Gujarat High Court
Oil vs Parmar on 5 May, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/5658/2010 27/ 57 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5658 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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OIL
& NATURAL GAS CORPORATION LTD - Petitioner(s)
Versus
PARMAR
PRAVINBHAI GIRDHARBHAI & 9 - Respondent(s)
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Appearance
:
MR
AJAY R MEHTA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
10.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/05/2010
ORAL
JUDGMENT
Heard learned advocate Mr. AR Mehta on behalf of petitioner.
The petitioner ONGC has challenged award passed by Industrial Tribunal, Baroda in ITC no. 17/2002 dated 22/10/2003, wherein Industrial Tribunal, Baroda has allowed reference and directed petitioner ONGC, Makarpura, Baroda to make permanent all seven employees from date of joining in service as direct employees of ONGC and considering them permanent from date of joining, whatever benefits and salary are available to permanent employees, same is to be paid and termination order dated 5/10/1999 has been set aside with a direction to reinstate each workman with continuity of service with full back wages of interim period with costs of Rs. 10,000/- to be paid to Union and order passed in Review Application no. 2/2009 exh 9 dated 15/2/2010. This Review application filed by petitioner has been rejected with costs of Rs. 5,000/- to each workman to be paid within 30 days.
Learned advocate Mr. Mehta submitted that award passed by Industrial Tribunal, Baroda on 22/10/2003. He has read before this Court operating portion, which is at page 69/70. He submitted that relief which has been granted by Industrial Tribunal, Baroda in favour of seven workmen, those who were contractor workmen. It is made clear by him that award is not so far implemented by petitioner till date and these workmen are out of job since 5/10/1999. He submitted that challenging aforesaid award dated 22/10/2003 one SCA no. 2193/2004 filed by petitioner where on 23/2/2004 (Coram: Honourable Mr. Justice Jayant Patel) has passed following order as under:
Mr.Mehta for the petitioner states that since before the Industrial Tribunal the evidence could not be lead on behalf of the petitioner, the petitioner seeks permission to withdraw the petition with a view to initiate appropriate proceedings before the Industrial Tribunal for permitting the petitioner to lead evidence and to reconsider the matter. Mr.Mansoori appearing by caveat states that he is not admitting the right of the petitioner to move such application.
2.Considering the facts and circumstances of the case, permission is granted. Petition shall stand disposed of as withdrawn. Contentions of both sides are kept open.
Before this Court, Mr. Mehta seek permission to withdraw petition with a view to initiate appropriate proceeding before Industrial Tribunal for permitting petitioner to lead evidence and to reconsider matter. At that occasion, learned advocate Mr. Mansuri has filed caveat and stated that he is not admitting right of petitioner to move such application. However, permission is granted by this Court and petition shall stand disposed of as withdrawn. Meaning thereby that challenge to award 22/10/2003 has been withdrawn and accordingly petition has been disposed of as withdrawn. This Court has granted permission to withdraw present petition but this Court has not granted any liberty to petitioner to file appropriate proceeding before Industrial Tribunal by way of Review application. So, liberty from this Court is atleast relevant and necessary for keeping right open to challenge of award dated 22/10/2003. Once petition is withdraw challenging award in question subsequent to challenge same award by present petition and liberty was not given by this Court, to challenge same award after order in Reviwe application then according to my opinion, petitioner is not entitled to challenge same award by another present petition after withdrawal of petition which was disposed of as withdrawn.
Therefore, in present petition petitioner can only challenge order passed in Review application by Industrial Tribunal, Baroda but petitioner is not entitled to challenge award passed by Industrial Tribunal, Baroda dated 22/10/2003.
Learned advocate Mr. Mehta fairly has not made any submission against order passed by Industrial Tribunal in Review application because in Industrial Dispute Act as well as Industrial Dispute Rules, 1966 there is no express provisions made by Statutory provision which gives power to Industrial Tribunal to consider or to entertain Review Application. In short, Industrial Tribunal has no power to review its own order because there is no such express provision made under Act as well as Rules.
He fairly considered before this Court that in view of decision of Apex Court in case of Kapra Majdur Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd and Ors reported in 2005 (II) LLJ 271, Apex Court has held it that as and when any mistake in procedure if it is committed by Industrial Tribunal being a quashi judicial authority in absence of express provision, then such award can not be reviewed by Industrial Tribunal. The Labour Court or Industrial Tribunal has no power to review its own award/order. There is no express provision made under provision of Industrial Dispute Act, which give express Statutory powers to review in favour of Labour Court or Industrial Tribunal.
