Dismissed

Shyam Lal B P v. Employers in Relation to the Management of Tapin South Colliery of Ms C C Ltd.

Jharkhand HC11 Apr 2022LPA/256/2018

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a Writ Court order that had set aside an Industrial Tribunal award dismissing an employee for impersonation. The Court upheld the writ court, ruling the Tribunal's finding of dismissal based on proper ex-parte evidence was not perverse and interference was warranted. The judgment emphasizes that writ courts can intervene when tribunal findings lack ev

What did the court decide?

L.P.A No. 256 of 2018 dismissed; the order dated 7th March 2018 upholding the Tribunal's award is affirmed.

Shyam Lal B P Vs Employers in Relation to… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Letters Patent Appellate Jurisdiction)

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L.P.A No.256 of 2018

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[Against the judgment dated 7^th March 2018 passed by the learned Single Judge of this Court in W.P.(L) No.6964 of 2012]

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Shyam Lal B.P, s/o late Bhagirathi, r/o Janjgir Champa, PO & PSBilaspur, District-Bilaspur, Chhatisgarh, at present residing at village-Chanho, PO-Oriya, PS-Sadar (Muffasil), District-Hazaribagh.

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… Appellant

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Versus

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Employers in relation to the Management of Tapin South Colliery of M/s C.C.Ltd., Hazaribagh, PO & PS-Hazaribagh, DistrictHazaribagh through its General Manager (Admn.), Sri Birendra Trivedi, at Darbhanga House, P.O & PS-Morabadi, District-Ranchi. 2. Central Govt. Industrial Tribunal No.1, Dhanbad, PO, PS and District-Dhanbad. … Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mrs. M.M. Pal, Senior Advocate Mr. Yogendra Prasad, Advocate For the Respondent-CCL : Mr. Amit Kumar Das, Advocate --------

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O R D E R 11^th April 2022

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Per, Shree Chandrashekhar, J.

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The appellant is in appeal against the order dated 7^th March 2018 passed in W.P.(L) No. 6964 of 2012 whereby the award made by the Central Government Industrial Tribunal No.I, Dhanbad in Reference No.43 of 2010 has been set-aside by the writ Court.

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2. Briefly stated, Shyam Lal B.P was appointed on 20^th November 1974 as casual worker in Tapin South Colliery. The appellant faced an enquiry on the allegation that impersonating himself as Shyam Lal B.P who had died on 19^th July 1976 he continued to work in his place and thereby committed gross misconduct. A charge-memo was served upon the appellant on a similar allegation indicating therein that the death certificate issued by the Station Officer, Jaijaipur PS, district-Bilaspur, (M.P) confirmed the death of Shyam Lal B.P on 19^th July 1976 which was

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2 L.P.A No.256 of 2018

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further confirmed by elder brother of the deceased employee and Sarpanch of village Taldeori. In the departmental enquiry against the appellant, G. C. Prasad and U. K. Tripathy tendered materials which were collected by them during the preliminary enquiry by visiting the village of Shyam Lal B.P. A copy of the complaint vide Ext.-ME-1 and the application made for obtaining the death certificate vide Ext.-ME-16 were laid in evidence. The witnesses stated before the enquiring officer as regards statement of the elder brother of Shyam Lal B.P and Sarpanch of village Taldeori who confirmed the death of Shyam Lal B.P on 19^th July 1976. During the preliminary enquiry the photograph of the appellant was shown to the elder brother of the deceased employee who affirmed that the same was not the photograph of his brother Shyam Lal B.P and a statement to this effect was made by the management witnesses before the enquiring officer.

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3. In the departmental enquiry the appellant did not participate inspite of notice issued to him by the enquiring officer on 25^th September 1999. The enquiry against the appellant therefore continued ex-parte and a report finding the charges proved against the appellant was submitted by the enquiring officer. Finally by an order dated 25^th September 2000 the appellant was dismissed from service.

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4. An industrial dispute was raised by the workman which on failure of the conciliation was referred for adjudication by the Central Government in exercise of the powers under section 10(1) of the Industrial Disputes Act, 1947 in the following terms:

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“Whether the action of the management of Tapin South Colliery of M/s. C.C. Ltd. to dismiss the service of Shri Shyam Lal B.P is legal and justified? If not to what relief is the workman concerned entitled?”

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5. In Reference No. 43 of 2010, on behalf of the management the enquiring officer was produced as MW1 on 18^th March 2008. As WW1, the workman examined himself on 19^th June 2008 in support of his case.

