Supreme Court - Daily Orders
Divisional Manager vs Hari Arjun Gavit on 19 February, 2015
Bench: V. Gopala Gowda, C. Nagappan
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ITEM NO.102 COURT NO.11 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 2521/2008
DIVISIONAL MANAGER Appellant(s)
VERSUS
HARI ARJUN GAVIT Respondent(s)
(with office report for direction)
Date : 19/02/2015 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE V. GOPALA GOWDA
HON'BLE MR. JUSTICE C. NAGAPPAN
For Appellant(s) Mr. Annam Venkatesh,adv.
Ms. G.Swati Pathgotri,Adv.
Ms. Vaishali,Adv.for
Mr. Annam D. N. Rao,Adv.
For Respondent(s)
Mr. K. Sharda Devi,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed order.
(SUMAN WADHWA) (MALA KUMARI SHARMA)
AR-cum-PS COURT MASTER
Signed order is placed on the file.
Signature Not Verified
Digitally signed by
Suman Wadhwa
Date: 2015.02.24
14:12:50 IST
Reason:
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2521 OF 2008
Divisional Manager Appellant(s)
VERSUS
Hari Arjun Gavit Respondent(s)
O R D E R
This appeal is preferred by the employer aggrieved of the concurrent finding of fact recorded by the High Court in exercise of its jurisdiction under Art. 227 of the Constitution of India wherein the Award of the Industrial Court passed on 3.12.2004 in complaint (ULP) No. 39/2001 the Industrial Court after the complaint filed by the respondent workman alleging that he has been working as a workman in the appellant-Corporation right from 1980 to the date of filing a complaint on temporary basis, though he has been working permanent nature of work but his services have not been regularized continuing him though item no.6 of Schedule IV of the MRTU Act and PULP Act 1971 prohibition of employee as temporary workman, continuing him as such, is an act of unfair labour practice under the aforesaid entry and further it is stated that the violation of item 9 of the Schedule IV for the reason that they permitted to continue the respondent as a temporary workman took the view to 2 deprive him the status or all other monetary benefits at par of the permanent employee. The said workman was supposed to be appellant herein. On the basis of the pleadings Industrial Court framed four issues including the maintainability of the complaint by the Industrial Court. The parties did not adduce oral evidence. On the basis of the pleadings and documentary evidence the Industrial Court answered the issue Nos. 1 and 3 in the affirmative in favour of the workman and issue no.2 is answered in the negative holding that the complaint is maintainable. The Industrial Court after adverting to the pleadings and the documentary evidence with reference to item 6 and 9 of Schedule IV of the MRTU and PULP Act has recorded a finding of fact holding that workman has been working for 240 days in each year from the date of employment except for the years 1999-2000 and he has approached the Court seeking for relief of the absorption as a permanent workman. Therefore, the Industrial Court answered the issue no.4 that he is entitled for absorption on the permanent basis with effect from 2001 on the date the complaint has been filed but from the date relief sought for by the respondent cannot be granted it will affect public interest. The Industrial Court has categorically recorded a finding of fact answering the issue no.1 that on appreciation of pleadings and documentary evidence on record recorded the finding of fact stating that there is an unfair labour practice on the part of the appellant as per item nos. 6 and 9. Insofar as the 3 allegation of item 5 and 10 are concerned, the same are not accepted by the Court by recording reasons.
2. The Industrial Court having answered the issues in favour of the workman, namely, issue nos. 1, 3 and 4 according to the relief to absorb him w.e.f. 1.1.1999. The said grant of benefit attached to the permanent post in which he was working. The correctness of the same was challenged before the High Court of judicature at Bombay by filing W.P.No. 1079/2005, the said writ petition was dismissed rejecting the contention urged on behalf of the appellant herein and concurred with the findings of fact recorded on the issue nos. 1 and 3 and 5. The correctness of the same is challenged in this appeal, inter alia, contending that concurrent finding of fact is erroneous in law for the reason that the respondent workman was not working at a particular place. He was working against the scheme, after the scheme period was over, his employment was terminated herewith. Thereafter, he continued when the different scheme comes and further, he has not been appointed against regular vacancy or approved post and there are no regular posts in the Corporation. Hence, reliance placed upon the following judgments in support of his contention:
1. (1997) 4 SCC 88 para 3, titled as State of U.P. vs. 4 Ajay Kumar;
2. (2005) 6 SCC 751 para 7, titled as State of Maharashtra vs. R.S.Bhonde & Ors.;
3. (2005) 1 SCC 639, para 18,19,38 and 39, titled as Mahender Jain vs. Indore Development Authority;
4. (2006) 1 SCC 567, para 44,50, tiled as State of Karnataka vs. KGSP Canteen Employees;
5. (2008) 10 SCC 1, para 71 at page 47, titled as Official Liquidator vs. Dayanand;
6. (2009) 5 SCC 65, para 52 titled as State of Bihar vs. Upendra Narayan Singh and
7. (2014) 7 SCC 190 para 39 at page 213 titled as Hari Nandan vs. FCI.
