Jhar HC | [Interference under Art. 226] A writ of certiorari can be issued only in exercise of supervisory jurisdiction which is different from appellate jurisdiction; HC reiterates

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J. while dismissing the present appeal, relied on settled precedents upon power of judicial review against an Award passed by Tribunal or Lower Court.

 Background

Respondent had raised a demand for regularization in service but after a failed attempt at conciliation, reference was made through a notification dated 18-09-1997 to the Central Government Industrial Tribunal. The Tribunal, after considering the rival contention raised before it, passed an Award of regularization which was assailed before this Court by the writ petitioner-appellant by filing WP (L) No 4466 of 2016. However, the writ petition was dismissed. Assailing the order of such dismissal, the present intra-court appeal has been preferred.

 Observations

On power of judicial review/issuance of writ of Certiorari against an Award passed by the Tribunal or Lower Court

Court placed reliance on the case of;

Hari Vishnu v. Ahmad Ishaque, (1955) 1 SCR 1104, at paragraph 21, it was noted, “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.”

Syed Yakoob v. Radhakrishnan, (1964) 5 SCR 64, wherein the Supreme Court said, “In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the

inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court.”

General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Giridhari Sahu, (2019) 10 SCC 695, the Supreme Court considered the issue about scope of issuance of writ of certiorari by the High Court and has laid down the proposition of law that if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.

Court also acknowledged the findings in Sawarn Singh v. State of Punjab, (1976) 2 SCC 868, Heinz India Pvt. Ltd. v. State of UP, (2012) 5 SCC 443, Pepsico India Holding (P) Ltd. v. Krishna Kant Pandey, (2015) 4 SCC 270, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447.  

With respect to the reliance placed on Uma Devi Case

It was argued by the counsel for the appellant that there cannot be any regularisation in the service after the judgment rendered by the Constitution Bench in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, but the present Court does not concur with the same, as, “Before the Constitution Bench of the Hon’ble Apex Court, the applicability of Industrial Dispute Act 1947 was not an issue. Further, the workman has claimed regularisation, in view of the policy decision of the Management FCI dated 06-05-1987 and if the Tribunal has passed an Award after taking into consideration the policy decision of the Management FCI, the same cannot be said to be illegal.”

Decision

Refusing to interfere with the Award, Court conclusively said, “It is settled that in the matter of issuance of writ of certiorari, the perversity of finding is to be looked into by the High Court in exercise of power under Article 226 and if the issue has not been raised before the Tribunal, the same cannot be proper to be looked by the High Court at the time of looking into the legality and propriety of the Award.”[Food Corporation of India v. Ganesh Jha, 2020 SCC OnLine Jhar 1078, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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