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

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by respondent 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 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

Ltd.’s case (supra), the award passed by the Industrial

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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