunal has arrived at a conclusion. It is not ordinarily open for a Writ Court to depreciate the evidence, as if the Writ Court is exercising appellate jurisdiction. Under Article 226 of the Constitution of India, the High Court would issue a writ where action has been taken under a statute which is ultra vires the Constitution; where the statute is intra vires, but the action taken is without jurisdiction; or where the action taken is procedurally ultra vires; where the order is passed by an authority, being under an obligation to act judicially, in violation of principles of natural justice. Thus, in short, to enforce a fundamental right, the Court would entertain a writ petition. Where the Tribunal has acted without jurisdiction or in excess of jurisdiction or in flagrant disregard of law/rules/procedure or in violation of principles of natural justice, the Court may exercise powers under Article 226 of the Constitution of India as there is failure of justice.

7. However, it is required to be noted that a writ petition under Article 227 of the Constitution is ordinarily not to be entertained unless the Tribunal (1) entertained the petition without jurisdiction; or (2) exceeded the jurisdiction; or (3) has recorded a finding based on no evidence; or (4) has ignored the relevant evidence; or (5) has made an order which is perverse; or (6) rendered a decision which resulted in manifest injustice; or (7) has acted on a provision which gives jurisdiction to the Tribunal which is ultra vires or unconstitutional. This being an extraordinary power is to be exercised sparingly and the Court is not expected to interfere acting as an appellate court to upset pure findings of fact based on evidence.

8. It is made clear by several pronouncements that the writ jurisdiction or supervisory jurisdiction is not to be exercised to correct mere errors of fact or law unless an error is manifest and apparent on the face of the record such as when it is based on a clear ignorance or utter disregard of the provisions of law and grave injustice is occasioned thereby. Again one has to remember that on question of error, one must see that an error must be self-evident i.e. it does not require lengthy arguments to discover the same. A view taken which is reasonably possible is not required to be interfered with as the Writ Court would like to prefer another view which is possible. Thus, when two views are possible, the Tribunal has taken one view, it cannot be said that there is a patent error. So far as the powers of the High Court in exercise of Certiorari or supervisory jurisdiction is concerned, it is made clear by several pronouncements that the High Court will not act as an appellate court and will not reappreciate or evaluate the evidence or correct errors in drawing inferences which may be formal or technical in character.

9. The Tribunal, as a fact finding authority and on appreciation of evidence has arrived at a conclusion. Whether it can be challenged under Article 226 or 227 of the Constitution of India is the question. When the legislature has not provided an appeal from the decision of the Tribunal, it cannot be suggested that the High Court should exercise the powers of an appellate court in the writ jurisdiction. The Judge exercising writ jurisdiction will have to examine the matter considering the aforesaid and if the learned Judge has come to the conclusion that no interference is called for, surely, the Division Bench would not be justified in entertaining the appeal in a case like this. In the instant case, the learned single Judge with a view to see that there is no injustice, examined the matter in detail. In view of the observations made by the learned single Judge in the impugned judgment, we are of the view that there are no merits. The appeal and the applications are required to be dismissed and are hereby dismissed accordingly.

10. It is hoped that the Corporation will initiate action against the officer concerned, if the contention is that some one has assisted the workman in getting employment. The Corporation shall submit a report to the Court within a period of three months.

11. Appeal to come up for compliance report on 1.8.2005.