The Industrial Tribunal has considered another decision of Jharkhand High Court reported in 2004 (1) LLN 1144, where also it has been decided that under provision of Industrial Dispute Act, there is no such power has been given to Industrial Tribunal to review its own order/award and such powers can not be exercised by Industrial Tribunal as inherent power of Court. The Industrial Tribunal can correct only arithmetical mistake or accidental mistake but not having jurisdiction to re-examine facts which goes against its earlier award, for that, such powers are not with Industrial Tribunal. The Industrial Tribunal has also considered decision of Delhi High Court reported in 2002 (1) LLN 506 where also it has been held that Industrial Tribunal has no jurisdiction to review its own award unless specific provision or express provision is made for it. The Industrial Tribunal has also considered decision of Madhya Pradesh High Court reported in 1995 (2) LLN 1075 where it is held that so long specific powers of review is not given such powers can not be exercised by Industrial Tribunal as inherent power but only typing or clerical mistake can be corrected. The Industrial Tribunal has also considered another decision of Delhi High Court reported in 1995 (1) LLN 111 which was delivered in case of Workmen Compensation Act, 1923 and in that also Delhi High Court has held that Industrial Tribunal and Labour Court has no jurisdiction or power to review its own award or order. The Apex Court in in the case of P. N. Thakershi Vs. Pradhyumansinghji reported in AIR 1970 SC 1273 also held it that power of review is not inherent power but it must be given expressly by Statutory provision. Therefore, in absence of that, Industrial Tribunal has no jurisdiction to review its own award. The Industrial Tribunal has considered Rule 31 of I. D. Rules, 1966 which relating to only correction in clerical or typing or accidental mistake but not given power of review under Rule 31 of Industrial Dispute Rules.
The Industrial Tribunal has come to conclusion that such application, which has been filed by petitioner to review its own award, was earlier decided by Industrial Tribunal in reference ITC no. 17/2002 on merits. After closing right to lead evidence by Corporation, detailed argument has been made, at that occasion, Corporation was aware about facts that they have not led any oral evidence and right to lead oral evidence has not been availed and left it voluntarily then subsequently application which has been filed by petitioner Corporation to give him an opportunity to fill up Lecuna or gape that request can not consider to be legal and reasonable. If such permission is granted by Court in Review application then workers may not be able to get final adjudication in such matter and remained continuous litigation by such kind of application. For that, there is no such provision made in Industrial Disputes Act/Rules. The Industrial Tribunal has rightly observed that award is dated 22/10/2003, more than six years have passed but unfortunately, workers are not able to get fruit of such award. Whatever delay has been occurred was considered to be deliberated as intentional and once matter has been decided on merits no review application can be entertained, for that, industrial Tribunal has no jurisdiction and power to entertain it.
The view taken by Apex Court in bench of three judges in case of Kapra Majdur Akta Union Vs. Management of Birla Cotton Spinning and vivaing Mills Ltd and Ors reported in 2005 (II) LLJ 271, where same question has been examined by Apex Court in light of considering various decision and also having almost identical facts of present case. The facts of above referred decision is relevant and similar so it can be compared with facts of present case, which are almost in similar nature. The relevant discussion made in para 8 to 21 are quoted as under:
8. In the light of the order of this Court the Industrial Tribunal heard the parties and passed an Award on June 12, 1987. The Award is a detailed reasoned Award. The Tribunal took note of the background in which the disputes had arisen and the reference made to it. It rejected the argument of the appellant-Union that once a reference is made, the Labour Department of the appropriate Government becomes functus officio in the matter. After considering to the decisions of this Court in State of Bihar vs. D.N. Ganguly & Ors. : 1959 1 SCR 1191 ; Sirsilk Limited vs. Government of Andhra Pradesh and another : AIR 1964 SC 160 and Paraga Tools Ltd. vs. Mazdoor Sabha :
1975(I) LLJ 210 it concluded that merely because a dispute had been referred to the Industrial Tribunal for adjudication, it did not prevent the Conciliation Officer from playing his role when other disputes arose between the parties and the industrial peace was disturbed. It noticed the fact that in the instant case a notice of strike was given on February 14, 1983 and a notice of closure of a part of the undertaking on April 4, 1983. The workers were disturbed and the atmosphere was surcharged. In this background if the Conciliation Officer intervened in an attempt to bring about a settlement, it cannot be contended that he had no jurisdiction to do so. In fact the Labour Department was not only justified but legally competent and compelled to set the conciliation proceedings in motion so as to restore industrial peace.