3. Therefore, placing reliance upon the above judgments he vehemently contends that the relief granted by the Industrial Court, affirmed by the High Court, is not only erroneous but also suffers from error in law for the reason that the respondent workman is not entitled for the said relief for the reasons that there are no sanctioned or vacant posts available to make him as permanent workman. The learned counsel appearing on behalf of the respondent has to justify the correctness of the findings of fact recorded by the Industrial Court in exercise of its original jurisdiction after holding an enquiry under the provisions of the Act.
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4. The Industrial Court after rightly recording a finding of fact holding that there is an of unfair labour practice on the part of the appellant herein for violating the item nos. 6 and 9 of the Schedule IV of the Act. The said finding of fact is recorded by the Tribunal on the basis of the proper appreciation of pleadings and material evidence placed on record. Therefore, the said findings are concurred with by the High Court in exercise of its jurisdiction under Art. 227 of the Constitution of India. Hence, the submission that there is no miscarriage of justice caused to the appellant, but on the other hand, since the full relief is not granted by the Industrial Court to the respondent the workman, he would be aggrieved of not giving the full relief. It is further submitted on behalf of the workman that the reliance placed upon the decisions referred to above, are totally inapplicable to the fact situation and therefore requested to reject the appeal of the appellant.
5. With reference to the aforesaid contentions we have carefully examined the finding of fact recorded by the Industrial Court in its judgment on the contentious issues which is impugned in the writ petition before the High Court. The Industrial Court being a fact finding Court, after adverting to the relevant facts, pleadings of the 6 parties and having regard to the fact that the respondent was employed in the year 1980 and the finding that he has rendered 240 days of service in a calendar year through out his service except for the years 1999-2000. The said finding of fact recorded by the Tribunal is based on the evidence on record. The Industrial Court has rightly stated that the employee-workman who is on temporary basis continued in employment for a number of years with a view to deprive his status and monetary benefits to him, amounts to unfair labour practice prohibited under item 6 of Schedule IV of the MRTU and PULP Act, 1971. The said finding of fact is based on the proper appreciation of the facts pleading and rightly complied with the provision of item nos. 6 and 9 of the Schedule and answered the issue no.1 in favour of the workman. The said findings are not rightly interfered with by the High Court in exercise of its jurisdiction under Art.227 of the Constitution of India. The same is challenged before this Court. This Court in exercise of its appellate jurisdiction, particularly, having recorded objected items of MRTU and PULP Act, 1971 in relation to the industrial dispute adjudication made by the Special Court constituted under the said Act, namely, the Industrial Court which has got every power to adjudicate the existing industrial dispute between the parties and incorporate such terms and conditions in the Award is the legal position of law laid down by this Court in long back in the year 1950 in Bharat Bank Ltd., Delhi vs. Employees of 7 Bharat Bank Ltd., Delhi, reported in AIR 1950 SC 188. In view of the said legal position we do not find fault with the findings of fact recorded on the contentious issues by the Industrial Court and the concurrent findings of fact by the High Court for our interference with the impugned judgment. The submission made by the learned counsel on behalf of the appellant that there are no permanent post or posts are not approved by the State Government in the Corporation also cannot be accepted by this Court. The appellant herein is a Forest Corporation which is a statutory creature. The Industrial Court has also rightly adverted to the provisions of the Industrial Employment (standard orders) Act, 1946 and Companies Act in support of its justification to record the findings holding that the appellant Corporation has contravened of the item nos. 6 and 9 of the Schedule IV of the MRTU and PULP Act, 1971.
6. In our considered view, the Courts below have applied their mind on the pleadings and evidence on record on recorded the findings of fact. The same are neither erroneous in law or error in law. Reliance placed on the decisions by the appellant's counsel which are adverted above, have no application to the fact situation for our interference with the impugned judgment. We have no reason to interfere with the concurred finding of fact recorded on the contentious issues by the High Court and the finding of 8 the Industrial Court. The appeal must fail and it is dismissed. The respondent is directed to comply with the judgment of the Industrial Court within eight weeks from the date of the receipt of the copy of the judgment and order.
....................J. (V. GOPALA GOWDA) ....................J. (C.NAGAPPAN) New Delhi;
Date: 19.2.2015.