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SCA/8127/2003 16/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8127 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MANAGER,
GUJARAT ELECTRICITY BOARD - Petitioner(s)
Versus
DP
JOSHI - Respondent(s)
=========================================================
Appearance
:
MR
RC JANI for
Petitioner(s) : 1,
NOTICE UNSERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/02/2011
ORAL
JUDGMENT
Heard
learned Advocate Mr. RC Jani for petitioner.
In
this matter, while issuing notice by making it returnable on
17.6.2003, execution and operation of impugned order has been stayed
by this Court and thereafter, Rule has been issued by this Court on
27th August, 2003. Thereafter, by order dated 13.7.2004,
ad interim relief granted earlier was confirmed by this Court.
Initially, notice issued by this court was served upon respondent
and respondent had appeared before this Court through learned
Advocate Mr. KS Acharya and filed affidavit in reply in this matter
on 19th November, 2003. However, subsequently, after
learned advocate Mr. KS Acharya expired, fresh notice issued by this
Court has remained unserved to respondent DP Joshi where c/o.
address has been given of union. This being a matter of
2003, in all 33 occasions, matter has been adjourned and yet no
steps have been taken by petitioner to serve notice to respondent
and, therefore, matter has been heard by this Court in absence of
respondent while considering affidavit in reply filed earlier by
respondent in this matter.
In
this petition, petitioner Gujarat Electricity Board has challenged
award passed by Industrial Tribunal, Ahmedabad in Reference (IT) NO.
83 of 1993 decided on 18th November, 2002 wherein
Industrial Tribunal, Ahmedabad has declared that respondent who is
performing duties at Gandhinagar Thermal Power Station is entitled
to have Notional Promotion Order in Technician Gr.III as per
Circular No. 446 with effect from 24.2.1986 and he is also entitled
to recover from GEB whatever financial loss suffered by him
considering him as Technician Gr. III and to get consequential
benefits.
Learned
Advocate Mr. RC Jani for petitioner has raised contention before
this Court that Industrial Tribunal, Ahmedabad has committed gross
error in not considering contention raised by petitioner that
dispute has been belatedly raised by respondent employee. He also
submitted that the certificate of Executive Engineer which was
produced vide Exh. 51, Mr. JN Chhabda cannot be relied upon in view
of Circular dated 22nd January, 1992 page 24 issued by
Gujarat Electricity Board. He submitted that only certificate issued
by Superintending Engineer is to be considered valid and certificate
issued by Executive Engineer cannot be relied upon. Therefore,
Industrial Tribunal has committed gross error in relying upon Exh.
51 certificate. He also submitted that Establishment Circular No.
446 has not been properly read and understood by Industrial Tribunal
and respondent employee has not proved facts before Industrial
Tribunal that at the time when he was absorbed in post of Helper as
a regular employee, at that time, he was working as NMR in
Technician Grade III or performing work of Technician Gr. III. He
also submitted that subsequently in the year 1990, concerned
employee was promoted in post of Technician Gr. III from post of
helper and thereafter, he was again promoted in year 1993 in post of
Technician Gr. II and therefore, seniority is also disturbed because
of award passed by Industrial Tribunal.
In
this petition, affidavit in reply is filed by respondent employee DP
Joshi and along with affidavit in reply, certain documents have been
produced on record. From that, learned advocate Mr.Jani for
petitioner has relied upon page 35 dated 10th July, 1990
and raised contention that respondent employee was not qualified as
per qualification at Sr. No.5 for the post of Technician Gr. III
which require to have cleared Trade Certificate of Mechanical/Fitter
from ITI, therefore, he relied upon page 37 item no. 5. But looking
to qualification possessed by Respondent employee, he was qualified
as per Sr. No. 5, page 37 where qualification is mentioned for the
post of Technician Grade III. Respondent employee has also produced
establishment circular no. 578 and certificate issued by Executive
Engineer Exh. 53 where it has been made clear that respondent
employee has been recruited as Skilled NMR in Instrument Section and
he was found hard working and enthusiastic for learning all kind of
works. It was also certified that during his continued service
period, he has passed examination of ITI Inst., BA and IInd Class
Wireman which shows his interest in study and increasing knowledge.
