Punjab And Sind Bank vs Union Of India And Others
2021 Latest Caselaw 981 j&K

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU
                                              OWP No.574/2010
                                              IA 790/2010


                                              Reserved on :   12.08.2021

                                              Pronounced on : 27 .08.2021

Punjab and Sind Bank                                  .... Petitioner(s)
                    Through: Mr. K.S.Puri, Advocate
       Versus

Union of India and others                                 ......Respondent(s)
                    Through:    Mr. D.S.Saini Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                               JUDGMENT

1 Punjab and Sind Bank (hereinafter referred to as the „employer‟) is

aggrieved and has challenged award dated 26.03.2010 passed by

respondent No.2-Presiding Officer, Central Government Industrial

Tribunal cum Labour Court-1, Chandigarh [„Tribunal‟] in so far as it

relates to respondent No.4 [„workman‟].

2 Briefly stated the facts, leading to the filing of instant petition, as

are gatherable from the impugned award, are that the workman moved an

application before respondent No.3 on 16.05.2005 stating therein that he

was engaged by the Branch Manager of the employer as peon on

temporary basis on 04.10.1989 and continued as such till June 1993 and

that he had rendered services of about 400 days with the employer. It was

submitted by the workman that as per the practice and scheme of the Bank

in vogue, a panel of temporary peons engaged by the Bank in its J&K

region had been drawn in which the name of workman figured at S.No.1.

2 OWP 574/2010

It was further the contention of the workman that the Branch Manager

concerned threatened the workman to disengage him to accommodate

some other person. The Branch Manager concerned executed his threat

and, accordingly, disengaged the workman from the M.C. Khalsa High

School, Jammu without adopting any due course of law and

accommodated his blue eyed person.

3 Respondent No.3 issued notice to the employer. Objections were

filed by the employer. Respondent No.3, after affording an opportunity of

hearing to both the sides and having failed in the process of conciliation,

referred the matter to the Ministry of Labour, Government of India for

making appropriate referral of the dispute to the competent Forum. The

Ministry of Labour, Government of India accepted the recommendations

of respondent No.3 and referred the dispute to the Tribunal with the

following reference:

"Whether the action of the Management of Punjab and Sind Bank i.e Zonal Manager, Punjab and Sind Bank, Zonal Office, Gurdaspur and Manager, Punjab and Sind Bank, M.C.Khalsa School, Jammu Branch in Terminating the services of Sh. Rashpal Singh S/o Sh. S. Aya SINGH, Ex. Temporary peon posted in M.C.Khalsa School Branch as per the Bank‟s first Bipartite Settlement signed on 19.10.1996 was justified, if not, what relief the Workman is entitled and from which date"

4 The employer and the workman both appeared before the Tribunal.

The workman filed his claim raising similar pleas as he had raised in his

application before respondent No.3 on 16.05.2005. The claim of the 3 OWP 574/2010

workman was opposed by the employer who in its written statement

denied the relief claimed by the workman on identical grounds which it

had taken before respondent No.3. It was pleaded by the employer that the

claim put forth by the workman was time barred and was otherwise not

tenable, for, neither the engagement of the workman was against any

sanctioned post, nor it had been made by the competent authority. The

engagement of the workman was on need basis and as per the

requirement. It was also denied by the employer that the workman had

completed 240 days of service within a period of one year. The

preparation of panel/seniority list of daily wagers by the Bank as was

claimed by the workman was also denied. Both the parties led evidence in

support of their case.

5 The Tribunal considered the reference made in the case of the

workman along with four other references and concluded that so far as the

case of the workman was concerned, it was a special case which would

require the Tribunal to protect his right to reinstatement. The reference

was, thus, answered and the employer was directed to reinstate the

services of the workman within one month from the date of publication of

award within one month from the date of publication of the award and

treat the workman in the same way as other persons out of the seniority

list had been treated. The Tribunal, however, held the workman entitled to

back wages only from the date he had raised the industrial dispute. This is

how the reference in the case of workman was disposed of and the

impugned award passed.

