Gujarat High Court
Dakshin Gujarat Vij Company Ltd vs Vitthalbhai Gopalji Patel on 8 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17222 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAKSHIN GUJARAT VIJ COMPANY LTD & ANR.
Versus
VITTHALBHAI GOPALJI PATEL
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR AK CLERK(235) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/04/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. A. K.
Clerk waives service of notice of Rule on behalf of respondent
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- employee.
2. Employer - Company has filed this petition challenging
the award of Industrial Court, Surat dated 20.11.2019, in
Appeal (I.C) No. 38 of 2012, wherein the petitioner was
directed to treat the service of respondent as continuous
service until his date of retirement and further directed to pay
50% back wages with all consequential benefits.
3. The facts in brief as referred in the petition are as under:
-
The respondent - employee was working as meter reader
in the petitioner's establishment. A departmental inquiry was
initiated against respondent vide chargesheet dated 23.05.1994.
The said chargesheet was thereafter revised on 02.07.1996. The
chargesheet refers to misconduct of respondent - employee
while he was working at Udhana Rural Sub-Division. Pursuant
to the issuance of chargesheet, appointment of inquiry officer
was done and inquiry was concluded. It was case of the
petitioner that the inquiry was conducted after following due
procedure. The Inquiry Officer gave his report on 31.05.1996
wherein the charges leveled against the respondent - employee
was held to be proved. Upon charges being proved, the
respondent was served with second show-cause notice and after
considering his explanation on the second show-cause notice,
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order of termination dated 01.05.1997 was passed. Against the
order of termination dated 01.05.1997, the respondent -
employee preferred appeal before the appellate committee
which came to be rejected. Against the order of termination
dated 01.05.1997 and rejection of appeal, the respondent filed
proceedings before the Labour Court, Surat under the Section
78 and 79 of the Bombay Industrial Relations Act, 1946 ('the
BIR Act' for short). The said application was registered as BIR
(T) Application No. 705 of 1997. In the BIR(T) Application No.
705 of 1997, the petitioner - Company appeared and filed its
reply. In BIR (T) Application No. 705 of 1997, the inquiry
proceedings were challenged and the Labour Court by interim
order dated 17.12.2002, held the inquiry against the
respondent as vitiated granting the opportunity to the
petitioners to lead evidence before the Labour Court. Against
the interim order dated 17.12.2002, holding the inquiry as
vitiated, the petitioner - Company preferred revision
application which came to be dismissed by order dated
05.05.2006. Against the order dated 17.12.2002 and
05.05.2006, a petition was preferred being Special Civil
Application No. 23514 of 2006 which came to be rejected by
order dated 16.01.2007 on the ground that the order dated
17.12.2002 is an interlocutory order. Subsequently, the
petitioner lead documentary and oral evidences. Upon
adjudication the Labour Court, rejected BIR (T)Application No.
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705 of 1997 vide order dated 31.05.2012. Aggrieved by the
order of Labour Court in BIR (T) Application No. 705 of 1997,
the respondent - workman preferred appeal registered as
Appeal (I.C.) No. 38 of 2012 before the Industrial Court, Surat.
Upon adjudication, the Industrial Court, Surat held the
termination of respondent - employee as illegal directing the
petitioner to treat the service of respondent - employee as
continuous service till the date of retirement. It was also
further directed to pay 50% backwages and all consequential
benefits, aggrieved by which present petition is filed.
4. Heard learned advocate Mr. Dipak Dave for the petitioner
- Company and learned advocate Mr. A. K. Clerk for the
respondent - employee.
5. Learned advocate Mr. Dipak Dave for the petitioner -
Company submitted that the order of Industrial Court, Surat in
Appeal (I.C.) No. 38 of 2012 is erroneous because of following
reasons: -
5.1 The respondent - employee was served with a
chargesheet dated 23.05.1994 which came to be revised by
charge memorandum dated 02.07.1996. In the charge
memorandum dated 02.07.1996, the charges leveled against
respondent - employee was referred in the schedule attached
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to the chargesheet. It was case of the petitioner - Company
that while acting as meter reader, the respondent deliberately
read less reading of meter, which resulted into loss to the
Company. Pursuant to the chargesheet the inquiry was
conducted and after full-fledged inquiry the charges were held
to be proved. Since, the inquiry was conducted as per the due
procedure under the provisions of the Act and standing orders
no interference is called for.
