Dismissed

The Managing Director, M/ S Luminous Power Technologies v. Manoj Kumar

Himachal Pradesh HC16 Dec 2022CWP/3488/2022

Case brief

AI extract

What is this about?

Transfers challenged as retaliation for forming a trade union were cancelled by a labour award. The Court held that an unregistered union could sponsor the industrial dispute and declined interference with the findings of mala fide transfer and unfair labour practice. It upheld the award and dismissed the employer’s petition.

What the court decided

AI extract

The Managing Director, M/ S Luminous… — Labour and Industrial Disputes | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No. 3488 of 2022

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Reserved on: 22.9.2022

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Decided on : 16.12.2022

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The Managing Director, M/s Luminous Power Tech

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…Petitioner

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Versus

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Manoj Kumar & another

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…Respondents

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___________________________________________ Coram

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Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting?¹ yes

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For the petitioner : Mr. Vishal Sharma and Mr. Daleep Chand, Advocates

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For the respondent : Ms. Shikha Chauhan, Advocate, for respondent No. 1

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Per Virender Singh, Judge

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The petitioner, M/s Luminous Power Technologies, Unit-II Gagret, Tehsil Amb, District Una, through its Managing Director, has invoked the

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1 Whether reporters of the local papers may be allowed to see the judgment?

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extraordinary writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India.

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By virtue of the present writ petition, the petitioner has sought indulgence of this Court for quashing the order dated 2.5.2022 (Annexure P-14), passed by respondent No. 2, i.e. Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala.

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The factual position, as emerges from the bare reading of the writ petition, is that the petitioner-Company is a manufacturing Company having its units, in various states, in the Country. Hence, the services of the workers are stated to be transferable.

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In the year 2018, a unit in Hosur in Tamil Nadu was being expanded and trained manpower was required there, as such, 25 workers were ordered to be transferred for a limited period of 18 months, vide order dated 25.5.2018, (Annexure P-2) from Gagret, Tehsil Amb, District Una to Hosur in Tamil Nadu.

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Out of 25 workers, 13 workers had joined their new place of posting, however, remaining 12 workers had

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refused to accept the transfer orders. Despite all the efforts

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to persuade them to join the new place of posting, they had not accepted the transfer orders. Hence their act is said to be an act of indiscipline. Consequently, they were not permitted to enter in the factory premises at Gagret, Tehsil Amb, District Una.

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Thereafter, respondent No. 1, who is claiming himself to be the President of Union namely, “Luminous Power Technologies Workers Union” (hereinafter referred to as, “the Union”) filed the demand notice, which was not addressed to the Management, but was addressed to the Labour Conciliation Officer. Wide publicity was also given to the said demand notice. The contents of the said demand notice are said to be wrong and the demand notice is stated to have been issued with the motive to put pressure upon the petitioner and to evade transfer order dated 25.5.2018 (Annexure P-2).

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On the basis of said demand notice, the notice was issued to the petitioner-Company by the Labour-cumConciliation Officer, vide notice dated 6.6.2018 (Annexure

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P-4). The said notice is stated to be unjustified and illegal,

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as it was the statutory duty of the Labour-cum-Conciliation Officer to hold the conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947.

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The act of the Labour- cum- Conciliation Officer

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in issuing the notice, dated 6.6.2018 has also been challenged, on the ground, that the Labour-cumConciliation Officer has issued notice without looking into the fact that respondent No. 1 was not having any legal authority to espouse the disputes or resolution of the Union authorizing him to raise the dispute or the written espousal, of at least a sizable number of workers. However, to the said notice, issued by the Labour-cum-Conciliation Officer, the petitioner-Management has submitted its replies. The Labour-cum-Conciliation Officer issued failure report dated 8.4.2019 (Annexure P-8), in which, he has admitted that the offer of the petitioner-Management to cancel the transfer order and send the delinquent workmen to the plants in the surrounding areas was refused by respondent No. 1.

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Even in the reply filed on 20.6.2018 (Annexure

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P-5), a categoric stand has been taken by the petitioner that respondent No. 1 is not authorized to raise the industrial dispute as the union is not registered.

