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Management of Hamdard (Waqf) Laboratory Lal Kuan, Delhi Vs. Raunaq HussaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 24 of 1969
Judge
Reported in[1971(22)FLR197]; ILR1971Delhi308; 1971LabIC405; (1971)ILLJ456Del
ActsConstitution of India - Article 226; Industrial Employment (Standing Orders) Act, 1946 - Sections 2
AppellantManagement of Hamdard (Waqf) Laboratory Lal Kuan, Delhi
RespondentRaunaq HussaIn and anr.
Advocates: V.M. Tarkunde,; Anand Prakash,; S. Pappu,;
Cases ReferredSyed Yakooh v. K. S. Radhakrthe
Excerpt:
(i) constitution of india - article 226--writ of certiorari--scope of--when to be issued--nature and extent of jurisdiction. ; 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 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.....h.r. khanna, c.j.(1) this appeal under clause 10 of the letterspatent by the management of hamdard (waqf) laboratories, delhi, isdirected against the judgment of the learned single judge whereby thewrit petition filed by the appellant against raunaq hussain respondent no. 1, hamdard dawakhana employees union respondent no. 2 andthe presiding officer, additional industrial tribunal, delhi, respondent no. 3 (hereinafter referred to as the tribunal), for quashing the awardof the tribunal was dismissed.(2) raunaq hussain respondent joined the service of hamdard (waqf)laboratories, delhi (hereinafter referred to as the dawakhana) at delhiin 1953. by an order of the divisional manager administration of thedawakhana dated june 30, 1966 raunaq hussain was transferred witheffect from 5/07/1966 to.....
Judgment:

H.R. Khanna, C.J.

(1) This appeal under Clause 10 of the LettersPatent by the Management of Hamdard (Waqf) Laboratories, Delhi, isdirected against the judgment of the learned Single Judge whereby thewrit petition filed by the appellant against Raunaq Hussain respondent No. 1, Hamdard Dawakhana Employees Union respondent No. 2 andthe Presiding Officer, Additional Industrial Tribunal, Delhi, respondent No. 3 (hereinafter referred to as the Tribunal), for quashing the awardof the Tribunal was dismissed.

(2) Raunaq Hussain respondent joined the service of Hamdard (Waqf)Laboratories, Delhi (hereinafter referred to as the Dawakhana) at Delhiin 1953. By an order of the Divisional Manager Administration of theDawakhana dated June 30, 1966 Raunaq Hussain was transferred witheffect from 5/07/1966 to Hamdard Dawakhana, Hyderabad, and 'isdirected to join the new post by 11/07/1966. Raunaq Hussain maderepresentation against the proposed transfer but the representation wasrejected. Raunaq Hussain who did not go to Hyderabad was chargedsheeted on 21/07/1966 for having disobeyed reasonable orders. Assuch. he was stated to be guilty of misconduct as defined in Para 15 ofthe Standing Orders. The Explanationn furnished by Raunaq Hussainwas found to be unsatisfactory and the matter was referred to the EnquiryOfficer who made a report on 26/09/1966 that Raunaq Hussainhad disobeyed a lawful and reasonable order of the management andas such his disobedience amounted to misconduct. On 30/08/1966 Raunaq Hussain was served with two more charge-sheets. Undercharge No. 1 Raunaq Hussain was asked to show cause why he shouldnot be dismissed from service of the Dawakhaiia because of his absencesince 24/07/1966. The second charge related to the refusal ofRaunaq Hussain to receive a letter from the Establishment Officercharging him of the misconduct of remaining absent without leave witheffect from 24/07/1966. The above charges were described byRaunaq Hussain to be wrong and baseless in his Explanationn. Thesecharges were also referred to the Enquiry Officer who. as per reportdated 30/09/1966, held Raunaq Hussain guilty of both thecharges. The management of the Dawakhana, on the basis of the tworeports of the Enquiry Officer, dismissed Raunaq Hussain by its orderdated November 10/14, 1966.

(3) Meanwhile, before the passing of the order of dismissal, themanagement passed an order on 28/10/1966 transferring RaunaqHussain to Ghaziabad. K was stated in that order that during enquiryproceedings Raunaq Hussain had agreed to be transferred to Ghazlabad.This order of transfer to Ghaziabad was not carried out byRaunaq Hussain and he questioned the validity of the same.

(4) Two references relating to industrial dispute between the appellantand Raunaq Hussain were made by the Lieutenant Governor, Delhias per orders dated 23/11/1966 and 29/03/1967. RaunaqHussain was represented by the Hamdard Dawakhana Employee'-.Union, respondent No. 2. The question referred to the Tribunal inone of the cases was:

WHETHER the transfer orders of Shri Raunaq Hussain fromDelhi to Hyderabad were unjustified, main fide or illegal.. and should be set aside and what directions are necessaryin this respect

(5) The following two questions were referred to the Tribunal in the othercases:

(A)Whether the order of management transferring Shri Raunaq Hussain to Ghaziabad is illegal oror invalid, and(b) Whether his ultimate dismissal was unjustified andto what relief is he entitled?