I
have considered submissions made by learned advocate Mr. RC Jani for
petitioner. I have also considered affidavit in reply filed by
respondent in this matter and documents annexed thereto. Industrial
dispute has been referred to by appropriate Government for
adjudication on 31st March, 1993. As per Schedule of
Reference, it was required to be adjudicated whether respondent
employee is entitled for Technician Gr.III from 24.2.86 as per
Establishment Circular NO. 446 with all consequential benefits or
not. In support of demand, respondent employee has filed statement
of claim Exh. 3 and according to him, he was appointed by petitioner
board on Nominal Muster Roll with effect from 6th
January, 1982 and after a period of four years, he was made
permanent as per establishment circular no. 446 w.e.f. 24.2.1986.
His educational qualification is BA, ITI Instrument Mechanic Course
pass. While he was in NMR, he had independently performed work of
Technician and as he is having vast experience, therefore, as per
provisions of Circular NO. 446, he was entitled for post of
Technician Gr. III as per Establishment Circular No. 446 and yet he
was made permanent in post of helper and, therefore, dispute has
been raised by workman. Written statement was filed by petitioner
Board vide Exh. 10 raising contention about delay in raising
dispute and not raised industrial dispute or made any complaint
from 1986 to 1993 till date when dispute is referred for
adjudication. Petitioner board has produced certain documents vide
list Exh. 10 wherein Exh. 21 is copy of joining report of respondent
helper when he joined as helper and copy of affidavit made by
workman is at Exh. 22. Vide Exh. 23, copy of office order absorbing
workman as helper has been produced. Exh. 24 is extract of service
book of workman. Exh. 25 and 26 are office orders of promotion to
respondent in Technical Gr. III and II. Exh. 27 is extract of
service book of workman. Establishment Circular NO. 446 was produced
by workman vide Exh. 18 and understanding of said circular has been
produced at Exh. 17/2. Vide Exh. 53, copy of application of workman
addressed to GEB dated 30.7.1986 has been produced. Vide Exh. 51,
certificate issued to workman by his Executive Engineer has been
produced.
Respondent
employee was examined before industrial tribunal vide Exh. 45 and
one witness Alpaben was examined on behalf of petitioner vide Exh.
51. Thereafter, matter has been considered by Industrial Tribunal on
the basis of evidence which are on record. Industrial Tribunal has
considered oral evidence of both parties and also considered
Establishment Circular No. 446 and certificate Exh. 53 given by
Executive Engineer in favour of respondent employee. Industrial
Tribunal has observed that there was no documentary evidence/oral
evidence produced on record by petitioner board that while working
in the post of NMR, which kind of work was being carried out or
performed by respondent employee,for that, nothing has been produced
on record by petitioner. Establishment Circular has made it clear
that the capacity in which workman of Nominal Muster Roll has been
working, on the same post, in the same capacity, he should be given
appointment and for that, there must be completion of 240 days
service each year and in this manner, there must be 960 days work on
Nominal Muster Roll. Industrial Tribunal has considered that the
witness for petitioner Board has stated in his cross examination
that when workman is engaged on Nominal Muster Roll, at that time,
no order is being issued in writing in his favour which suggests
nature of work is to be performed by him. Considering such oral and
documentary evidence, it was observed by Industrial Tribunal that
when no evidence in writing has been produced that which duties have
been performed by respondent workman when he was engaged, then,
while workman was performing duties on Nominal Muster Roll, as per
certificate of GEB, it is clearly appearing that he was performing
duties as Technician as Skilled Nominal Muster Roll. Industrial
Tribunal has relied upon certificate issued by Executive Engineer
Exh. 53 where this certificate has been accepted by witness for GEB.