5.2 The charge memorandum refers to the discrepancies
particularly in relation to lesser reading of meter by the
respondent employee. The figures referred in the chargesheet
of meter reading were not disputed by the respondent
employee. It was case of the petitioner in the charge
memorandum that the respondent employee was working as a
meter reader and when the checking squad checked the meter,
lesser reading was found and therefore evidently since the
respondent - employee was working as meter reader there was
deliberate attempt to record the lesser reading which caused
loss to the Company. Since the charges were proved,
interference with regard to the punishment was not required.
5.3 Placing heavy reliance on Labour Court's finding in BIR T
Application No. 705 of 1997 dated 31.05.2012, learned
advocate submitted that the respondent - employee admitted
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in the cross-examination that the meter reading shown to him
was the original meter reading and the reading taken by the
checking squad was of the same place. Since, no witnesses
were examined or no documents in support of no discrepancy
in the meter reading was established, the meter reading taken
by the checking squad itself suggest the discrepancy and
therefore no interference is called for. The Labour Court in BIR
T Application No. 705 of 1997 recorded that since the meter
read by respondent workman and the checking squad was of
the same place and no fault can be found from the petitioner
as the change in meter reading was evident.
5.4 Placing reliance on deposition of the management
witness, of one Shri Ashokkumar Chottalal Panwala at Exh. 77;
Learned advocate for the petitioner submitted that in his
deposition the employer witness had recorded that there was
difference in the meter reading recorded by the respondent
workman and checking squad of the petitioner. Referring to
the management witness learned advocate submitted that the
checking report was exhibited and the same being proved no
fault can be found from the meter reading taken by the
checking squad. Even it was not a case of power theft or
meter tampering and since the discrepancy in the meter
reading being apparent and the charges leveled against the
respondent - employee being proved the order dated
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20.11.2019 of the Industrial Court, Surat is erroneous.
5.5 Referring to one more deposition of one Shri Lalitbhai
Vasantbhai Patel learned advocate for the petitioner submitted
that the Superintendent Engineer of the petitioner corporation
confirms the discrepancy in the meter reading and therefore
also the order of Labour Court dated 31.05.2012 is appropriate
and the order of Industrial Court dated 28.11.2019, deserves to
be quashed.
5.6 Placing reliance on the evidence of Shri Praful Chandra
Natwarlal Upadhyay who was Executive Director at the
relevant point of time working with the petitioner - Company
and the cross-examination of one Shri Jethabhai Virabhai
Prajapati, Chief Engineer and Superintend Engineer at the
relevant time, learned advocate for the petitioner submitted
that the depositions of the witnesses had proved beyond doubt
that the entire matter is based on the meter reading taken by
respondent - employee and the checking squad and therefore
the order of termination is appropriate.
5.7 On the aspect of reading taken after 28 days delay,
learned advocate submitted that delay occasioned in reading
the meter is of no consequence because the inference drawn by
the Inquiry Officer and from the deposition of the witnesses of
the management it is evident that even if the consumption is
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for 24 hours a day, then also the huge difference recorded by
the checking squad would not be possible. Thus, upon holding
the respondent guilty of serious misconduct, order of
termination was passed. On account of discrepancy meted out
with the present respondent - employee, learned advocate for
the petitioner submitted that when the charges were proved on
the basis of admission of the witnesses and when there was
direct evidence in form of difference shown in the meter read
by respondent - employee and the checking squad, the
treatment given to other employee is of no consequences.
Learned advocate for the petitioner reiterated that since the
meter reading was not challenged and they were of same
place no interference is required in the order of dismissal. He
further submitted that the Labour Court vide order 31.05.2012
had appropriately considered the evidence on record and
considering the deposition of witnesses had arrived at
appropriate conclusion that the charges leveled against the
respondent employee being proved the order of termination is
legal and valid which the Industrial Court had erred and
therefore the award of the Industrial Court dated 28.11.2019
deserves to be quashed and set aside.
5.8 Learned advocate strenuously submitted that the
consideration made by the Industrial Court is erroneous
because in case of departmental proceedings, the Inquiry is to
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be conducted based on principles of preponderance of
probabilities where strict proof of evidence isnot required. In
this case, the documents on record, particularly the reading by
respondent - employee and the reading done by checking
squad along with the deposition of witnesses proved beyond
doubt the charges leveled against the respondent. No strict
proof of evidence is not required and therefore the interference
of the Industrial Court in the order of punishment is erroneous.
5.9 In support of his submissions, learned advocate for the
petitioner relied upon the following judgments.