(6) In his statement of claim before the Tribunal, Raunaq Hussainstated that he had joined the service of the Dawakhana at Delhi in1)53 when it had no branch or depot outside Delhi, on the clearunderstanding that his service was not transferable. It was also statedthat the transfer to Hyderabad or to Ghaziabad would deprive himof the benefits under the Employees State Insurance Act and that the Transfer orders had been passed to force him to resign. In replythe management of the Dawakhana stated that it had every right toorder transfer of workmen from one place to the other without adverselyaffecting their emoluments. The right of transfer was said tobe not only implicit in the authority of the management but was alsoexpressely conferred on the management by agreement dated 28/02/1966 to which the Union sponsoring the dispute was also a party,The management, accordingly, justified its action in punishing RaunakHussain. for non-compliance with the transfer order and his subsequentabsence from duty without leave. The assertion of Raunaq Hussain pthat the Hamdard Dawakhana had no branch or depot out-side Delhiwas denied. Clauses 16 and 22 of the agreement of settlement dated 28/02/1966, referred to above, read as under:

16-a : All employees except Madadgars drawing a salaryexceeding Rs. 200.00 P.M. comprising basicwage plus dearness allowance, will be liable totransfer from one post/branch/department/seclion to another anywhere in the country.

'

(7) Emplovces in respect of salary amounting toless than Rs. 200.00 P.M. shall be liable to betransferred from one post/branch/section/deptt.to another situated at the same station only.'

22: The Unions assure the management that they will co-operate fully in maintaining discipline, raisingproduction and certification and application of therevised Standing Orders as per copy attachedproceedings Raunaq Hussain had agreed to be transferred to Ghazkbad. This order of transfer to Ghaziabad was not carried out byRaunaq Hussain and he questioned the validity of the same.Two references relating to industrial dispute between the appellantand Raunaq Hussain were made by the Lieutenant Governor, Dellas per orders dated 23/11/1966 and 29/03/1967. RaunaHussain was represented by the Hamdard Dawakhana EmployeeUnion, respondent No. 2. The question referred to the Tribunal inone of the cases was :'Whether the transfer orders of Shri Raunaq Hussain fromDelhi to Hyderabad were unjustified, main fide or illegal.. and should be set aside and what directions are necessaryin this respect 'The following two questions were referred to the Tribunal in the othercases:-'(a) Whether the order of management transferringShri Raunaq Hussain to Ghaziabad is illegal oror invalid, and(b) Whether his ultimate dismissal was unjustified andto what relief is he entitled

(8) In his statement of claim before the Tribunal, Raunaq Hussainstated that he had joined the service of the Dawakhana at Delhi in1953 when it had no branch or depot outside Delhi, on the clearunderstanding that his service was not transferable. It was also statedthat the transfer to Hyderabad or to Ghaziabad would deprive him^f the benefits under the Employees State Insurance Act and that the Transfer orders had been passed to force him to resign. In replythe management of the Dawakhana stated that it had every right toorder transfer of workmen from one place to the other without adversely affecting their emoluments. The right of transfer was said tobe not only implicit in the authority of the management but was alsoexpressely conferred on the management by agreement dated 28/02/1966 to which the Union sponsoring the dispute was also a party,The management, accordingly, justified its action in punishing RaunakHussain. for non-compliance with the transfer order and his subsequentabsence from duty without leave. The assertion of Raunaq Hussainthat the Hamdard Dawakhana had no branch or depot out-side Delhiwas denied. Clauses 16 and 22 of the agreement of settlement dated 28/02/1966, referred to above, read as under:

16-a : All employees except Madadgars drawing a salaryexceeding Rs. 200.00 P.M. comprising basicwage plus dearness allowance, will be liable totransfer from one post/branch/department/section to another anywhere in the country.''16-b F.mplovces in respect of salary amounting toless than Rs. 200.00 P.M. shall be liable to betransferred from one post/branch/section/deptt.to another situated at the same station only.''22 : The Unions assure the management that they willco-operate fully in maintaining discipline, raisingproduction and certification and application of therevised Standing Orders as per copy attachedwhich bears their signatures in token of their havingstudied ad accepted the same.

