WRIT PETITION 5271 of 2009 on 28 December 2018

IN THE HIGHCOURT OF ANDHRA PRADESH.-.AMARAVATI(Special Original Jurisdiction)

THURSDAY, THE TWENTY FIFTH DAY OF JULYTWO THOUSAND AND TWENTY FOUR

PRESENT

THEHONOURABLE SRI JUSTICE HARINATH.N

WRIT PETITION Nn- fi271 OF 2009

Between;

Dhiren Kumar, S/o. Aswani Kumar, aged 61 years, C/o. K. NageswaraRao,D.No.22-104-3, Tummalapallivari Street, Kotha Road, Visakhapatnam-530001

...Petitioner

AND

Director, 5th floor, Sharachi1. Mitrs S.K. Pvt Ltd., rep. by its ManagingCentre, 74, B -A J.C. Bose Road Kolkata-16Centre, 74, B -A J.C. Bose Road Kolkata-162. The Deputy Director, Mitra S.K. Pvt. Ltd., beach[Road,][ Visakhapatnam]

3. TheIndustrial Tribunal Cum labour Court, Visakhapatnam

...Respondents

226 of the Constitution of India praying that inPetition under Articlethe affidavit filed therewith, the High Court maythe circumstances stated inbe pleasedtoissue an appropriate writororderordirectionmoreof writ of Certiorari to call for records relatingparticularly one in the nature,0 and connected with M.P.No.43 of 2005 dated 16.12.2008on the file ofCourt, Visakhapatnam and quash thethe Industrial Tribunal cum Laboursame

I.A. NO:1 OF 2009 (WPMP, NO: 688fi OF 2009)

Petition under Section 151 CPC praying thatin the[circumstances]stated in the affidavit filed in support of the petition, the High Court may bepleasedtodirect the respondentsto deposit arrearsof wagesof thepetitoner and pass Counsel for the Petitioner: SRI. N ASHWANI KUMAR

Counsel for the Respondent Nos.1 & 2: G V S GANESH

Counsel for the Respondent No.3: GP FOR LABOUR

The Court made the following order:

APHC010569262009IN THE HIGH COURT OF ANDHRA PRADESHAT AMARAVATI[3457](Special Original Jurisdiction)THURSDAY,THE TWENTY FIFTH DAY OF JULYTWO THOUSAND AND TWENTY FOURPRESENTTHE HONOURABLE SRI JUSTICE HARINATH.NWRIT PETITION NO: 5271/2009Between:Dhiren Kumar...PETITIONERANDMitrs S K Pvt Ltd Rep By Its Managing Director...RESPONDENT{S)and OthersCounsel for the Petitioner:1 .Sri.N.Ashwani KumarCounsel for the Respondent(S):1.Learned GP FOR LABOUR2.Sri.G.V.SGaneshThe Court made the following:

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the HON'BLE SRI JUSTICE HARINATH.N

WRIT PETITIOMi:?7iOf 2009

ORDER;

The above writ petitionis filed by the workmanofthe1strespondent seeking setting aside the order dated16.12.2008passedbytheIndustrialTribunal -Cum-LabourCourt,Visakhapatnam in MP.No.43 of 2005.

2. The petitioner filed ID.No.219of 1998 challenging his termination,The petitioner was terminated fornon-compliance of the order oftransfer to Jarsuguda of Orissafrom Visakhapatnam. The LabourCourt on 17.01.2001passed the following order;o, one increment IZcuJuleZ^TffZTLIand failing which he is not entitled for reinstatemln/aZtofo^ansfercontinuity of service. ”wages or

3. Aggrieved by the said orderthe 1st respondent filed WP.No.2955

of 2001 before this Court. This Court videan interim direction stayed the order of reinstatement subject to compliance of Section !]

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WP.No.5271of 200917-BoftheIndustrialDisputesAct,1947.ThisCourthaddismissed the WP.No.2955 of 2001. WP.No.5271of 2009wasallowed by this Court on 28.12.2018 vide a common order.

4. The 1®* respondent aggrieved by the common order preferred civilappeals 4863-4866 of 2022 and the Hon’ble Supreme Court[vide]its judgment dated 04.08.2022 remitted this writ petition[for][ fresh]consideration on merits. The Hon’ble Supreme Court has upheldthe order of this Court passed in WP.No.2955 of 2001.

5. The cause of action for filing MP.No.43 of 2005 by the petitionerseeking executionof the award was decided by the IndustrialTribunal - Cum - Labour Court, Visakhapatnam on 16.12.2008.The Tribunal declined to entertain the MP.No.43 of 2005.seeking executionof the award was decided by the IndustrialTribunal - Cum - Labour Court, Visakhapatnam on 16.12.2008.The Tribunal declined to entertain the MP.No.43 of 2005.

6. As seen from the order of the Tribunal three issues were framedfor adjudication. The Tribunal adjudicated the issueof territorialjurisdictionraisedby therespondentsandentitlementofthepetitioner for wages for the period prior to or after passing of theaward. An issue with respect whether the petitioner was gainfullyemployed or not was also framed.

7. The MP.No.43of 2005 wasfiledunder Section33-Cof theIndustrial Disputes Act, 1947.

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8. Section 33-C of the Industrial Disputes Act, 1947 reads[as][ follows]

Where any money is due to a workman from an employer[under a]settlement or an award or under the provisions of ][Chapter[V-A][ or]Chapter V-B] [ Substituted by Act 32 of 1976, Section4,for"Chapter V-A" (w.e.f 5.3.1976).][, the workman himself or any otherperson authorised by him in writing in this behalf, or, in the case ofthe death of the workman,his assignee or heirs may,withoutprejudice to any other mode of recovery, make an application[to]the appropriate Government for the recovery of the money due tohim, and if the appropriate Government is satisfied that any moneyis so due,it shall issue a certificate for that amount to the Collectorwho shall proceed to recover the same in the same manner[as] anarrear of land revenue:

Provided that every such application shall be made within one yearfrom the date on which the money became due to the[workman]from the employer:

Provided further that any such application may be entertained[after]theexpiry of thesaid period of oneyear,if theappropriateGovernment is satisfied that the applicant had sufficient[cause][ for]not making the application within the said period.