9. Having found that the settlement was brought about in the course of conciliation proceedings, the Tribunal considered the terms of settlement and recorded the following conclusion :-
"I have carefully gone through the terms of the settlement. These are not only well bargained but quite detailed and very sound in the circumstances obtaining. It's various items made provision for meeting all the relevant problems of relief and rehabilitation of the affected workers because of the closure of weaving section of the mill and envisages an expert technical body for deciding on the possibility and extent of the revival of weaving work in the Mill, under the time bound schedule. I find the settlement fair and just."
10. The Tribunal, therefore, concluded that the settlement of May 17, 1983 was a settlement reached between the Workmen and the Management in the course of conciliation proceedings and hence binding on all the workers of the respondent-Company. It proceeded to decide the reference declaring that the disputes stood settled as between the parties by a valid and binding settlement dated May 17, 1983 and thus the reference had been rendered redundant. There was no dispute surviving and no purpose was left in making the terms of a valid and binding settlement of 1983 as a part of the award, as all the agreed terms should stood executed and implemented. The order of the Industrial Tribunal making the Award is of June 12, 1987. The said Award was duly published by the appropriate Government in the Gazette on August 10, 1987.
11. On September 7, 1987 the appellant-Union filed an application before the Industrial Tribunal to the effect that the only question which had been argued before the Tribunal was in relation to the power and jurisdiction of the Conciliation Officer to record settlement between the parties during the pendency of the disputes. The question as to whether the settlement was fair and just, and should be accepted by the Tribunal, was not argued since that required evidence. It was, therefore, understood that the said question will be decided later on in case the Tribunal held that the Conciliation Officer had jurisdiction to record the settlement. Under some misconception the Tribunal had determined the terms of the settlement to be fair and just and had passed an Award on June 12, 1987. It was, therefore, prayed that the appellant-Union be given an opportunity to establish that the settlement was neither just nor fair. For this purpose the Award may be recalled and the appellant-Union be given an opportunity to establish that the settlement is unjust and unfair, adversely affecting a large number of workmen. It was prayed that the Award may be recalled which was in fact an ex-parte Award, and the question of fairness of the settlement be decided after providing an opportunity to the parties to produce evidence.
12.This application filed by the appellant-Union was strongly opposed by the respondent-Management, but the successor Presiding Officer of Industrial Tribunal No.II, Delhi allowed the application. It observed that a perusal of the order dated June 12, 1987 showed that the then Tribunal did not make a single observation as to whether the settlement dated May 17, 1983 was just and fair. No issue was framed nor any evidence was recorded on that point. No argument was advanced and no finding was given by his learned predecessor on this point. Relying upon the judgment of this Court in Satnam Verma vs. Union of India : 1984 (supp) SCC 712 and Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others : 1980 (Supp) SCC 420 it was held that where the Tribunal proceeds to make an Award without notice to a party, the Award is a nullity and, therefore, the Tribunal has not only the power but also the duty to set aside such an ex-parte Award. It was held that in the instant case no arguments were advanced and no finding was given as to whether the settlement was just and fair. In view of its finding that the Tribunal has power to review its Award even if the same is published in the Gazette, the Tribunal proceeded to exercise its power to review its earlier order dated June 12, 1987. It further framed an additional issue which is as follows:- "Whether the settlement dated 17.5.1983 is just and fair and if so, is it not binding on the parties?"
13. It further directed that only arguments shall be heard since there was no need to record evidence on this point. Accordingly by its order of February 19, 1990 the Industrial Tribunal decided to review its earlier order and framed an additional issue as to whether the settlement was just and fair.
14. The Management - respondent herein preferred a writ petition before the High Court of Delhi at New Delhi and sought quashing of the order dated February 19, 1990 passed by Industrial Tribunal No. II, Delhi, and for declaration that the Award dated June 12, 1987 earlier made by the Tribunal effectively terminated the reference pending before it. The High Court by its impugned judgment and order allowed the writ petition and granted the reliefs prayed for. The judgment and order of the High Court has been impugned before us in this appeal.