(9) The preamble of the document incorporating the Settlement shows thatit had been arrived at as a result of discussion between the management and the employees of the Dawakhana with a view to promoteindustrial peace and harmony. The document was signed by a representative of the management as well as by representatives of the twoUnions of the employees. Another memorandum of Settlement wasalso signed by the above-mentioned parties on the same day, i.e., 28/02/1966. The preamble of that document showed that theexisting Standing Orders of the Dawakhana were in force from 1951.The parties felt the need to amend and amplify those Standing Ordersso that they might suit the working conditions of the establishment.and be in conformity with .service conditions in other similar establishments. Clause 2 of the above memorandum of Settlement was asunder: -

THErevised Standing Orders, as per copy enclosed, shalllake effect from such date as may be notified by themanagement on their being certified by the authority competentunder the law to do so.

(10) Enclosed with the memorandum was the draft of the revised StandingOrders. The draft of revised Standing Orders dealt with a very largenumber of matters. One of those matters related to transfer ofemployees. The clause in this respect read as under:

ALLemployees, except Madadgars drawing salary not exceeding Rs. 200 per mensern shall be liable to transfer fromone post/branch/department/or section to another, anywherein the country. However, employees in receipt of salaryamounting to less than Rs. 200 shall be liable to be transferred from one po.st/branch/section or department toanother situated at the same station.

(11) The Tribunal held that the Dawakhana had no branch outsideDelhi in 1953 and that the opening of such branch outside Delhi wasnot in contemplation. The Tribunal referred to the fact that therehad been a number of transfers of the employees of the Dawakhanafrom one branch in India to the other during the period from 1955 tof967. In the opinion of the Tribunal it would not be legitimate todeduce from those transfers that transfer was an implied service condition of Raunaq Hussain because those transfers took place after1953. Dealing with clause 16 of the Settlement dated 28/02/1966 the Tribunal observed that the salary of Raunaq Hussain wasmore than Rs. 200 per menscm when his transfer was ordered. According to the Tribunal operation of the transfer clause 16 stoodpostponed till after the revised Standing Orders were certified by thecompetent authority, and the date of their coming into force wasnotified by the management of the Dawakhana by putting up a noticeon the Notice Board. As the revised Standing Orders were not certified. the management was held to be not entitled to invoke clause16 of the Settlement. The Tribunal accordingly held that the transfer of Raunaq Hussain in the first instance to Hyderabad and then toGhaziabad was not justiFied and that Raunaq- Hussain could not lxpunished for having disobeyed the transfer orders. The absence ofwhich bears their signatures in token of their havingstudied ad accepted the same.'

(12) The preamble of the document incorporating the Settlement shows thatit had been arrived at as a result of discussion between the manage-ment and the employees of the Dawakhana with a view to promoteindustrial peace and harmony. The document was signed by a rep-resentative of the management as well as by representatives of the twoUnions of the employees. Another memorandum of Settlement wasalso signed by the above-mentioned parties on the same day, i.e., February 28. 1966. The preamble of that document showed that theexisting Standing Orders of the Dawakhana were in force from 1951.The parties felt the need to amend and amplify those Standing Ordersso that they might suit the working conditions of the establishment.and be in conformity with .service conditions in other similar establishments. Clause 2 of the above memorandum of Settlement was asunder: -

THErevised Standing Orders, as per copy enclosed, shalllake effect from such date as may be notified by the management on their being certified by the authority competentunder the law to do so.

(13) Enclosed with the memorandum was the draft of the revised StandingOrders. The draft of revised Standing Orders dealt with a very largenumber of matters. One of those matters related to transfer ofemployees. The clause in this respect read as under:

ALLemployees, except Madadgars drawing salary not exceeding Rs. 200 per mensern shall be liable to transfer fromone post/branch/department/or section to another, anywherein the country. However, employees in receipt of salaryamounting to less than Rs. 200 shall be liable to be transferred from one po.st/branch/section or department to another situated at the same station.

(14) The Tribunal held that the Dawakhana had no branch outsideDelhi in 1953 and that the opening of such branch outside Delhi wasnot in contemplation. The Tribunal referred to the fact that therehad been a number of transfers of the employees of the Dawakhanafrom one branch in India to the other during the period from 1955 tof967. In the opinion of the Tribunal it would not be legitimate todeduce from those transfers that transfer was an implied service condition of Raunaq Hussain because those transfers took place after1953. Dealing with clause 16 of the Settlement dated 28/02/1966 the Tribunal observed that the salary of Raunaq Hussain wasmore than Rs. 200 per mensem when his transfer was ordered. According to the Tribunal operation of the transfer clause 16 stoodpostponed till after the revised Standing Orders were certified by thecompetent authority, and the date of their coming into force wasnotified by the management of the Dawakhana by putting up a noticeon the Notice Board. As the revised Standing Orders were not certified. the management was held to be not entitled to invoke clause16 of the Settlement. The Tribunal accordingly held that the transfer of Raunaq Hussain in the first instance to Hyderabad and then toGhaziabad was not justified and that Raunaq- Hussain could not lx-punished for having disobeyed the transfer orders. The absence ofRaunaq Hussam from duty, after he was relieved from the DelhiOffice, was further held to be not culpable. The charge that RaunaqHussain refused to take delivery of the charge-sheet was held by the Tribunal to be misconceived. In the result the Tribunal directed thereinstatement of Raunaq Hussain with continuity of service and theright to receive back wages.