                                  4                   OWP 574/2010




6     It is this award of the tribunal which is assailed by the employer by

invoking the extraordinary writ jurisdiction of this Court. The impugned

award has been assailed by the employer, inter alia, on the following

grounds:

(i) That the engagement of the workman on daily wage basis was temporary and need based made by the Branch Manager, who was not competent to engage the workman and that the engagement of the workman was not against any sanctioned post of Class VI;

(ii) That the provisions of Section 25-F of the Industrial Disputes Act were not attracted as the workman had not completed mandatory continuous service of 240 days during the preceding one year; and

(iii) That the award to the extent of workman suffers from perversity.

7 Mr. K.S.Puri, learned counsel appearing for the petitioner-employer

has argued the matter on the above lines and submitted that the award,

insofar as it pertains to the workman, cannot sustain and deserves to be

quashed. He, however, has not been able to demonstrate any perversity of

law or facts in the impugned award.

8 Mr. Saini, learned counsel appearing for respondent No.4-workman

would submit that the scope of interference in the award of Tribunal in

the exercise of extraordinary writ jurisdiction by this Court is limited and

circumscribed. He submits that the impugned award cannot be interfered

with by this Court, unless it suffers from grave perversity. He would

submit that the findings of fact returned by the Tribunal that the workman 5 OWP 574/2010

had completed 240 days during the preceding year are supported by the

legal evidence. Similarly, the Tribunal, on evaluation of evidence on

record, has concluded that the employer had maintained the panel of daily

wagers engaged in the concerned region and the workman having been

enlisted in the panel could not have been disengaged arbitrarily to

accommodate some blue eyed person. Learned counsel, thus, submits that

the Tribunal has committed no illegality in finding action of

disengagement of the workman by the employer as unfair labour practice.

He, therefore, would support the award passed by the Tribunal and pray

for dismissal of the writ petition.

9 Having heard learned counsel for the parties and perused the

record, it is necessary to be reminded of the nature of jurisdiction which

this court exercises when an award passed by the Tribunal is challenged

before it under Article 226 of the Constitution of India.

10 This Court while sitting in its extra ordinary writ jurisdiction under

Article 226 or supervisory jurisdiction under Article 227 does not sit in

appeal against the award passed by the Industrial Tribunal and it would be

loath to interfere unless the award of the Tribunal suffers from perversity

or it suffers from an error apparent on face of the record. The legal

position in this regard is succinctly put by the Supreme Court in paragraph

No.81 of the judgment in Gujarat Steel Tubes Ltd. v. Gujarat Steel

Tubes Mazdoor Sabha and others, (1980) 2 SCC 593.

"81. The second limb of the argument was that a writ of certiorari could not be issued to correct errors of facts. In this connection after affirming the ratio in Engineering Mazdoor 6 OWP 574/2010

Sabha v. Hind Cycle Ltd., 1963 Supp (1) SCR 625 this Court observes that what is important is a question of law arising on the face of the facts found and its resolution ex facie or sub silentio. The Arbitrator may not state the law as such; even then such acute silence confers no greater or subtler immunity on the award than plain speech. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award 'thin partition do their bounds divide' on the facts and circumstances of the present case. Broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-judicial tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can he no ground for interference. The power of judicial supervision of the High Court under Article 227 of the Constitution (as it then stood) is not greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority [see Nagendra Nath Bora & Anr. v. The Commissioner of Hills Division & Appeals, Assam & ors, 1958 SCR 1240]. This led to a proposition that in exercising jurisdiction under Article 226 the High Court is not constituted a Court of appeal over the decision of authorities, administrative or quasi-judicial. Adequacy or sufficiency of evidence is not its meat. It is not the function of a High Court in a petition for a writ under Art 226 to review the evidence and to arrive at an independent finding on the evidence. [See 7 OWP 574/2010