15. The core question which arises for consideration is whether the Industrial Tribunal was justified in recalling the earlier Award made on June 12, 1987 and in framing an additional issue for adjudication by the Tribunal. According to the appellant the recall of the order was fully justified in the facts of the case, while the respondents contend to the contrary. Two issues arise for our consideration while considering the legality and propriety of the Tribunal in recalling its earlier Award. Firstly - whether the Tribunal had jurisdiction to recall its earlier order which amounted virtually to a review of its earlier order; and secondly - whether the Tribunal had no jurisdiction to entertain the application for recall as it had become functus offico. The High Court answered the first question in favour of the respondent-Management and the second in favour of the appellant.
16. We shall first take up the second question namely # whether the Tribunal was functus offico having earlier made an Award which was published by the appropriate Government. It is not in dispute that the Award was made on June 12, 1987 and was published in the Gazette on August 10, 1987. The application for recall was made on September 7, 1987. Under sub-section (1) of Section 17A of the Act an Award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17 of the Act. Thus the Award would have become enforceable with effect from September 9, 1987. However, the application for recalling the Award was made on September 7, 1987 i.e. 2 days before the Award would have become enforceable in terms of sub-section (1) of Section 17A of the Act. The High Court rightly took the view that since the application for recall of the order was made before the Award had become enforceable, the Tribunal had not become fuctus offico and had jurisdiction to entertain the application for recall. This view also find supports from the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). This Court after noticing the provisions of sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the Award become enforceable under Section 17A, held that till the Award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. The judgment in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) has been reiterated by this Court in Satnam Verma vs. Union of India (supra), J.K. Synthetics Ltd. vs. Collector of Central Excise :
(1996) 6 SCC 92 and M.P. Electricity Board vs. Hariram air 2004 SC Suppl 4791 : 2004 (8) SCC 246 : 2004 III LLJ 1144.
17. In the instant case as well we find that as on September 7, 1987 the Award had not become enforceable and, therefore, on that date the Tribunal had jurisdiction over the disputes referred to it for adjudication. Consequently it had the power to entertain an application in connection with such dispute. The order of recall passed by the Tribunal on February 19, 1990, therefore, cannot be assailed on the ground that the Tribunal had become fuctus offico.
18. The question still remains whether the Tribunal had jurisdiction to recall its earlier Award dated June 12, 1987. The High Court was of the view that in the absence of an express provision in the Act conferring upon the Tribunal the power of review the Tribunal could not review its earlier Award. The High Court has relied upon the judgments of this Court in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P.) and others : (1987) 4 SCC 525 and Patel Narshi Thakershi and others vs. Pradyumansinghji Arjunsingji :
AIR 1970 SC 1273 wherein this Court has clearly held that the power of review is not an inherent power and must be conferred by law either expressly or by necessary implication. The appellant sought to get over this legal hurdle by relying upon the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). In that case the Tribunal made an ex-parte Award. Respondents applied for setting aside the ex-parte Award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing. The Tribunal set aside the ex-parte Award on being satisfied that there was sufficient cause within the meaning of Order 9 Rule 13 of the Code of Civil Procedure and accordingly set aside the ex-parte Award. That order was upheld by the High Court and thereafter in appeal by this Court.
19. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. vs. Central Government Industrial Tibunal and others (supra) that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) clearly highlighted this distinction when it observed :-
"Furthermore, different considerations arise on review. The expression 'review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debita justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal".
20. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the erit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.
21. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some mattes which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication.
In view of aforesaid observations made by Apex Court, learned advocate Mr. Mehta, has not argued or raised any contention before this Court against order of Industrial Tribunal passed in Review Application dated 15/2/2010 in review ITC no. 2/2009. Therefore, challenged in present petition against order passed by Industrial Tribunal in Review application is apparently failed as no contention has been raised by learned advocate Mr. Mehta fairly and rightly because that issue has been covered by Apex Court in case of Kapra as referred above.
Initially, petition was filed being SCA no. 2193/2004 challenging award passed by Industrial Tribunal dated 22/10/2003, where it has been withdrawn. At that occasion no liberty has been given by this Court to challenge very same award by petitioner Corporation subsequent to order of Industrial Tribunal, which will be passed in review application. Apart from that, learned advocate Mr. Mehta has argued on merits and raised contention about question of regularization as direct employees those who were appointed without following recruitment procedure. He raised contention that they were undisputedly contractor workmen with respondent no. 9 and 10 and Industrial Tribunal has come to conclusion that said contract is sham and bogus as no document has been produced by petitioner. In such circumstances, it is a duty of Union to move machinery under Labour Contract (Regulation and Abolition) Act, 1970.
