Orissa High Court
Rattan Enterprises vs State Of Odisha on 12 May, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 13571 OF 2015
In the matter of an application under
Articles 226 and 227 of the Constitution of India, 1950.
---------------
Rattan Enterprises
Swadhin Colony, Rajgangpur
Sundargarh 3 770 017
represented by
Sri Chandradeo Rai
Legal Representative of
proprietor-Late Ramrattan Rai
and Another ... Petitioner
-VERSUS-
State of Odisha
represented by the Secretary
Department of Labour & Employment
Odisha Secretariat, Bhubaneswar
and Others ... Opposite Parties
Counsel appeared for the parties:
For the Petitioners : M/s. Sarada Prasanna Sarangi,
D.K. Das, P.K. Dash, B.P. Das,
D. Mohapatra and V. Mahapatra,
Advocates
LAXMIKANT
MOHAPATRA
For the Opposite Parties : Sri Prabhu Prasad Mohanty,
Digitally signed
Additional Government Advocate
by LAXMIKANT
MOHAPATRA
Date:
2023.05.12
for the opposite party No.1
16:57:58 +05'30'
M/s. Kamal Ray and A.K. Baral,
Advocates for the opposite party
M/s. Bhupesh Chandra
Mohanty, Ajit Kanungo and
Tarun Patnaik, Advocates for the
opposite party No.6
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 08.05.2023 :: Date of Judgment: 12.05.2023
MURAHARI SRI RAMAN, J.4 Aggrieved by the Award dated 10th April,
2015 made by the learned Industrial Tribunal, Rourkela
in Industrial Dispute Case No.16 of 2005 forming part of
Notification bearing No.II/I(SS)-36/20044 5196/LESI,
dated 11th June, 2015 issued by the Government of
Odisha in Labour and ESI Department, vide Annexure-5
(for brevity hereinafter referred to as 5Award6), the
petitioners approached this Court by way of filing writ
petition under Article 226/227 of the Constitution of
India with the following prayer:
<*** issue rule NISI calling upon the opposite parties to
show cause as to why the award dated 10.04.2015 vide
Annexure-5 passed by the learned Presiding Officer,
Industrial Tribunal, Rourkela in I.D. Case No.16 of 2005
shall not be quashed and if the opposite parties fail to
show cause and show insufficient cause make the said
rule absolute.=
FACTS OF THE CASE AS NARRATED BY THE PETITIONERS:
2. It has been outlined by the writ petitioners that the
petitioner No.1-M/s. Rattan Enterprises, a
proprietorship concern of Sri Chandradeo Rai (petitioner
No.2-Legal Representative of proprietor-Late Ramrattan
Rai), (both the petitioners are addressed to as
5petitioner6 hereafter), assigned with license under the
Contract Labour (Regulation and Abolition) Act, 1970,
for engaging the services of the contract labour, was
engaged as contractor for cleaning of spillage materials,
shifting, sorting and changing of grinding media, cutting
of set clinker, etc. in cement works of M/s. OCL India
Ltd.-opposite party No.6.
2.1. Sri Bidyananda Rai, Sri Sudhakar Mishra and Sri
Premdhan Baxla, the opposite party Nos.3, 4 and 5
respectively, employees of the petitioner-M/s. Rattan
Enterprises, were deployed in the cement works of the
opposite party No.6 for carrying out certain jobs like
floor cleaning, spillage materials, handling,
sorting/shifting of the grinding media, etc.
2.2. It is the case of the petitioner that the opposite party
Nos.3 to 5 worked for another contractor, namely, M/s.
CD Enterprises, which carried on similar nature of work
with the opposite party No.6, till 01.09.1988, but on
their retrenchment, they were engaged by the petitioner
with effect from 15.06.1995 on the request of the
opposite party No.2-Odisha Cement Mazdoor Sangh and
the petitioner paid wages to these opposite parties as per
settlement entered into between Rajgangpur Contractors'
Association with the recognized Union from time to time.
It is stated that Association of Cement Manufacturers
(called as 5CMA6) having its Office at New Delhi
negotiated with the Central Trade Unions for fixing wage
rate of the workmen in the Cement plants and the
Member who authorizes CMA to negotiate on its behalf is
bound by the settlement called 5National Tripartite
Settlement for Cement Workers6 (in short, 5Cement Wage
Board6). The petitioner put forth that the opposite party
No.6, though a Member of CMA, never authorized CMA
to negotiate on its behalf. Therefore, it is claimed by the
petitioner that the Cement Wage Board rate is not made
applicable to the workmen working in the cement plant
of M/s. OCL India Ltd.-opposite party No.6 since 1989,
as such the opposite party Nos.3 to 5 were 5not entitled
to receive wages at par with the Cement Wage Board
rate6.
2.3. The workmen, claiming to be reinstated employees, after
a lapse of around eight years, raised a dispute
demanding wages as per Cement Wage Board rate with
effect from 15.06.1995, i.e., the date of fresh
employment by the petitioner. Such a dispute remained
unresolved in the conciliation proceeding, as a result of
which failure report was submitted by the District
Labour Officer, Rourkela to the Government of Odisha.
The State Government in Labour and Employment
Department vide Order dated 26.11.2005 in exercise of
powers conferred by sub-section (5) of Section 12 read
with clause (d) of sub-section (1) of Section 10 of the
Industrial Disputes Act, 1947 (5ID Act6, abbreviated)
referred the matter in dispute to the Presiding Officer,
Industrial Tribunal, Rourkela for adjudication of terms
of following Schedule:
<Whether the action of M/s. Rattan Enterprises, contractor
along with Management of M/s. OCL India Ltd.,
Rajgangpur in denying to pay Cement Wage Board rate to
Sri Bidyananda Rai, Sri Sudhakar Mishra and Sri
Premdhan Baxla with effect from 15.06.1995 is legal
and/or justified;
If not, whether these workmen arte entitled to get Cement
Wage Board rate with effect from the date of their
reinstatement, i.e., 15.06.1995?=
2.4. Said reference, registered as ID Case No.16 of 2005, the
learned Presiding Officer, Industrial Tribunal, Rourkela
concluded by passing Award dated 08.01.2014, which
was subject-matter of challenge before this Court in writ
petition being W.P.(C) No.2368 of 2014. Said writ
petition came to be disposed of with the following
observation and direction:
<*** Taking into consideration the submissions advanced,
nature of the impugned orders passed, the impugned
orders dated 02.01.2014 and 10.01.2014 are set aside
and the matter is remanded back to the learned Industrial
Tribunal, Rourkela for hearing from the stage, the
proceeding was on 02.01.2014. Both the parties are
directed to appear before the learned Industrial Tribunal
on 18.12.2014. No notice need be issued to them.