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6. By an order dated 3^rd August 2011, the Tribunal returned a finding that the domestic enquiry conducted against the

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workman was fair and proper.

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7. Having held so, the Tribunal proceeded to examine legality of the dismissal order with reference to the witnesses produced by both sides and came to a conclusion that without examining the complainant on oath and in absence of a report by the handwriting expert the enquiring officer could not have come to a conclusion that the workman impersonated himself in place of Shyam Lal B.P and as a sequel to this the management could not have dismissed him from service on such charge.

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8. M/s Central Coalfields Limited (in short, CCL) challenged award dated 7^th February 2012 passed in Reference No. 43 of 2010 inter alia on the grounds that (i) the findings recorded in the departmental enquiry cannot be challenged except where the findings are perverse and (ii) the Tribunal cannot act as appellate authority sitting over the judgment of the departmental authority.

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9. In support of the award dated 7^th February 2012, the workman took a stand that even though the domestic enquiry conducted by CCL is held fair and proper the findings recorded in the domestic enquiry can be successfully challenged by the workman as it was a case of no evidence.

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10. The writ Court accepted the challenge made by CCL to the award dated 7^th February 2012 and held that the Tribunal committed serious error in law in interfering with the findings recorded in the domestic enquiry and set-aside the award dated 7^th February 2012 in Reference No. 43 of 2010.

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11. The learned writ Court has held as under :

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“17. On perusal of the aforesaid judgment it appears that in the said case, the complainant (Sukhdeo Nonia) made an allegation that concerned the workman impersonated him, however, he did not come forward to give his statement in the domestic enquiry. In the present case, a complaint was received by the Management from one M. Singh that the respondent no.2 impersonated Shyam Lal B. P., who had already died on 19^th July, 1976. The said complainant was not examined during domestic enquiry. Even if the complainant was not examined in the domestic enquiry, it would have made no material difference, as in the present case, the person in whose name the respondent no.2 was rendering service under the petitionerManagement (Central Coalfields Limited) had already died. It would transpire from the content of the charge sheet that the charge against the respondent no.2 was of impersonation, thus, non-examination of the complainant being a third party in the domestic enquiry was

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immaterial. Moreover, in the present case, learned Tribunal itself has held the domestic enquiry conducted against the respondent no.2 to be fair and proper and, thus, it was not permissible to the Tribunal to again go back to the manner of domestic enquiry conducted by the petitioner-Management. The impugned award also does not disclose that any finding was recorded by the learned Tribunal to the effect that the enquiry report submitted against the respondent no.2 has been found to be perverse.”

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12. Mrs. M. M. Pal, the learned Senior counsel for the appellant, placing reliance on the judgment in “Delhi Cloth and General Mills Co. v. Ludh Budh Singh” (1972) 1 SCC 595 and a Full Bench judgment of the Patna High Court in “M/s. Indian Aluminium Co. Ltd. v. The Presiding Officer, Labour, Court, Ranchi & Anr.” 1990 (2) PLJR 797 would submit that the Tribunal was not denuded of its powers to examine legality of the findings recorded in the domestic enquiry even though the enquiry conducted against the workman has been held fair and proper.

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13. The contention raised on behalf of the workman is that after the amendment and incorporation of section 11-A in the Industrial Disputes Act, 1947 all the fetters on the powers of the Tribunal to examine legality of the findings recorded in the domestic enquiry have been done away with and the Tribunal has ample powers to disturb such findings which are based on no evidence and thus perverse.

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14. Mrs. M.M. Pal, the learned Senior counsel for the appellant, assisted by Mr. Yogendra Prasad, the learned vice-counsel, relies also on the decisions in (i) “M/s. Indian Aluminium Co. Ltd.”, (ii) “Commissioner of Police, Delhi & Ors. v. Jai Bhagwan” (2011) 6 SCC 376, (iii) “Nirmala J. Jhala v. State of Gujarat & Anr.” (2013) 4 SCC 301 and (iv) “Employers in relation to the Management of Tapin North Colliery v. Their Workman being represented by the Additional General Secretary” 2015 (2) JBCJ 526 to assail the writ Court's order on the ground that the findings of fact recorded by the Tribunal cannot be challenged in writ proceeding.

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15. Mr. Amit Kumar Das, the learned counsel for the respondent-CCL, has also laid reliance on the decisions in (i) “The Workmen of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. v.