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Highlighting clause-2 of the appointment letter, in which, there is a stipulation that “Management has right to transfer any workman in any part of India and will not change any service condition securing the Right to Livelihood of all workmen at par”, it has been pleaded that the above condition binds the workmen, in terms of contract, duly governed, as per Indian Contract Act, 1973.

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Apart from this, the petitioner has also heavily relied upon clause-16 of the Standing Orders, duly certified by the competent authority under the Industrial Employment (Standing Orders) Act, 1946( Annexure P-10). All these facts are stated to be apprised to the Labour-cumConciliation Officer. The well settled legal propositions have

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also been brought to his notice.

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All these submissions were stated to be ignored

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by Labour-cum-Conciliation Officer and reference has been made on 6.9.2018 (Annexure P-11).

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The petitioner, thereafter, received a Claim Statement filed before the Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala (respondent No. 2). The Labour Court-cum-Industrial Tribunal had been requested to answer the reference, which reads as under:

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“Whether the answering Management to transfer the 12 workers (named) elected as office bearers, which is under process for registration is legal and justified and if not what benefit the workmen entitle from the employer?”.

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Reiterating the stand that the alleged union was

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not registered and the prayer for registration of the Union has already been rejected by the authorities, it is the further case of the petitioner that the correspondences made by respondent No. 2 in the name of “Luminous Power Technologies Workers Union through its President” are wrong and illegal. In such circumstances, according to the petitioner, the Labour Court-cum-Industrial Tribunal has

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wrongly not entertained the objections. Despite the above rejection, the petitioner-Company had filed the reply to the claim statement, highlighting the fact that the alleged workers were neither terminated, retrenched nor discharged. As such, according to the petitioner, there was no dispute, which can be said to be “Industrial Dispute”.

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In the reply filed before the Labour Court-cumIndustrial Tribunal, the specific stand has been taken by the petitioner-Company that since the services of the workers were not retrenched nor they were dismissed, transfer order does not fall within the ambit of Section 2(A) or Section 2(K) of the Industrial Disputes Act, 1947.

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As per the case, set up by the petitioner, the Labour Court-cum-Industrial Tribunal, Kangra, vide award dated 2.5.2022, has wrongly cancelled the transfer order, passed by the petitioner-Company. The said award has been assailed, inter-alia, on the ground, that it was prerogative of the petitioner-Management to transfer the employees to the plant at Hosur, where certain trained workers were required.

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Supporting the transfer order, the award has

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been assailed on the ground that no intimation or any letter qua the proposal of the registration of the Union was ever communicated to the petitioner-Company.

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The award has also been assailed on the ground that efforts of respondent No. 1 to get the Union registered, remained futile, as the said proposal was rejected on 12.9.2018, vide Annexure P-12 and there was no authority attached with the alleged claim, as per the provisions of Section 36 of the Industrial Disputes Act, 1947. Similarly, the claim statement, on behalf of Union, is also stated to be bad in law.

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19 The reference, dated 6.9.2018, is also assailed on the ground that no reference can be made for unfair labour practice, as, the same is not included in the second schedule and the third schedule of the Industrial Disputes Act, 1947. In case of alleged unfair labour practice, which is stated to be prohibited under Section 25-T of the Industrial Disputes Act, it is the duty of the appropriate

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government to get the investigation done and to take the cognizance, if any offence is found to have been committed.

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On all these submissions, a prayer has been made to allow the writ petition and to grant the relief, as prayed, in the writ petition.

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When put to notice, respondent No. 1 has filed the reply, in which, a stand has been taken that when their grievance was not redressed by the petitioner, they had no other option, but to approach the appropriate competent authority, as per law. Supporting the proceedings conducted by Labour-cum-Conciliation Officer, as well as the decision of Labour Court-cum-Industrial Tribunal, it is the further stand of respondent No. 1 that the petitionerCompany has acted with malafide intention to transfer the members of respondent No. 1-Union, from the present place of posting. Thus, a prayer has been made to dismiss the writ petition.

