DILIP MANI DUBEY versus M/S SIEL LTD. & ANR. on 12 March 2019

DILIP MANI DUBEY

v.

M/S SIEL LTD. & ANR.

(Civil Appeal Nos. 7545-7546 of 2009)

MARCH 12, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Uttar Pradesh Industrial Disputes Act, 1947:

s. 6-N – Termination of workman – Industrial reference –Industrial Tribunal answered the reference in favour of the workmanand directed his reinstatement with back wages – In Writ petition,award of the Tribunal set aside – However, High Court directedthat whatever amount, paid to the workman in compliance with orderpassed u/s. 17-B proceedings, during pendency of litigation, shallnot be recovered – Review petition dismissed – On appeal,held: High Court rightly concluded that the workman did not workcontinuously for one year – Such finding of fact is binding onSupreme Court and cannot be examined de novo in appellatejurisdiction u/Art. 136 of Constitution – High Court also rightlyheld that amount paid to the workman pursuant to order passedu/s. 17-B of ID Act was not recoverable –Constitution of India –Art. 136 – Industrial Disputes Act, 1947 – s. 17-B.

Dismissing the appeals, the Court

HELD: 1. The main question, which arose for considerationbefore the Industrial Tribunal and the High Court, was whetherthe appellant (workman) was in continuous service for one yearas provided under Section 6-N of the U.P. Industrial DisputesAct. A finding on such question being a finding of fact, this Courtcannot examine such question de novo by appreciating the wholeevidence adduced by the parties again in the present appeals.The High Court examined the matter in detail and the finding ofthe High Court on this question being a finding of fact is bindingon this Court. The High Court, rightly came to a conclusion thatthe workman did not work continuously for one year with theemployer. [Paras 11, 13 and 16] [532-B-D, G-H]

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A2. This Court has held that the proceedings under Section17-B of Industrial Disputes Act, 1947 are independentproceedings in nature and are not dependent upon the final orderpassed in the main proceedings. If the Court/Tribunal, eventuallyupholds the termination order as being legal against the workman,yet the employer will have no right to recover the amount alreadyBpaid by him to the delinquent workman pursuant to order passedunder Section 17-B of the ID Act during pendency of theseproceedings. The High Court despite setting aside the award ofthe Industrial Tribunal, rightly directed that whatever amount,which has so far been paid to the workman by the employer inCcompliance with the order passed under Section 17-B of ID Actproceedings during pendency of the litigation, the same will notbe recoverable from the appellant on the strength of the impugnedorder. Such direction issued by the High Court against theemployer, is in conformity with the law laid down by this Court inthat behalf. [Paras 19, 20, 21 and 22] [533-C-G]D

Sriram Industrial Enterprises Ltd. v. Mahak Singh &Ors.(2007) 4 SCC 94: [2007] 3 SCR 783– distinguished.

Dena Bank v. Kirtikumar T. Patel(1999) 2 SCC 106:E[1997] 5 Suppl. SCR 263; Dena Bank v. Ghanshyam(2001) 5 SCC 169 : [2001] 3 SCR 591;RajeshwarMahto v. Alok Kumar Gupta(2018) 4 SCC 341 :[2018] 2 SCR 529 – relied on.

Case Law Reference

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GCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7545-7546 of 2009.

From the Judgment and Order dated 29.11.2007 and 05.02.2008of the High Court of Judicature at Allahabad in Civil Misc. Writ PetitionNo.4435 of 1999 and C.M. Review Application No.1098 of 2008Hrespectively.

Devvrat, Abhijit Banerjee, Vinod Kr. Goyal, Advs. for theAppellants.

Debal Banerji, Sr. Adv., Ms. Meera Mathur, Shrish Kumar Misra,Advs. for the Respondents.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. These appeals are directedagainst the final judgment and orders dated 29.11.2007 and 05.02.2008passed by the High Court of Judicature at Allahabad in C.M.W.P. No.4435of 1999 and C.M. Review Application No.1098 of 2008 respectivelywhereby the High Court allowed the writ petition filed by respondentNo.1 herein and dismissed the review petition filed by the appellant herein.

2. A few facts need mention hereinbelow for the disposal ofthese appeals.

3. Pursuant to the industrial reference made by the State of U.P.under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referredto as “the ID Act”) to the Industrial Tribunal, Meerut for deciding thelegality and correctness of the termination order of the appellant(workman) passed by respondent No.1 (employer), the IndustrialTribunal, by award dated 27.06.1998 (Annexure-P-8) answered thereference in appellant’s favour and directed his reinstatement in servicewith payment of back wages in Adjudication Case No.137 of 1995.