He submitted that respondent has raised industrial dispute on the ground that they were terminated on 5/10/1999 which was referred for adjudication before Industrial Tribunal, Baroda in reference ITC no. 17/2002. The respondent Union has filed their statement of claim vide exh 3 before Industrial Tribunal alleged that ONGC was their Principal Employer and they were working in prohibited category as per notification dated 8/9/1994, they to be treated as direct employees of ONGC. The reply was filed by petitioner Corporation and denying averment made in statement of claim and contention was raised in written statement that respondents were employees of contractor. They had no right to seek regularization in ONGC and further that even if it was assumed that they were working in prohibited category, they had no right of claiming regularization since they were not recruited by following any procedure.
He submitted that Tribunal has not followed decision of Apex Court in case of Steel Authority reported in 2001 (7) SCC 1. He also submitted that Tribunal had not followed scheme dated 16/7/1991 of regularization of contingent workers. He also submitted that no procedure has been followed by Union under provisions of Labour Contract (Regulation and Abolition) Act, 1970 for abolition of such contract and in absence of challenge by Union for abolishing contract system, direction given by Tribunal to regularize service of workmen can not be given.
He submitted that in all, seven workmen were concerned in dispute, out of that one workman has given deposition and another six have not given any deposition. On their behalf, there was no evidence on record. Therefore, in favour of rest of workmen, Industrial Tribunal should not have to pass any award in their favour, i.e. how award is bad.
He relied upon decision of Larger bench of Apex Court in case of State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1. Except that learned advocate Mr. Mehta has not made any submission before this Court.
I have considered his submission and I have also perused award passed by Industrial Tribunal, Baroda. The dispute has been raised by Union which referred for adjudication on 20/3/2002 by appropriate Government under section 10 subsection 1 of Industrial Dispute Act, 1947. The first party before Industrial Tribunal in reference is ONGC and party no. 2 and 3 are Contractor. In reference, both contractors are join as party challenging termination order of seven employees. The reference was filed with a prayer to grant reinstatement with continuity of service with full back wages of interim period. This employees were working with Contractors in prohibited category. Therefore, they are to be considered as permanent employees of Corporation and entitled all benefits as permanent employees of Corporation.
The statement of claim was filed by workmen and also contention raised that contract which was given, was not genuine contract but it was sham and bogus contract. Exh 7, reply was filed by Corporation denying averment made in statement of claim raising almost same contention before Industrial Tribunal by Corporation. Thereafter, matter was heard by Industrial Tribunal. It is necessary to note that in conciliation proceeding and even before Industrial Tribunal, none remained present on behalf of petitioner Corporation. The petitioner Corporation has not produced any documents. Even petitioner Corporation has not produced contract if it is genuine according to Corporation. According to case of Corporation, these seven workmen were if employees of contractor then it is a duty of Corporation to produce relevant record to establish facts before Industrial Tribunal that they were employees of Contractor. There was no license obtained by Contractor and these workmen were working in prohibited category where contract labour system has been abolished by Appropriate Government. The evidence of one workman has not been challenged in cross examination in respect to aforesaid facts and petitioner Corporation has not produced any oral evidence to establish or prove contention which are raised in written statement before Industrial Tribunal, Baroda.
On the contrary, respondent workmen has produced relevant record exh 13/6 that they are employees of category IV. On behalf of petitioner Corporation no officer was examined before Industrial Tribunal. According to Corporation, certain facts have been admitted by one workman in cross examination, therefore, there was no need to examined any officer. The workmen has not completed continuous service of 240 days and their services was not illegally terminated and they were not employed by Corporation on the basis of Recruitment Rules. The Industrial Tribunal has considered terms of reference as discussed in para 7 of award. Thereafter, Industrial Tribunal has considered that both contractors have not filed any reply before Industrial Tribunal against statement of claim not only that but either of contractor has not remained present before Industrial Tribunal, Baroda.
The Industrial Tribunal, Baroda has come prima facie opinion that expect reply exh 7 petitioner Corporation has not produced any material before Industrial Tribunal either by documents or by oral evidence. Therefore, contract which was alleged to be sham and bogus has been established by workmen by leading proper evidence as well as producing relevant documents before Industrial Tribunal.