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Management is before this Court to challenge the award passed by the Labour Court-cum-Industrual

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Tribunal, Kangra at Dharamshala. By virtue of the award,

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the following relief has been given to the respondent No.1:

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“The transfer of the petitioners is cancelled being a malafide act of the respondent with a view to pressurize them not to pursue the matter regarding formation and registration of the trade union which they were in the process of registration. The petitioners shall be treated in continuity in service w.e.f. 26.5.2018 for next 18 months and they shall be entitled for all services benefits including salary for the above said period in the same manner as if they have worked at the same station and no dispute has arisen at all. The reference is confined to the period of 18 months and there can be any adjudication in this reference regarding the position that existed on the expiry of 18 months counted w.e.f. 26.5.2018, as the petitioner are regular employees of the respondent and they are governed by the R& P Rules of the respondent-Company. The petitioners namely S/Shri Dinesh Kumar and Neeraj Kumar i.e. petitioners No. 7 and 10 shall be entitled for the financial benefits for the period during which they remained out of the work before they were recalled after cancellation of their transfer orders”.

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The petitioner, in this case, heavily relied upon the terms and conditions of the appointment letter Annexure P-9, issued to the Workmen, including the President of Luminous Power Technology. In the

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appointment letter, there is a specific condition that the job

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of the workman is transferable. Clause-2 of the Appointment Letter (Annexure P-9) clearly stipulates that the services of the persons, so appointed, can be transferred from one factory to another factory. Even otherwise, the certified Standing Orders, issued under the provisions of Section 7 of the Industrial Disputes Act, 1947 contains the provisions that the Management shall have the right to transfer an employee from one department to another, from one establishment to another and from one

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station to another, under the same employment/management of the factory.

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However, a protection has been provided to the workman that his wages and other conditions of service shall not be un-necessarily effected. The Management can transfer the services of the workman with his consent or in the case, where there is specific provision, in the letter of appointment. Here, in this case, there is specific condition in the letter of appointment that the services of the workman can be transferred from one station to another.

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Vide letter dated 25.5.2018 (Annexure P-2), the services of 25 workers were ordered to be transferred for limited period of 18 months from Gagret to Hosur in Tamilnadu.

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Admittedly, the Luminous Powers Technology Workers Union, Tehsil Amb, District Una is not registered, as per the Trade Unions Act. This fact has clearly been depicted, in the letter head of Workers Union.

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A perusal of the record clearly shows that vide Annexure P-12, Registrar of Trade Unions, Himachal Pradesh had written a letter to President/General Secretary, Luminous Power Technology Workers Union, Gagret Unit-II, Tehsil Amb, District Una, Himachal Pradesh. In this letter, it has specifically been mentioned that the application for registration of the Union, in the name of Luminous Power Technology Workers’ Union, Gagret, under the Trade Unions Act, 1926 was moved on 16.4.2018. This date assumes significance, as, by moving application, on that date, the working committee of the petitioner-Company had initiated the process of registration.

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In the letter, Annexure P-3, which, although,

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was addressed to the Press and Electronic Media, it has been mentioned that in order to raise the voice against the Management, it has been decided to constitute an organization, in the name of Luminous Power Technology Workers Union on 16.3.2018 and the requisite documents have been stated to be submitted with the office of Labour Commissioner, Shimla. Thereafter, vide letter dated 12.9.2018, the Registrar of Trade Union of Himachal Pradesh had written a letter, copy of which is on record as Annexure P-12, intimating the respondent No. 1 that the proposed Union does not fulfill the provisions, as contained in Section 4(1) of the Trade Unions Act, 1926, as such, the same cannot be registered under the Trade Union Act, 1926.

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In the intervening period, on 6.6.2018, the Labour Officer, Una has intimated the Management of the petitioner-Company, qua the complaint moved by Shri Manoj Kumar, President of Luminous Power Technologies, Workers Union. The Management was directed to put in

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appearance through a person, duly authorized, on 13.6.2018. Admittedly, the Union was not registered, as, the proposal regarding its registration, under the Trade Union Act, was turned down only on 12.9.2018.

