Punjab-Haryana High Court
Vinod Kumar Tiwari vs Presiding Officer Industrial Tribunal ... on 20 September, 2024
Neutral Citation No:=2024:PHHC:124908
CWP-15524-2015 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
210 CWP-15524-2015
Date of Decision : 20.09.2024
VINOD KUMAR TIWARI .... PETITIONER
V/S
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL CUM LABOUR
COURT, FARIDABAD AND ANOTHER
.... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr.Amit Kumar Goyal, Advocate
for the petitioner.
None for respondent No.2.
****
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 22.10.2014 (Annexure P/5) whereby Labour Court has answered
the reference against him.
2. The petitioner joined respondent No.2-M/s Shahi Export Pvt.
Ltd. as Helper on 14.06.2001. He was drawing salary Rs.2850/- per
month. The management suspended him on 16.09.2006. The respondent
conducted domestic inquiry and thereafter terminated his services on
01.12.2006. On the application of the petitioner, the matter came to be
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referred to Labour Court which by impugned award dated 22.10.2014
answered the reference against him.
3. Mr.Amit Kumar Goyal, Advocate submits that enquiry was
not conducted in a just and fair manner. The petitioner was not given
opportunity, thus, enquiry proceedings were liable to be vitiated.
4. I have heard the arguments of counsel for the petitioner and
perused the record.
5. The Labour Court has passed a detailed order wherein all the
contentions of the petitioner have been noticed. The relevant extracts of
the findings recorded by Labour Court are reproduced as below :
"10. Both these issues are interconnected. Arguments were
also heard together so both these issues taken together. The
employment of the claimant with the respondent is not
disputed. The case of the respondent against alleged illegal
termination setup by the claimant is that the claimant is that
the claimant was a habitual nuisance creator in his
department. Even on his transfer to another department he
misbehaved with the senior and was disobedient, son his
services were terminated after holding proper and fair
domestic inquiry. The claimant in his rejoinder denied any
warning and disobedience and opportunities being hear.
11. Claimant WW-1 admitted that he was given warning
by the Respondent-management on 06.09.2006. He further
admitted to have given an apology dated 03.05.2006 though
he alleged it was obtained forcibly but admittedly against
this no complaint was made. The claimant further admitted
he was given a charge sheet which he replied. He had
admitted his participation in the domestic inquiry also. He
has further admitted to receive his bonus, suspension
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allowance of 2006 after deduction. So, inquiry has been
conducted before taking action against the claimant.
12. It was submitted by learned AR of the claimant that
the claimant was not allowed to engage a union leader of his
choice and as such the inquiry is not a fair. Learned AR of
the claimant submitted the standing order of company
cannot be said to be law and assistance of office bearer of a
union or even advocate could be allowed. Reference was
made to Haryana Tourism Corporation Ltd., V/s Presiding
Officer, Labour Court, Gurgoan and another 2001 LLR 337,
Hindustan Wires Limited V/s Presiding Officer, Industrial
Tribunal and another 1992 LAB.I.C. 2098, Nimai Dutt V/s
State of Assam 2004(103) FLR 384 and Management of M/s
Chidambarm Shipcare Pvt. Ltd. V/s Presiding Officer,
Chennai and Ors. 2012 LLR 95. On other hand Ld. AR for
the respondent submitted that certified standing order can
curtail the right of representation. Reference was made to
decision of Hon'ble Supreme Court in Bhart Petroleum
Corporation Ltd. V/s Maharashtra General, Kamgar Union
& Ors. Manu/SC/0783/1998, The contention of learned AR
for the workman in devoid of any merit as in the standing
order Ex.M-1 it is specifically mentioned that the delinquent
worker can have assistance of a co-worker but he cannot
take assistance of any outsider or worker of the union. By the
standing order right of representation has not been denied
but affected only to the extent that the workman can only
have his co-worker as his representation. So long the
standing order are in placed the worker cannot raise any
objection in this regard. Right of representation can be
governed by certified standing order. Reference can be made
to Bhart Petroleum Corporation Ltd. Vis Maharashtra
General, Kamgar Union & Ors. Manu/SC/0783/1998.
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12. It was submitted by the AR of the claimant that the
witnesses of respondent were not allowed to be crossed
examined properly regarding which Ex. W-6 was given.
Perusal of the proceedings of the inquiry officer Ex.MW-1/1
would show that on 25.10.2006 the claimant sought time to
cross-examine the witness on next date. He was allowed to
further cross- examine the witnesses of the management in
pursuance of his application Ex. W-6. The witnesses of the
management of have been cross-examined again by him. So,
this contention is without any force. As the services of the
claimant have been terminated after holding proper inquiry
on the basis of the misconduct in which the claimant has
duly participated and the facts that on earlier occasions he
had been issued warning and he had tendered apology,
alleged illegal termination of the services of the claimant is
not prove. Both these issues are decided in favour of the
respondent and against the claimant."
6. From the perusal of afore-cited findings, it is evident that the
petitioner was given due opportunity and domestic enquiry was
conducted wherein he was found guilty. The petitioner was claiming that
he was not allowed to engage a union leader of his choice. The Labour
Court has returned a finding that the workman was allowed to take
assistance of any co-worker and as per standing order, he could not take
assistance of any outsider or worker of the union. The witnesses of
management have been cross-examined by workman.
7. 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
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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 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.
8. 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
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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 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
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under Art. 226 to issue a writ of certiorari can be legitimately exercised.
9. The petitioner has failed to point out any patent illegality in
the enquiry conducted by management or findings recorded by Labour
Court. It is apt to notice here that the petitioner was terminated on
01.12.2006 and a period of almost 18 years has passed away.
10. 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 award warranting interference.
11. Dismissed.
20.09.2024 (JAGMOHAN BANSAL)
anju JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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