Learned Industrial Tribunal is directed to conclude the
proceeding within four weeks from the date of appearance
of the parties.=
2.5. In answer to the reference, the learned Industrial
Tribunal observing that there being no infirmity in
making reference by the State Government in exercise of
power conferred under Section 12(5) read with Section
10(1)(d) of the ID Act, held that the workmen-opposite
party Nos.3 to 5 were entitled to Cement Wage Board
rate with effect from 15th June, 1995, i.e., the date of
their reinstatement. Accordingly, the Award has been
made on 10th April, 2015 by the Industrial Tribunal,
Rourkela, which got notified by the Government of
Odisha in Labour and ESI Department vide Notification
No.II/I(SS)-36/20044 5196/LESI, dated 11th June,
2015 (Annexure-5).
2.6. In order to ventilate its grievance against error of record
and misappreciation of evidence while framing aforesaid
Award, the petitioner filed the writ petition manifestly
under Article 227 of the Constitution of India.
OBJECTION OF THE OPPOSITE PARTY NOS.3 TO 5 BY WAY OF
COUNTER-AFFIDAVIT:
3. Referring to the minutes of discussion held on
21.11.1990 between the Management of Odisha Cement
Limited and Odisha Cement Mazdoor Sangha wherein it
has been stipulated that Cement Wage Board rate would
5apply in respect of contractor-workers engaged in the
jobs of cement works6 where the job undertaken
includes 5cleaning of Vertical Roller Mill reject material
discharged on the floor through Vertical Roller Mill reject
chute; pre-heater poking; attending additive hopper and
coal hopper; temporary engagement in plant laboratory
for sample collection till automatic sample collection
arrangement becomes operative6, it is stated that in
addition to the job mentioned by the petitioner that it
undertakes, namely 5jobs of cleaning of spillage
materials, shifting, sorting and cleaning of grinding
media, etc. in the cement works6, the opposite party
No.6-OCL India Ltd. executes cleaning and maintenance
of Vertical Roller Mill, pre-heater poking, attending
additive hopper and coal hopper, etc. Therefore, it is
submitted by these opposite parties that the Cement
Wage Board rate is applicable to the workmen working
in the cement plant of the opposite party No.6.
3.1. It is the case of the opposite party Nos.3 to 5 that due to
rationalization of jobs and reduction of work M/s. CD
Enterprises and M/s. Rattan Enterprises retrenched the
opposite parties Nos.3 to 5 along with other workmen
with effect from 07.02.1994. Out of thirty-four workmen,
five workmen settled their dispute out of court and rest
twenty-nine workmen raised dispute before the Assistant
Labour Commissioner, Rourkela. Before the Government
referred the dispute to the Industrial Tribunal, Rourkela,
twenty-six workmen including the opposite party Nos.3
to 5 were re-engaged in service with effect from
15.06.1995 under the petitioner-M/s. Rattan
Enterprises as M/s. CD Enterprises merged with M/s.
Rattan Enterprises on protection of terms and conditions
of service as was existing with M/s. CD Enterprises
through a mutual understanding between M/s. OCL
India Ltd.-opposite party No. 6 and the Union-Odisha
Cement Mazdoor Sangh (opposite party No. 2). Though
the opposite party Nos. 3 to 5 got re-engaged in service,
Cement Wage Board rate was not extended to them.
Subsequently, a memorandum of settlement was
formulated on 20th October, 1997 between M/s. CD
Enterprises and M/s. Rattan Enterprises and the Odisha
Cement Mazdoor Sangh-opposite party No.2 in respect of
three workmen wherein it was specifically mentioned
that the workmen employed under M/s. CD Enterprises
were taken over by the Contractor-M/s. Rattan
Enterprises on protection of terms and conditions of
service as was existing with M/s. CD Enterprises. The
names of the opposite party Nos. 3 to 5 did reflect at
Serial Nos. 9, 10 and 2 respectively in the list appended
to such settlement.
3.2. Therefore, these opposite parties always demanded for
payment of the Cement Wage Board rate to the workmen
and the petitioner as well as the opposite party No. 6
assured to pay the same. When they paid deaf ears to
the request of the Odisha Cement Mazdoor Sangh,
dispute was set up before the labour machinery and the
matter was, thus, referred to Industrial Tribunal,
Rourkela for adjudication which ultimately went in
favour of the workmen. So the plea of the petitioner that
the opposite party Nos.3 to 5-workmen have been
receiving wages without any demur is out and out false.
3.3. Since the opposite party Nos.3 to 5 discharged the duties
in the specified jobs as has already been mentioned
above, they are entitled to Cement Wage Board rate and,
hence, the Award dated 10th April, 2015 does not
warrant indulgence of this Court.
ARGUMENTS ADVANCED BY COUNSEL FOR THE RESPECTIVE PARTIES:
4. Sri Sarada Prasanna Sarangi, learned Advocate
appearing for the petitioner reiterating the stance before
the learned Industrial Tribunal, contended that the
impugned Award dated 10.04.2015 as notified on
11.06.2015 by the Labour and ESI Department vide
Annexure-5 cannot withstand judicial scrutiny
inasmuch as the same is hit by principle of res judicata.
He proceeded to contend that the opposite party Nos.3 to
5 having accepted the wage as per the settlement arrived
at on earlier occasion between the Odisha Cement
Mazdoor Sangh-opposite party No.2 and retrenched
workmen submitted in 5Form-K6 in ID Case No.52 of
1997, which was disposed of on 5th November, 1997 with
no Award, the reference answered in the Award under
challenge in the present writ petition is liable to be
quashed. The fresh plea of the opposite party Nos.3 to 5
herein that their case is of reinstatement, but not
retrenchment, could not have been entertained by the
learned Industrial Tribunal, as such the impugned
Award is untenable in the eye of law.
4.1. Sri Sarada Prasanna Sarangi, learned counsel for the
petitioner further urged that the aspect of jurisdictional
fact could not have been lightly dealt with by the learned
Industrial Tribunal as the State Government, being not
the 5appropriate Government6 in tune with the definition
contained in Section 2(a) for referring the dispute in
exercise of power conferred under Section 10(1)(d) read
with Section 12(5) of the ID Act. Thus, the sum and
substance of the argument of the learned counsel is that
M/s. OCL India Ltd., the opposite party No.6, being
declared as controlled industry engaged in the
manufacture or production of cement, the reference
could not have been made by the State Government.
Amplifying further, Sri Sarangi has taken this Court to
the definition of 5appropriate Government6 contained in
Section 2(a)(i) of the ID Act and contended that M/s.
OCL India Ltd.-opposite party No.6 being notified as
controlled industry vide Notification dated 8th November,
1997, and the petitioner was engaged as contractor,
having license obtained from the Regional Labour
Commissioner (Central) under the Contract Labour
(Regulation and Abolition) Act, 1970, the State
Government transgressed its authority in referring the
matter to the Industrial Tribunal, Rourkela.
