Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.75457546 OF 2009
Dilip Mani Dubey ….Appellant(s)
VERSUS
M/s SIEL Ltd. & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals are directed against the final
judgment and orders dated 29.11.2007 and
05.02.2008 passed by the High Court of Judicature at
Allahabad in C.M.W.P. No.4435 of 1999 and C.M.
Review Application No.1098 of 2008 respectively
whereby the High Court allowed the writ petition filed
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.03.12
16:36:18 IST
Reason:
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by respondent No.1 herein and dismissed the review
petition filed by the appellant herein.
2. A f
ew facts need mention hereinbelow for the
disposal of these appeals.
3. Pursuant to the industrial reference made by the
State of U.P. under Section 10 of the Industrial
Disputes Act, 1947 (hereinafter referred to as “the ID
Act”) to the Industrial Tribunal, Meerut for deciding
the legality and correctness of the termination order of
the appellant (workman) passed by respondent No.1
(employer), the Industrial Tribunal, by award dated
27.06.1998 (AnnexureP8) answered the reference in
appellant's favour and directed his reinstatement in
service with payment of back wages in Adjudication
Case No.137 of 1995.
4. Respondent No.1 (employer) felt aggrieved and
filed a writ petition in the High Court of Allahabad
against the aforementioned award.
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5. By impugned order dated 29.11.2007, the High
Court allowed the said writ petition and set aside the
award of the Industrial Tribunal by answering the
reference in favour of respondent No.1.
6. Against the said order, the appellant filed a
review petition which was dismissed by the High Court
by order dated 05.02.2008.
7. It is against the orders passed by the High Court
in the writ petition and the review petition, the
appellant(workman) has felt aggrieved and filed these
appeals by way of special leave in this Court.
8. So, the short question, which arises for
consideration in these appeals, is whether the High
Court was justified in allowing the writ petition and set
aside the award of the Industrial Tribunal.
9. Heard Mr. Devvrat, learned counsel for the
appellant and Mr. Debal Banerji, learned senior
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counsel for respondent No.1 and Mr. Shrish Kumar
Misra, learned counsel for respondent No.2.
10. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in these appeals.
11. The main question, which arose for consideration
before the Industrial 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 6N of the U.P. Industrial
Disputes Act.
12. Though the Industrial Tribunal had answered
this question in favour of the appellant but the same
was reversed and answered in favour of respondent
No.1(Employer) by the High Court.
13. In our opinion, a finding on such question being
a finding of fact, this Court cannot examine such
question de novo by appreciating the whole evidence
adduced by the parties again in these appeals. In our
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view, the High Court examined the matter in detail and
the finding of the High Court on this question being a
finding of fact is binding on this Court.
14. Learned counsel for the appellant (workman)
placing reliance on the decision in Sriram Industrial
Enterprises Ltd. vs. Mahak Singh & Ors., 2007 (4)
SCC 94 and referring to the provisions of the UP
Industrial Disputes Act contended that the issue was
not properly decided by the High Court.
15. According to learned counsel, firstly, the High
Court erred in travelling in the facts of the case in its
writ jurisdiction which it could not have done for want
of limited jurisdiction; and secondly, keeping in view
the law laid down in Sriram Industrial Enterprises
(supra), the award passed by the Industrial
Ltd.’s case
Tribunal should have been upheld as being just and
proper.
16. We do not agree with this submission. In our
opinion, the High Court, though took note of the
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factual matrix and examined the issue in its proper
perspective with reference to the case set up by both
the parties, rightly came to a conclusion that the
appellant (workman) did not work continuously for one
year with respondentNo.1(employer).
17. This question, we cannot now again examine de
novo in our appellate jurisdiction under Article 136 of
the Constitution. It is more so when we find that the
finding on this question is neither against any
evidence adduced by the parties nor against any
provision of law and nor it is perverse.
18. So far as the decision in Sriram Industrial
Enterprises Ltd. (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 on
facts. We, therefore, find no ground to place reliance
on this decision to set aside the impugned order.
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19. We, however, find that the High Court despite
setting aside the award of the Industrial Tribunal,
rightly directed that whatever amount, which has so
far been paid to the appellant (workman) by
respondent No.1(employer) in compliance with the
order passed under Section 17B of ID Act proceedings
during pendency of the litigation, the same will not be
recoverable from the appellant on the strength of the
impugned order. According to learned counsel for
respondent No.1(employer), this amount is quite a
substantial one and is more than two lacs. Be that as
it may.
20. Such direction issued by the High Court against
respondent No.1(employer), in our view, is in
conformity with the law laid down by this Court in that
behalf.
21. Indeed, this Court has held that the proceedings
under Section 17B of ID Act are independent
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proceedings in nature and are not dependent upon the
final order passed in the main proceedings.
22. It is ruled that if the Court/Tribunal, eventually
upholds the termination order as being legal against
the workman, yet the employer will have no right to
recover the amount already paid by him to the
delinquent workman pursuant to order passed under
Section 17B of the ID 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].
23. The appellant should, therefore, feel satisfied
with such order that though he lost the matter and
indeed rightly yet he received substantial amount
during pendency of this litigation, which is rightly not
challenged by respondent No.1(Employer) in appeal.
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24. In the light of the foregoing discussion, we find no
merit in these appeals. The appeals fail and are
accordingly dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
March 12, 2019
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