Allowed

Their Workman Smt Gulabia Devi v. Employers in Relation to the Management of Sudamdih Shaft Mine of Eastern Jharia Area of Ms B C C L

Jharkhand HC14 Jul 2023LPA/127/2021

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Single Judge setting aside an Industrial Tribunal award. The Court held the Single Judge acted as an appellate court and improperly revisited facts regarding workman's date of birth.

What did the court decide?

The impugned order of the Single Judge is set aside; the award passed by the Central Government Industrial Tribunal is revived and restored.

Their Workman Smt Gulabia Devi Vs Employers in… — Service and Employment | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 127 of 2021

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Their Workman Smt. Gulabia Devi Security Guard wife of Late Raghu Bhuia, Sudamdih Shaft Mine, PO PS Sudamdih, District Dhanbad.

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… Appellant

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Versus

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Employers in relation to the management of Sudamdih Shaft Mine of Eastern Jharia Area of M/s. Bharat Coking Coal Limited, PO PS Sudamdih, District Dhanbad, through Ramu Prasad son of Late Jagdish Lal, Dy. Chief Mining Engineer / Project Officer, Shaft Mine, Sudamdih, resident of Sudamdih, PO PS Sudamdih, District Dhanbad.

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… Respondents

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---CORAM : SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J.

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---For the Appellant: Mr. Kalyan Banerjee, Advocate For the Respondents: Mr. Anoop Kumar Mehta, Advocate Mr. Amit Kumar Sinha, Advocate Mr. Manish Kumar, Advocate ----

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07/ 14.07.2023 Upon hearing the learned counsel for the parties, this Court passed the following, (Per Ananda Sen, J.)

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O R D E R

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1. This Letters Patent Appeal, at the instance of the appellantworkman has been preferred challenging the order dated 24.11.2020 passed by the learned Single Judge in W.P.(L) No.1030 of 2010.

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The writ petition being W.P.(L) No.1030 of 2010, filed by the respondent-management, challenging the award passed by the Tribunal on 30.12.2009, was allowed by the learned Single Judge, resulting in this Letters Patent Appeal. The issue relates to correction of date of birth of the employeeappellant arising out of an award passed by the Tribunal.

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2. Learned counsel appearing on behalf of the appellant submits that the learned Single Judge had set aside the award passed by the Tribunal, relying on the judgments which does not match with the facts of this case. He submits that from the impugned judgment, it would be quite clear that only the arguments of both the parties have been summarized and thereafter learned Single Judge in the conclusion, only recorded some judgments and allowed the writ application by setting aside the award passed by the Central Government Industrial Tribunal. He submits that erroneously the learned Single Judge has held that at the fag end of service career, appellant sought to raise an objection to correct her date of birth, rather from the records it is clear that at the very initial stage, when the appellant came to know about the wrong

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recording of her date of birth, she had made an application to correct the same. As per the counsel for the appellant, all the judgments which have been cited by the respondents before the learned Single Judge are not applicable on the facts of this case, as the Court exercising jurisdiction under Article 226 of the Constitution of India, cannot be equated with the Appellate Court. Thus, as per the appellants, the impugned judgment passed by the learned Single Judge needs to be set aside and the award passed by the Central Government Industrial Tribunal needs to be affirmed.

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3. Mr. Anoop Kumar Mehta, learned counsel appearing on behalf of the writ petitioner-respondent submits that the appellant-workman was referred to the Medical Board and her age was found to be 43 years, implying her date of birth to be 27.02.1950. Same was recorded in the statutory Form ‘B’ Register and Service Excerpts and the appellant-workman had acknowledged the same, thus, she cannot retract from the same. He submits that after 10 (ten) years of her service, she raised the dispute, which was referred for adjudication, but the Tribunal on wrong assumption of law and facts had allowed the said reference in favour of the appellant-workman, which was correctly set aside by the learned Single Judge. As per him, the impugned judgment passed by the learned Single Judge needs no interference.

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4. We have heard the learned counsel for the parties and have gone through the records of the writ petition and the award passed by the Central Government Industrial Tribunal.