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5 L.P.A No.256 of 2018

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The Management & Ors.” (1973) 1 SCC 813 , (ii) “R. Vishwanatha Pillai v. State of Kerala & Ors.” (2004) 2 SCC 105 , (iii) “U.P State Textile Corpn. Ltd. v. P.C. Chaturvedi & Ors.” (2005) 8 SCC 211 , (iv) “ State Bank of Bikaner & Jaipur v. Nemi Chand v. Nalwaya” (2011) 4 SCC 584 , (v) “Burdwan Central Cooperative Bank v. Asim Chatterjee & Ors.” (2012) 2 SCC 641 , (vi) “Management of State Bank of India v. Smita Sharad Deshmukh & Anr.” (2017) 4 SCC 75, (vii) “Management of Bharat Heavy Electricals Limited v. M. Mani” (2018) 1 SCC 285 , (viii) “State of Karnataka & Anr. v. N. Gangaraj” (2020) 3 SCC 423 and (ix) “State of Bihar & Ors. v. Devendra Sharma” (2020) 15 SCC 466 to support the writ Court's order.

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16. At the outset, we would indicate that the issue involved in the present Letters Patent Appeal is a simple one regarding powers of the writ Court to examine merits of the decisions rendered by the Tribunal. We, therefore, propose not to refer to and discuss every judgment relied upon on behalf of both parties. The powers of the Tribunal to examine the materials on record to satisfy itself whether the order of discharge or dismissal and quantum of punishment were justified have changed and expanded by incorporation of section 11-A. The Tribunal had no powers before section 11-A came into existence to interfere with the findings recorded in the domestic enquiry except where the enquiry was defective or no enquiry was conducted at all. The satisfaction in this regard was primarily domain of the management, however, the position in law has been changed by section 11-A to the effect that the Tribunal has now powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the evidence laid by the management establishes the misconduct against the workman even where the domestic enquiry was held fair and proper.

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17. “Delhi Cloth and General Mills Co.” on which the appellant places heavy reliance provides elaborate exposition of law on the powers of the Tribunal. This decision was extensively referred to in “M/s. Firestone” which further elaborates upon the powers of the Tribunal after incorporation of section 11-A in the Industrial Disputes Act.

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18. In “Delhi Cloth and General Mills Co.” it has been held

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that:

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“61.From the above decisions the following principles broadly emerge — “(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.

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(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by it.

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(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.

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(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.

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(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance

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that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.

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(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it. (7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.”

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19. The law on the subject has been authoritatively settled by the Hon'ble Supreme Court in “M/s. Firestone”. In “M/s. Firestone” the Hon'ble Supreme Court has held that the employer and employee can adduce evidence regarding the legality and validity of the domestic enquiry where such enquiry has been held by the employer. It has further been held that the Tribunal on the basis of the materials laid before it may hold that the order of discharge or dismissal was not justified because the alleged misconduct itself was not established by the evidence.

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20. In “M/s. Firestone” the Hon’ble Supreme Court has

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observed as under:

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“53. …...... If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape the charge of having acted arbitrarily or mala fide. It cannot be overemphasised that conducting of a proper and valid enquiry by an employer will conduce to harmonious and healthy relationship between him and the workmen and it will serve the cause of industrial peace. Further it will also enable an employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct.”

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21. In view of the pronouncement on the subject in “Delhi Cloth and General Mills Co.” and other cases which were taken note of by the Hon'ble Supreme Court in “M/s. Firestone” , we are inclined to agree with Mrs. M. M. Pal, the learned Senior counsel for the appellant, that the Tribunal after incorporation of section 11-A in the Industrial Disputes Act, 1947 has powers to examine legality of the order of discharge and dismissal. We may not agree with the observations of the writ Court in paragraph

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no.17 of the order passed by it wherein the writ Court observed that the Tribunal could not have examined the manner in which the domestic enquiry was held but for that reason the writ Court's order is not rendered unsustainable.

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22. The proposition in law on the above aspect, however, does not come to the rescue of the workman as the following facts of the case would show.

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23. The departmental enquiry proceeded against the workman ex-parte and by the order dated 3^rd August 2011 the Tribunal agreed with the management that the domestic enquiry was fair and proper. As we have noticed, CCL produced evidence oral as well as documentary to show that Shyam Lal B.P who was employed at Tapin South Colliery on 20^th November 1974 had died on 19^th July 1976. The statements of the elder brother of Shyam Lal B.P and Sarpanch of village Taldeori as stated by them before the witnesses were produced in the domestic enquiry and the death certificate of Shyam Lal B.P was also laid in evidence by CCL. In an ex-parte domestic enquiry the enquiring officer recorded his opinion that the charges of fraud, impersonation etc. against the workman have been proved.

