DILIP MANI DUBEYversusM/S SIEL LTD. & ANR.

                       [2019] 3 S.C.R. 529                            529


                      DILIP MANI DUBEY                                A
                                v.
                     M/S SIEL LTD. & ANR.
               (Civil Appeal Nos. 7545-7546 of 2009)
                        MARCH 12, 2019                                B
              [ABHAY MANOHAR SAPRE AND
                DINESH MAHESHWARI, JJ.]
      Uttar Pradesh Industrial Disputes Act, 1947:
      s. 6-N – Termination of workman – Industrial reference –        C
Industrial Tribunal answered the reference in favour of the workman
and directed his reinstatement with back wages – In Writ petition,
award of the Tribunal set aside – However, High Court directed
that whatever amount, paid to the workman in compliance with order
passed u/s. 17-B proceedings, during pendency of litigation, shall
                                                                      D
not be recovered – Review petition dismissed – On appeal,
held: High Court rightly concluded that the workman did not work
continuously for one year – Such finding of fact is binding on
Supreme Court and cannot be examined de novo in appellate
jurisdiction u/Art. 136 of Constitution – High Court also rightly
held that amount paid to the workman pursuant to order passed         E
u/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 consideration
before the Industrial Tribunal and the High Court, was whether        F
the appellant (workman) was in continuous service for one year
as provided under Section 6-N of the U.P. Industrial Disputes
Act. 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 the present appeals.         G
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. The High Court, rightly came to a conclusion that
the workman did not work continuously for one year with the
employer. [Paras 11, 13 and 16] [532-B-D, G-H]
                                                                      H
                                529
530            SUPREME COURT REPORTS                          [2019] 3 S.C.R.


A           2. This Court has held that the proceedings under Section
      17-B of Industrial Disputes Act, 1947 are independent
      proceedings in nature and are not dependent upon the final order
      passed in the main proceedings. 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
B
      paid by him to the delinquent workman pursuant to order passed
      under Section 17-B of the ID Act during pendency of these
      proceedings. 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 workman by the employer in
C     compliance with the order passed under Section 17-B 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. Such direction issued by the High Court against the
      employer, is in conformity with the law laid down by this Court in
      that 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; Rajeshwar
            Mahto v. Alok Kumar Gupta (2018) 4 SCC 341 :
            [2018] 2 SCR 529 – relied on.
                               Case Law Reference
F           [2007] 3 SCR 783                distinguished        Para 14
            [1997] 5 Suppl. SCR 263         relied on            Para 22
            [2001] 3 SCR 591                relied on            Para 22
            [2018] 2 SCR 529                relied on            Para 22
G           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7545-
      7546 of 2009.
             From the Judgment and Order dated 29.11.2007 and 05.02.2008
      of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition
      No.4435 of 1999 and C.M. Review Application No.1098 of 2008
H     respectively.
         DILIP MANI DUBEY v. M/S SIEL LTD. & ANR.                              531


      Devvrat, Abhijit Banerjee, Vinod Kr. Goyal, Advs. for the                A
Appellants.
      Debal Banerji, Sr. Adv., Ms. Meera Mathur, Shrish Kumar Misra,
Advs. for the Respondents.
      The Judgment of the Court was delivered by                               B
      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 by respondent           C
No.1 herein and dismissed the review petition filed by the appellant herein.
      2. A few 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    D
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 (Annexure-P-8) answered the
reference in appellant’s favour and directed his reinstatement in service      E
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.
       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      F
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        G
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.                   H
532             SUPREME COURT REPORTS                             [2019] 3 S.C.R.


A           9. Heard Mr. Devvrat, learned counsel for the appellant and
      Mr. Debal Banerji, learned senior 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.
B
             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 6-N of the U.P. Industrial Disputes
      Act.
C           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
D     the whole evidence adduced by the parties again in these appeals. In our
      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
E     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
F     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 Ltd.’s case
      (supra), the award passed by the Industrial Tribunal should have been
      upheld as being just and proper.
G            16. We do not agree with this submission. In our opinion, the High
      Court, though took note of the 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).
H
          DILIP MANI DUBEY v. M/S SIEL LTD. & ANR.                              533
                [ABHAY MANOHAR SAPRE, J.]

        17. This question, we cannot now again examine de novo in our           A
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              B
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.

       19. We, however, find that the High Court despite setting aside          C
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 17-B
of ID Act proceedings during pendency of the litigation, the same will
not be recoverable from the appellant on the strength of the impugned           D
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         E
this Court in that behalf.

      21. Indeed, this Court has held that the proceedings under Section
17-B of ID Act are independent proceedings in nature and
are not dependent upon the final order passed in the main
proceedings.                                                                    F

      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 17-B of the
ID Act during pendency of these proceedings [see Dena Bank vs.                  G
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].

                                                                                H
534             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


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


      Kalpana K. Tripathy                                          Appeals dismissed.



C




D




E




F




G




H