9. TheTribunalhasconsideredtheissueofits competencytoentertain the petition under Section 33-C of the Industrial DisputesAct, 1947. The Tribunal has held that the Award was passed bythe Labour Court is competent to entertain an application seekingrecovery of money due from an employer under Section[33-C][ of]Industrial Disputes Act, 1947. The Tribunal has rightly[held][ that]the application under Section 33-C of the Industrial Disputes Act,1947 has to be equated with an execution proceeding.entertain the petition under Section 33-C of the Industrial DisputesAct, 1947. The Tribunal has held that the Award was passed bythe Labour Court is competent to entertain an application seekingrecovery of money due from an employer under Section[33-C][ of]Industrial Disputes Act, 1947. The Tribunal has rightly[held][ that]the application under Section 33-C of the Industrial Disputes Act,1947 has to be equated with an execution proceeding.

10. The Tribunal also gave a categorical finding on[the][ disentitlement]of the petitioner for wages or salary prior to or after passing of theaward. A finding to the effect that the petitioner did not[ join] duty as //5//

WP.No.5271of 2009wasrequired inconsonancewiththe awardof the TribunalinID.No.219of1998.ThoughseveraldocumentswereplacedbeforetheTribunal. Adequatereasons areassignedfornonreliance on such documents. The Tribunal has also found that thepetitioner has not discharged the burden cast on him to prove thathe was not gainfully employed during the period while[he][ was][ not]on duty.

11. Adetailedawardispassedby theTribunalafter examiningwitnesses on part of the parties and documents marked[on][ behalf]of the parties therein. That apart, the contention of the petitioner inthewritpetitionintryingtoimpress uponthisCourtforreappreciating the evidence which was discarded by the[Labour]Court. More particularly, non-consideration of Exs.W.10[and][ W.11.]The Tribunal has given a categorical finding that the[petitioner]ought to have adduced the evidence of the Hotel Manager[or][ Staff]to prove the same. It is also not the case of the petitioner[that][ the]petitioner hasfiled anextract of theHotel Ledger[where]thepetitioner signed while checking-in the hotel.It is[also][ not the][ case]of the petitioner that he submitted the proof of travel[to][ Jarsuguda.]Consideringall these the Tribunal has passed a well[reasoned]award.

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WP.No.5271 of 200912.This CourtiIS not inclined to unsettle the findings Labour CourtandThe Hon’ble Supreme Courtiin Central Council for ResearchinIAyurvedic Sciencesand another Vs. Bikartanand others^whereinit was held thattwo cardinal principles of lawgoverningexercise of extraordinary jurisdictionunder Article 226 of theConstitutionmore particularly whenit comes to issue of writ ofcertiorari.

50. The first cardinalt»e Hig, Court 2;extraordinary22^0?the■ESP"while exercising itsextraordinary jurisdiction thereunderIt with aV,ew to doing substantial justijeltTZT*thereSfrofr“ntrrcase.While \

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administering law, it is to be tempered with equity[and][ if]the equitable situation demands after setting right[the]legal formulations, not to takeit to the logical end,theHigh Court would be failing In Its duty If it does[not][ notice]equitable consideration and mould thefinal order inexerciseofitsextraordinary jurisdiction. Anyotherapproach would render the High Court a normal court ofappeal which It Is not.

64. Thus, from the various decisions referred to above,we have no hesitation in reaching to the conclusion thata writ of certiorari is a high prerogative writ and shouldnot be Issued on mere asking. For the Issue of a writ ofcertiorari, the party concerned has to make out a definitecase for the same and is not a matter of course. To put itpithily,certiorarishallIssuetocorrecterrorsofJurisdiction, that Is to say, absence, excess or failure toexercise and also when in the exercise of undoubtedjurisdiction, there has been illegality. It shall also issue tocorrect an error in the decision or determination itself.Ifit is an error manifest on the face of the proceedings. Byits exercise, only a patent error can be corrected but notalso a wrong decision. It should be well remembered atthe cost of repetition that certiorari Is not appellate[but]only supervisory.

13. On the facts on hand in the present case, the petitioner could notplace his case for judicial review by this Court for re-appreciatingthe evidence adduced before the Labour Court. Accordingly,[this]Court is not inclined to unsettle the findings of the Labour Court.place his case for judicial review by this Court for re-appreciatingthe evidence adduced before the Labour Court. Accordingly,[this]Court is not inclined to unsettle the findings of the Labour Court.

14. In the result, the writ petition is dismissed, without costs.

Pending miscellaneous petitions, if any, shall stands closed.

Sd/- M SRINIVASASSISTANT REGISTRAR

//TRUE COPY//

SECOFFICER

To,

1. One CC to SRI N ASHWANI KUMAR Advocate [OPUC]

2. Two CCs to GP FOR LABOUR, High Court of Andhra Pradesh[OUT][OUT]3. One CC to SRI G V S GANESH Advocate [OPUC]

4. Three CD Copies

HIGH COURTHN JDATED:25/07/2024

ORDERandh^WP.No.5271 of 2009X0) OCT 202*1O^Current SeciierDISMISSING THE WPWITHOUT COSTSk ■