- (1.) By Court Heard learned counsel for the parties.
(2.) The appeal is directed by the aggrieved writ petitioner against the impugned judgment dated 8th May, 2009 rendered by the learned Single Judge in W.P.(L) No. 6447 of 2005 whereunder the challenge to the award dated 16th June, 2005 passed by learned Labour Court, Jamshedpur in Reference Case No. 25 of 1997 has been turned down. The reference before the learned Labour Court vide Notification dated 15th July, 1997 was in the following terms :- "Whether Shri B.Ojha, P.No.61251, a Workman of M/s. Tata Iron & Steel Company Ltd., Jamshedpur is a workman under Section 2(S) of the Industrial Disputes Act, 1947 and whether his retirement is justified If not, what relief, he is entitled to" Incidentally, in the first round, the learned Labour Court decided a preliminary issue as to whether the petitioner is a workman or not, against him by order dated 2nd November, 1999 and 10th January, 2004. On being challenged, learned Single Judge found the approach of the learned Labour Court erroneous and remitted the matter with a direction to dispose of the reference within a period of six months vide order dated 17th March, 2004 passed in W.P.(L) No. 636 of 2004. The Management's Letters Patent Appeal was dismissed by the learned Division Bench finding no error of law. When the case was taken up to the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.26516 of 2004 by the Management, the Apex Court disposed of the Special Leave Petition leaving the question of law open having regard to the fact that the evidence had already been concluded before the Labour Court. The learned Labour Court thereafter has again held that the petitioner is not a workman in terms of Section 2(S) of the Industrial Disputes Act, 1947. The learned Single Judge in a detailed judgment has upheld the award finding no infirmity therein. In this background it is pertinent to keep in mind that the contours of challenges in exercise of certiorari jurisdiction of this Court under Article 226 of the Constitution of India in the findings of the inferior court or Tribunal are well laid down by the pronouncements of the Apex Court from time to time. It is indeed illuminating to extract the opinion of the Apex Court in the case of Syed Yakoob vs. K.S.Radhakrishnan & Others, 1964 AIR(SC) 477 as under :- "(7) 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. Ahmed Ishaque, 1955 1 SCR 1104 ); Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh, 1960 AIR(SC) 1168. (8) It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened." The Writ Court having the jurisdiction to issue a writ of certiorari is essentially exercising a supervisory jurisdiction and not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in a writ proceeding. 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. What is an error of law apparent on the face of record has been beautifully summed up in the passage extracted above. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can only 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. We are conscious of the limited scope of challenge to the findings of the inferior Tribunal and the learned Single Judge in the present appeal available to the appellant herein. However, in order to examine it in the context of the challenge we would usefully refer to some of the findings of fact as well based on material evidence adduced during the course of the proceedings before the Labour Court. As per the terms of the reference, one of the issues required to be answered was whether the employee himself was a workman under Section 2(S) of the Industrial Disputes Act, 1947. The onus was on the appellant to prove that he was a workman as has been held in the judgment rendered by the Apex Court in the case of Mukesh K. Tripathi vs Senior Divisional Manager, L.I.C. & Others, 2004 8 SCC 387. Para-24 and 37 of the report may be usefully referred to. During the course of the proceedings before the Labour Court the workman, however, failed to discharge its onus as he did not bring on record evidences to establish the nature of duties performed by him. On the other hand, as per his own written statement, he was given several promotions from the post of Mill-Wright to the Senior Officer. The workman was promoted to the post of Foreman on 7th July, 1977 and was re-designated on various posts i.e. Assistant General Foreman with effect from 18th August, 1988 and thereafter to the post of Officer with effect from 1 st January, 1989 and again to the post of Senior Officer with effect from 1st November, 1991. The petitioner, however, had contended that these were re-designations which were never confirmed. Learned counsel for the appellant has placed reliance upon the evidences adduced as W/3 and W/4 (Annexure-11 and Annexure-12) dated 24th August, 1988 and 3rd August, 1996 in support of the contention that the petitioner was re-designated as Assistant General Foreman but was directed to do the job of Foreman, Mechanical. The petitioner in his written statement has further averred that the Senior Officer is in the higher category than the post of Officer. He had accepted his designation as written in Ext. M/2(a) and M/2(b) but claimed it to be written under the directions of the superior though he had never protested against mentioning his post as Senior Officer. According to the petitioner, he in general had been performing the job of maintenance of heavy machine equipment in the capacity of a Foreman alone. Therefore, his re-designation did make no difference to his status as a workman. In fact, he had