WA/1350/2006 of The Depot Manager, A.P.S.R.T.C., Vs The Regional Secretary, A.P.S.R.T.C., National Mazdoor on 28 December 2006

:JUDGMENT:

Per Sri C.V.Nagarjuna Reddy, J

This is an appeal by Depot Manager, Andhra Pradesh State RoadTransport Corporation, Parvathipuram Depot, Vizianagaram District(appellant herein) for setting aside order dated 9.8.2006 passed by thelearned Single Judge in Writ Petition No.16551 of 2006, whereby hedeclined to interfere with award dated 28.6.2004 passed by the IndustrialTribunal-cum-Labour Court, Vishakapatnam (for short, ‘the Tribunal’) inI.D.No.62 of 2002.

For deciding the appeal, we may briefly notice the facts.

The appellant initiated departmental proceedings against Sri T.Krishna Rao, a driver working in the Depot (hereinafter referred to as‘the driver’) and a member of A.P.S.R.T.C., National Mazdoor Union,Vizianagaram, the first respondent in this appeal on the following charge:

“For having driven the bus AP 9Z 7322 in a rash and negligentmanner in an anticipation near Boyapalem on the routeVishakapatnam to Parvathipuram on 17.9.1997 at about 10.00 hrs.,and dashed the auto No.AHO 3753 which was proceeding in front ofyour bus which resulted into titling of auto and injuries to theoccupants of the auto causing loss to the corporation, whichconstitutes misconduct under Reg.28(ix.b) of APSRTC Employees’(Conduct) Regulations 1963.”

It appears from the record that the driver could not file reply to the showcause notice and the appellant, without conducting any enquiry passedorder dated 24.8.1999, whereby he imposed penalty of deferment of annualincrement for a period of one year with cumulative effect besides orderingrecovery of an amount of Rs.850/- towards costs of damage caused to thevehicle.

The dispute raised by the 1[st] respondent – Union was referred by theState Government to the Tribunal under Section 10(1)( c ) of the Industrial Disputes Act 1947 (for short, ‘the Act’).

As the punishment of withholding of increment with cumulative effectfalls under the category of major penalties under the regulations ofA.P.S.R.T.C., and as no enquiry was held before imposing the penalty onthe driver, the Tribunal permitted both the parties to adduce evidence. Sri T.Krishna Rao examined himself as W.W 1 and on behalf of the managementAssistant Manager (Traffic), Anakapally Depot was examined as M.W.1. Exs.M1 to M.14 were marked on behalf of the management. The Tribunalafter examining the material on record and hearing the submissions of therespective parties passed award dated 28.6.2004 and set aside thepunishment. The writ petition filed by the appellant was dismissed by thelearned Single Judge, who opined that the award does not suffer from anerror of law apparent on the face of the record.

Sri V. Padmanabha Rao, learned counsel for the appellant argued thatthe Tribunal committed a serious illegality by interfering with the order ofpunishment passed by the appellant and the learned Single Judge erred byrefusing to set aside the award. He submitted that even though beforeissuing order of punishment, the appellant did not get an enquiry conductedinto the charge of misconduct levelled against the driver, the Tribunal shouldhave approved the same by relying on the statement of M.W 1 anddocuments marked as Exs. M-1 to M-14.

We have carefully considered the submissions of the learned counselfor the appellant. A perusal of the award of the Tribunal reveals that itsdecision to set aside the order passed by the appellant imposing the penaltyon the driver is rested mainly on two grounds, namely, 1) that the conductorwho was the eye witness to the accident was not examined and that hissworn statement recorded and marked as Ex.M5 does not disclose any faulton the part of the driver, and 2) that the evidence of M.W.1 discloses that thereport of Motor Vehicles Inspector on the accident was not taken intoconsideration in the domestic enquiry. The Tribunal held that from thematerial on record the management failed to show that that the accident occurred on account of the negligence of the driver. The Tribunal also tookinto consideration the fact that the criminal case filed against the driverended in acquittal in the year 2001.

The law in the scope of judicial review of the action taken by theemployer to punish an employee is well settled. The court/tribunal caninterfere with the action taken by the employer if the order of punishment isnot preceded by an enquiry, held in consonance with the rules of naturaljustice or the enquiry held by the employer is vitiated due to patent violationof the basics of natural justice and such violation has prejudiced the causeof the employee or the finding recorded in the domestic enquiry is perverse. The court/tribunal can also tinker with the punishment imposed by theemployer if it is found to be shockingly disproportionate or totally arbitrary.

It is also well settled that in exercise of power under Article 226 of theConstitution, the High Court cannot interfere with an award made by thelabour court or tribunal unless it is shown to be vitiated by an error ofjurisdiction or an error of law apparent on the face of the record.