On behalf of workman, one Pravinbhai Girdharbhai Parmar was examined exh 16, whose evidence has been remained as it is being unchallenged. He has given evidence on behalf of all workmen as per para 6 of his evidence at page 43. The evidence of Pravinbhai Girdharbhai Parmar vide exh 16 started from page 41. According to his evidence, he has supported facts which are stated in statement of claim. Initially, he was join on 3/4/1993 in ONGC establishment TBG. Thereafter, he was enrolled as contract employee in Assistant Expert Service, then his name has been sifted in contractor Sun Rise Typing Class but he was remained continued in service for performing same kind of work as directed by Officer of Corporation. No direction has been given by Contractor to him. The nature of work which was performed by workmen is discussed in para 4. According to him, Mr. G. A. Das - Senior Deputy Director, Mr. K. Ambedkar Manager of P & A Establishment have given direction to these workmen and they were performing same kind of work in similar nature and manner. His evidence is not only relating to his personal evidence but it is relating to in favour of all, covering details of all workmen those who are concerned in reference. He has made clear statement in chief examination that whatever work performed by him almost in similar nature of work, was performed by other employees viz. Shri Amitkumar Haribhai Rohit, Rathod Ganpatbhai Somabhai, Rohit Thakorbhai Somabhai, Parmar Amarsinh Babarbhai, Parmar Sunilbhai Devjibhai and Vasava Gopalbhai Chandubhai. They all were working with him and he knows each one and they are also performing same work which has been performed by him in ONGC as employee of petitioner corporation. All workmen were terminated on 5/10/1999 and each workman has completed 240 days continuous service. Before that no notice, notice pay, and retrenchment compensation paid by petitioner corporation and his last salary was Rs. 1500/- per month. After his termination, he has made sincere efforts to get employment but he was not able to get it. Similarly, other six workmen were also made sincere efforts for getting job but all were remained unemployed. They are prepared to join duty if petitioner corporation is prepared to reinstate them. The said chief examination was carried out dated 25/10/2002.
Thereafter, one advocate Mr. Mahendra Patel has cross examined workman Shri Pravinbhai Girdharbhai Parmar. In cross examination, this question was not put to him by advocate of petitioner that he was not having knowledge of other workmen. On the contrary, he has given his answer in cross examination that he is having information and knowledge about other workmen those who were working with him. Therefore, contention raised by learned advocate Mr. Mehta that evidence of one workman exh 16 is not enough to cover facts of other six workmen, can not be accepted because looking to evidence of Pravinbhai Girdharbhai Parmar exh 16 not a personal evidence, but it covered evidence on behalf of all remaining workmen means common evidence. Therefore, it was not necessary to examine other workmen before Industrial Tribunal. Shri Pravinbhai Girdharbhai Parmar examined vide exh 16 giving detailed evidence in respect to all other six workmen and in respect to date of termination, date of joining and nature of work performed by them. They were also remained unemployed inspite of sincere efforts have been made by them. Therefore, contention raised by learned advocate Mr. Mehta can not be accepted.
The respondent workman has produced certain written documents vide exh 12, from that I-card issued by employer is very relevant. The respondent workman has produced xerox copy of various cheque and also certain slips, which were given for taking tea and breakfast. Similarly, vide exh 13, passbook has been produced on record. Against which, no evidence has been produced as rebuttal evidence by petitioner Corporation and such documents are not disputed by petitioner Corporation.
In light of this back ground, Industrial Tribunal has considered that if according to petitioner Corporation, these workmen were working under contractor then they should have to produce license received by contractor where name of workmen must be there but no such license was produced on record. Even Corporation was not having any license in prohibited area under Act 1970. Therefore, Corporation has failed to establish their case by leading proper oral and documentary evidence before Industrial Tribunal. The Industrial Tribunal has considered evidence which has been produced by workmen and these workmen were working as an employee in prohibited area not as an employee of contractor. The petitioner Corporation is having possession of necessary documents but none of documents has been produced by Corporation before Industrial Tribunal. One Shri Pravinbhai Girdharbhai Parmar exh 16 was examined on behalf of all the workmen. Thereafter, considering evidence on record, Industrial Tribunal has come to conclusion that respondent workmen has established facts on the basis of documents as well as oral evidence that it was not genuine contract in prohibited area and whatever arrangement was made that was considered to be a paper arrangement. Therefore, such contract is considered to be Sham and bogus. In such circumstances, there is no need for workmen to move machinery under Labour Contract (Regulation and Abolition) Act, 1970 for abolishing contract system.