4.2. Further ground of attack against the sustainability of
Award dated 10.04.2015 was fallout of Clause 11 of the
Cement Wage Board rate with regard to revision of wages
and other benefits/service conditions of the workmen
working in cement factories, mines/quarries of cement
manufacturers pursuant to settlement dated 26.04.2005
under Section 12(3) and Section 18(3) of the ID Act in
the dispute in relation to employers represented by the
Cement Manufacturers' Association and Cement
Workmen represented by the Indian National Cement
Workers' Federation, the Akhil Bharatiya Cement
Mazdoor Sangh, the Hindu Mazdoor Sabha, the All India
Cement Workers' Federation and the Centre of Indian
Trade Unions. It is contended by the learned counsel for
the petitioner that the name of the opposite party No.6-
OCL India Ltd., cement manufacturer, finds place at
serial No.10 of Annexure-II4 5Companies who have not
authorized Cement Manufacturers' Association for a
National Settlement6. Therefore, in view of terms of
Clause 11 of said Settlement dated 26.04.2005 that 5The
present settlement arrived at between the parties to the
settlement shall have no application to those cement
companies who have not authorized CMA to represent
on their behalf6, the opposite party Nos.3 to 5, who
joined the petitioner-proprietorship concern on
15.06.1995, do not deserve wages as per Cement Wage
Board rate.
5. Sri Kamal Ray, learned Advocate appearing for the
opposite party Nos.3 to 5 submitted that nothing is
brought on record to show that the learned Tribunal has
not considered evidence adduced by the parties and no
error apparent on the face of the record being
demonstrated by the petitioner, there is little scope for
this Court in interfering with the Award framed vide
Anenxure-5. The petitioner having not shown flaw in
arriving at the conclusion on facts, the matter does not
require to be interfered with in the instant proceeding.
5.1. Sri Kamal Ray, learned Counsel refuting the contention
of Sri Sarada Prasanna Sarangi, learned Counsel for the
petitioner would submit that no cogent material was
placed before the learned Tribunal to show that the
specified jobs for entitlement of Cement Wage Board rate
were not in existence and these opposite parties were
engaged in other than these jobs.
5.2. Advancing argument against the ground of competence
of State Government to refer the matter to the Industrial
Tribunal, Sri Kamal Ray submitted that the petitioners
having not raised such issue at the earliest opportune
time, such a plea is not available for them to agitate at
this belated stage. Rather the conduct of the petitioner
by participation before the learned Tribunal would make
it clear that it is in no way prejudiced. To supplement
such argument Sri Kamal Ray, advocate for the opposite
party Nos.3 to 5, submitted that on failure of settlement
between the parties in the conciliation proceeding before
the Deputy Labour Commissioner, Rourkela vide Report
No.5787/DLC, RKL, dated 24th September, 2005
(Annexure-B/3 to the Counter Affidavit), the State
Government made reference which was challenged
before this Court in W.P.(C) No.8683 of 2006 by the
opposite party No.6-OCL India Ltd. It is matter of record
that said writ petition was dismissed as withdrawn on
13.05.2015.
5.3. It is forcefully submitted that the petitioner, having
participated in the proceeding without questioning the
initiation thereof, cannot be allowed to contend that the
reference as made was incompetent, particularly so
when the Award was not palatable to them.
ANALYSIS AND DISCUSSIONS IN CONSIDERATION OF RIVAL
CONTENTIONS AND ARGUMENTS:
6. The counsel for the petitioner, Sri Sarada Prasanna
Sarangi, referred to Section 2(a) of the ID Act which
defines 5appropriate Government6 in the following terms:
<(a) APPROPRIATE GOVERNMENT means4
(i) in relation to any industrial dispute concerning
any industry carried on by or under the
authority of the Central Government or
concerning any such controlled industry as
may be specified in this behalf by the Central
Government***=
6.1. The Government of India in Ministry of Labour issued
Notification No. S.O. 757(E), dated 08.11.1977,
published in the Gazette of India No.476, dated
08.11.1977, specifying as hereunder:
<In pursuance to sub-clause (i) of Clause (a) of Section 2 of
the Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby specifies for the purpose of that sub-
clause, the controlled industry engaged in the
manufacture or production of Cement which, has been
declared as controlled industry under Section 2 of the
Industries Development and Regulation Act, 1951 (65 of
1951).=
6.2. Stemming on above provision and notification, the
counsel for the petitioner contended that it is the Central
Government, which is competent to make reference in
respect of controlled industry, i.e., cement.
6.3. It appears what has been missed by the counsel for the
petitioner is proviso to clause (a) of Section 2 of the ID
Act. Said proviso reads thus:
<Provided that in case of a dispute between a contractor
and the contract labour employed through the contractor
in any industrial establishment where such dispute first
arose, the appropriate Government shall be the Central
Government or the State Government, as the case may be,
which has control over such industrial establishment.=
6.4. Nothing is cited by the counsel for the petitioner to show
that the State Government did not have the control over
OCL India Ltd.-opposite party No.6 or the contractor-
petitioner in terms of aforesaid proviso. The counsel for
the petitioner appears to have been misdirected by
taking such a plea with regard to objection as to
5appropriate Government6 to exercise power under the
ID Act for making reference. This aspect is no more res
integra. This Court appreciates the assistance rendered
by Sri Kamal Ray, advocate for the opposite party Nos.3
to 5, who has cited the decision of the Hon'ble Supreme
Court in the case of Yovan, India Cements Employees
Union and Another Vrs. Management of India Cements
Ltd. and Others, 1993 Supp.3 SCR 381 = AIR 1994 SC
558 = (1994) 1 SCC 572. It has been candidly laid down
in the said reported Judgment as follows [extracted from
SCR]:
<7. The notification dated December 8, 1977 reads as
under:
>The Gazette of India
Part-II, Section 34 sub-section (ii)
published by authority
No.4520, New Delhi, Tursday, Decement 8, 1977
Separate paging is given to this part in order that
it may be filed as separate compilation.
Ministry of Labour
Notification
New Delhi, the 8th December, 1977
S.O. 826(E)4 In exercise of the powers,
conferred by Section 39 of the Industrial Disputes
Act, 1947 (14 of 1947), the Central Government
hereby directs that all the powers exercisable by it
under that Act and the rules made thereunder shall,
in relation to the Cement Industry be exercised
also by all the State Governments, subject to the
condition that the Central Government shall continue
to exercise all the powers under the said Act and
Rules made thereunder:
(i) relating to mines and quarries even where such
mines and quarries form part of the Cement
Industry; and
(ii) relating to the dispute between the employers
who are members of the Cement Manufacturers
Association, Express Building, Churchgate,
Bombay and their workmen represented by
Indian National Cement and Allied Workers?
Federation, Mazdoor Karyalaya, Congress
House, Bombay, which has been referred for
arbitration in pursuance of Section 10-A of the
said Act, read with Notification No. S.O. 757(E)
dated November 8, 1977 [No. S.
11025/9/77/DI(A)], in terms of the arbitration
agreement published by the notification of the
Government of India in the Ministry of Labour
Order No. L.29013/2/77-D.O.III(B), dated the
29th November, 1977.
[No. S. 11023/9/77/DI(A)]
D. Bandyopadhyay, Jt. Secy.
(True copy/attested)
Sd/-
Regional Labour Commissioner
(Central) Madras.?