As per certificate, respondent employee was working in Instrument
Section as Skilled NMR but at the time when he was working as NMR,
he was not working in the post of helper or he was not carrying out
work as helper. As regards contention about raising of an industrial
dispute belatedly, industrial tribunal has come to conclusion that
workman has made application to petitioner board to consider his
case for post of Technician Gr. III as per circular No. 446 issued
by GEB in letter dated 30th July, 1986, however, his
application was not considered by petitioner board. Industrial
Tribunal has also considered Exh. 17/3 where Additional Chief
Engineer has by letter dated 24.1.1986 made it clear that respondent
employee was working in the post of Skilled Labour in Instrument
Technician Gr. III and, therefore, it has been recommended to give
posting or post of Technician Gr. III to present respondent
employee. Such recommendation made by Additional Chief Engineer
produced on record vide Exh. 17/2 and, therefore, demand has been
made by workman after receiving order in the post of helper for
giving post of Technician Gr. III because he was working and
performing in the said post and carrying out same work in Instrument
Technician Department and, therefore, contention raised by
petitioner Board about delay before industrial tribunal has been
rejected by industrial tribunal. Important facts have been rightly
appreciated by Industrial Tribunal that there was no evidence on
record produced by petitioner Board that while working in the post
of NMR, which kind of work was actually being performed or carried
out by respondent employee, for that, there was no oral/documentary
evidence produced by petitioner Board before tribunal and,
therefore, in absence of such material, industrial tribunal has
rightly appreciated certificate issued by Executive Engineer and has
rightly appreciated recommendation made by Additional Chief Engineer
vide Exh. 17/2. Industrial Tribunal has also considered contention
of delay while granting relief in favour of respondent employee and
has directed that notional promotion order is to be issued by
petitioner and whatever difference between the post of helper and
technician Gr. III, financial loss is to be paid by petitioner Board
to concerned respondent employee with all consequential benefits.
In
light of aforesaid observations and reasoning given by Industrial
Tribunal, contention of delay cannot be examined by industrial
tribunal once when reference is made by appropriate Government to
industrial Tribunal. Once reference is made, Industrial Tribunal
cannot go behind Reference and it is not open for Industrial
Tribunal to decide legality and validity of order of Reference. In
recent decision of apex court in case of Kuldeep Singh v. G.M.
Instrument Design Development and Facilities Centre & Anr., AIR
2011 SC 455, this aspect has
been examined by Apex Court. Relevant paragraph 21 is quoted as
under:
21)
In view of the above, law can be summarized that there is no
prescribed time limit for the appropriate Government to exercise its
powers under Section 10 of the Act. It is more so in view of the
language used, namely, if any industrial dispute exists or is
apprehended, the appropriate government “at any time”
refer the dispute to a Board or Court for enquiry. The reference
sought for by the workman cannot be said to be delayed or suffering
from a lapse when law does not prescribe any period of limitation
for raising a dispute under Section 10 of the Act. The real test for
making a reference is whether at the time of the reference dispute
exists or not and when it is made it is presumed that the State
Government is satisfied with the ingredients of the provision, hence
the Labour Court cannot go behind the reference. It is not open to
the Government to go into the merit of the dispute concerned and
once it is found that an industrial dispute exists then it is
incumbent on the part of the Government to make reference. It cannot
itself decide the merit of the dispute and it is for the appropriate
Court or Forum to decide the same. The satisfaction of the
appropriate authority in the matter of making reference under
Section 10(1) of the Act is a subjective satisfaction. Normally, the
Government cannot decline to make reference for laches committed by
the workman. If adequate reasons are shown, the Government is bound
to refer the dispute to the appropriate Court or Forum for
adjudication. Even though, there is no limitation prescribed for
reference of dispute to the Labour Court/Industrial Tribunal, even
so, it is only reasonable that the disputes should be referred as
soon as possible after they have arisen and after conciliation
proceedings have failed, particularly, when disputes relate to
discharge of workman. If sufficient materials are not put forth for
the enormous delay, it would certainly be fatal. However, in view of
the explanation offered by the workman, in the case on hand, as
stated and discussed by us in the earlier paragraphs, we do not
think that the delay in the case on hand has been so culpable as to
disentitle him any relief. We are also satisfied that in view of the
details furnished and the explanation offered, the workman cannot be
blamed for the delay and he was all along hoping that one day his
grievance would be considered by the Management or by the
State Government.
