Punjab-Haryana High Court
The Executive Engineer vs Gurdyal Singh And Ors on 29 January, 2024
Neutral Citation No:=2024:PHHC:011902
Neutral Citation No:2023:PHHC: 011902
CWP-19183-2015(O&M) and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
219 CWP-19183-2015(O&M)
THE EXECUTIVE ENGINEER .... Petitioner
Versus
GURDYAL SINGH AND ORS
....Respondents
CWP-19552-2015(O&M)
EXECUTIVE ENGINEER .... Petitioner
Versus
KISHAN KUMAR AND ORS
....Respondents
CWP-2053-2016(O&M)
THE EXECUTIVE ENGINEER PUBLIC HEALTH DEPARTMENT,
SOHNA, GURGAON AND ANR .... Petitioners
Versus
CHANDER BHAN AND ORS
....Respondents
CWP-6308-2016(O&M)
EXECUTIVE ENGINEER PUBLIC HEALTH DEPARTMENT,
SOHNA, GURGAON .... Petitioner
Versus
PAVITAR SINGH AND ORS
....Respondents
Date of Decision: 29.01.2024
CORAM:HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. P.C. Goyal, Addl. A.G., Haryana
for the petitioner(s) (in all the cases).
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CWP-19183-2015(O&M) and other connected cases 2
Mr. Neeraj Gupta, Advocate
for respondent No.3 (in CWP-19183-2015).
Mr. Sukhdev Singh, Advocate
for the respondent-workmen (in CWP-2053-2016,
CWP-19183-2015 and CWP-19552-2015).
*****
SANJAY VASHISTH, J.(Oral)
1. By way of present common order, the aforesaid four writ
petitions are being decided/disposed of.
2. In CWP No.19183-2015(O&M) challenge is to the
impugned award dated 01.01.2015 (Annexure P-1); in CWP-19552-
2015(O&M) challenge is to the impugned award dated 02.01.2015
(Annexure P-1); in CWP-2053-2016, challenge is to the impugned
award dated 01.05.2015 (Annexure P-1); and in CWP-6308-2016
challenge is to the impugned award dated 07.08.2015 (Annexure P-1),
passed by the Presiding Officer, Industrial Tribunal-cum-Labour
Court-II, Gurgaon (presently Gurugram).
3. Issue involved in the present writ petitions i.e. CWP-
19183-2015(O&M), CWP-19552-2015(O&M), CWP-6308-
2016(O&M),and CWP-2053-2016(O&M) is similar and as per the
common stand of the counsel representing both the sides, decision in
CWP-19183-2015 would decide the fate of the other three writ
petitions also.
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4. The common fact in all four writ petitions is that the
workmen appointed as Pump operators at tubewell installed by the
Executive Engineer, Public Health Department, Sohna, Gurgaon
(presently Gurugram) and their salaries are also being paid by the
petitioner-Management but through, respective Sarpanch of the Gram
Panchayat of that area.
The facts detailed in CWP-19183 of 2015 are as under:
5. Respondent No.1-Gurdyal Singh (workman) was
engaged as a water pump operator by the petitioner-Management on
26.04.2005, who continuously worked without break to the
satisfaction of Sarpanch, Gram Panchayat, and Public Health
department authorities/officer. Services of respondent No.1-workman
were terminated without any basis or reason on 01.10.2006 and at that
time, he was drawing a salary of Rs.1500/- per month. The grouse of
the workman is that respondents have illegally appointed some other
person in his place and his services have been terminated against the
provisions of the Act without complying with the principle of "last
come first go". Thus, the workman prayed for reinstatement in service
with continuity and full back wages and all other benefits.
6. Petitioner-management filed its written statement before
learned Labour Court, wherein, it was stated that Gram Panchayat has
been managing the water supply in their respective villages and a
consolidated amount is paid by the Management to the Gram
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CWP-19183-2015(O&M) and other connected cases 4
Panchayat as Financial Help. Even, no appointment letter was ever
issued to the workman, although, it has been supervising his work.
Broadly speaking, the stand taken by the petitioner-Management is
that workman has never been employed by them and therefore, no
relationship of employer and employee, exists between workman and
Management.
7. After perusal of the record, the learned tribunal found
that undisputedly, salary of the workman is being released by
respondent No.1 (Petitioner management herein) but it is being
disbursed through the agency of Sarpanch of Gram Panchayat.
Nothing has been placed on record to prove that for running the
tubewell in question through private persons, what is the procedure
adopted by the Government. Rather from the logbook (Ex.WW1), it
became clear that the work of the workman was supervised by
SDE/JE of the respondent-Department. Thus, Labour Court reached to
two conclusions i.e.
i) the salary of workman is mainly given by the petitioner-
Management and;
ii) it is petitioner-Management, officers only who supervised the
work,
Therefore,learned Tribunal concluded that the plea taken
by the petitioner-management that there is no relation of employee
and employer is baseless. Broadly speaking, it was also held that the
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Gram Panchayat was brought in picture merely to camouflage the
relationship of master-servant between the workman and Petitioner-
Management.