4. Respondent No.1 (employer) felt aggrieved and filed a writpetition in the High Court of Allahabad against the aforementioned award.

5. By impugned order dated 29.11.2007, the High Court allowedthe said writ petition and set aside the award of the Industrial Tribunalby answering the reference in favour of respondent No.1.

6. Against the said order, the appellant filed a review petition whichwas dismissed by the High Court by order dated 05.02.2008.

7. It is against the orders passed by the High Court in the writpetition and the review petition, the appellant(workman) has felt aggrievedand filed these appeals by way of special leave in this Court.

8. So, the short question, which arises for consideration in theseappeals, is whether the High Court was justified in allowing the writpetition and set aside the award of the Industrial Tribunal.

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A9. Heard Mr. Devvrat, learned counsel for the appellant andMr. Debal Banerji, learned senior counsel for respondent No.1 andMr. Shrish Kumar Misra, learned counsel for respondent No.2.

10. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in these appeals.B

11. The main question, which arose for consideration before theIndustrial Tribunal and the High Court, was whether the appellant(workman) was in continuous service of respondent No.1(Employer)for one year as provided under Section 6-N of the U.P. Industrial DisputesAct.C12. Though the Industrial Tribunal had answered this question infavour of the appellant but the same was reversed and answered infavour of respondent No.1(Employer) by the High Court.

13. In our opinion, a finding on such question being a finding offact, this Court cannot examine such question de novo by appreciatingDthe whole evidence adduced by the parties again in these appeals. In ourview, the High Court examined the matter in detail and the finding of theHigh Court on this question being a finding of fact is binding on thisCourt.

14. Learned counsel for the appellant (workman) placing relianceEon the decision in Sriram Industrial Enterprises Ltd. vs. MahakSingh & Ors., 2007 (4) SCC 94 and referring to the provisions of theUP Industrial Disputes Act contended that the issue was not properlydecided by the High Court.

15. According to learned counsel, firstly, the High Court erred inFtravelling in the facts of the case in its writ jurisdiction which it could nothave done for want of limited jurisdiction; and secondly, keeping in viewthe law laid down in Sriram Industrial Enterprises Ltd.’s case(supra), the award passed by the Industrial Tribunal should have beenupheld as being just and proper.G16. We do not agree with this submission. In our opinion, the HighCourt, though took note of the factual matrix and examined the issue inits proper perspective with reference to the case set up by both theparties, rightly came to a conclusion that the appellant (workman) didnot work continuously for one year with respondentNo.1(employer).

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17. This question, we cannot now again examine de novo in ourappellate jurisdiction under Article 136 of the Constitution. It is more sowhen we find that the finding on this question is neither against anyevidence adduced by the parties nor against any provision of law andnor it is perverse.

18. So far as the decision in Sriram Industrial EnterprisesLtd.(supra), which is relied on by the learned counsel for the appellant,is concerned, suffice it to say, the same, in our view, is distinguishable onfacts. We, therefore, find no ground to place reliance on this decision toset aside the impugned order.

19. We, however, find that the High Court despite setting asidethe award of the Industrial Tribunal, rightly directed that whatever amount,which has so far been paid to the appellant (workman) by respondentNo.1(employer) in compliance with the order passed under Section 17-Bof ID Act proceedings during pendency of the litigation, the same willnot be recoverable from the appellant on the strength of the impugnedorder. According to learned counsel for respondent No.1(employer), thisamount is quite a substantial one and is more than two lacs. Be that asit may.

20. Such direction issued by the High Court against respondentNo.1(employer), in our view, is in conformity with the law laid down bythis Court in that behalf.

21. Indeed, this Court has held that the proceedings under Section17-B of ID Act are independent proceedings in nature andare not dependent upon the final order passed in the mainproceedings.

22. It is ruled that if the Court/Tribunal, eventually upholds thetermination order as being legal against the workman, yet the employerwill have no right to recover the amount already paid by him to thedelinquent workman pursuant to order passed under Section 17-B of theID Act during pendency of these proceedings [see Dena Bank vs.Kirtikumar T. Patel, (1999) 2 SCC 106, Dena Bank vs. Ghanshyam,(2001) 5 SCC 169 and Rajeshwar Mahto vs. Alok Kumar Gupta(2018) 4 SCC 341].

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534SUPREME COURT REPORTS

[2019] 3 S.C.R.

A23. The appellant should, therefore, feel satisfied with such orderthat though he lost the matter and indeed rightly yet he received substantialamount during pendency of this litigation, which is rightly not challengedby respondent No.1(Employer) in appeal.

24. In the light of the foregoing discussion, we find no merit inBthese appeals. The appeals fail and are accordingly dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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