The High Court can issue a writ of certiorari if it is found that the orderunder challenge has been made by the Court or Tribunal or quasi-judicialwhich did not have the jurisdiction to pass such order or where such Court,Tribunal or Authority has failed to exercise the jurisdiction vested in it orwhere the action complained of has been taken in disregard of rules ofnatural justice. A writ of certiorari can also be issued if it is shown that whilepassing the order under challenge the Subordinate Court, Tribunal or quasi-judicial authority ignored legally admissible evidence or took intoconsideration inadmissible evidence or overlooked relevant material or theorder is based on extraneous consideration/factors. However, a writ courtcannot sit in appeal over the orders of the Subordinate Court, Tribunal orquasi-judicial authority and interfere with the findings and conclusionsrecorded by such Court, Tribunal or Authority merely because on a re-appreciation of evidence different finding or conclusion is possible. The writcourt cannot go into sufficiency and adequacy of evidence which may have been relied by the Subordinate Court, Tribunal or quasi-judicial authority forreaching a particular finding or conclusion.

In Syed Yakoob v. K.S. Radhakrishnan[[1]]the Supreme Court considered the scope of the High Courts’ power to issue a writ of certiorariand laid down the following propositions:

i) A writ of certiorari can be issued for correcting errorsof jurisdiction committed by inferior courts or tribunals: theseare cases where orders are passed by inferior courts ortribunals without jurisdiction, or is in excess of it, or as aresult of failure to exercise jurisdiction. A writ can similarly beissued where in exercise of jurisdiction conferred on it, theCourt or Tribunal acts illegally or properly, as for instance, itdecides a question without giving an opportunity, be heard tothe party affected by the order, or where the procedureadopted in dealing with the dispute is opposed to principlesof natural justice.

ii) The jurisdiction of High Court to issue a writ ofcertiorari is a supervisory jurisdiction and the Courtexercising it is not entitled to act as an appellate Court. Thislimitation necessarily means that findings of fact reached bythe inferior Court or Tribunal as result of the appreciation ofevidence cannot be reopened or questioned in writproceedings. An error of law which is apparent on the face ofthe 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 offact recorded by the Tribunal, a writ of certiorari can beissued if it is shown that in recording the said finding, theTribunal had erroneously refused to admit admissible andmaterial evidence, or had erroneously admitted inadmissibleevidence which has influenced the impugned finding.Similarly, if a finding of fact is based on no evidence, thatwould be regarded as an error of law which can be correctedby a writ of certiorari.

iii) A finding of fact recorded by the Tribunal cannot bechallenged in proceedings for a writ of certiorari on theground that the relevant and material evidence adducedbefore the Tribunal was insufficient or inadequate to sustainthe impugned finding. The adequacy or sufficiency ofevidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction ofthe Tribunal, and the said points cannot be agitated before awrit Court.

The proposition laid down in Sayed Yakoob[1 ](supra) has beenreiterated in a recent judgment in Mohd. Shahnawaz Akhtar & Anr. v. Ist ADJ Varanasi & ors.[[2]]

In Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others[[3]]their Lordships of the Supreme Court, whiledealing with the scope of High Court’s power under Article 226 to re-appreciate the evidence produced before the trial Judge, held as under:

“Where the evidence adduced before the trial Judge wasnot so immaculate that another Judge might not have takena different view, it cannot be said that there was noevidence on which the trial Judge could have come to theconclusion he did. When the trial Court accepts theevidence, the High Court which is not hearing an appealcannot be expected to take a different view in exercisingjurisdiction under Articles 226 and 227.”

In Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd.[[4]

the Supreme Court considered the question whether in exercise of powunder Article 227, the High Court can interfere with the discretion exercised b the Tribunal under Section 11-A of the Act and observed :

“Under Section 11-A wide discretion has been vested in theTribunal in the matter of awarding relief according to thecircumstances of the case. The High Court under Article227 of the Constitution does not enjoy such power thoughas a superior Court, it is vested with the right ofsuperintendence. It is entitled to scrutinize the orders of thesubordinate tribunals within the well-accepted limitationsand, therefore, it can in an appropriate case quash theaward of the Tribunal and thereupon remit the matter to it forfresh disposal in accordance with law and directions, if any. But it is not entitled to exercise the powers of the Tribunaland substitute an award in place of the one made by the Tribunal or substitute one finding for another and similarlyone punishment for another, as in the case of an appealwhere it lies to it.”