Findings recorded in paragraph No. 11, 12, 13 and 14 are
as under:
'11. After having heard both sides, I am of the
view that the controversy involved in the present case
is very limited. It is not in dispute that the tubewell
where workman is alleging to be operating Pump
belongs to respondent No.1. It is also not in dispute
that the salary of workman was being released by the
respondent No.1, but it was being disbursed through
the agency of Sarpanch, Gram Panchayat Nanu
Khurd. For the clarity of facts, I would like to briefly
refer to the testimony adduced on file. The only
suggestion of learned ADA for respondents No.1 to
the workman is that log book register has been falsely
prepared. The workman has, further, stated that he
was performing duty at Pump at Nanu Khurd.
12. Admittedly, the tubewell belongs to
respondent No.1. Therefore, being a Government
property for its running (operating) and up keeping it
was the responsibility of respondent no.1 because
learned ADA could not quote even a single instance
where the property of Government is managed by a
private person. No Rules and Regulations has been
produced on file by learned ADA as to what is the
procedure for running thetubewells owned by the
Government through private persons. From Ex. WW-
1 log book, it is revealed that the work of workman
was being supervised by the SDE/JE of the
respondent department. Therefore, not only the
supervision of the Pump is with respondent No.1, but
the salary to workman was also being released by the
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respondent No. 1 as has also come in the reply of the
department, wherein they have stated that the
department was also disbursing to Panchayat Rs.
1500/- per month for operating the tubewell. Thus,
the salary was also being released by respondent no.1
and this shows that the pay masters of the workman
was respondents No.1, but actually the salary was
being disbursed through the agency of Gram
Panchayat, Nanu Khurd in order to camouflage the
relationship of master and servant between workman
and respondent No.1. Merely that a person is not
working on the sanctioned post would not deprive
him of the industrial rights. Even daily wager or a
seasonal worker with industrial rights as has been
held in Smt. Damyanti versus Presiding Officer,
Industrial Tribunal-Cum-Labour Court, Panipat
etc. 2012 2012 (134) FLR 832. Thus, I have no
hesitation in holding that there existsa relationship of
mater and servant between workman and respondent
No.1.
13. It was one of the contentions of learned ADA
for respondent No.1 that Gram Panchayat could
appoint any person as Pump Operator. But for the
sake of arguments, I must mention that respondents
No.1 have not produced on file any Rule and
Regulations to support these arguments rather Gram
Panchayat in their written statement have supported
the workman in this cause in as much as they have
sated that the supervision and control over the
workman was of respondent No.1 and not of thiers. It
was argued by Learned ADA for respondents No.1
that Public Health Department of the State of
Haryana is not an 'industry', but I find no force in his
submission in view of the direct ruling of our own
High court in Baljit Singh versus The State of
Haryana etc., 1995 LLR 504, wherein, Public Health
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Department of Haryana has been held to be
'industry'.
14. The cumulative result of above said discussion
is that workman has been able to prove successfully
that there is relationship of employer between him
and respondents No.1. Thereis nothing on the file to
show that before dispensing with his service,
compliance of section 25-F of the Act has been
made. Therefore, I have no hesitation in concluding
that the services of the workman were wrongly and
illegally terminated by the respondent on 1.10.2006.
So, the workman is entitled to reinstatement in
services wherein he would be relegated to the same
post which he was holding prior to termination of his
service with all legal benefits as he was getting at
that time of termination of his service i.e. 1.10.2006
till reinstatement. Since the workman was getting
salary of Rs. 1500/- per month at that time, therefore,
after reinstatement in service, he would be entitled to
interest @ 12% per annum on the withheld amount of
salary from the date the same became due till
payment. Accordingly, issues No.1 and 2 are decided
in favour of the workman and against the
respondent.'
8. Moreover, as per the judgment of Hon'ble Apex Court
Syed Yakoob Vs. K.S. Radhakrishnan and others, AIR 1964
Supreme Court 477, the jurisdiction of this Court under Article 226
to issue a writ of certiorari is a supervisory jurisdiction and this Court
cannot act as a Court of appeal.
Relevant paragraph No.7 of the aforesaid judgment is
reproduced herebelow:
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'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 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
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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 v.
Ahmad Ishaque, 1955-1 SCR 1104: Nagendra Nath
v. Commr. of Hills Division, 1958 SCR 1240 and
Kaushalya Devi v. Bachittar Singh, AIR 1960
Supreme Court 1168. '.
9. After going through the reasons given in the impugned
award and more on the basis of the fact that no material/evidence has
been brought on record by the petitioner-Management, this Court is
also unable to deviate from the viewpoint taken by learned Labour
Court.
Accordingly, all the four writ petitions are hereby
dismissed and the impugned awards are ordered to be sustained.
[SANJAY VASHISTH]
January 29, 2024 JUDGE
rashmi
Whether speaking/reasoned yes/no
Whether reportable? yes/no
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