(15) The above award of the Tribunal, which is dated 20/07/1968.was assailed by the management of the Dawakhana by filing writ petition.The learned Single Judge, after giving the facts, referred to clauses B16 and 22 of Settlement of. 28/02/1966 and held that theview taken by the learned Tribunal that the term relating to the transfer of employees drawing over Rs. 200 would come into operation aftercertification was accorded by the certifying authority was not unreasonable. It was further observed.

ITcould not be stated that the view of the Additional industrial Tribunal was not reasonably possible; eventhough the clause containing the right to transfer employeesdrawing more than Rs. 200 per mensern outside Delhi wasthe only clause common to both the agreements, we still findthat clause 22 was incorporated in Ex. M.l (Annexure X)making a reference to the union's offer to co-operate in respect of securing such certification. The other agreement, which contained only the Standing Orders, had admittedlyto be certified by the Certifying Authority. In view of clause22 of Ex. M.I making a reference to such certification, itseems to me, that it is not reasonable to hold that the clausecontaining the transfer was to be given effect to regardlessof the certification of the Standing Orders. If that was theintention of the parties, clause 22 would not have found a place in Ex. M.I.

(16) In the result the petition was dismissed.We have heard Mr. Tarkunde on behalf of the appellant and Mr.Madan Mohan on behalf of the contesting respondents, and are ofthe view that the award of the Tribunal and the judgment of thelearned Single Judge cannot be sustained. It would appear from the resume of facts given above that the Tribunal declined to uphold the transfer order of Raunaq Hussain on the basis of clause 16(a) ofthe Settlement because the revised Standing Orders, which also contained a transfer clause similar to clause 16. had not been certifiedby the management of the Dawakhana. Certification of the StandingOrders takes place under Section 5 of the Industrial Employment(Standing Orders) Act, 1946 (20 of 1946). Standing Orders have been defined in Section 2(g) of that Act to mean rules relating lomatters set out in the Schedule. The Schedule to that Act mentions anumber of matters which might be provided in Standing Orders underthe Act. Transfer of employees is not one of the mutters mentioned inthe Schedule and as such it is manifest that transfer of employees ofan industrial establishment cannot be the subject matter of the Standing' Orders of that establishment. In the case of Rohtak Hissar District Eleciricity Supply Co. Limited v. State of Uttar Pradesh and others, : (1966)IILLJ330SC ( ), their Lordships of the Supreme Court heldthat Standing Orders could not deal with: the subject of the transfer

(17) Raunaq Hussam from duty, after he was relieved from the DelhiOffice, was further held to be not culpable. The charge that RaunaqHussain refused to take delivery of the charge-sheet was held by theTribunal to be misconceived. In the result the Tribunal directed thereinstatement of Raunaq Hussain with continuity of service and theright to receive back wages.

(18) The above award of the Tribunal, which is dated 20/07/1968.was assailed by the management of the Dawakhana by filing writ petition.The learned Single Judge, after giving the facts, referred to clauses16 and 22 of Settlement of. 28/02/1966 and held that theview taken by the learned Tribunal that the term relating to the transfer of employees drawing over Rs. 200 would come into operation aftercertification was accorded by the certifying authority was not unreasonable. It was further observed.

ITcould not be stated that the view of the Additionalindustrial Tribunal was not reasonably possible; eventhough the clause containing the right to transfer employeesdrawing more than Rs. 200 per mensern outside Delhi wasthe only clause common to both the agreements, we still findthat clause 22 was incorporated in Ex. M.l (Annexure X)making a reference to the union's offer to co-operate in respect of securing such certification. The other agreement,which contained only the Standing Orders, had admittedlyto be certified by the Certifying Authority. In view of clause22 of Ex. M.I making a reference to such certification, itseems to me, that it is not reasonable to hold that the clausecontaining the transfer was to be given effect to regardlessof the certification of the Standing Orders. If that was theintention of the parties, clause 22 would not have found aplace in Ex. M.I.

(19) In the result the petition was dismissed.