In the case of State of Rajasthan & Ors. V/s.
Heem Singh reported in AIR 2020 SC 5455
In the case of Union of India V/s. Dalbir
Singh reported in AIR 2021 SC 4504
5.10 Learned advocate for the petitioner further submitted that
while dealing with the Industrial matter the standard of proof
required in criminal trials are not required to be proved. In
the present case, the Industrial Court has traveled beyond its
jurisdiction by examining the charge leveled against the
respondent - employee and therefore no interference is called
for. In support he relied upon decision of this Court in the
case of Lupin Ltd. Through General Manager V/s. Melsingh
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Bhagvansingh Parmar reported in 2023 1 GLR 499. He thus
submitted that the award of the Labour Court is beyond
jurisdiction and the finding recorded being perverse and
contrary to the documents on record deserves interference of
this Court and thus he requested to quash and set aside the
order of Industrial Court.
5.11 So far interference of the Court in the quantum of
penalty, Learned Advocate relied upon following decisions:
In the case of Laxmiben Jerambhai reported
in 2018 (0) JX(GUJ) 658
KKR India Financial Services Ltd. V/s. Axis
Bank Ltd. reported in 2021 (1) GLR 1
5.12 Learned advocate also submitted that when there is no
finding with regard to victimization or unfair labour practice
backwages ought not to have awarded by the Industrial Court
and he further requested to quash and set aside the same. In
support he further relied upon decision in the case of Depot
Manager, Andhra Pradesh State Road Transport Corporation V/
s. Jayaram Reddy reported in 2009 (2) SCC 681. He thus
submitted that the award of the Labour Court being without
jurisdiction and beyond the facts and evidence on record
deserves interference of this Court and deserves to be quashed
and set aside.
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6. Opposing the present petition, learned advocate Mr. A. K.
Clerk for the respondent - employee submitted that the award
of Industrial Court, Surat dated 28.11.2019 in Appeal (I.C.) No.
38 of 2012 is appropriate on the following grounds: -
6.1 The chargesheet referred to misconduct where it is stated
that the respondent-employee red lesser reading of meter,
which may have benefited the consumers. It also refers to
carry forward of accumulated units. The said inquiry
proceedings were subject matter of challenge before Labour
Court in BIR T No.705 of 1997 and the Labour Court in BIR T
Application No. 705 of 1997 held the inquiry as illegal. Against
the order of 17.12.2002, holding the inquiry illegal, the
petitioner - Company preferred revision which came to be
rejected against which the petition was filed and the same was
also rejected which clearly establishes that the inquiry initiated
against the respondent - employer being illegal the merits as
submitted by learned advocate for the petitioner is not
required to be gone in to. So far accumulation of unit which
is one of the charge, the Industrial Court in the impugned
order dated 20.11.2019 held that the case in hand is of lesser
reading of meter than read by the checking squad. It also
refers to the bill prepared by the respondent employee of a
lesser units. However, no case is made out of accumulation of
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units and carrying it forward. Therefore, the case is only with
regard to the discrepancy in a meter reading recorded by
checking squad which was done after 28 days, from the meter
read by respondent - employee. The Industrial Court has
therefore correctly considered it. Referring to deposition of
petitioner - Company's witness at Exh.77, learned advocate
submitted that nothing could be established to show that the
meter which was read by the respondent - employee was the
wrong reading at the relevant point of time. Three witnesses of
petitioner- Company were examined at Exh.77, Exh.104,
Exh.121 and all three had stated that there is discrepancy was
noticed by checking squad after 28 days delay. Further, there
is nothing to prove that the meter which was read by
respondent - employee was not the correct reading on that
date. Therefore, order of Industrial Court being appropriate
does not call for interference.
6.2 Further, bill book or document were not produced by the
petitioner - Company and therefore the Industrial Court held
that the misconduct was proved based on the presumption.
With regard to the discrimination meted out to the respondent
employee, learned advocate submitted that it is evident from
the order dated 20.11.2019 that with similar misconduct the
employees were punished with a lesser punishment of stoppage
of increment whereas a present respondent - employee was
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punished with order of dismissal which is contrary to the
evidence on record and therefore the award of the Industrial
Court quashing the inquiry proceedings is appropriate.