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On the basis of above facts, it has vehemently been argued by learned counsel for the petitioner that the Labour Officer has wrongly taken the cognizance of the alleged complaint, made by Manoj Kumar, being President of Union and as such, the complaint was not maintainable.

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On 4.7.2018, the Union has submitted the demand notice to Labour Commissioner-cum-Conciliation

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Officer, Una mentioning therein that they have formed the Union, in order to redress the grievances, with regard to their rights, working conditions, as well as, security. In the demand notice, it has also been mentioned that the requisite documents for registration of Union have already been submitted. However, when this fact came to the notice of the Management, then, they have adopted many tactics to thwart the process of registration. Mis-information has been spread by them that the Factory will be closed and the

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members of the Union have also been threatened that their

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working shifts will be changed. On 26.5.2018, all the 12 members of the Union were transferred to Hosur in Tamilnadu, which is stated to be about 2000 kms from Una.

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On the basis of above facts, they have raised the following demands:

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(i) The transfer be cancelled and the workmen should be retained with full wages;

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(ii) Continuity in service;

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(iii) Intervention in Union formation should be stopped; (iv) Neutrality be maintained in the registration process.

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Alongwith the demand notice, photo copies of

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the application for registration of trade union as well as resolution have also been submitted.

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To the said demand notice, reply was filed by the petitioner-Company, denying all the allegations. However, a stand has been taken by them that they have nothing to do with the registration of Union under the Trade Union Act. Justifying their stand to transfer the workmen, it has been stated that since January, 2018, the

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Management has been informing that some of the skilled workers are to be deputed in Hosur for smooth expansion of the said plant. The attitude of the Union is stated to be the effect of the discretion of petitioner-Company qua the transfer of workmen from Gagret to Hosur.

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The information with regard to office bearers, was received by them only on 4.7.2018. As such, a request was made to reject the reference.

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When the re-conciliation proceedings could not materialize, then the Labour Officer, Una has submitted its report, (Annexure P-8) to the Labour Commissioner, upon which, the appropriate government has made the reference under the provisions of Section 10(1) of the Industrial Disputes Act to the Labour Court-cum- Industrial Tribunal, Dharamshala.

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By virtue of letter, Annexure P-11, the following

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reference has been made to the Labour Court-cumIndustrial Tribunal:

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“Whether action of the management of M/s Luminous Power Technologies Ltd, Gagret, Tehsil Amb, District

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Una, Himachal Pradesh to victimize and transfer Shri Manoj Kumar (President) & other 11 Executive Members/Workers (As per list enclosed) in view of formation of Luminous Power Technologies Workers Union (which is under process for registration under the provisions of the Trade Union Act, 1926 in the office of the Registrar Trade Union, Himachal Pradesh) from the Luminous Power Technologies Ltd., Unit-II, Gagret, Tehsil Amb, District Una, Himachal Pradesh to the Luminous Power Technologies Ltd., Hosur, S.N. 150/1A & 1B, Gondigurki Road, Nalaganakothapalli, Shoolgiri, Kishangiri, Tamilnadu-645117 vide transfer order dated 25.5.2018 w.e.f. 30.5.2018 and 02.06.2018 for a span of 18 months and further closing the gate of above workers/Executive Members of the union w.e.f. 26.5.2018 amounts to “Unfair Labour Practices” as provided under section 2(a of the Industrial Disputes Act, 1947? If yes, what relief inluding the cancellation of the transfer orders and other service benefits, the above aggrieved workmen are entitled to from the above management under the provisions of the Industrial Disputes Act, 1947.”

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37. Consequently, statement of claim by Union as

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well as reply on behalf of petitioner-Company was filed.