(20) We have heard Mr. Tarkunde on behalf of the appellant and Mr.Madan Mohan on behalf of the contesting respondents, and are ofthe view that the award of the Tribunal and the judgment of thelearned Single Judge cannot be sustained. It would appear from theresume of facts given above that the Tribunal declined to uphold the transfer order of Raunaq Hussain on the basis of clause 16(a) olthe Settlement because the revised Standing Orders, which also contained a transfer clause similar to clause 16. had not been certiiiedby the management of the Dawakhana. Certification of the StandingOrders takes place under Section 5 of the Industrial Employment(Standing Orders) Act, 1946 (20 of 1946). Standing Orders havebeen defined in Section 2(g) of that Act to mean rules relating lomatters set out in the Schedule. The Schedule to that Act mentions iinumber of matters which might be provided in Standing Orders underthe Act. Transfer of employees is not one of the mutters mentioned inthe Schedule and as such it is manifest that transfer of employees ofan industrial establishment cannot be the subject matter of the Stand-in' Orders of that establishment. In the case of Rohtak Hissar DistrictEleciricity Supply Co. Limited v. State of Uttar Pradesh and others, : (1966)IILLJ330SC (), their Lordships of the Supreme Court heldthat Standing Orders could not deal with: the subject of the transfer of employees from one branch to another and from one job to another. It was observed as under:

THENin regard to the matters which may be covered bythe Standing Orders, it is not possible to accept the argument that the draft Standing Orders can relate to mattersoutside the Schedule. Take, for instance, the case of someof the draft Standing Orders which the appellant wanted tointroduce; these had reference to the liability of the employeesfor transfer from one branch to another and from one job toanother at the discretion of the management. These twoStanding Orders were included in the draft of the appellantas Nos. 10 and II. These two provisions do not appear tofall under any of the items in the Schedule; and so, the certifying authorities were quite justified in not including themin the certified Standing Orders.

(21) The above observations were relied upon in a recent case of Workmenof Lakheri Cement Works Limited and Associated Cement CompaniesLimited^ 1970 (2) (2) FLR 243, and it washeld that the extension of the Standing Order inter alias to the topicof the transfer was without jurisdiction and the Standing Order couldnot be framed in respect of that.

(22) As the revised Standing Orders of the Dawakhana in the present case could not legally cover the subject of the transfer of employeethe non-certification of those Standing Orders could not, in our opinion.prevent the operation and enforcement of clause 16(a) of the Settlement. The award of the Tribunal was based upon the mistakenview of law that the Standing Orders could and did affect the enforcabilityof the clause of the Settlement relating to transfer of employees.and that if such Standing Orders were not certified the clause relatingto transfer of employees could also not be enforced. The approach ofthe Tribunal in this respect was not in confirmity with law. because.as observed earlier, the Standing Orders cannot deal with the subjectof transfer of employees. The present is not a case where two viewsin the matter were possible and the Tribunal has taken one view.On the contrary, the present is a case where the Tribunal has proceededon a mistaken view of the law and has founded its decisionsupon reasons which are wrong in law. The distinction between 'anerror of law apparent on the face of the record' and 'a possible viewof the matter' cannot be lost sight of. The error of law in the present case is apparent on the face of the record. Such an error can becorrected by the issuance of a writ certiorari. As held in the case ofSyed Yakooh v. K. S. Radhakrishnan and other, : [1964]5SCR64 :a writ of certiorari can be issued for correcting errors of jurisdictioncommitted by inferior courts or tribunals these are cases where ordersare passed by inferior courts or tribunals without jurisdiction, or inexcess of it. or as a result of failure to exercise jurisdiction. A writcan similarly be issued where in exercise of jurisdiction conferred onit, the Court or Tribunal acts illegally or improperly, as for instance, itdecides a question without giving an opportunity to be heard to theparty affected by the order, or where the procedure adopted in dealingwith the dispute is opposed to principles of natural justice. There is,however, no doubt that the jurisdiction to issue a writ of certiorariis .a supervisory jurisdiction and the Court exercising it is not entitledof employees from one branch to another and from one job to another. It was observed as under:

THENin regard to the matters which may be covered bythe Standing Orders, it is not possible to accept the argument that the draft Standing Orders can relate to mattersoutside the Schedule. Take, for instance, the case of someof the draft Standing Orders which the appellant wanted tointroduce; these had reference to the liability of the employeesfor transfer from one branch to another and from one job toanother at the discretion of the management. These twoStanding Orders were included in the draft of the appellantas Nos. 10 and II. These two provisions do not appear tofall under any of the items in the Schedule; and so, the certifying authorities were quite justified in not including themin the certified Standing Orders.

(23) The above observations were relied upon in a recent case of Workmenof Lakheri Cement Works Limited and Associated Cement CompaniesLimited, 1970(2) FLR243, and it washeld that the extension of the Standing Order inter alias to the topicof the transfer was without jurisdiction and the Standing Order couldnot be framed in respect of that.