8. Therefore, it is clear that both the Central and
the State Governments are appropriate
Governments under the Act. That being so, the
notification issued by the Government of Tamil Nadu
dated January 23, 1987 is a valid notification. The
stand taken by the respondent-management, is not
tenable.=
6.5. This Court takes into consideration further fact that
M/s. Rattan Enterprises represented by its proprietor
has participated in the conciliation proceeding before the
Deputy Labour Commissioner in-Charge. On failure of
settlement, vide Letter No.7587/DLC, RKL, dated
24.09.2005 (Annexure-B/3 to the counter affidavit filed
by the opposite party Nos.3 to 5) the Deputy Labour
Commissioner in-Charge, Rourkela submitted his report
to the Labour Commissioner, Odisha, Bhubaneswar. In
the considered opinion of this Court, interference with
the reference Order dated 26.11.2005 of the Government
of Odisha in Labour and Employment Department in
exercise of power under Section 10(1) read with Section
12(5)(d) of the ID Act is inexpedient because that order
does not affect the rights of the parties, more so such
referral order was never challenged by the petitioner-
M/s. Rattan Enterprises. Glossing through the prayer(s)
in the present writ petition, it is evident that the
petitioner has not prayed to quash/set aside the said
Order dated 26.11.2005, vide Annexure-3, but the
prayer is confined to challenge against the Award dated
10.04.2015 (Annexure-5).
6.6. It is well-settled that a writ petition lies only when the
rights of some party has been adversely affected. A
reference under Section 12(5) read with Section 10(1) of
the ID Act does not affect rights of either party. [See D.D.
Gears Ltd. Vrs. Secretary (Labour) and Others, reported in
2006 (87) DRJ 66 (Del) = (2006) 110 FLR 42 (Del).
6.7. The stand of the counsel for the petitioner, Sri Sarada
Prasanna Sarangi, that State Government was not the
5appropriate Government6 to refer the dispute to the
learned Industrial Tribunal deserves to be rejected on
another ground also. The pleadings would go to show
that the reference of the State Government was
challenged before this Court in W.P.(C) No.8683 of 2006
by the opposite party No.6-OCL India Ltd. It is matter of
record that said writ petition was dismissed as
withdrawn on 13.05.2015.
6.8. Under such circumstance, no infirmity is found in
making reference by the State Government in Labour
and Employment Department vide Order No. II-I(SS)-
36/044 10156/LE, dated 26th November, 2005
(Annexure-3) to the Industrial Tribunal for adjudication
being satisfied that 5an industrial dispute exists between
the Management of M/s. Rattan Enterprises, a
contractor's establishment of M/s. OCL India Ltd.,
Rajgangpur and their workmen, Sri Bidyananda Rai and
others represented through Odisha Cement Mazdoor
Sangha6 and as such, this Court is not persuaded to
accede to the attractive argument advanced by Sri
Sarada Prasanna Sarangi, advocate for the petitioner on
this aspect.
7. From perusal of record it is transpired that the opposite
party Nos.3 to 5 were reinstated in their old job on
15.06.1995 due to intervention of the Deputy Labour
Commissioner, Rourkela, but they were not given
Cement Wage Board rate. The learned Industrial
Tribunal observed taking into account evidence of
witness that the workmen were 5getting wages as per
Cement Wage Board rate since 1992 till 1994 and
thereafter they were retrenched on 07.02.1994 and
again in 1995 they were re-engaged but after re-
engagement they were not given wages as per the
Cement Wage Board rate, though other 32 re-engaged
workers along with them got the same6.
7.1. It is not out of place to mention here that the petitioner-
contractor after participating in the proceeding chose to
remain absent and consequentially, the Industrial
Tribunal set the petitioner ex parte. There is nothing on
record to show that at any point of time such ex parte
order was set aside.
7.2. The opposite party Nos.3 to 5 brought to fore the
provision under Rule 25(v)(a) of the Odisha Contract
Labour (Regulation and Abolition) Rules, 1975, framed
in exercise of powers conferred under Section 35 of the
Contract Labour (Regulation and Abolition) Act, 1970. As
per said provision, the license granted under Section
12(1) of the Contract Labour (Regulation and Abolition)
Act is subject to certain conditions inter alia, 5in cases
where the workmen employed by the contractor perform
the same or similar kind of work as the workmen
directly employed by the principal employer of the
establishment, the wage rates, holidays, hour of works
and other conditions of service of the workmen of the
contractor shall be the same as applicable to the
workmen directly employed by the principal employer of
the establishment on the same or similar kind of work6.
The Industrial Tribunal recorded fact emanating from
evidence on record that the opposite party Nos.3 to 5
were undertaking permanent nature of work since 25
years, which was never disputed or denied. Apart from
this, on 22.09.1986, the settlement in 5Form K6 was
made between M/s. OCL India Ltd-opposite party No.6,
the principal employer, and the Odisha Cement Mazdoor
Sangh-opposite party No.2 and the system of taking
workers through labour supply contractor on Wage
Board rate was streamlined subsequently on
14.11.1991. The contractor-M/s. CD Enterprise engaged
in cement works and M/s. Rattan Enterprises, the
proprietorship concern, entered into an agreement with
the Odisha Cement Mazdoor Sangh to pay the Cement
Wage Board rate to these workmen with effect from
01.12.1991, which was endorsed by the principal
employer-M/s. OCL India Ltd. prior to the aforesaid
agreement. There was another agreement between the
principal employer-opposite party No.6 and the Union-
Odisha Cement Mazdoor Sangh on 21.11.1990 wherein
it was agreed to that the opposite party-workmen would
be paid as per Cement Wage Board rate [vide Exthibit 8
in the record of the Industrial Tribunal].
7.3. Further pertinent fact which is elucidated from evidence
on record that during the wage negotiation between the
principal employer-OCL India Ltd. and the Union-Odisha
Cement Mazdoor Sangh in the year 1995, the opposite
party Nos.3 to 5-workmen were retrenched on
07.02.1994, but they were reinstated on 15.06.1995
under M/s. Rattan Enterprises on account of merger of
M/s. CD Enterprises with the protection of wages and
other benefits to the said opposite parties. It is borne on
record of the Industrial Tribunal that all the
management witnesses have admitted that the opposite
parties-workmen were engaged in cement works of M/s.
OCL India Ltd-opposite party No.6 through the labour
supply contractor(s). Therefore, the learned Tribunal
came to the conclusion that these workmen are entitled
for Cement Wage Board rate from 15.06.1995 [which
fact is supported by the Letter dated 09.06.1995 of the
Assistant Labour Commissioner]. Apparently, in all the
bipartite and tripartite settlement arrived at between the
parties, it is matter of policy to ensure that the Cement
Wage Board rate is required to be extended to the
workers engaged in cement works.
