Prahalad Saw vs M/S T.T.P.S. Lalpania Through ...
2024 Latest Caselaw 1188 Jhar

Jharkhand High Court

Prahalad Saw vs M/S T.T.P.S. Lalpania Through ... on 6 February, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                                                 1           W.P. (L). No. 2960 of 2020




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P. (L ) No. 2960 of 2020

                  Prahalad Saw, aged about 48 years, son of Late Bhola Saw,
                  resident of Kodwadih, P.O. + P.S.- Mahuatar, Dist.-
                  Bokaro, Jharkhand            .......... Petitioner
                                  Versus

               1. M/s T.T.P.S. Lalpania through Principal Employer, P.O-
                  Lalpania, P.S.- Lalpania, Dist.- Bokaro
               2. The General Manager-cum- Chief Engineer, T.T.P.S.
                  Lalpania, P.O- Lalpania, P.S.- Lalpania, Dist.- Bokaro
               3. M/s Ekhlaq Khan, Contractor, P.O- Lalpania, P.S.-
                  Lalpania, Dist.- Bokaro
                                                 ........... Respondents

       For the Petitioner  :        Mr. Ranjan Kr. Singh , Adv.
       For the Respondents :        Mr. Rohit Ranjan Sinha , Adv.
                                    Mr. Anoop Kr. Mehta , Adv.



                               PRESENT

           HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY



By the Court:- Heard the parties.

2. This writ petition has been filed invoking the jurisdiction of this court under Article 226 of the Constitution of India, with a prayer for issuance of an appropriate writ, order or direction particularly in the nature of the certiorari for quashing the Award passed in Reference Case no. 01 of 2017 dated 30.11.2019 by the Presiding Officer, Labour Court, Bokaro, the copy of which is kept at Annexure 4 of this writ petition, by which, the reference was answered against the petitioner workman.

3. The brief facts of the case is that following reference was made by the appropriate Government in exercise of power under Section 10(1) (c) of the Industrial Disputes Act, 1947:-

" Whether not issuing the gate pass and preventing Sri Prahalad Saw, workman from his work by his contractor, M/s Ekhlaq Khan and Principal employer, General Manager-cum-Chief Engineer, TTPS, Lalpania, Bokaro is justified? If not, what relief he is entitled to ?"

4. The undisputed fact is that the petitioner workman, namely Prahalad Saw, was provided employment by the contractor of the Opp. Party no. 2 and 3, namely M/s Ekhlaq Khan and M/s Ekhlaq Khan was awarded contractual work by T.T.P.S. Lalpania. Prahalad Saw worked for the period from July, 2008 to September, 2014. Vide letter no. 376 dated 23.09.2014, the opp. party no. 2- the management cancelled the gate pass of Prahalad Saw. There has been litigation between Prahalad Saw and the T.T.P.S., Lalpania being the Opp. Party nos. 1 and 2. The management Opp. no. 1 and 2, before learned tribunal, who are the respondent no. 1 and 2 of this writ petition, took the stand, that the writ petitioner, Prahalad Saw, was issued with the gate pass, but later on, Prahalad Saw, in collusion with the others, started acquiring land of TVNL and on protest by the management of respondent - opp. Party no. 1 and 2 threatened, the management with the help of gunda of the locality and a case under Section 144 of CrPC, was instituted and the management filed the encroachment case of the land, against the petitioner and others and the petitioner filed Title Suit No. 79 of 2013 against the management in the court of learned Sub Judge, Bermo at Tenughat and before cancellation of the gate pass of the petitioner, the management several times requested the contractor, who engaged the petitioner-Prahalad Saw to give direction to the petitioner, not to grab the land of the TVNL but in spite of that, neither the contractor- Opp. Party-respondent no. 3 nor the petitioner took any care of the request of the management. Therefore, the management cancelled the gate pass of the petitioner on 23.09.2014 and informed the contractor, who engaged the petitioner, being the Opp. Party- respondent no. 3, M/s Ekhlaq Khan. The petitioner workman claimed to reside in a residential accommodation, allotted by the respondent- Opp. Party

no. 1 and 2 and that the cases instituted by the management against him, are false. The labour court framed the following two issues:-

(i) Whether not issuing the gate pass in favour of Prahalad Saw the workman for his work by his contractor M/s Ekhlaq Khan and also by the principal employer, General Manager-cum-Chief Engineer TTPS, Lalpania is justified?