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5 . The appellant-workman is the wife of Late Raghu Bhuia. Raghu Bhuia was an employee of Bharat Coking Coal Limited (respondentmanagement). He had died in harness on 25.09.1992. In the Service Excerpts of Raghu Bhuia, it was mentioned that his wife, i.e., the appellant-workman is 29 years on 11.06.1987. After the death of Raghu Bhuia, appellant being the wife, applied for compassionate appointment, declaring her date of birth as 11.07.1958, which commensurate with the age mentioned by her husband in his Service Excerpts. Before offering appointment, this appellant was subjected to Phytical Fitness Test, wherein a Medical Report was prepared, showing the appellant-workman to be fit. In that document, the age of this appellant-workman was mentioned as 43 years, as per appearance, though she herself stated in the application that her age is 30 years. The appellant was offered appointment and was allowed to join service on 24.04.1993. It is the case of the appellant-workman that in the year 1998, the appellant came to

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know that her date of birth has been wrongly recorded as 27.02.1950 in Form ‘B’ Register, thus, she immediately made a representation for correcting her date of birth, but the same was turned down, vide letter dated 11/15.04.1998. As her grievance was not redressed and the document being Statutory Register was not corrected, she raised an Industrial Dispute, which was ultimately referred for adjudication in Reference No.111 of 2003. Before the Tribunal the appellant-workman and the respondent-management filed their respective written statements and led evidence and ultimately award was passed by the Central Government Industrial Tribunal, holding that the management was not justified in recording the date of birth of the workman as 27.02.1950 and held that the date of birth of the workman was 11.07.1958. The management, being aggrieved by the said award, challenged the same in W.P.(L) No. 1030 of 2010, which was allowed, after hearing, on 24.11.2020 leading to this Letters Patent Appeal.

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6. In Reference Case No.111 of 2003, terms of reference was as

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follows:-

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“Whether the action of the Management of Sudamdih Shaft Mine of M/s. BCCL, in having recorded the date of birth of the workman Smt. Gulabia Devi, Security Guard as 27.02.1950 has been justified as per norms and Rules while date of her appointment has been recorded as 24.04.1993? If not, to what relief the workman is entitled to?”

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The Central Government Industrial Tribunal, after considering the evidence and materials on record, has held that the date of birth of the employee should be treated as 27.02.1950, and, thus answered the reference in favour of the workman.

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7. While going through the impugned judgment, we find that the learned Single Judge has relied upon the following judgments of the Hon’ble Supreme Court: -

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(i) Karu Nonia versus Bharat Coking Coal Limited reported in (2002) 1 JCR 418;

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(ii) State of Tamil Nadu versus T.V. Venugopalan reported in (1994) 6 SCC 302;

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(iii) Manik Chand Ghosh versus Bharat Coking Coal Limited & Others reported in 2004 (1) JCR 51 (Jhr.)

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(iv) Bharat Coking Coal Ltd. & Others versus Shyam Kishore Singh reported in (2020) 2 Supreme Today 189

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8. The judgment of Karu Nonia deals with a case wherein it has been held that the date of birth recorded in Statutory Form cannot be changed

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if not changed within 10 (ten) years from the date of entry and as the workman in that case did not submit an application within 10 (ten) years, no reassessment was allowed. Further, in other judgments, the Hon’ble Apex Court and this Court have held that at the fag end of service career, date of birth cannot be changed.

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9. No doubt the aforesaid is the settled principle of law, but the same should be applied on the particular facts of the case. Admittedly, in this case, the husband of this appellant died on 25.09.1992 and this appellant had applied for compassionate appointment, for which Physical Fitness Test was carried on 27.07.1993 and she joined her service on 24.04.1993 and the statutory Form ‘B’ was prepared thereafter. The date when Form ‘B’ was prepared is not reflected in the said document, but the fact that the appellantworkman has raised grievance in respect of the date of birth is not disputed and it is also not disputed that the same was rejected on 11/15.04.1998. Thus, the appointment date of the appellant is 24.04.1993, thereafter, she raised the dispute regarding wrong recording of her date of birth, which was rejected on 11.04.1998. Even if, for the sake of argument, it is taken that she raised dispute regarding her date of birth just before 11.04.1998 itself, then also the intervening period from the date of her appointment is not 10 (ten) years, rather it is only about 5 years. Thus, the ratio laid down by the Hon’ble Supreme Court in the case of Karu Nonia (supra) is not at all applicable in the facts of this case, rather helps the workman.