7.4. Referring to Exhibit 6, the learned Industrial Tribunal
observed that, the representative of the petitioner clearly
stated that workers engaged in the job specified in
Clauses (a) to (d) of the 5Minutes of discussion held on
21.11.1990 between Management of Odisha Cement
Limited and Odisha Cement Mazdoor Sangh6 are entitled
to Cement Wage Board rate. It does not name any
person. Any person who works on the job specified in
the settlement shall be entitled to the then Cement Wage
Board rate. This agreement was signed in 1991. The
categories of jobs provided in Clauses (a) to (d) were
abolished in due course after modernization for which
the opposite parties-workmen were retrenched. The said
jobs are no more available in the establishment of M/s.
OCL India Ltd. Nonetheless, it is elucidated from the
cross-examination of Management Witness (M.W.1) that
the reject materials from Vertical Roller Mill were
recycled through Conveyor Belts.
7.5. The Industrial Tribunal went on to say that as per
Exhibit 5, on 22.09.1986 a bipartite settlement was
arrived at between the Management of M/s. OCL India
Ltd. and the Odisha Cement Mazdoor Sangh,
Rajgangpur, which specifically contained that forty-six
workmen out of labour being supplied by the contractor
would be taken on the pay roll of the company and they
were to be paid the Cement Wage Board rate and so far
as other workmen are concerned, though they continue
to be engaged through labour contractor, the payment to
them would be as per Cement Wage Board rate of wages.
7.6. On the analysis of material on record and threadbare
scrutiny of evidence of witnesses, the learned Industrial
Tribunal came to hold that in terms of Form K, i.e.,
settlement between M/s. CD Enterprises and M/s.
Rattan Enterprises, the latter and the principal employer
are bound by the terms. Even after merger of M/s. CD
Enterprises with M/s. Rattan Enterprises, the workmen-
opposite party Nos.3 to 5 were liable to be paid wages at
the Cement Wage Board rate pursuant to bipartite
agreement dated 22.09.1986 (Exhibit 5) and dated
21.11.1990 (Exhibit 8) between the Management and the
Union.
7.7. The petitioner failed to disclose that the workmen-
opposite party Nos.3 to 5 were re-employed and they are
not entitled to get wages of Cement Wage Board rate.
The workmen-opposite party Nos.3 to 5 could lead
abundant oral and documentary evidence before the
Industrial Tribunal to show that they were re-engaged
after retrenchment, but not engaged 5afresh6 with new
terms and condition. On the basis of such overwhelming
evidence, the learned Industrial Tribunal came to the
positive conclusion that the action of M/s. Rattan
Enterprises-petitioner along with the Management of
M/s. OCL India Ltd.-opposite party No.6 in denying the
Cement Wage Board rate to the opposite party Nos.3 to 5
with effect from 15.06.1995 is not only illegal, but also
unjustified. As such, the workmen-opposite party Nos.3
to 5 are entitled to get the Cement Wages Board rate
with effect of their reinstatement on 15.06.1995 and
accordingly, the issues framed on the reference in ID
Case No.16/2005 are answered in the positive in favour
of the opposite party Nos.3 to 5-workmen and against
the claim of the petitioner.
7.8. The aforesaid Award of the learned Industrial Tribunal is
essentially adjudication of facts based on evidence
adduced by respective parties. Nothing is brought on
record to show that the conclusion arrived at by the
learned Tribunal is de hors oral and documentary
evidence available on record. Therefore, there being no
perversity in factual finding by the learned Industrial
Tribunal in framing impugned Award, this Court does
not deem it appropriate under the aforesaid
circumstances to show indulgence.
LEGAL POSITION AS TO INVOCATION OF WRIT JURISDICTION AGAINST
THE AWARD FRAMED BY THE INDUSTRIAL TRIBUNAL:
8. In the context of exercise of power under Article
226/227 for issue of writ of certiorari against the Award
of the Labour Court, Bhubaneswar, the Hon'ble
Supreme Court of India in the case of General Manager,
Electrical, Rengali Hydro Electric Project, Odisha and
Others Vrs. Sri Giridhari Sahu and Others, (2019) 12 SCR
293 = (2019) 10 SCC 695 made the following proposition:
<20. Since, applicants contend that the findings of fact by
the Labour Court are virtually unassailable in the
Certiorari jurisdiction and the argument has been
found appealing and accepted by the High Court, it
is necessary to deal with the same.
21. An erroneous decision in respect of a matter which
falls within the authority of the Tribunal would not
entitle a writ applicant for a writ of certiorari.
However, if the decision relates to anything
collateral to the merit, an erroneous decision upon
which, would affect its jurisdiction, a writ of
certiorari would lie. See Parry & Co. Ltd. vs.
Commercial Employees Association AIR 1952 SC
179. The scope of writ of certiorari came in for an
elaborate consideration by this Court in T.C.
Basappa Vrs. T. Nagappa, AIR 1954 SC 440.
Therein, this Court, inter alia, held as follows:
<7. *** The second essential feature of a writ
of certiorari is that the control which is
exercised through it over judicial or quasi-
judicial tribunals or bodies is not in an
appellate but supervisory capacity. In
granting a writ of certiorari the superior
court does not exercise the powers of an
appellate tribunal. It does not review or
reweigh the evidence upon which the
determination of the inferior tribunal
purports to be based. It demolishes the order
which it considers to be without jurisdiction or
palpably erroneous but does not substitute its
own views for those of the inferior tribunal. The
offending order or proceeding so to say is put
out of the way as one which should not be
used to the detriment of any person [Vide Per
Lord Cairns in Walshall?s Overseers Vrs.
London and North Western Railway Co., (1879)
4 AC 30, 39.].
***
9. Certiorari may lie and is generally
granted when a court has acted without
or in excess of its jurisdiction. The want of
jurisdiction may arise from the nature of the
subject-matter of the proceeding or from the
absence of some preliminary proceeding or the
court itself may not be legally constituted or
suffer from certain disability by reason of
extraneous circumstances [Vide Halsbury, 2nd
Edn., Vol. IX, p. 880]. When the jurisdiction of
the court depends upon the existence of some
collateral fact, it is well settled that the court
cannot by a wrong decision of the fact give it
jurisdiction which it would not otherwise
possess [Vide Banbury Vrs. Fuller, 9 Exch.
111; R Vrs. Income Tax Special Purposes
Commissioners, 21 QBD 313].
10. A tribunal may be competent to enter upon
an enquiry but in making the enquiry it
may act in flagrant disregard of the rules
of procedure or where no particular
procedure is prescribed, it may violate the
principles of natural justice. A writ of
certiorari may be available in such cases.
An error in the decision or determination
itself may also be amenable to a writ of
certiorari but it must be a manifest error
apparent on the face of the proceedings,
e.g. when it is based on clear ignorance or
disregard of the provisions of law. ***=
22. In Hari Vishnu Kamath Vrs. Ahmed Ishaque & Ors.,
AIR 1955 SC 233, this Court held:
<21. *** On these authorities, the following
propositions may be taken as established:
(1) Certiorari will be issued for correcting
errors of jurisdiction, as when an inferior
Court or Tribunal acts without jurisdiction
or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the
court or Tribunal acts illegally in the
exercise of its undoubted jurisdiction, as
when it decides without giving an
opportunity to the parties to be heard, or
violates the principles of natural justice.