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On 19.2.2019, the following issues were framed

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by the Labour Court-cum-Industrial Tribunal, Dharamshala, respondent No. 2:

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“1.Whether the action of respondent to transfer the petitioners from the Luminous Power Technologies Ltd. Unit-II, Tehsil Amb, District Una, H.P., to the Luminous Power Technologies Ltd., Hosur, S.N. 150/1A & 1B Gondigurki Road, Nalaganakothapalli, Shooligiri, Kishangiri, Tamilnadu-635117 vide transfer order dated 25.5.2018 w.e.f. 30.5.2018 and 2.6.2018 and further closing the gate of members of union w.e.f. 26.5.2018 amounts to “Unfair Labour Practices”, as alleged? OPP

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If issue No. 1 is proved in affirmative, to what service benefits the petitioners are entitled to?OPP

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Whether the claim petition is not maintainable in the present form, as alleged?OPR

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Whether the respondent has not issued any termination order, as alleged? OPR

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Whether the petitioners have not come to this Tribunal with clean hands, as alleged? OPR

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Whether the reference is not legal reference, as alleged? OPR

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Relief.

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Thereafter, the parties to the lis have adduced

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oral as well as documentary evidence. On 2.5.2022, the

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Labour Court-cum-Industrial Tribunal has passed the award, which has been challenged before this Court.

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The moot question, which arises for

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determination before this Court, is about the

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maintainability of the demand notice by the unregistered trade union, i.e. respondent No. 1.

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Admittedly, the union (respondent No. 1) has not yet been registered, as per Section 2(qq) of the Trade Union Act. Section 2(qq) of the Trade Union Act is reproduced as under:

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“2(qq) “trade union” means a trade union registered under the Trade Unions Act, 1926”

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The Legislature, in its wisdom, has defined trade union, which is registered under the Trade Union Act, 1926. At the cost of repetition, the Union, in the present case, has not been registered as per the admitted case of the parties. The term “Industrial Dispute” has been defined in Section 2(k) of the Industrial Act. The power of the appropriate government to refer the industrial disputes to the Labour Court, is contained in Section 10(1) of the Industrial Disputes Act. The bare reading of Section 10(2) of the Industrial Disputes Act demonstrates that Industrial Disputes can be raised jointly or separately.

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The question regarding maintainability of the reference, at the instance of unregistered Union, came up for consideration before the Hon’ble Supreme Court in

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State of Bihar versus Kripa Shankar Jaiswal , reported in AIR 1961, Supreme Court (Vol. 1) 306 paragraph-6 whereof, is reproduced, as under:

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“It would be an erroneous view if it were said that for a dispute to constitute an industrial dispute it is a requisite condition that it should be sponsored by a recognized union or that all the workmen of an industrial establishment should be parties to it. A dispute becomes an industrial dispute even where it is sponsored by a Union which even where it is sponsored by a union which is not registered as in the instant case or where the dispute raises is by some only of the workmen because in either case the matter falls within Ss 18(3)(a) and 18(13) (d) of the Act.” The binding nature of an award or a settlement as contemplated under Section 18 in clauses, inter alia all parties to the Industrial dispute that include all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.”

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This view has again been reiterated by the

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Hon’ble Supreme Court in Pradip Lamp Works, Patna

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Vs.Workmen of Pradip Lamp Works, Patna & another,

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reported in 1972 (I) LLJ 507, relevant paragraph of which is reproduced as under:

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“It cannot be said that merely because the dispute was not sponsored be the registered union it was not an industrial dispute. Even though the new union was not registered there was evidence to show that substantial number of workmen who are members of the new union espoused the dispute relating to the dismissal of ten workmen and that legal position is that espousal of a dispute before a reference is made even by a minority union having a membership of substantial number of workmen is sufficient to make such a dispute an industrial dispute. It was therefore held that the dispute espoused by the new unregistered union was an industrial dispute that the reference was competent. To the same effect was the decision of an earlier judgment of the Hon’ble Supreme Court in Newspapers Ltd. Allahabad Vs. State Industrial Tribunal reported in 1960 (II) LLJ 37.)

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In view of the decision of Hon’ble Supreme

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Court, as referred to above, this Court is satisfied that the reference, on behalf of an unregistered Union, is not bad in the eyes of law and as such, learned Labour Court-cumConciliation Officer has rightly entertained the demand

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notice of the unregistered union and when the reconciliation failed, then Labour-cum-Conciliation Officer has rightly submitted the report to the appropriate government. The appropriate government has rightly found that there was an industrial dispute, as such has made a reference to the Labour Court-cum- Industrial Tribunal, which has been replied by the Labour Court-cumIndustrial Tribunal, in the present case.