In R.S. Saini v. State of Punjab and others[[5]]the Supreme Court upheld the order passed by the High Court dismissing the writ petition filedagainst the order of the petitioner’s removal from the office of the Presidentof Municipal Committee. Some of the observations made in that decision,which are worth noticing read as under:

“The court while exercising writ jurisdiction will notreverse a finding of the inquiring authority on the ground thatthe evidence adduced before it is insufficient. If there issome evidence to reasonably support the conclusion of theinquiring authority, it is not the function of the court to reviewthe evidence and to arrive at its own independent finding.The inquiring authority is the sole judge of the fact so longas there is some legal evidence to substantiate the findingand the adequacy or reliability of the evidence is not amatter which can be permitted to be canvassed before thecourt in writ proceedings.”

In Surya Dev Rai v. Ram Chander Rai[[6]], the Supreme Court notedthe history of the development of High Court’s jurisdiction to issue writs,orders or directions under Articles 226 and 227 of the Constitution of Indiaand laid down the following propositions:

i) The power to issue a writ of certiorari and thesupervisory jurisdiction are to be exercised sparingly andonly in appropriate cases where the judicial conscience ofthe High Court dictates it to act lest a gross failure of justiceor grave injustice should occasion. Care, caution andcircumspection need to be exercised, when any of theabovesaid two jurisdictions is sought to be invoked duringthe pendency of any suit or proceedings in a subordinatecourt and the error though calling for correction is yetcapable of being corrected at the conclusion of theproceedings in an appeal or revision preferred thereagainstand entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flowand/or early disposal of the suit or proceedings. The HighCourt may feel inclined to intervene where the error is such,as, if not corrected at that very moment, may becomeincapable of correction at a later stage and refusal tointervene would result in travesty of justice or where suchrefusal itself would result in prolonging of the lis.

Conclusion

ii) The High Court in exercise of certiorari or supervisoryjurisdiction will not convert itself into a court of appeal andindulge in reappreciation or evaluation of evidence orcorrect errors in drawing inferences or correct errors of mereformal or technical character.

iii) In practice, the parameters for exercising jurisdiction toissue a writ of certiorari and those calling for exercise ofsupervisory jurisdiction are almost similar and the width ofjurisdiction exercised by the High Courts in India unlikeEnglish courts has almost obliterated the distinctionbetween the two jurisdictions. While exercising jurisdictionto issue a writ of certiorari, the High Court may annul or setaside the act, order or proceedings of the subordinate courtsbut cannot substitute its own decision in place thereof. Inexercise of supervisory jurisdiction the High Court may notonly give suitable directions so as to guide the subordinatecourt as to the manner in which it would act or proceedthereafter or afresh, the High Court may in appropriatecases itself make an order in supersession or substitution ofthe order of the subordinate court as the court should havemade in the facts and circumstances of the case.

iv) The parameters for exercise of jurisdiction underArticles 226 or 227 of the Constitution cannot be tied downin a strait-jacket formula or rigid rules. Not less than often,the High Court would be faced with a dilemma. If itintervenes in pending proceedings there is bound to bedelay in termination of proceedings. If it does not intervene,the error of the moment may earn immunity from correction.The facts and circumstances of a given case may make itmore appropriate for the High Court to exercise self-restraintand not to intervene because the error of jurisdiction thoughcommitted is yet capable of being taken care of andcorrected at a later stage and the wrong done, if any, wouldbe set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. Butthere may be cases where “a stitch in time would savenine”. At the end, we may sum up by saying that the poweris there but the exercise is discretionary which will begoverned solely by the dictates of judicial conscienceenriched by judicial experience and practical wisdom of thejudge.

If the award of the Tribunal is examined in the light of the above notedpropositions, we do not find any reason to disagree with the learned SingleJudge that the same is not vitiated by any jurisdictional infirmity or error oflaw apparent on the face of the record. At the cost of repetition, we deem itnecessary to observe that the Tribunal, after analyzing the evidenceproduced before it came to the conclusion that the charge levelled againstthe driver is not proved. This finding is based on an analysis of theevidence and the material produced by the parties. Therefore, the learnedSingle Judge rightly declined to interfere with the award and we do not seeany reason to take a different view.

In the result, the appeal is dismissed.

As a sequel to the dismissal of the Writ Appeal, W.A.M.P.No.2862 of2006 is also dismissed.

C.V.NAGARJUNA REDDY, J

28[th] December, 2006

mdaa

G.S.SINGHVI, CJ

[1]AIR 1964 SC 477AIR 1964 SC 477

[2]JT 2002 (8) SC 69 = (2002) 9 SCC 375JT 2002 (8) SC 69 = (2002) 9 SCC 375

[3]AIR 1970 SC 61AIR 1970 SC 61

[4](1984) 3 Supreme Court Cases 5(1984) 3 Supreme Court Cases 5

[5]JT 1999 (6) SC 507 = (1999) 8 SCC 90JT 1999 (6) SC 507 = (1999) 8 SCC 90

[6]AIR 2003 SC 3044AIR 2003 SC 3044