Contention
raised by learned advocate Mr.Jani for petitioner cannot be accepted
because on behalf of petitioner Board, Executive Engineer Mr.
Chhabda was not examined before industrial tribunal to deny contents
of certificate Exh. 53 which has been issued by Executive Engineer
in favour of respondent employee. Therefore, according to my
opinion, industrial tribunal has not committed any error in
adjudicating industrial dispute referred to it by appropriate
Government. This Court is having limited jurisdiction under Article
227 of Constitution of India while considering award in question.
This Court can interfere with award while exercising power under
Article 227 of Constitution of India if serious dereliction of duty
and flagrant violation of fundamental principles of law or justice
and grave injustice remained incorrected. This Court cannot exercise
powers as an appellate court or substitute its own opinion in place
of that of subordinate court for correcting error which is not
apparent on the face of record. This court cannot disturb finding of
fact as examined by industrial tribunal. This view has been taken by
apex court in case of Jai Singh & Ors. v. Municipal
Corporation of Delhi and Anr. With Municipal Corporation of Delhi v.
Sh. Jai Singh and Ors., 2010 AIR SCW pg. 5968.
Relevant para 25 of said judgment is quoted as under:
25.
Undoubtedly, the High Court has the power to reach
injustice whenever, wherever found. The scope and ambit of Article
227 of the Constitution of India had been discussed in the case of
The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97]
wherein it was observed as follows:
“The
scope and ambit of exercise of power and jurisdiction by a High
Court under Article 227 of the Constitution of India is examined and
explained in a number of decisions of this Court. The exercise of
power under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their authority
and to see that they do the duty expected or required of them in a
legal manner. The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong decisions
made within the limits of the jurisdiction of the subordinate courts
or tribunals. Exercise of this power and interfering with the orders
of the courts or tribunals is restricted to cases of serious
dereliction of duty and flagrant violation of fundamental principles
of law or justice, where if the High Court does not interfere, a
grave injustice remains uncorrected. It is also well
settled that the High Court while acting under this article cannot
exercise its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct an
error, which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an inferior
court or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can possibly come
to such a conclusion, which the court or tribunal has come to.”
In our opinion, the High
Court committed a serious error of jurisdiction in entertaining the
writ petition filed by MCD under Article 227 of the Constitution of
India in the peculiar circumstances of this case. The decision to
exercise jurisdiction had to be taken in accordance with the
accepted norms of care, caution, circumspection. The issue herein
only related to a tenancy and subletting. There was no lis relating
to the ownership of the land on which the superstructure or the
demised premises had been constructed. The whole issue of ownership
of plot of land No:2, Block-B, transport area of Jhandewalan Estate,
Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter
of a civil suit being Suit No: 361 of 1980 in the High Court of
Delhi. The High Court, therefore, ought not to have given any
opinion on the question
of ownership.
In
MA Azim v. Maharashtra State Road Transport Corporation,
2011-I-CLR 283, it has been
observed by Bombay High Court as under in para 11 and 12:
11. At
this stage, it would be appropriate to refer to few important
judgments of Hon’ble Supreme Court and this Court laying down
therein the scope to entertain petition under of Article 226 and 227
of the Constitution of India. The Hon’ble Supreme Court in a case of
Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and
Appeals, Assam & Ors., reported in AIR 1958 SC 398 in para
No. 30 held thus:-
30.
the powers of judicial interference under Art. 227 of the
Constitution with orders of judicial or quasi-judicial nature, are
not greater than the powers under Art. 226 of the Constitution.