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The petitioner-Company, in this case, has also sought quashing of the order dated 2.5.2022, passed by the Labour Court-cum-Industrial Tribunal. The prayer qua issuance of writ of certiorari has been made justifying the transfer order dated 25.5.2018 (Annexure P-2).

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The scope of issuance of writ of certiorari has elaborately been discussed by the Hon’ble Supreme Court

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way back in the year 1955, in Hari Vishnu Kamath versus

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Syed Ahmad Ishaque and others , reported in Supreme Court Cases, 1955 (1) 1104, paragraph 4 whereof, is reproduced as under:

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“(4) The further question on which there has been some controversy is whether a writ can be issued, when the decision of the inferior Court or Tribunal is erroneous in law. This question came up for consideration in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw(5), and it was held that when a Tribunal made a "speaking order" and the reasons given in that order in support of the decision were bad in law, certiorari could be granted. It was pointed out by Lord Goddard, C. J. that had always been understood to be the true scope of the power. Walsall Overseers v. London and North Western Ry. Co. (1) and Rex v. Nat Bell Liquors Ld. (2) were quoted in support of this view. In Walsall Overseers v. London and North Western Ry. Co.(1), Lord Cairns, L.C. observed as follows:

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"If there was upon the face of the order of the court of quarter sessions anything which showed that order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the court found error upon the face of it, to put an end to its existence by quashing it".

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In Rex v. Nat Bell Liquors Ld. (2) Lord Sumner said: "That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise".

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The decision in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw(3) was taken in appeal, and was affirmed by the Court of Appeal in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw(4). In laying down that an error of law was a ground for granting certiorari, the learned Judges emphasised that it must be apparent on the face of the record.

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Denning, L.J. who stated the power in broad and general terms observed:

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"It will have been seen that throughout all the cases there is one governing rule: certiorari is only available to quash a decision for error of law if the error appears on the face of the record".

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The position was thus summed up by Morris, L.J.

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"It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown".

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In Veerappa Pillai v. Raman & Raman Ltd. and Others(1), it was observed by this court that under article 226 the writ should be issued "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record". In T. C. Basappa v. T. Nagappa(2) the law was thus stated:

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"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. In other words, it is a patent error which can be corrected by 'certiorari' but not a mere wrong decision".

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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 real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a

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particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality(3) that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. 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.”

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In another decision, rendered by Hon’ble Supreme

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Court in T.C. Basappa versus T. Nagappa and another , reported in AIR 1954 S.C. 440 (Vol. 41, C.N. 106), the Hon’ble Supreme Court has again explained the essential features, effects and conditions, in which, a writ of certiorari can be issued. Relevant paragraphs 7 to 11 of the judgment are reproduced as under:

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“7. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression " judicial acts " includes

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the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in ‘Rex v. Electricity Commissioners’, 1924-1 KB 171 at p. 205 (C) : “Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling Jurisdiction of the King's Bench Division exercised in these writs."

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The second essential feature of a writ of ‘certiorari’ is that the control which is exercised through it over judicial or quasijudicial 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-’Walsal’s Overseas v. L. & N W. Rly. Co.’ (1879) 4 AC 30 at p. 39 (D).

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The supervision of the superior Court exercised through writs of ‘certiorari’ goes on two points, as has been expressed by Lord Sumner in ‘King v. Nat. Bell Liquors Limited’, 1922 (2) AC 128 at p 156 (E). One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of ‘certiorari’ could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

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‘Certiorari’ may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of

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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, 2^nd Edition, Vol. IX, page 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‘Bunbury vs. Fuller’ (1854) 9 Ex.111 (F);-R.vs. Income Tax Special Purposes Commissioners’, (1889) 21 QBD 313. (G).

¶170

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. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.

¶171

The essential features of the remedy by way of ‘certiorari’ have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of ‘Rex v. Northumberland Compensation Appellate Tribunal’, 1952-1KB 338 at p. 357 (H). The Lord Justice says:

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“It is plain that ‘certiorari’ will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."