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10. So far as the other judgments as referred to by the learned Single Judge are concerned, the same lays down the law that the dispute in respect of date of birth cannot be raised at the fag end of service career, as such, the same are also not applicable in the present case, inasmuch as it is clear that within 6 (six) years of her joining, appellant-workman had raised the grievance and dispute regarding wrong recording of her date of birth, which cannot be said to be at the fag end of service career. 11. From the impugned judgment, it is apparent that the learned Single Judge has allowed the writ petition only on the ground of raising dispute regarding date of birth beyond 10 (ten) years and at the fag end of service career. As discussed in the preceding paragraphs, on the facts of this case, none of the judgments referred to by the learned Single Judge are applicable and the grounds taken by the learned Single Judge do not match the facts of

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the case and on this score alone, the impugned judgment is liable to be set aside.

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12. Further, from the documents, we find that the respondentmanagement has heavily relied upon the medical certificate, stating that in the said medical certificate, which was prepared at the time of entry in service, the age of the appellant was recorded as 43 years, which implies her date of birth to be 27.02.1950, but, after going through the said document, we find that the same is not an Age Assessment Report. There is no ossification test nor there are any other specialized tests, which were necessary to assess the age. The said document clearly mentions that it is a Medical Examination Report. Further, the appellant-workman, in the said document, had mentioned her age as 30 years, but the person, who had prepared the report, had assessed the age based only on appearance and had recorded it to be 43 years. Since, this document is not an Age Assessment Report by an appropriate board, having competence to assess the age, the said document by no means can be treated as Age Assessment Report. Thus, the age mentioned therein, based on appearance, cannot be treated to be conclusive. Respondent-management clearly erred in recording the aforesaid age to be correct age of the appellantworkman.

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13. Further, the respondent-management challenged the award passed by the Central Government Industrial Tribunal by filing an application under Articles 226 and 227 of the Constitution of India. The scope under Article 226 of the Constitution of India, where an award of the Industrial Tribunal is challenged, is very limited. The Hon’ble Supreme Court in the case of C. Madurantakam Coop. Sugar Mills Ltd. versus S. Viswanathan reported in (2005) 3 SCC 193 at paragraph 12 thereof has held as under: -

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12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types 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 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. …

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14. In the case of Syed Yakoob versus K.S. Radhakrishnan & Others, reported in AIR 1964 SC 477, at paragraph 7 thereof, the Hon’ble Supreme Court has held as under:-

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“The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233): Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.”

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15. Further, in the case of Heinz India (P) Ltd. and Another versus State of U.P. and Others reported in (2012) 5 SCC 443, the Hon’ble Supreme Court at paragraphs 66 and 67, has held as under: -

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“66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of

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the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant “the feel of the expert” by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

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67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.”

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17. Further, a Coordinate Bench of this Court while deciding L.P.A. No. 406 of 2020 , at paragraph 13 of judgment dated 15^th May, 2023, has held as under:-

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“13. … It is, thus, evident that “perversity” means if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.”

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18. Thus, the Writ Court cannot sit as a Court of appeal and further cannot substitute its own view. We also find that the award, which was impugned before the learned Single Judge, is not perverse or against the provisions of law. All the evidence and materials were considered by the Tribunal and only thereafter a finding of fact was arrived at.

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19. The ratio decided in the judgments as referred to in the impugned judgment, which has been applied, does not match with the facts of the case, thus, has wrongly been relied. Further, from the impugned award, we find that there is no perversity in it. The factual findings of the Tribunal about the date of birth has been set aside by the learned Single Judge, which could not have been done, in view of the judgment of the Hon’ble Supreme Court rendered in the case of S. Viswanathan (supra) , inasmuch as the learned Single Judge has not recorded any reasons why it needs to reconsider the finding of facts given by the Tribunal as regard the date of birth is concerned, when the said finding on date of birth is necessarily a finding of facts.

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20. Considering what has been held above, we find merit in this Letters Patent Appeal. The impugned order dated 24.11.2020 passed by the

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learned Single Judge in W.P.(L) No.1030 of 2010 is hereby set aside. The award 30.12.2009 passed by the Central Government Industrial Tribunal-I, Dhanbad is revived and restored.

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21. This Letters Patent Appeal stands allowed. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.

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(Sanjaya Kumar Mishra, C.J.)

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(Ananda Sen, J.)

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Kumar/Cp-02

Their Workman Smt Gulabia Devi v. Employers in Relation to the Management of Sudamdih Shaft Mine of Eastern Jharia Area of Ms B C C L

Case brief

What is this about?

What did the court decide?

Their Workman Smt Gulabia Devi v. Employers in Relation to the Management of Sudamdih Shaft Mine of Eastern Jharia Area of Ms B C C L

Case brief

What is this about?

What did the court decide?

What the court decided

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