(3) The court issuing a writ of certiorari acts
in exercise of a supervisory and not
appellate jurisdiction.
One consequence of this is that the court will
not review findings of fact reached by the
inferior court or tribunal, even if they be
erroneous. This is on the principle that a court
which has jurisdiction over a subject-matter
has jurisdiction to decide wrong as well as
right, and when the legislature does not choose
to confer a right of appeal against that
decision, it would be defeating its purpose and
policy, if a superior court were to rehear the
case on the evidence, and substitute its own
findings in certiorari. These propositions are
well-settled and are not in dispute.
***
23. It may therefore be taken as settled that a
writ of certiorari could be issued to
correct an error of law. But it is essential
that it should be something more than a
mere error; it must be one which must be
manifest on the face of the record. *** The
fact is that what is an error apparent on the
face of the record cannot be defined precisely
or exhaustively, there being an element of
indefiniteness inherent in its very nature, and
it must be left to be determined judicially on the
facts of each case.=
23. The question arose in Dharangadhara Chemical
Works Ltd. Vrs. State of Saurashtra and others, AIR
1957 SC 264. The question was whether the finding
by the Tribunal under the Act about the party
respondents being workmen was liable to be
interfered with. After dealing with various tests
relating to determining the issue, this Court also
made the following observations:
<19. *** It is equally well settled that the
decision of the Trinbunal on a question of
fact which it has jurisdiction to determine
is not liable to be questioned in
proceedings under Article 226 of the
Constitution unless at the least it is
shown to be fully unsupported by
evidence.=
24. A Constitution Bench of this Court, in Syed Yakoob
Vrs. K.S. Radhakrishnan and another, AIR 1964 SC
477, has spoken about the scope of Writ of Certiorari
in the following terms:
<7. The question about the limits of the jurisdiction
of High Courts in issuing a writ of certiorari
under Article 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 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 a 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 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 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 Vrs. Ahmad Ishaque, AIR
1955 SC 233, Nagendra Nath Bora Vrs.
Commissioner of Hills Division and Appeals,
AIR 1958 SC 398 and Kaushalya Devi Vrs.
Bachittar Singh, AIR 1960 SC 1168).=
25. We may more importantly also advert to the view
expressed by this Court in a matter which again
arose under the Act in M/s. Perry and Co. Ltd. Vrs.
P.C. Pal, Judge of the Second Industrial Tribunal,
Calcutta and others, AIR 1970 SC 1334. It was a
case related to the scope of the jurisdiction of the
Tribunal in the matter of retrenchment under Section
25F. This is what the Court held inter alia:
<11. The grounds on which interference by the High
Court is available in such writ petitions have
by now been well established. In Basappa Vrs.
Nagappa, (1955) SCR 250 it was observed that
a writ of certiorari is generally granted when a
court has acted without or in excess of its
jurisdiction. It is available in those cases where
a tribunal, though competent to enter upon an
enquiry, acts in flagrant disregard of the rules
of procedure or violates the principles of
natural justice where no particular procedure is
prescribed. But a mere wrong decision
cannot be corrected by a writ of certiorari
as that would be using it as the cloak of
an appeal in disguise but a manifest error
apparent on the face of the proceedings
based on a clear ignorance or disregard of
the provisions of law or absence of or
excess of jurisdiction, when shown, can be
so corrected. In Dharangadhara Chemical
Works Ltd. Vrs. State of Saurashtra, (1957)
SCR 152 this Court once again observed that
where the Tribunal having jurisdiction to
decide a question comes to a finding of fact,
such a finding is not open to question under
Article 226 unless it could be shown to be
wholly unwarranted by the evidence. Likewise,
in State of Andhra Pradesh Vrs. S. Sree Ram
Rao, AIR 1963 SC 1723 this Court observed
that where the Tribunal has disabled itself
from reaching a fair decision by some
considerations extraneous to the evidence and
the merits of the case or where its conclusion
on the very face of it is so wholly arbitrary and
capricious that no reasonable person can ever
have arrived at that conclusion interference
under Article 226 would be justified. ***=
26. We may advert to the decision of this Court in
Mukand Ltd. Vrs. Mukand Staff & Officers?
Association, (2004) 10 SCC 460. We may only
advert to the following paragraphs:
<47. In support of his contention that this Court
while exercising its power under Article 136 of
the Constitution of India in an appeal from the
judgment of the High Court rendered in
exercise of its powers under Articles 226 and
227 of the Constitution of India will exercise
the same power which the High Court could
exercise and will not interfere with the finding
of facts recorded by a Tribunal, learned
counsel cited the judgment in the case of Parry
& Co. Ltd. Vrs. P.C. Pal, AIR 1970 SC 1334 =
(1969) 2 SCR 976. In the said case, this Court
held as under: (AIR p. 1341, para 13)
<13. Since this is an appeal arising from a writ
petition for certiorari we also would not
interfere with the conclusions arrived at
by the Tribunal except on grounds on
which the High Court could have done.=
48. In the case of Fuel Injection Ltd. Vrs. Kamger
Sabha, (1978) 1 SCC 156 = 1978 SCC (L&S) 33
this Court observed as under: (SCC p. 157,
para 3)
<But the present appeals are from a judgment
of the High Court under Article 226 and so the
jurisdiction of this Court in entertaining an
appeal by special leave under Article 136 must
ordinarily be confined to what the High Court
could or would have done under Article 226.=
49. In our view, the material that was placed
before the Tribunal was not considered or
discussed and that there was, as such, no
adjudication by the Tribunal. The whole award
of the Tribunal, in our view, is liable to be set
aside on the ground of non-application of mind
by the Tribunal to the material on record. In the
first place, the Tribunal has no jurisdiction to
entertain and decide a dispute which covered
within its fold <persons who are not workmen=.
That the material on record before the Tribunal
as regards the comparable concerns was
admittedly <sketchy= and incomplete as
observed by the learned Single Judge of the
High Court and that the award based on such
material could not have been sustained.=
27. In Durga Das Basu <Commentary on the Constitution
of India=, 9th Edition, in regard to the concept of no
evidence, we find the following discussion:
<No evidence? does not mean only a total dearth of
evidence. It extends to any case where the evience
taken as a whole is not reasonably capable of
supporting the finding, or where, in other words, no
tribunal could reasonably reach that conclusion on
that evidence. This <no evidence= principle clearly
has something in common with the principle that
perverse or unreasonable action is aunauthorised
and ultra vires. An order made without <any
evidence= to support it is in truth, made without
order made without <any evidence is worthless, it is
equal to having <no evidence= jurisdiction.=
28. In fact, in the decision relied upon by the applicants,
viz., S. Viswanathan (supra), it is, inter alia, held as
follows:
<12. Normally, the Labour Court or the
Industrial Tribunal, as the case may be, is
the final court of facts in these types 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 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.