6.3 Learned advocate placing reliance on the deposition of
Shri Ashokkumar Chottalal Panwala at Exh.77, Shri Lalitbhai
Vasantji Patel at Exh.91 and Shri Prafulchandra Natwarlal
Upadhya at Exh.104 submitted that all these evidences did not
support the misconduct of the respondent - employee. On the
contrary all had confirmed that they were not aware about the
meter reading on 04.11.1992 when it was read by respondent
- employee and no tampering of the meter was found. Learned
advocate for the respondent - employee relying upon the
decision in the case of Indian Overseas Bank V/s. I. O. B. Staff
Canteen Workers' Union and Anr. reported in (2000) 4 SCC
245 and decision in the case of Harjinder Singh V/s. Punjab
State Warehousing Corporation reported in 2010 3 SCC 192
submitted that when the order of Industrial Court is based on
evidence on record and within the jurisdiction not being
perverse the scope of interference being very minimal, no
interference is called for in the order dated 20.11.2019 of
Industrial Court in Appeal (I.C.) No. 38 of 2012. He submitted
that considering the fact that during pendency of proceedings
since the workman had attained the age of superannuation,
50% of the backwages awarded is appropriate since for no
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fault of the employee he was dismissed from service however
since he had not worked with the petitioner - Company, 50%
backwages awarded being appropriate no interference is called
for. He thus submitted that the petition deserves to be
rejected.
7. Considered the submissions and the decisions relied upon.
Revisitation of following facts would be necessary.
7.1 The respondent - employee joined the service of
petitioner on 12.06.1972. He was terminated first by an order
dated 03.04.1993. The said order of termination dated
03.04.1983 was challenged and the respondent was reinstated
on 28.02.1997. Once again, the respondent was terminated on
01.05.1997. The termination was challenged by the respondent
by filing BIR T Application No. 705 of 1997. upon adjudication
of the BIR T Application No. 705 of 1997 the order dated
31.05.2012 was passed rejecting the application of the
respondent. Against the order of Labour Court, Surat in BIR T
Application No. 705 of 1997 dated 31.05.2012, the respondent
- employee preferred Appeal being Appeal (I.C) No. 38 of
2012 wherein the Industrial Trial, Surat directed the petitioner
- Company to grant the respondent - employee continuity of
service from his date of termination and thereafter to award
50% wages till the date of superannuation. The order of
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continuity and grant of 50% wages was passed considering the
fact that during pendency of the proceedings (Appeal I. C. No.
38 of 2013) the workman attained the age of superannuation.
From the order dated 20.11.2019 in Appeal (I.C.) No. 38 of
2012 it is noticed that the initial challenge was made with
regard to the Inquiry wherein by order dated 17.12.2002 the
inquiry was held to be illegal. The order dated 17.12.2002 was
challenged by petitioner - Company by filing Revision
Application No. 02 of 2003 was also rejected. Against the
order dated 17.12.2002 and order in Revision Application
rejecting inquiry held to be illegal, Special Civil Application
No. 23514 of 2006 was filed and the same was rejected by
holding that the order is interlocutory. The Labour Court in
the proceedings permitted the charges to be proved by leading
evidence and thus the evidences were led by both the parties
and the Labour Court in BIR T Application No. 705 of 1997 by
order dated 31.05.2012 confirmed the order of termination. In
the appeal filed challenging the order dated 31.05.2012 in BIR
T Application No. 705 of 1997, the Industrial Court after
taking into consideration the evidences of both the parties
particularly the evidences laid at Exh.77 of one Shri
Ashokkumar Chottalal Panwala at Exh.91, Shri Lalitbhai
Vasantji Patel and Exh. 104 of Shri Praful Agarwal had
recorded the findings that some of the consumers meter was
read by respondent employee on 04.11.1992. The respondent
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read meter of relevant consumer as on 04.11.1992 and
accordingly the bill was issued. The checking squad in its
inspection read the meter on 01/02.12.1992 which is
admittedly after 28 to 29 days. No evidence was led by
petitioner - Company to support the submission the reading
recorded by the respondent was a wrong. It is case of
petitioner that since the meter recording recorded on
04.11.1992 is not the same as on 01/02.12.1992, which was
after 28 to 29 days reading recorded on 04.11.1992 was wrong
and it was done deliberately. In the opinion of this Court,
when nothing was placed on record to show that the meter
read on 04.11.1992 by respondent - employee was wrong the
allegation in the chargesheet was misconceived and based on
presumption. Moreover, in the cross-examination, of the
petitioner's witnesses had accepted that they are relying upon
the sheet on which the reading was recorded and not aware
about the actual reading read by respondent on 04.11.1992.