(24) As the revised Standing Orders of the Dawakhana in the present case could not legally cover the subject of the transfer of employeethe non-certification of those Standing Orders could not, in our opinion.prevent the operation and enforcement of clause 16(a) of the Settlement. The award of the Tribunal was based upon the mistakenview of law that the Standing Orders could and did affect the enforcability of the clause of the Settlement relating to transfer of employees.and that if such Standing Orders were not certified the clause relatingto transfer of employees could also not be enforced. The approach ofthe Tribunal in this respect was not in confirmity with law. because.as observed earlier, the Standing Orders cannot deal with the subjectof transfer of employees. The present is not a case where two viewsin the matter were possible and the Tribunal has taken one view.On the contrary, the present is a case where the Tribunal has proceeded on a mistaken view of the law and has founded its decisionsupon reasons which are wrong in law. The distinction between 'anerror of law apparent on the face of the record' and 'a possible viewof of a writ certiorari. As held in the case ofSyed Yakooh v. K. S. Radhakrthe matter' cannot be lost sight of. The error of law in the present case is apparent on the face of the record. Such an error can becorrected by the issuance ishnan and other, : [1964]5SCR64 :a writ of certiorari can be issued for correcting errors of jurisdictioncommitted by inferior courts or tribunals these are cases where ordersare passed by inferior courts or tribunals without jurisdiction, or inexcess of it. or as a result of failure to exercise jurisdiction. A writcan similarly be issued where in exercise of jurisdiction conferred onit, the Court or Tribunal acts illegally or improperly, as for instance, itdecides a question without giving an opportunity to be heard to theparty affected by the order, or where the procedure adopted in dealingwith the dispute is opposed to principles of natural justice. There is,however, no doubt that the jurisdiction to issue a writ of certiorariis .a supervisory jurisdiction and the Court exercising it is not entitledto act as an appellate Court. This limitation necessarily means Thatfindings of fact reached by the interior Court or Tribunal as a resultof the appreciation of evidence cannot he reopened or questioned in writ proceedings. An error of law which is apparent on the face of therecord can be corrected by a writ, but not an error of fact. howevergrave it may appear to be. In regard to a finding of fact recordedby the Tribunal, a writ of certiorari can be issued if it is shown that inrecording the said finding, the Tribunal had erroneously refused toadmit admissible and material evidence, or had erroneously admittedinadmissible evidence which has influenced the impugned finding, p,Similarly, if a finding of fact is based on no evidence, that would beregarded as an error of law which can be corrected by a writ ofcertiorari. In dealing with this category of cases, however, we mustalways bear in mind that a finding of fact recorded by the Tribunalcannot be challenged in proceedings for a writ of certiorari on theground that the relevant and material evidence adduced before theTribunal was insufficient or inadequate to sustain the impugned finding. The adequacy of sufificiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusivejurisdiction of the Tribunal, and the said points cannot be agitatedbefore a writ court. It is within these limits that the jurisdiction conferred on the High Court under Article 226 to issue a writ of certiorurican be legitimately exercised. Gajendragadkar J. (as he then was),speaking for the majority in the above case, further observed:

ITis, of course, not easy to define or adequately describe what an error of law apparent on the face of the recordmeans. What can be corrected by a writ has to be an errorof law; but it must be such an error of law as can be regardedas one which is apparent on the face of the record. Where itit manifest or clear that the conclusion of law recorded byan 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 ofit, or is expressly founded on reasons which are wrong inlaw, the said conclusion can be corrected by a writ o! certiorari.In all these cases, the impugned conclusion shouldbe so plainly inconsistent with the relevant statutory provisionthat no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of therecord. It may also be that in some cases, the impusnederror of law may not be obvious or patent on the face of therecord as such and the Court may need an argument to discover the said error but there can be no doubt that whatcan be corrected by a writ of certiorari is an error of law andthe said error must, on the whole, be of such a character as would satisfy the test that it it is error of law apparent on theface of the record. If a statutory provision is reasonably capableof two constructions and one construction has been adoptedby the inferior Court or Tribunal, its conclusion may notnecessarily or always be open to correction by a writ ofcerfiorari. In our opinion, it is neither possible nor desirableto attempt either to define or to describe adequately all cases of errors which can be appropriately described as errorsof law apparent on the face of the record. Whether or notan impugned error is an error of law and an error of lawto act as an appellate Court. This limitation necessarily means Thatfindings of fact reached by the interior Court or Tribunal as a resultof the appreciation of evidence cannot he reopened or questioned inwrit proceedings. An error of law which is apparent on the face of therecord can be corrected by a writ, but not an error of fact. howevergrave it may appear to be. In regard to a finding of fact recordedby the Tribunal, a writ of certiorari can be issued if it is shown that inrecording the said finding, the Tribunal had erroneously refused toadmit admissible and material evidence, or had erroneously admittedinadmissible evidence which has influenced the impugned finding.Similarly, if a finding of fact is based on no evidence, that would beregarded as an error of law which can be corrected by a writ ofcertiorari. In dealing with this category of cases, however, we mustalways bear in mind that a finding of fact recorded by the Tribunalcannot be challenged in proceedings for a writ of certiorari on theground that the relevant and material evidence adduced before theTribunal was insufficient or inadequate to sustain the impugned finding.The adequacy of sufificiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusivejurisdiction of the Tribunal, and the said points cannot be agitatedbefore a writ court. It is within these limits that the jurisdiction conferred on the High Court under Article 226 to issue a writ of certiorarican be legitimately exercised. Gajendragadkar J. (as he then was),speaking for the majority in the above case, further observed :'It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the recordmeans. What can be corrected by a writ has to be an errorof law; but it must be such an error of law as can be regardedas one which is apparent on the face of the record. Where itit manifest or clear that the conclusion of law recorded byan inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard ofit, or is expressly founded on reasons which are wrong inlaw, the said conclusion can be corrected by a writ o! certiorari. In all these cases, the impugned conclusion shouldbe so plainly inconsistent with the relevant statutory provisionthat no difficulty is experienced by the High Court in holdingthat the said error of law is apparent on the face of therecord. It may also be that in some cases, the impusnederror of law may not be obvious or patent on the face of therecord as such and the Court may need an argument to discover the said error but there can be no doubt that whatcan be corrected by a writ of cerfiorari is an error of law andthe said error must, on the whole, be of such a character aswould satisfy the test that it it is an error of law apparent on theface of the record. If a statutory provision is reasonably capableof two constructions and one construction has been adoptedby the inferior Court or Tribunal, its conclusion may notnecessarily or always be open to correction by a writ ofcerfiorari. In our opinion, it is neither possible nor desirableto attempt either to define or to describe adequately allcases of errors which can be appropriately described as errorsof law apparent on the face of the record. Whether or notan impugned error is an error of law and an error of lawwhich is apparent on the face of the record, must alwaysdepend upon the facts and circumstance; of each case andupon the nature and scope of the legal provision which isalleged to have been misconstrued or contravened.

(25) There is an evident error of law in the order of the Tribunal in thepresent case. and as such the appellant, in our opinion, is entitled toa writ of certiorari.

(26) There was nothing in the terms of the Settlement of 28/02/1966 to prevent the coming into force of clause 16 of the Settlement from the date of signing of the memorandum of the Settlement.According to section 18(1) of the Industrial Disputes Act. 1947 (14of 1947), a settlement arrived at by agreement between the employerand a workman other than one in the course of conciliation proceedingshall be binding on the parties to the agreement. Sub-section ( I ) ofsection 19 of that Act provides that a settlement shall come intooperation on such date as is agreed upon by the parties to the dispute,and if no date is agreed upon the date on which the memorandumof the Settlement is signed by the parties to the dispute. As RaunaqHussain was admittedly a member of the Union which entered intothe Settlement of 28/02/1966. he would be bound by clause16 of that Settlement. Further, as no date was agreed upon for thecoming into force of the Settlement of 28/02/1966 the said

(27) Settlement should be taken to have come into operation from thedate it was signed by the parties to the dispute.

(28) An application was filed during the pendency of the appeal onbehalf of the contesting respondents that according to clause 2(p)of the Industrial Disputes Act, where a written agreement betweenthe employer and the workman is arrived at otherwise than in thecourse of conciliation proceeding a copy of the agreement should besent to an officer authorised in this behalf by the appropriateGovernment and the Concilation Officer. It was submitted on behalf of therespondents that copies of the said settlements were forwarded tothe Conciliation Officer (Central), the Regional Labour Commissioner(Central) and the Secretary to Government of India. Minitry ofLabour, New Delhi. According to the contesting respondents theappropriate Government in respect of industrial disputes arising between the appellant-company and its workmen was the' DelhiAdministration and the appropriate authorities prescribed were the LabourCommissioner. Delhi Administration, Conciliation Officer. Delhi Administration and the Secretary (Labour) Delhi Administration, and notthe authorities to whom the copies were sent. As such the contestingrespondents stated that the requirements of section 2(p) of the Actread with rule 58 of the Industrial Disputes (Central) Rules had notbeen complied with. The above application was contested by the appellant and it was stated in the affidavit of S.M.A. Hashimi, Establishment Officer of the appellant, that copies of the Settlement were interalia sent to the Conciliation Officer. Delhi Administration and theLabour Commissioner. Delhi Administration. It was furtherstated by Hashimi that a contention had been raised on behalf of res-pendent No. before the Tribunal that copy of the Settlement hadnot been sent to the appropriate Government and the ConciliationOfficer. The appellant according to Hashimi then summoned therelevant records to show that copies were actually sent and summonswhich is apparent on the face of the record, must alwaysdepend upon the facts and circumstance; of each case andupon the nature and scope of the legal provision which isalleged to have been misconstrued or contravened.'