The Industrial Tribunal has also come to conclusion on factual aspect and also considered decision of Apex Court in case of Steel Authority of India reported in 2001 LLR 961. The Industrial Tribunal has considered that I-card given by petitioner corporation and other relevant documents which has been produced by workmen vide exh 12 and 13, contract system which has been taken as defence was not genuine but it was merely paper arrangement and same has been considered to be Sham and bogus. Therefore, Industrial Tribunal has decided only factual aspect of matter and against that no rebuttal evidence led by petitioner corporation before Industrial Tribunal. The workman has established their case properly before Industrial Tribunal and evidence of workman remained unchallenged before Industrial Tribunal.
According to my opinion, when existence of contract between workmen and corporation, if it is not established by petitioner corporation then naturally, these workmen are considered to be an employee of petitioner corporation because existence of contract has not been established by petitioner before Industrial Tribunal. The service rendered by each workman has completed more than 240 days continuous service. The Section 25 F of I. D. Act, 1947 has been violated by petitioner corporation being an undisputed facts and no gainfully employment has been proved by petitioner corporation before Industrial Tribunal. I have also considered evidence of Shri Pravinbhai Girdharbhai Parmar exh 16 including cross examination.
The decision of Apex Court as relied by learned advocate Mr. Mehta in Steel Authority of India reported in 2001 (7) SCC 1 and in case of State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1, are not applicable to facts of present case. Therefore, in absence of evidence from petitioner corporation, Industrial Tribunal has rightly passed an award granting appropriate effective relief in favour of workmen. For that, Industrial Tribunal has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India.
This Court is having limited jurisdiction and power to disturb finding of fact recorded by Industrial Tribunal under Art. 227 of Constitution of India as per recent decision of Apex Court in case of State of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990. The relevant observation made in para 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
The service of workmen terminated on 5/10/1999 and Industrial Tribunal has passed an award on 22/10/2003 from date of termination, more than 11 years have passed and from date of award more than 7 years have passed. Even though, till the date award passed by Industrial Tribunal, Baroda which is challenged in present petition has not been implemented. The Corporate body being a State Authority controlled by Central Government has misused a legal machinery for denying legitimate right of workmen after adjudication by Industrial Tribunal, Baroda without any protest, as if that petitioner corporation is entitled to violate or commit breach of award without any order of this Court. It is made clear by this Court that from date on which petition is withdraw on 23/2/2004 till Review application decided by Industrial Tribunal on 15/2/2010, in between there was no stay at all operating in favour of petitioner Corporation. What would be situation and condition of family of workmen, petitioner Corporation has not taken even care to see that atleast award must have to be complied with after order passed by Industrial Tribunal in Review application. The petitioner Corporation even not paid last drawn wages to concern employee, those who are out of job since 5/10/1999 and award of reinstatement was in favour of them since 22/10/2003. In such circumstances, no labour matter, which are almost sensitive relating to right to life and livelihood of family of workman, has been ignored as matter of right by petitioner Corporation. The Corporation being giant company not worried about even breach of award committed by petitioner corporation under section 29 of Industrial Dispute Act, 1947. Such approach by petitioner Corporation being a giant Corporation protected by Central Government earning lot of revenue but not protected legitimate right of such seven employees those who are out of job since 5/10/1999. While considering such kind of facts, constitutional goal is to be kept in mind by this Court as recently examined and express opinion how to deal with such labour matter by High Court under Art. 226 and 227 of Constitution of India in case of Harjinder Singh Vs Punjab State Warehousing Corpn. reported in 2010 (1) SCALE 613, relevant para 17 to 44 is quoted as under:
17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that the concept of social and economic justice is a living concept of revolutionary import; it gives substances to the rule of law and meaning and significance to the ideal of welfare State: - State of Mysore Vs. Workers of Gold Mines AIR 1958 SC 923.