no authority to recommend promotions or to make any appointments which are the attribute of the managerial nature of work. The remuneration of the petitioner at the relevant point of time was Rs.8,000/- per month. According to the appellant this did not have much significance in the light of the nature of work performed by him primarily as a workman. On the other hand, Management had adduced three witnesses. The learned Labour Court analyzed the evidences on record and found that about 50 persons including Foreman, Helper, Chargeman and Rigger etc. were working under the petitioner. Permission for extra work, distribution and supervision as well as recommendation for leave was also done by the petitioner. Appraisal of supervisory staff is done by the Management. Ext. M/5(a) and Ext. M/5(b) are some of the appraisal forms which also indicate that the job performed by the employee was supervisory in nature. The employee was drawing a salary of more than Rs.1600/- per month in the year 1978. Ext.M/2 series were appraisal forms of Officers and Executives which contained comments about his performance. The employee was also providing training to officers, supervisors and operators and to the people working under him. The learned Tribunal also observed that the employee had failed to show his nature of duties and his statements about his post and nature of job was full of contradictions. The oral testimonies of the Management witnesses were corroborated by the documentary evidences. In Ext. M/2, M/2(a) and M/2(b) the employee himself has written his designation as Senior Officer. Ext. M/9 and M/9(a) also shows the designation of the employee as Senior Officer. Certain exhibits adduced by the petitioner i.e. W/1(a) a copy of demand notice and W/1(b) a copy of letter dated 10th October, 1996 addressed to the Managing Director written by the concerned employee repeatedly states that he rose up to the post of Senior Officer. The learned Tribunal found that the statement of the employee in his deposition that after his re-designation as Assistant General Foreman with effect from 18th August, 1988 he was addressed as Officer and Senior Officer, was not correct. His contention that his designation was changed by the Management under a conspiracy with a view to deprive him from the benefit of labour laws was also a false statement and an afterthought. The employee was posted as a Senior Officer and he had enjoyed that position and status. This very issue has been also dealt with in detail by the learned Single Judge on the basis of the material evidence adduced by the parties during the proceedings before the Labour Court. Para-14 containing the opinion of the learned Writ Court is also fit to be quoted herein and is reproduced :- "14. It appears from the impugned order that the learned court below has considered the evidences adduced both by the petitioner and the Management and has relied upon the specific evidence adduced by the Management both oral and documentary, which were not controverted by the petitioner. Prominent amongst such evidence, relied upon by the learned court below, was the evidence of the management-witness to confirm that the duty assigned to the petitioner in the capacity of Foreman was the work of maintenance as well as in-charge of pit site officers of SMS III, Steel melting shop and that about 50 employees were working under the petitioner and further, that the petitioner used to permit extra distribution of work and recommend leave of his subordinates. The other evidence relied upon by the court below was that admittedly, the annual appraisal of the work of the employees working in the Executive and supervisory category under the Management used to be maintained, such appraisal was not made in respect of workman. The appraisal of the petitioner's work, he being in the supervisory category, used to be made accordingly. In 'Part A' of the Appraisal Form, the petitioner had himself filled the requisite informations concerning the work assigned to him which, according to the learned court below had amply demonstrated that the work assigned to the petitioner was of supervisory nature. In his annual Executive Appraisal Form, part of which was filled up by the petitioner in his own hand, he has been designated as a Senior Officer. The learned court below had taken into consideration not only this aspect but also the petitioner's own admission that he was re-designated to the post of Senior Officer with effect from 01.11.1981. The learned court below has also taken note of the evidence found reliable that in his capacity as "Foreman", the petitioner was assigned the job of imparting training to the workers under him."
(3.) Learned counsel for the appellant has assailed the findings recorded by the learned Labour Court on the basis of material evidence on the ground that they failed to address to the test for determining the supervisory nature of work. In support thereof, learned counsel for the appellant has relied upon the judgments rendered by the Apex Court in the case of Anand Regional COOP Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah, 2006 6 SCC 548 [para 11, 13, 14, 15 and 17]; in the case of S.K.Verma Vs. Mahesh Chandra and Another, 1984 AIR(SC) 1462 ; in the case of Ved Prakash Gupta Vs. M/s Delton Cable India (P) Ltd, 1984 2 SCC 569 ; in the case of National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and Others, 1988 AIR(SC) 329 [Para 9, 10 and 15] and also in the case of Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., Bombay, 1985 LABIC 1008 [Para 8, 9, 10 and 12].;