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In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms, Vide-’Veerappa Pillai v. Raman and Raman Ltd.’, AIR 1952 SC 192 at pp.195-196 (I) and said:

¶175

"Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."

¶176

These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of ‘certiorari’ under article 226 of the Constitution.”

¶177

The Hon’ble Supreme Court in Management of

¶178

Madurantakam Coop. Sugar Mills Ltd. vs. S. Viswanathan

¶179

reported in 2005 (3) SCC 193, has again elaborately discussed the scope of High Court under Article 226 or 227 of

¶180

the Constitution of India to interfere in the findings of facts, recorded by the Labour Court-cum-Industrial Tribunal, in

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paragraphs 12 and 13 of the judgment, which are reproduced as under:

¶183

“12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type 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 of India 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. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court.

¶184

The Division Bench too in appeal, in our opinion, has committed the same error. May be, there was some

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¶186

justification, since if it had to allow the appeal, then it had to consider the points on facts decided by the learned Single Judge. In that process it also took up for consideration every bit of evidence that was considered by the Labour Court as well as by the learned Single Judge and disagreed with the finding of the learned Single Judge.” (Emphasis supplied)

¶187

In an another decision in Harjinder Singh versus

¶188

Punjab State Warehousing Corporation, reported in 2010(3) SCC 192, the Hon’ble Supreme Court has directed to keep in mind the nature of the Industrial Disputes Act. Paragraphs 21 to 24 of the judgment are reproduced as under:

¶189

“21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also

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ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that:

¶192

"10…...the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State."

¶193

( State of Mysore v. Workers of Gold Mines , AIR P 921, para10.)

¶194

In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed: (SSC pp.109-10)

¶195

"The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest

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of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity."

¶198

The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society.

¶199

In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act,

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Factories Act, 1948; Payment of Wages Act, 1936; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; Workmen's Compensation Act, 1923; the Employees' State Insurance Act, 1948; Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and Shops and Commercial Establishments Act enacted by different States.”

¶202

51 Considering the factual position of the present case and in view of the decisions referred to above, this Court proceeds to find as to whether the petitioner is able to make out a case where the award passed by learned Labour Courtcum-Industrial Tribunal, can be quashed by issuing the writ of certiorari.

¶203

Learned counsel for the petitioner has relied upon the decisions of Hon’ble Supreme Court, in M/s Medley

¶204

Minerals India Ltd. Vs. State of Orissa and others , reported in AIR 2004 Supreme Court 485, Balram and another versus M.C.D (Delhi), reported in Service Law Reporter, Vol. 207, 2008(1), Dr. K. Shringi versus Nuclear

¶205

Power Corp. of India Ltd., & others , reported in SCT Vol. 67 2008(1) and the decision of Delhi High Court in W.P.(C) No.

¶206

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6187 of 1999, titled as Rajni Manchanda versus P.O.

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Labour Court-I and another.

¶209

The term “Industrial Disputes” has been defined

¶210

in Section 2(k) of the Industrial Disputes Act, which is reproduced as under:

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2(k) of the Industrial Disputes Act :- “industrial dispute’ mens any dispute or difference betweenemployers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person;”

¶212

The petitioner-Company, in the present case,

¶213

has transferred 25 employees, including office bearers of respondent-Union, only after the process for registration of the respondent-Union under the provisions of Trade Union Act was initiated on 16.4.2018. Learned Labour Courtcum-Industrial Tribunal has considered these material facts, in the right perspective, as the petitioner-Company could not prove on the file that before effecting transfer(s), the members of the respondent-Union were ever called to

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have the meeting nor any evidece has been adduced by the

¶216

petitioner Company just to probabilize the said stand.

¶217

The factual position, which has been mentioned

¶218

by learned Labour Court-cum-Industrial Tribunal, has not been questioned, what to talk of controverting the same, by adducing cogent and convincing evidence in the present petition.