Under Art. 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 Art. 227 of the Constitution, the power of
interference is limited to seeing that the tribunal functions within
the limits of its authority.
Yet
in another case, in a case of Surya Dev Rai v. Ram Chander Rai,
reported in AIR 2003 SC 3044 the Hon’ble Supreme in its
conclusion held :-
(5)
Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied : (i) the error
is manifest and apparent on the face of the proceedings such as when
it is based on clear ignorance or utter disregard of the provisions
of law, and (iii) a grave injustice or gross failure of justice has
occasioned thereby.
(6)
A patent error is an error which is self-evident, i.e., which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate court has
chosen to take one view the error cannot be called gross or patent.
(7)
The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in appropriate
cases where the judicial conscience of the High Court dictates it to
act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be exercised,
when any of the abovesaid two jurisdictions is sought to be invoked
during the pendency of any suit or proceedings in a subordinate
court and error though calling for correction is yet capable of
being corrected at the conclusion of the proceedings in an appeal or
revision preferred there against and entertaining a petition
invoking certiorari or supervisory jurisdiction of High Court would
obstruct the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene where the
error is such, as, if not corrected at that very moment, may become
incapable of correction at a later stage and refusal to intervene
would result in travesty of justice or where such refusal itself
would result in prolonging of the lis.
(8)
The High Court in exercise of certiorari or supervisory jurisdiction
will not covert itself into a Court of Appeal and indulge in
re-appreciation or evaluation of evidence or correct errors in
drawing inferences or correct errors of mere formal or technical
character.
And
in a case of Babulal S/o. Navalmal Pipada v. Dropadbai W/o.Manohar
Gore & Others reported in 2010(5) Mh. LJ, this Court has held
thus:
One
cannot be oblivious of the parameters required to be observed for
the purpose of exercising supervisory jurisdiction under Article 227
of the Constitution of India.Unless it is demonstrated that the
impugned judgment suffers from vice of perversity, arbitrariness or
is rendered without considering material evidence or is rendered on
the basis of no material interference with the finding of
Courts/Tribunals is impermissible.The writ jurisdiction cannot be
invoked for reappreciating of the evidence or for the purpose of
rectification of minor errors committed by the Tribunals. Unless it
is demonstrated that the view taken by the MRT is per se against the
settled principles of law, it is difficult to interfere with the
findings recorded by the Tribunals below.
12. Therefore,
it is clear from the pronouncements of Supreme Court and this Court
which are referred supra that the Writ Jurisdiction cannot be
invoked for reappreciating the evidence or for the purpose of
rectification a minor errors committed by the Tribunals. Supervisory
jurisdiction under Article 227 cannot be invoked unless it is
demonstrated that the impugned judgments suffers from the vice of
perversity, arbitrariness or is rendered without considering
material evidence or is rendered on the basis of no material
evidence or is rendered on the basis of no material, interference
with the findings of Courts/Tribunals is impermissible.Therefore, in
light of above, it is relevant to summarized here in below the
findings recorded by the Labour Court on the basis of evidence
brought on record by the parties.
In
view of above discussion and observations made by apex court and
Bombay High Court, according to my opinion, no error found
apparent on face of record has been committed by industrial
tribunal and it is a clear case of finding of fact examined and
decided by industrial tribunal and therefore it would not require
any interference of this court in exercise of powers under Article
227 of Constitution of India. Therefore, contentions raised by
learned Advocate Mr. RC Jani for petitioner cannot be accepted. Same
are, therefore, rejected. Hence, there is no substance in this
petition and same is required to be dismissed.
For
reasons recorded above, this petition is dismissed. Interim relief,
if any, shall stand vacated forthwith. There shall be no order as to
costs.
(H.K.
Rathod,J.)
Vyas
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