Therefore, the contention of Learned Advocate of the
respondent that the allegation that respondent read lesser
reading is without proof merit acceptance.
7.2 With regard to monitory benefits caused to the
consumers, no evidence was placed on record. On the
contrary, all the witnesses of employer had stated that they
had not noticed any tampering of the meter. No consumers
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were called for examination to justify that they were benefited
out of this. Moreover, for allegation of accumulation of unit
nothing was placed on record to justify that the accumulated
units favored the consumer.
7.3 Therefore, in the opinion of this Court, the finding
recorded by the Industrial Court that the petitioner failed to
prove charges leveled against the respondent, is appropriate
when no documents were produced to justify that the meter
read on 04.11.1992 by respondent was wrong. The loss caused
to the petitioner - Company referred in the charge-sheet could
not be proved and bill book were not produced to justify carry
forward of accumulation. Therefore, also the finding recorded
by the Industrial Court is appropriate. The Industrial Court,
since the charges were not proved, held the punishment to be
disproportionate to the misconduct. In the opinion of this
Court when the charges were not proved the award of the
Labour Court is appropriate more particularly on the ground
that on similar charges, the other employee were given lesser
punishment of stoppage of 5 increments. Thus, this being the
case of discrimination, the dismissal order also deserves to be
quashed and set aside.
8. On the decisions relied upon by learned advocate Mr.
Dipak Dave for the petitioner - Company in the case of Heem
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Singh [Supra] on the principles of preponderance of probability
it is a settled law that the standard of proof in departmental
proceedings and criminal prosecution is different. Strict proof
of evidence is not required like criminal prosecution and the
disciplinary proceedings are based on preponderance of
probabilities. Moreover, in the decision in the case of Melsingh
Bhawarsingh Parmar [Supra] of this Court, the same principles
have been reiterated that strict proof of evidence is not
necessary while concluding the departmental proceedings. This
Court further held that the Court is not required to step into
shoes of Inquiry Officer. It is true that the scope of Labour
Court in inquiry proceedings is limited and the Labour Court is
not required to sit in appeal however considering the fact that
since the charges leveled are contrary to the evidence and
record and when it is a clear case of discrimination, the
interference by Industrial Court in the order dated
20.11.2019 in the opinion of this Court is appropriate.
8.1 In the decision of Hon'ble Supreme Court in the case of
Daleer Singh [Supra], the Hon'ble Supreme Court has reiterated
the principles in a criminal trial which are distinct from
departmental proceedings. In the present case, the facts are not
similar and same would not be applicable in the facts of the
case. In the decision of Union of India V/s J Jason Joseph
reported in 2011 (15) SCC 162 on the aspect of backwages,
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Hon'ble Supreme Court has held that when the charges are
held to be proved the workman could not be entitled for
backwages. In the present case, in the opinion of this Court,
the quantum of punishment being too harsh when the charge
were held to be illegal, the decision would not be applicable
in the facts of this case. One more decision relied upon by
learned advocate for the petitioner in the case of P. Jayaram
Reddy [Supra], the Hon'ble Supreme Court held that when the
misconducts are serious in nature and the same are proved the
backwages are not to be awarded. The same being not the fact
in the present case, this decision would not be applicable.
Further, this Court cannot ignore the limited jurisdiction to
interfere with the order passed by the Industrial Court which is
based on evidence on record. In the decision of Hon'ble
Supreme Court in the case of Indian Overseas Bank [Supra]
held as under:-
17. The learned Single Judge seems to
have undertaken an exercise, impermissible
for him in exercising writ jurisdiction, by
liberally re- appreciating the evidence and
drawing conclusions of his own on pure
questions of fact, unmindful, though aware
fully, that he is not exercising any appellate
jurisdiction over the awards passed by a
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Tribunal, presided over by a Judicial Officer.