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24. In a domestic enquiry strict rules of evidence are not applied and even hearsay materials are not untouchable and can be taken note of by the enquiring officer to come to a conclusion as regards the charges framed against the workman. In this context, we may indicate that the proceeding in a domestic enquiry happens to be civil in nature and, therefore, the test applied in a domestic enquiry is preponderance of probability. The expression preponderance of probability connotes positive evidence as to happening and existence of a certain fact a finding in which regard can be recorded on weighing the evidence of both sides. Since the domestic enquiry against the workman was ex-parte, no material was produced on behalf of the workman and the enquiring officer on the basis of the materials laid before him came to a finding that the charges against the workman are proved. Now in a properly constituted domestic enquiry it was lawful for the employer to pass

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an order even though the enquiry was conducted ex-parte [refer, “Major U.R Bhatt v. Union of India” AIR 1962 SC 1344 ].

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25. In our opinion, it was not open to the Tribunal to find fault with the findings recorded by the enquiring officer and to hold that the order of dismissal was based on no evidence.

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26. The learned Senior counsel has referred the judgment in “Syed Yakoob v. K.S. Radhakrishnan” AIR 1964 SC 477 to challenge the writ Court's order on the ground that writ Court could not have entered into the realm of appreciation of evidence laid before the Tribunal.

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27. In “Syed Yakoob” the Hon'ble Supreme Court has

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observed as under:

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“7. …… A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. …...”

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28. There are several judgments by the Hon'ble Supreme Court on the similar lines as held in “Syed Yakoob” on the supervisory jurisdiction of the writ Court, some of which we intend to take note of before adverting to the submission of the learned Senior counsel for the appellant. In “P.G.I. of Medical Education & Research v. Raj Kumar” (2001) 2 SCC 54 the Hon'ble Supreme Court has observed as under:

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“9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before

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the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477 : (1964) 5 SCR 64].”

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29. In “Ahmedabad Municipal Corpn. v. Virendra Kumar Jayantibhai Patel” (1997) 6 SCC 650 the Hon'ble Supreme Court has observed as under:

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“4. High Courts under Article 226 of the Constitution are entitled to issue directions, writs and orders for correcting the record of the inferior courts or tribunals. It is true that the High Court while exercising its jurisdiction under Article 226 of the Constitution, cannot convert itself into a court of appeal and assess the sufficiency or adequacy of the evidence in support of the finding of fact reached by the competent courts or the tribunals, but this, however, does not debar the High Court from its power to enquire whether there is any evidence in support of a finding recorded by the inferior court or tribunal. It is well established that there is a difference between a finding based on sufficiency or adequacy of evidence and a finding based on no evidence. If the finding of fact recorded by the tribunal is based on no evidence, such a finding would suffer from error of law apparent on the face of record. As noticed earlier the award of the Tribunal and circulars issued in pursuance thereof by the Corporation were not applicable to the case of the respondent and if these materials are excluded, the finding of the Tribunal that the respondent is a workman entitled to permanent status in the service of the Corporation is rendered without any evidence and exposed to the vice of error apparent on the face of record. We are, therefore, of the opinion that the High Court fell into error in dismissing the writ petition holding that the finding of fact recorded by the Tribunal does not call for interference.”

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30. In “J.D. Jain v. State Bank of India” (1982) 1 SCC 143 the Hon'ble Supreme Court has observed as under:

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“11. In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. ….”

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31. No doubt the powers of the writ Court of judicial review to interfere with the findings recorded by the Tribunal are very limited but interference by the writ Court is not absolutely prohibited. The writ Court would be justified in interfering with the findings recorded by the Tribunal provided the same cannot be supported by evidence laid before the Tribunal. The fetters on the powers of supervisory jurisdiction of the writ Court should not be taken to mean that even the perverse findings of the Tribunal would be immune from interference.

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32. Having examined the materials on record, we concur

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with the writ Court that interference by the Tribunal with the decision of the management was not warranted and cannot be sustained in law. The learned writ Court rightly held that the Tribunal could not have held that the order of dismissal is illegal. 33. Accordingly, L.P.A No. 256 of 2018 is dismissed.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 11^th April 2022 Amit/A.F.R

Shyam Lal B P v. Employers in Relation to the Management of Tapin South Colliery of Ms C C Ltd.

Case brief

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Shyam Lal B P v. Employers in Relation to the Management of Tapin South Colliery of Ms C C Ltd.

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