¶219

56. Para-27 of the award is reproduced as under:

¶220

“Thus as a result of the discussion made hereinabove on every aspect of the matter it is established that the transfer orders dated 25.5.2018 are the malafide act of the respondent to pressurize the petitioners to not to pursue the matter regarding the formation and registration of the worker Union. The transfer of all the office bearers of the proposed Union to a place more than 2000 kms away from the place they were working is nothing but an attempt to prevent them from forming the Union and bring forth the issues of the workmen for their redressal. Closing the gate of the factory on the next day of the transfer order is also an act to increase the pressure upon them to act in accordance to the wishes of the management and such acts amounts to Unfair Labour Practices. Issue No. 1 is thus held in favour of the petitioners.”

¶221

¶222

Learned Labour Court, in this case, has specifically held that transfer of the employees by the petitioner-Company was an attempt to prevent the workmen from forming the Union. The said act of the petitionerCompany has also been stated to be the unfair labour practice.

¶223

In view of the decisions of Hon’ble Supreme Court referred to above in Hari Vishnu Kamath, T.C. Basappa and Management of Madurantakam Coop. Sugar Mills Ltd’s cases (supra), the scope of this Court, to interfere, in the award passed by learned Labour Court, is limited where the award so passed falles within the definition of “preverse”.

¶224

This Court, under Articles 226 and 227 of the Constitution of India, cannot review or reweigh the evidence. The only scope for interference under Articles 226 and 227 of Constitution of India, is in case there is a flagrant disregard of Rules of procedure or in case there is violation of principles of natural justice.

¶225

¶226

At the cost of repetition, the process of registration

¶227

of Union by respondent No. 1 was initiated on 26.3.2018 and the requisite application was moved to the Registrar of Trade Union, Himachal Pradesh on 16.4.2018. No doubt, the process of registration of Union, under the Trade Union Act, has not been completed and the application, so made, has not been accepted by the Registrar of Trade Union, however, this information was given to the President of the respondent No. 1-Union on 12.9.2018.

¶228

The act of the petitioner-Company to transfer 25 workmen on 25.5.2018, if seen, in the light of the fact that the first step for the process of formation of Union was taken in the month of March, 2018 and out of those 25 persons, 12 members of the respondent-Union were transferred to Hosur, is the fact which has rightly been considered by the Labour Court, in this case.

¶229

The situation would have been differed, had this transfer order been passed, prior to the date, when the resolution to get the Union registered under the Trade Union

¶230

¶231

Act, was passed. It has specifically been held by the Labour Court that the transfer order dated 25.5.2018 is malafide act of the petitioner-Company, to pressurize the members of the respondent No. 1-Union, not to get the same registered under the Trade Union Act.

¶232

These findings are clearly based upon the admitted factual position, in this case, and the petitionerCompany has miserably failed to prove on record that any meeting was ever held prior to the date of taking extreme step of transferring the members of Union alongwith 13 other members to a place, which is more than 2000 km away, from the place, where they were working earlier.

¶233

Once, it has been held that the act of the petitioner-Company to transfer the workmen was not bonafide and the same was an attempt to thwart the process of registration of Union under the Trade Union Act, the case laws relied upon by the petitioner are of no help to him, as there is nothing on record to show that the above findings of

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fact, recorded by the Labour Court, suffers from any perversity.

¶236

Learned counsel for the petitioner could not point out as to how the said findings call for any interference by this Court, that too, in the extra ordinary jurisdiction, under Articles 226 and 227 of the Constitution of India.

¶237

Considering all these factual aspects, there is no

¶238

occasion for this Court to interfere with the findings recorded by learned Labour Court-cum Industrial Tribunal.

¶239

Accordingly, the award passed by Labour Courtcum-Industrial Tribunal, Kangra at Dharamshala, on 2.5.2022 (Annexure P-14) is upheld and the present petition is dismissed. The pending application(s), if any, are disposed of accordingly.

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(Tarlok Singh Chauhan) Judge

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(Virender Singh) Judge

¶242

16.12.2022 Kalpana

¶243

The Managing Director, M/ S Luminous Power Technologies v. Manoj Kumar

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The Managing Director, M/ S Luminous Power Technologies v. Manoj Kumar

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