***=
29. On the conspectus of the decisions and material, we
would hold as follows:
The jurisdiction to issue writ of certiorari is
supervisory and not appellate. The Court considering
a writ application of Certiorari will not don the cap of
an Appellate Court. It will not reappreciate evidence.
The Writ of Certiorari is intended to correct
jurisdictional excesses. A writ of prohibition would
issue when a Tribunal or authority has not yet
concluded its proceedings. Once a decision is
rendered by a body amenable to Certiorari
jurisdiction, certiorari could be issued when a
jurisdictional error is clearly established. The
jurisdictional error may be from failure to observe
the limits of its jurisdiction. It may arise from the
procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of
principles of natural justice. The body whose
decision which comes under attack may decide a
collateral fact which is also a jurisdictional fact and
assume jurisdiction. Such a finding of fact is not
immune from being interfered with by a Writ of
Certiorari. As far as the finding of fact which is one
within the jurisdiction of the court, it is ordinarily a
matter >off bounds? for the writ court. This is for the
reason that a body which has jurisdiction to decide
the matter has the jurisdiction to decide it correctly
or wrongly. It would become a mere error and that
too an error of fact. However, gross it may amount
to, it does not amount to an error of law. An error of
law which becomes vulnerable to judicial scrutiny by
way of Certiorari must also be one which is
apparent on the face of the record. As held by this
Court in Hari Vishnu Kamath (supra), as to what
constitutes an error apparent on the face of the
record, is a matter to be decided by the court on the
facts of each case. A finding of fact which is not
supported by any evidence would be perverse and
in fact would constitute an error of law enabling the
writ court to interfere. It is also to be noticed that if
the overwhelming weight of the evidence does not
support the finding, it would render the decision
amenable to certiorari jurisdiction. This would be the
same as a finding which is wholly unwarranted by
the evidence which is what this Court has laid down
[See M/s. Perry and Co. Ltd. (supra)].=
8.1. The Supreme Court in the case of Iswarlal Mohanlal
Thakkar Vrs. Paschim Gujarat Vij Co. Ltd., (2014) 6 SCC
434 has considered the scope of interference in the
matter of award/order passed by the Labour Court while
entertaining the petition under Article 227 of the
Constitution by the High Court. The observation made
by the Supreme Court is as under:
<15. We find the judgment and award of the Labour
Court well reasoned and based on facts and
evidence on record. The High Court has erred in
its exercise of power under Article 227 of the
Constitution of India to annul the findings of
the Labour Court in its award as it is well
settled law that the High Court cannot exercise
its power under Article 227 of the Constitution
as an appellate court or reappreciate evidence
and record its findings on the contentious
points. Only if there is a serious error of law or
the findings recorded suffer from error
apparent on record, can the High Court quash
the order of a lower court. The Labour Court in
the present case has satisfactorily exercised its
original jurisdiction and properly appreciated the
facts and legal evidence on record and given a well
reasoned order and answered the points of dispute
in favour of the appellant. The High Court had no
reason to interfere with the same as the award of
the Labour Court was based on sound and cogent
reasoning, which has served the ends of justice.
16. It is relevant to mention that in Shalini Shyam Shetty
Vrs. Rajendra Shankar Patil, (2010) 8 SCC 329, with
regard to the limitations of the High Court to exercise
its jurisdiction under Article 227, it was held in para
49 that:
<The power of interference under Article 227 is to be
kept to the minimum to ensure that the wheel of
justice does not come to a halt and the fountain of
justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the
tribunals and courts subordinate to the High Court.=
It was also held that:
<High Courts cannot, at the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with
the orders of tribunals or courts inferior to it.
Nor can it, in exercise of this power, act as a
court of appeal over the orders of the court or
tribunal subordinate to it.=
Thus it is clear, that the High Court has to exercise
its power under Article 227 of the Constitution
judiciously and to further the ends of justice.
17. In the case of Harjinder Singh Vrs. Punjab State
Warehousing Corpn., (2010) 3 SCC 192 this Court
held that:
<20. *** In view of the above discussion, we hold
that the learned Single Judge of the High Court
committed serious jurisdictional error and
unjustifiably interfered with the award of
reinstatement passed by the Labour Court with
compensation of Rs 87,582 by entertaining a
wholly unfounded plea that the appellant was
appointed in violation of Articles 14 and 16 of
the Constitution and the Regulations.
18. The power of judicial review of the High Court has to
be alluded to here to decide whether or not the High
Court has erred in setting aside the judgment and
order of the Labour Court. In Heinz India (P) Ltd. Vrs.
State of U.P., (2012) 5 SCC 443 this Court referred to
the position held on the power of judicial review in
Reid Vrs. Secy. of State for Scotland, (1999) 2 AC
512 = (1999) 2 WLR 28 = (1999) 1 All ER 481 (HL)
wherein it is stated that:
<68. *** >Judicial review involves a challenge to the
legal validity of the decision. It does not allow
the court of review to examine the
evidence with a view to forming its own
view about the substantial merits of the
case. It may be that the tribunal whose
decision is being challenged has done
something which it had no lawful authority to
do. It may have abused or misused the
authority which it had. It may have departed
from the procedures which either by statute or
at common law as a matter of fairness it ought
to have observed. As regards the decision itself
it may be found to be perverse, or irrational or
grossly disproportionate to what was required.
Or the decision may be found to be erroneous
in respect of a legal deficiency, as for example,
through the absence of evidence, or of sufficient
evidence, to support it, or through account
being taken of irrelevant matter, or through a
failure for any reason to take account of a
relevant matter, or through some
misconstruction of the terms of the statutory
provision which the decision-maker is required
to apply. But while the evidence may have
to be explored in order to see if the
decision is vitiated by such legal
deficiencies it is perfectly clear that in
case of review, as distinct from an
ordinary appeal, the court may not set
about forming its own preferred view of
the evidence.? [Reid case, (1999) 2 AC 512 =
(1999) 2 WLR 28 = (1999) 1 All ER 481 (HL)].6
8.2. Further, in a case reported as Jai Singh Vrs. Municipal
Corporation of Delhi and Another, (2010) 9 SCC 385, it
has been considered as follows:
515. We have anxiously considered the submissions of
the learned counsel. Before we consider the factual
and legal issues involved herein, we may notice
certain well-recognised principles governing the
exercise of jurisdiction by the High Court under
Article 227 of the Constitution of India. Undoubtedly
the High Court, under this Article, has the
jurisdiction to ensure that all subordinate courts as
well as statutory or quasi-judicial tribunals, exercise
the powers vested in them, within the bounds of
their authority. The High Court has the power and
the jurisdiction to ensure that they act in accordance
with the well-established principles of law. The High
Court is vested with the powers of superintendence
and/or judicial revision, even in matters where no
revision or appeal lies to the High Court. The
jurisdiction under this article is, in some ways,
wider than the power and jurisdiction under
Article 226 of the Constitution of India. It is,
however, well to remember the well-known
adage that greater the power, greater the care
and caution in exercise thereof. The High Court
is, therefore, expected to exercise such wide
powers with great care, caution and
circumspection. The exercise of jurisdiction
must be within the well-recognised constraints.