State of Andhra Pradesh v. S. Shree Rama Rao (1964) 3 SCR 25 at p.33. A constitution Bench of this Court in P. H. Kalyani v. M/s Air France, Calcutta, (1964) 2 SCR 104 succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record. It was further pointed out that in the finding of fact is made by the impugned order and it is shown that it success from an error of law and not of fact, a writ under Article 226 would issue, and, while so saying, the decision in Nagendra Nath Bora's case was affirmed. Following the aforementioned decision, the Gujarat High Court in Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd., (1978) 19 guj LR 108 at p.140 observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived."

(underlining mine)

11 When the impugned award is examined within the constrains put on

the exercise of jurisdiction under Article 226 of the Constitution of India,

it is seen that the findings of fact have been returned by the Tribunal on

the basis of evidence that was led before it and the record that was

produced. I, therefore, do not find it a case of any perversity or

commission of any error apparent on face of record committed by the

Tribunal. It has been firmly established by the workman before the

Tribunal that he was engaged as a daily wager, though on temporary 8 OWP 574/2010

basis, but remained in the service of the employer for 400 days. He was

disengaged not on the ground that his engagement was not made by the

competent authority or that he was not appointed against a sanctioned

post, but was ousted by the Branch Manager concerned to accommodate

his blue eyed person. It has also come on record that the employer had

maintained a panel/list of daily wagers engaged in different branches of

the Bank in the region and the name of the workman was existing in the

said panel. It has also not been demonstrated by the employer that the

daily wagers similarly situated with the workman, whose names along

with the workman were existing in the panel prepared, were also

disengaged, rather there is no denial of the categoric case set up by the

workman that it was he who alone was picked up for differential treatment

and disengaged by the Branch Manger of M.C Khalsa High School to

accommodate his blue eyed person..

12 The Tribunal, on facts and on the basis of evidence led before it,

has found the disengagement of the workman unfair and this Court in the

exercise of writ jurisdiction cannot sit in an appeal against the findings of

fact returned by the Tribunal, unless such findings are shown to be

perverse and not supported by any evidence. It is not the case of the

workman that by having completed 240 days of service with the Bank, he

has become entitled to regularisation, but what he has prayed for is to put

him back in service and treat him on par with the other similarly situated

daily wagers.

                                  9                   OWP 574/2010




13    The plea of delay and laches raised by learned counsel for the

employer is also not tenable in law. The delay in approaching the Tribunal

has been well explained by the workman who had wasted few years while

working out his remedies before the wrong forum. That apart, it is well

settled that the delay in approaching the Tribunal against disengagement

or termination is inconsequential and cannot non-suit the workman, for,

the Industrial Disputes Act does not prescribe any period of limitation.

Reference is made to para Nos. 14 and 15 of the judgment of the Supreme

Court in Jasmer Singh vs. State of Haryana and another, (2015) 4

SCC 458.

"14.On issue No. 3, after adverting to the case of State of Punjab v. Kalidass, wherein the High Court has observed that the workman cannot be allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent-employer with reference to the said plea the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. in which it is observed by this Court that there is no period of limitation to the proceedings in the Act.

15. Accordingly, Issue No. 3 is answered against the respondent-management. The relevant paragraph from Ajaib Singh's case (supra) is extracted herein below:

"10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of 10 OWP 574/2010

delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages".

14 Mr. Saini, learned counsel for the workman has cited few more

judgments to bolster his case, but I do not find it necessary to deal with

those judgments for the reason that I am not inclined to interfere with the

award impugned to the extent of workman herein for the reasons given

hereinabove.

15) For the foregoing reasons, the impugned award to the extent of

respondent No.4 is upheld and the writ petition, which is devoid of any

merit, is dismissed along with connected application(s).

(Sanjeev Kumar) Judge

JAMMU 27 .08.2021 Sanjeev Whether the order is speaking: Yes Whether the order is reportable: Yes