Central Phoenix Club vs Presiding Officer, Industrial ...
2024 Latest Caselaw 14055 P&H

Punjab-Haryana High Court

Central Phoenix Club vs Presiding Officer, Industrial ... on 7 August, 2024

                                  Neutral Citation No:=2024:PHHC:101170




CWP-14028-2024               1

114
       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                          CWP-14028-2024
                                          Date of Decision:07.08.2024

CENTRAL PHOENIX CLUB                                      ......... Petitioner

                                      Versus

PRESIDING OFFICER, INDUSTRIAL TRIBUNAL AND ORS

                                                          ..... Respondents

CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL

Present :    Mr. Brijender Kaushik, Advocate
             for the petitioner.

                   ****

JAGMOHAN BANSAL, J. (Oral)

1. The petitioner through instant petition under Articles

226/227 of the Constitution of India is seeking setting aside of award

dated 29.09.2023 (Annexure P-8) whereby Labour Court has awarded a

sum of `1.5 lakh to workman.

2. Mr. Brijender Kaushik, counsel for the petitioner submits

that there was misconduct on the part of respondent-workman which

compelled the petitioner to terminate him. He had a scuffle with other

employees of the club. He at his own choice left the office and did not

come back for quite long time. When he came back and Management

objected, he started fighting with the staff on duty.

3. I have heard the arguments and perused the record.

4. The Labour Court has considered act and conduct of

Management as well as workman and held that there has been lot of

turbulence and acrimony in the relation of parties, thus, harmonious and

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congenial atmosphere at workplace is not expected. Considering totality

of the facts and circumstances, the Labour Court has directed the

Management to pay a sum of `1.5 lakh to workman. The relevant extracts

of the award are reproduced as below:

"45. There is nothing on record that before termination of the services the claimant petitioner was served with one month notice nor was paid one month salary in lieu of the notice or gave retrenchment compensation in compliance of the above provisions of the Act, so, the order of his termination was a complete violation of the mandatory provisions of the Act. The plea that his act and conduct remained unsatisfactory even if is assumed to be correct than also it do give any right to the respondent management to forgo the mandatory provisions of the law of serving notice and retrenchment compensation hence, his termination cannot be said to be legal.

46. However, it is a settled law that when the termination is in violation of the statutory provisions of the Act, in all cases reinstatement with/without back wages is not automatic. Alternatively compensation can be granted in this case reliance is placed on the case titled "Bhanwar Singh versus Presiding Officer and Another"2018 LLR 623 decided by our own Punjab & Haryana High Court.

47. Further, in the case titled "Tilak Raj Vs Presiding Officer, Industrial Tribunal, Jalandhar and others" 2015 LLR 248 (P&H), the Hon'ble High Court of Punjab and Haryana has held that relief of reinstatement and back wages is not automatic since it depends on several contingencies and compensation is also appropriate. The amount of compensation depends upon the facts of the case and there is no hard and fast rule.

48. In case titled "Cafe Coffee Day Vs Ajay Kumar and Another" 2018 LLR 424 (P&H), the Hon'ble High Court of Punjab and Haryana has held that if the management had

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lost confidence in the workman due to misconduct of napitude on his part, since such a termination is illegal due to technical lacunas, a lump sum compensation in lieu of reinstatement with back wages is appropriate.

49. Therefore, in these circumstances keeping in view the facts that there has been lot of turbulence and acrimony in the relation of the parties and there is least expectation of harmonious and congenial atmosphere to be provided by both the parties to each other at the work place, hence, in these peculiar circumstances and in view of the ratio decindi laid by the Hon'ble High Court in Cafe Coffee Day case (supra) it is deemed expedient that instead of relief of reinstatement, relief in the form of monetary compensation be granted to the claimant."

5. Different Benches of Supreme Court including a

Constitution Bench in Syed Yakoob Vs K.S. Radhakrishnan, AIR 1964

SC 477 and a two judge bench recently in Central Council for Research

in Ayurvedic Sciences and another Vs Bikartan Das and others 2023

SCC Online SC 996 have reminded us that there are two cardinal

principles of law governing issuance of writ of certiorari under

Article 226 of the Constitution of India i.e. (i) High Court does not

exercise the powers of 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 writ of certiorari can be

issued if an error of law is apparent on the face of the record; (ii) in a

given case, even if some action or order challenged in the writ petition is

found to be illegal and invalid, the High Court while exercising its

extraordinary jurisdiction thereunder can refuse to upset it with a view to

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doing substantial justice between the parties. It is perfectly open for the

writ court, exercising this flexible power to pass such orders as public

interest dictates & equity projects. The High Court would be failing in its

duty if it does not notice equitable consideration and mould the final

order in exercise of its extraordinary jurisdiction. Any other approach

would render the High Court a normal court of appeal which it is not.

6. A writ of certiorari can be issued for correcting errors of

jurisdiction committed by inferior courts or tribunals. Error of jurisdiction

includes order by inferior court or tribunal 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 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

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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 Art. 226 to issue a writ of certiorari can be legitimately exercised.

7. Considering the findings recorded by Labour Court and

afore-cited judgments of Supreme Court, this Court is of the considered

opinion that there is no jurisdictional error or manifest mistake or

infirmity in the impugned order warranting interference.

8. Dismissed.

                                                ( JAGMOHAN BANSAL )
                                                       JUDGE
07.08.2024
Ali
                   Whether speaking/reasoned     Yes/No

                      Whether Reportable         Yes/No




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