(ii) if the said action is not justified then, what relief the workman is entitled to ?

5. In support of its case, the management examined one witness, proved the documents, which has been marked as Exhibit M1 to M

25. On behalf of the respondent- Opp. Party no. 3, the contractor, who himself examined as witness no. 1 and proved some photocopies of the documents.

6. On behalf of the writ petitioner, three witnesses including the petitioner himself was examined and he also proved the documents, which have been marked as W1 to W9. Learned tribunal after considering the evidence in the record, considered that though it was necessary for the workman to produce relevant materials to prove his contention that he was actually working under the opp. Party no. 2- TTPS, Lalpania being the principal employer but the writ petitioner workman, deposed in his cross- examination, that he worked under the contractor, for 8-9 years and he was paid the amount of that period and he did not dispute that the wages of him was paid by M/s Ekhlaq Khan - the opp. Party no. 3.

7. The labour court relied upon the judgment of the Hon'ble Supreme Court of India in the case of General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon vs. Bharat Lal and Anr. reported in 2011 (1) SCC 635, wherein inter alia the Hon'ble Supreme Court of India has observed that two of the well-

recognized tests to find out whether the contract labourers are the direct employees of the principal employer are

(i) whether the principal employer pays the salary instead of the contractor? and

(ii) (ii) whether the principal employer controls and supervises the work of the employee?

8. Learned labour court also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Balwant Rai Saluja and Anr. vs. Air India Ltd. and Ors. reported in 2014 (9) SCC 407, wherein the Hon'ble Supreme Court of India inter alia laid down the relevant factors to be taken for consideration for establishing an employer-employee relationship, as follows:-

(i) who appoints the workers,

(ii) who pay the salary / remuneration ,

(iii) who has the authority to dismiss,

(iv) who can take disciplinary action

(v) whether there is continuity of service, and

(vi) extent of control and supervision i.e. whether there exists complete control and supervision.

9. Learned labour court also considered the series of litigation in respect of the land between the petitioner and the respondent - opp. Party no. 1 and 2- the management and also concluded that the petitioner workman, Prahalad Saw, was never engaged by the opp. Party no. 1 and 2 i.e. TTPS, Lalpania rather he was engaged by the contractor and came to the conclusion that the petitioner workman, Prahalad Saw, is not entitled for protection of compliance of Section 25 (F) of the Industrial Disputes Act, before his gate pass was cancelled by the management and came to the conclusion that issuing the gate pass in favour, of Prahalad Saw by the opp. Party- respondent no. 1 and 2, management is justified and decided the issue no. 1 in favour of the management and consequently, answered the issue no. 2, in favour of the

management as well and against the workman, by holding that the workman, is not entitled to get any relief.

10. It is submitted by learned counsel for the petitioner that learned labour court committed an illegality by taking into consideration the litigation between the petitioner and the management relating to land, though the same was not the issue related to the petitioner and the opp. Party- respondent no. 1 and 2 and further has committed gross illegality by not adopting the principle of natural justice in stopping to do the work of the respondent. It is further submitted that as in the counter affidavit filed by the opp. Party- respondent no. 3- contractor, M/s Ekhlaq Khan, has contended that if the petitioner agrees to work outside the plant, where gate pass is not required then the contractor is still ready to provide the employment outside the plant, hence, the opp. Party no. 3 be directed to employ the petitioner to work outside the plant as the petitioner is ready for the same, hence, it is submitted that the prayer as made in the writ petition be allowed.