It cannot be exercised like a <bull in a china
shop=, to correct all errors of judgment of a
court, or tribunal, acting within the limits of
its jurisdiction. This correctional jurisdiction
can be exercised in cases where orders have
been passed in grave dereliction of duty or in
flagrant abuse of fundamental principles of
law or justice.=
8.3. In Pepsico India Holding Private Ltd. Vrs. Krishna Kant
Pandey, (2015) 4 SCC 270, scope of Article 226/227 of
the Constitution of India in a challenge against finding of
fact rendered under the Industrial Disputes Act has
been discussed as follows:
<13. Considering the entire facts of the case and the
findings recorded by the Labour Court, prima facie
we are of the view that the High Court has exceeded
in exercise of its jurisdiction under Articles 226 and
227 of the Constitution of India in interfering with
the finding of facts recorded by the Labour Court. It
is well settled that the High Court in the guise
of exercising its jurisdiction normally should
not interfere under Article 227 of the
Constitution and convert itself into a court of
appeal.
14. While discussing the power of the High Court under
Articles 226 and 227 of the Constitution interfering
with the facts recorded by the courts or the tribunal,
this Court in Chandavarkar Sita Ratna Rao Vrs.
Ashalata S. Guram, (1986) 4 SCC 447, held as
under:
<17. In case of finding of facts, the Court should not
interfere in exercise of its jurisdiction under
Article 227 of the Constitution. Reference may
be made to the observations of this Court in
Bathutmal Raichand Oswal Vrs. Laxmibai R.
Tarta, (1975) 1 SCC 858 = AIR 1975 SC 1297
where this Court observed that the High
Court could not in the guise of exercising
its jurisdiction under Article 227 convert
itself into a court of appeal when the
legislature has not conferred a right of
appeal. The High Court was not competent
to correct errors of facts by examining the
evidence and reappreciating. Speaking for
the Court, Bhagwati, J. as the learned Chief
Justice then was, observed at AIR p. 1301 of
the Report as follows: (SCC p. 864, para 7)
>7. The special civil application preferred by
the appellant was admittedly an
application under Article 227 and it is,
therefore, material only to consider the
scope and ambit of the jurisdiction of the
High Court under that article. Did the
High Court have jurisdiction in an
application under Article 227 to disturb
the findings of fact reached by the District
Court? It is well settled by the decision of
this Court in Waryam Singh Vrs.
Amarnath, AIR 1954 SC 215 that the
>power of superintendence conferred
by Article 227 is, as pointed out by
Harries, C.J., in Dalmia Jain Airways Ltd.
Vrs. Sukumar Mukherjee, AIR 1951 Cal
193, to be exercised most sparingly
and only in appropriate cases in
order to keep the subordinate courts
within the bounds of their authority
and not for correcting mere errors?.
This statement of law was quoted with
approval in the subsequent decision of
this Court in Nagendra Nath Bora Vrs.
Commr. of Hills Division, AIR 1958 SC
398 and it was pointed out by Sinha, J.,
as he then was, speaking on behalf of the
Court in that case:
<30. *** It is, thus, clear that the powers
of judicial interference under Article
227 of the Constitution with orders
of judicial or quasi-judicial nature,
are not greater than the power
under Article 226 of the Constitution.
Under Article 226, the power of
interference may extend to quashing
an impugned order on the ground of
a mistake apparent on the face of
the record. But under Article 227 of
the Constitution, the power of
interference is limited to seeing that
the tribunal functions within the
limits of its authority.= ? =
8.4. In Indian Overseas Bank Vrs. Staff Canteen Workers?
Union, (2000) 4 SCC 245, the Supreme Court considered
a similar question with regard to the power of the High
Court under Article 226 against the findings recorded by
the Industrial Tribunal. Reversing the decision of the
Single Judge and restoring the fact-finding decision of
the Tribunal, the Court held:
<17. The learned Single Judge seems to have
undertaken an exercise, impermissible for him
in exercising writ jurisdiction, by liberally
reappreciating 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 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 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
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 reassessing the evidence and
arriving at findings of one?s own, altogether
giving a complete go-by even to the facts
specifically found by the Tribunal below.=
8.5. In fine, this Court finds the Award of the Industrial
Tribunal well-reasoned and based on facts
countenanced by evidence on record. This Court does
not, therefore, wish to exercise its power under Article
227 of the Constitution of India as it does not exercise
powers of an appellate Court. Sri Sarada Prasanna
Sarangi, learned counsel for the petitioner could not
demonstrate that the finding of fact by the Industrial
Tribunal was perverse and failed to show that the
conclusion arrived at by said Tribunal was based on 5no
evidence6. Thus, interfering with the factual adjudication
made by the learned Industrial Tribunal in the Award
dated 10.04.2015, which was notified vide No. II/I(SS)-
36/20044 5196/LESI, dated 11.06.2015 (Annexure-5)
would tantamount to reappreciation of evidence and
obliterating record of findings on the contentious points.
On the conspectus of above legal position as set forth by
different Courts, this Court is of the firm view that
exercise of power under Article 226/227 by issue of writ
of certiorari, on the facts and in the circumstances of the
case, is impermissible in law. The challenge of the
petitioner as to the jurisdiction of the State Government
to refer the matter to the Industrial Tribunal also falls to
ground inasmuch as the counsel for the petitioner
misdirected himself by ignoring to refer to Notification
No. SO 826 (E), dated 8th December, 1977, as discussed
in the case of Yovan (supra).
DECISION AND DIRECTION:
9. For the discussions made above and the reasons
ascribed supra, taking note of governing principles, this
Court while dismissing the writ petition filed at the
behest of M/s. Rattan Enterprises, Rajgangpur in the
District of Sundargarh holds that the State Government,
as 5appropriate Government6 falling within the meaning
of Section 2(a) of the Industrial Disputes Act, 1947, was
competent to refer the dispute to the Industrial Tribunal
as held in Yovan, India Cements Employees Union and
Another Vrs. Management of India Cements Ltd. and
Others, 1993 Supp.3 SCR 381 = AIR 1994 SC 558 =
(1994) 1 SCC 572 and the learned Industrial Tribunal
having adjudicated the issues in favour of the opposite
party Nos.3 to 5 [Sri Bidyananda Rai, Sri Sudhakar
Mishra and Sri Premdhan Baxla] holding that they are
entitled to get the Cement Wage Board rate with effect
from the date of their reinstatement, i.e., 15.06.1995 on
the basis of material available on record, which are
finding of fact based on analysis of evidence, oral and
documentary, there is no scope for this Court to show
indulgence to the challenge laid by the petitioners,
namely M/s. Rattan Enterprises and Legal
Representative of its proprietor in exercise of Article
226/227 of the Constitution of India.
9.1. In consequence thereof, the writ petition is, accordingly,
dismissed, but in the circumstances, with no order as to
costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
JUDGE
Orissa High Court, Cuttack
The 12th May, 2023, MRS/Laxmikant
