OBEROI FLIGHT SERVICES Vs. SUDESH YADAV
LAWS(DLH)-2013-3-18
HIGH COURT OF DELHI
Decided on March 05,2013

Oberoi Flight Services Appellant
VERSUS
Sudesh Yadav Respondents


Referred Judgements :-

SYED YAKOOB VS. K S RADHAKRISHNAN [REFERRED TO]
SAWARN SINGH VS. STATE OF PUNJAB [REFERRED TO]


JUDGEMENT

V.K.JAIN, J. - (1.)THE respondent before this Court was engaged in preparation and packaging of food for the various airlines, for being served to the flyers. One of the airlines for which packed food used to be prepared by the appellant was British Airways. The preparation and packaging of the food was undertaken in a bonded warehouse at the Airport. The case of the appellant is that on 19th July, 2000, when the respondent was leaving the premises after completing her duty, her hand bag was checked by a security guard. On checking the bag, some chocolates were found hidden in the umbrella which had been kept in a plastic bag. The chocolate found in the bag were meant for British Airways. The charges served upon the respondent having been denied by her, an inquiry into those charges was instituted by the appellant. The Inquiry Officer held the charges to be proved. The report of the Inquiry Officer was accepted by the Disciplinary Authority which imposed punishment of dismissal from her services upon the respondent. An industrial dispute having been raised by the respondent, a reference was made to the Labour Court to examine the dismissal of the respondent from service. The Labour Court, vide award dated 18th July, 2006, held that the charges against the respondent had been proved. The Labour Court, however, was of the view that to dismiss an employee for having committed theft of this nature was shockingly disproportionate and was not justified. He accordingly directed the appellant to impose another punishment short of dismissal of service, proportionate to the misconduct committed by the respondent, which may not necessarily mean taking her bag on duty. In compliance of the aforesaid order, the appellant vide order dated 5th March, 2007 imposed penalty of discharge with notice upon the respondent and paid her one month salary as notice pay. The revised penalty, however, was not challenged by the respondent.
(2.)AGGRIEVED from the award of the Labour Court, the respondent filed W.P.(C) 4433/2007, the learned Single Judge vide impugned order dated 5th March, 2012 set aside the award and directed reinstatement of the respondent with 40% backwages. Being aggrieved from the said order dated 5th March, 2012, the appellant is before us by way of this appeal.
In Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477, Supreme Court identified the limitations of Certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following terms:-

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. 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. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
In Swaran Singh v. State of Punjab (1976) 2 SCC 868, Supreme Court, inter alia, held as under:-
"In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

(3.)DURING the course of the inquiry, the appellant examined three witnesses namely, the Security Guard Shri Vinay Kumar Sharma, Security Supervisor Shri R.S.Yadav and Chief Secretary Officer Shri L.K.Mathew. The Security Guard Mr. Vinay Kumar Sharma stated in his deposition that when he asked the petitioner to show her bag to him, she told him that she was having chocolates in her bag, which she was taking home for her children. According to him when he insisted upon checking the bag, the respondent stated that this would result in her insult in the presence of others. According to him, when he searched the bag, the chocolates of British Airways were found hidden inside the umbrella which had been kept in the bag. The respondent examined herself as a witness and refuted the charges against her.


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