11. Learned counsel for the respondent no. 1 and 2 on the other hand, vehemently opposes the prayer to quash the Award passed in Reference Case no. 01 of 2017 dated 30.11.2019 passed by the leanred Presiding Officer, Labour Court, Bokaro, and submits that award impugned in this writ petition, is based on pure finding of facts, which do not suffer from any illegality. Relying upon the judgment of the Hon'ble Supreme Court of India, in the case of Syed Yakoob vs K.S. Radhakrishnan & Others reported in AIR 1964 SC 477, para 7 of which, reads as under:-

"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently 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 improperly, as for instance, it decides a question without giving an opportunity to 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 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 beforeSC480 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 agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104: ((S) AIR 1955 SC 233):

Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240: (AIR 1958 SC

398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168."

it is submitted by learned counsel for the opp. Party no. 1 and 2, that as it is a settled principle of law, that finding of facts arrived by inferior court or tribunal, as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings and an error of 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, learned tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding or, 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 but in this case, there is no allegation, made by the petitioner that any inadmissible evidence has been admitted by the labour court or any admissible evidence has been ignored, nor it being the case of the petitioner, that the judgment is based on no evidence hence, there is no merit in this writ petition, to interfere with the impugned award made by the labour court.

12. It is next submitted by learned counsel for the respondent no. 1 and 2, that the petitioner has miserably failed to point out any perversity in the award, or any error of law, committed by learned labour court and the petitioner could not put forth any right to be issued with any gate pass, hence, as the management reserves the right to regulate the entry of any person to its premises, hence, no illegality has been committed by the respondents -opp. Party no. 1 and 2- management in not issuing the pass to the writ petitioner who was working under the contractor, in view of his conduct, detrimental to the interest of the management including, threatening the management with the help of anti-social elements and resorting to series of litigation.

13. Learned counsel for the respondent no. 3, submits that the respondents in fact, offered the petitioner to work elsewhere than the premises of the respondent - opp. party no. 1 and 2, where gate pass is required but at that time, the petitioner was not agreeable for the same but the said offer, having not accepted by the writ petitioner, so certainly, the same do not vests any continuing right upon the writ petitioner, to seek employment under the respondent- opp. Party no. 3. It is further submitted by respondent - opp. Party no. 3 that the contract of the respondent - opp. Party no. 3 with the respondent- opp. Party no. 1 and 2- the management, has come to an end and hence, the offer which was made at the relevant time, when the respondent - opp. Party no. 3, was taking up the contractual work of the respondent - opp. Party no. 1 and 2, is no more available to be offered to the writ petitioner.

14. Having heard the submissions made at the bar and after going through the materials available in the record, this court finds that it is the settled principle of law as has already been referred above, as has been held by the Hon'ble Supreme Court of India, in the case of Syed Yakoob vs K.S. Radhakrishnan & Others reported in AIR 1964 SC 477 (supra), a writ court can interfere with an award made by the labour court or the tribunal, for the

purpose of issuing the writ of certiorari, only if the inferior court or tribunal has, acted in perversity, by not admitting any admissible evidence or admitting any evidence, which is inadmissible, or basing upon the findings on no evidence or it does not have any jurisdiction, or it has committed any error of law, as already indicated above.

15. Now coming to the facts of the case, as it is not even the case of the petitioner, that there is any error of law, committed by the labour court or there is any perversity. But what all the petitioner, could agitate, is that there is some, error in appreciation of the evidence in record, by learned labour court. The undisputed fact, remains that the opp. Party - respondent nos. 1 and 2- the management, has right to regulate the entry of any person, to its premises. There is undisputed fact that there were litigations, between the management of the opp. Party nos. 1 and 2 and the writ petitioner. So, under such circumstances, if the management has denied entry by refusing to issue a gate pass to the writ petitioner, no fault can be found with it.

16. In this backdrop, this court, do not find any illegality in the award passed in Reference Case no. 01 of 2017 dated 30.11.2019 by learned Presiding Officer, Labour Court, Bokaro.

17. Accordingly, this writ petition, being without any merit, is dismissed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 6th February, 2024 Smita /AFR