The findings of fact recorded by a fact-
finding authority duly constituted for the
purpose and which ordinarily should be
considered to have become final, cannot be
disturbed for the mere reason of having been
based on materials or evidence not sufficient
or credible in the opinion of the writ Court
to warrant those findings, at any rate, as
long as they are based upon some material
which are relevant for the purpose or even
on the ground that there is yet another view
which can be reasonably and possibly be
taken. The Division Bench was not only
justified but well merited in its criticism of
the order of the learned Single Judge and in
ordering restoration of the Award of the
Tribunal. On being taken through the
findings of the Industrial Tribunal as well as
the order of the learned Single Judge and
the judgment of the Division Bench, we are
of the view that the Industrial Tribunal had
overwhelming materials which constituted
ample and sufficient basis for recording its
findings, as it did, and the manner of
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consideration undertaken the objectivity of
approach adopted and reasonableness of
findings recorded seem to be
unexceptionable. The only course, therefore,
open to the Writ Judge was to find out the
satisfaction or otherwise of the relevant
criteria laid down by this Court, before
sustaining the claim of the canteen
workmen, on the facts found and recorded
by the fact-finding authority and not embark
upon an exercise of re-assessing the evidence
and arriving at findings of ones own,
altogether giving a complete go-bye even to
the facts specifically found by the Tribunal
below.
8.2 Moreover, the Hon'ble Supreme Court in the case of
Harjinder Singh [Supra] held as under:-
In Syed Yakoob's case, this Court delineated
the scope of the writ of certiorari in the
following words:
"The question about the limits of the
jurisdiction of High Courts in issuing a writ of
certiorari under Article 226 has been frequently
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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
properly, as for instance, it decides a question
without giving an opportunity, 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
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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
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agitated before a writ 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. Syed Ahmad Ishaque
1955 (1) SCR 1104, Nagandra Nath Bora v.
Commissioner of Hills Division and Appeals
Assam 1958 SCR 1240 and Kaushalya Devi v.
Bachittar Singh)
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; hut 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
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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 appropriately described as
errors of law apparent on the face of the
record. Whether or not an impugned error is
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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 the legal provision which
is alleged to have been misconstrued or
contravened."
13. In Surya Dev Rai's case, a two-Judge
Bench, after threadbare analysis of Articles 226
and 227 of the Constitution and considering
large number of judicial precedents, recorded
the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect
from 1-7-2002 in Section 115 of the Code of
Civil Procedure cannot and does not affect in
any manner the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by CPC
Amendment Act 46 of 1999 are nevertheless
open to challenge in, and continue to be
subject to, certiorari and supervisory
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jurisdiction of the High Court.
(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 jurisdiction 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 procedure specified,
and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227
of the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When a subordinate court has
assumed a jurisdiction which it does not have
or has failed to exercise a jurisdiction which it
does have or the jurisdiction though available
is being exercised by the court in a manner
not permitted by law and failure of justice or
grave injustice has occasioned thereby, the
High Court may step in to exercise its
supervisory jurisdiction.
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(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied: (i) the
error is manifest 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) The power to issue a writ of certiorari and
the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where
the judicial conscience of the High Court
dictates it to act lest a gross failure of justice
or grave injustice should occasion. Care,
caution and circumspection need to be
exercised, when any of the abovesaid two
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jurisdictions is sought to be invoked during the
pendency of any suit or proceedings in a
subordinate court and the error though calling
for correction is yet capable of being corrected
at the conclusion of the proceedings in an
appeal or revision preferred there against and
entertaining a petition invoking certiorari or
supervisory jurisdiction of the High Court
would obstruct the smooth flow and/or early
disposal of the suit or proceedings. The High
Court may feel inclined to intervene where the
error is such, as, if not corrected at that very
moment, may become incapable of correction
at a later stage and refusal to intervene would
result in travesty of justice or where such
refusal itself would result in prolonging of the
lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not convert itself
into a court of appeal and indulge in
reappreciation or evaluation of evidence or
correct errors in drawing inferences or correct
errors of mere formal or technical character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and
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those calling for exercise of supervisory
jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in
India unlike English courts has almost
obliterated the distinction between the two
jurisdictions. While exercising jurisdiction to
issue a writ of certiorari, the High Court may
annul or set aside the act, order or
proceedings of the subordinate courts but
cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction
the High Court may not only give suitable
directions so as to guide the subordinate court
as to the manner in which it would act or
proceed thereafter or afresh, the High Court
may in appropriate cases itself make an order
in supersession or substitution of the order of
the subordinate court as the court should have
made in the facts and circumstances of the
case."
9. In view of above, in the opinion of this Court, in this
case, the charges being not proved, no interference is called
for in the award of Industrial Court dated 20.11.2019. The
award of the Industrial Court dated 20.11.2019, in Appeal (I.C)
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No. 13 of 2012 is confirmed. The petitioners are directed to
make the payment as directed, within a period of 12 weeks
from the date of receipt of the order. No order as to costs.
Rule is discharged.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