(29) There is an evident error of law in the order of the Tribunal in thepresent case. and as such the appellant, in our opinion, is entitled toa writ of certiorari.

(30) There was nothing in the terms of the Settlement of 28/02/1966 to prevent the coming into force of clause 16 of the Settlement from the date of signing of the memorandum of the Settlement.According to section 18(1) of the Industrial Disputes Act. 1947 (14 of 1947), a settlement arrived at by agreement between the employerand a workman other than one in the course of conciliation proceedingshall be binding on the parties to the agreement. Sub-section ( I ) ofsection 19 of that Act provides that a settlement shall come intooperation on such date as is agreed upon by the parties to the dispute,and if no date is agreed upon the date on which the memorandumof the Settlement is signed by the parties to the dispute. As RaunaqHussain was admittedly a member of the Union which entered intothe Settlement of 28/02/1966. he would be bound by clause16 of that Settlement. Further, as no date was agreed upon for thecoming into force of the Settlement of 28/02/1966 the saidSettlement should be taken to have come into operation from thedate it was signed by the parties to the dispute.

(31) An application was filed during the pendency of the appeal onbehalf of the contesting respondents that according to clause 2(p)of the Industrial Disputes Act, where a written agreement betweenthe employer and the workman is arrived at otherwise than in thecourse of conciliation proceeding a copy of the agreement should besent to an officer authorised in this behalf by the appropriate Government and the Concilation Officer. It was submitted on behalf of therespondents that copies of the said settlements were forwarded tothe Conciliation Officer (Central), the Regional Labour Commissioner(Central) and the Secretary to Government of India. Minitry ofLabour, New Delhi. According to the contesting respondents theappropriate Government in respect of industrial disputes arising between the appellant-company and its workmen was the' Delhi Administration and the appropriate authorities prescribed were the LabourCommissioner. Delhi Administration, Conciliation Officer. Delhi Administration and the Secretary (Labour) Delhi Administration, and notthe authorities to whom the copies were sent. As such the contestingrespondents stated that the requirements of section 2(p) of the Actread with rule 58 of the Industrial Disputes (Central) Rules had notbeen complied with. The above application was contested by the appellant and it was stated in the affidavit of S.M.A. Hashimi, Establishment Officer of the appellant, that copies of the Settlement were interalia sent to the Conciliation Officer. Delhi Administration and theLabour Commissioner. Delhi Administration. If. was furtherstated by Hashimi that a contention had been raised on behalf of respondent No. 1 before the Tribunal that copy of the Settlement hadnot been sent to the appropriate Government and the ConciliationOfficer. The appellant according to Hashimi then summoned therelevant records to show that copies were actually sent and summonswere duly taken out for this purpose. When the records were producedbefore the Tribunal and the statement of the witnesses, who hadbrought the relevant records before the Tribunal, were to be recorded. a statement was made on behalf of respondent No. 1 by his counsel.Shri Asghar Ali, conceding that copies of the Settlement dated 28/02/1966 had been sent by the appellant to the Conciliation Officerand the Delhi Administration. It was, accordingly, stated by ShriHashimi that the contention that requirements of clause 2(p) of theIndustrial Disputes Act, read with rule 58 of the Industrial Disputes(Central) Rules, had not been complied with, were baseless. Theappellant also filed Along with that affidavit a copy of the statementof Shri Asghar Ali. Shri Asghar Ali admitted in that statement thatcopies of the Settlement dated 28/02/1966 had been sent bythe Hamdard Dawakhana management to the Conciliation Officer andDelhi Administration. At the hearing of the appeal, the applicationfiled by the contesting respondents was not pressed by their learnedcounsel. The same was, accordingly, dismissed.

(32) It may be observed that an objection was raised at the time ofarguments by the learned counsel for the contesting respondents thatno ground had been taken and no contention had been advanced onbehalf of the appellant before the Tribunal and the learned SingleJudge that the Standing Orders could not relate to the subject of transfer of employees. It was urged that the appellant should not be permitted to raise that ground in appeal. The above ground raised on behalf of the appellant is purely one of law on the admitted facts ofthe case, and we are of the opinion that the appellant should beallowed to raise it. The fact that the appellant did not raise it befor the Tribunal or the learned Single Judge, would however, bea good ground for disallowing the costs to the appellant.

(33) We, accordingly, accept the appeal and the writ petition and quash the impugned award of the Tribunal. The parties shall bear their own costs throughout.


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