18. In Y. A. Mamarde Vs. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court while interpreting the provisions of Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economic condition of some its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principle was advocated by the movement for liberal employment in civilized countries and the Act which is a pre constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavor to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conductive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social Justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Court, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Dispute Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd Vs. Subhash Kapoor (2001) 1 SCC 118, R. P. Sethi, J. observed: that after independence the concept of social justice has become a part of our legal system. This concept givens meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system.
In L. I. C. of India Vs. Consumer Education and Research Center and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of his device then that is misconduct on the part of the employer can not possibly be permitted to deprive a person of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his teaties:
Democracy, Equality and Freedom, Justice Mathew wrote:
The original concept of employment was that of master and servant. It was therefore held that a Court will not specifically enforce a contract of employment. The law has adhered to the age old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer's directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee's life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule become settled at the time when the words 'master' and 'servant' were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias. The overtones of this ancient doctrine and discernible in the judicial opinion which rationalized the employer's absolute right to discharge the employee. Such a philosophy of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But the philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have not vastly changed and it is difficult to regard the contract of employment with large scale industries and government scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit has job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e., for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these case demonstrate that mutuality is a high sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer's right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting pari against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant can not complain, as he takes the employment on the terms which are offered to him.
22. In Government Branch Press Vs. D. B. Belliappa (1979) 1 SCC 477, the employer invoked the theory of hire and fire by contending that the respondent's appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:
It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute from is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into fossils of time. this rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of household, were not his own, but those of his pater familias. The overtones of this ancient doctrine are discernible in the Anglo American jurisprudence of the 18th century and the first half of the 20th century, which retionalised the employer's absolute right to discharge the employee. Such a philosophy , as pointed out by K. K. Mathew, J. (vide his treatise: Democracy Equality and Freedom , p. 326), of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers . To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Labouratories (India) Ltd Vs. Presiding Officer (1984) 1 SCC 1, in the following words:
In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status of contract, the contract being not left to be negotiated by two unequal persons but statutory imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by lanes and side lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of the workman will put unbrearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fat that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is derived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer public or private.
24.In the result, the appeal is allowed. The impugned order of the High Court is set aside and the award passed by the Labour Court is restored. The appellant shall get cost of Rs. 25,000/- from the Corporation.
Ganguly, J.- I entirely agree with the view express by me learned Brother Justice G. S. Singhvi. Having regard to the changing judicial approach noticed by his Lordship and if I, may say so, rightly, I may add a few words. I consider it a very importance aspect in decision making by this Court.
26. Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Premable, which has been recognized, a part of the Constitution in His Holiness Kesavananda Bharti Sripadagalvaru and others vs. State of Kerala and another (1973 SC 1461), we can discern that as divide in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
(SEE:
Justice R. C. Lahoti, Preamble The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3)
27. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
28. As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question:
After all, for whose benefit was the Constitution enacted?
(Bidi Supply Co. Vs. Union of India and Others AIR 1956 SC 479 at para 23, page 487)
29. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble for those who have businesses as stake, for the butcher, the baker and the candlestick maker . It lays down for this land a rule of law as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all.
30. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words:
Our Constitution is primarily shaped and moulded for the common man. It takes no account of the portly presence of the potentates, goodly in girth . It is a Constitution not meant for the ruler but the ranker, the tramp of the road, The slave with sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load. (N.A. Palkhivala, Our Constitution Defenced and Defiled. Mac Millan 1974 p. 29)
31. I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
32. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and Anr (AIR 1967 SC 1). In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Art. 12. (See paras 100, 101 at page 28, 29 of the report). This minority judgment, His Lordship was endorsed by justice Mathew in Kesavannanda Bharti (supra) (at page 1949, para 1717 of the report) and it was held that the State under Article 12 would include the judiciary.
33. This was again reiterated by Justice Mathew in the Constitution bench judgment in the case of State of Kerala and another Vs. N. M. Thomas and others (AIE 1976 SC 490) where Justice Mathew's view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, 'State' would include 'Court'
34. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavnanda (supra) it was held that judicial process is also state action (Para 1717, page 1949.)
35. That being the legal position under Article 38 of the Constitution, a duty is cast of the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
&fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
The content of the expression equality before law is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and 46. [at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are constitutional invigilators and statutory interpreters they should also be responsive to part IV of the Constitution being one of the trinity of the nation s appointed instrumentalities in the transformation of the socio-economic order . The Learned Judge made it very clear that when the Judges when decode social legislation, they must be animated by a goal oriented approach and the Learned Judge opined, and if I may say so, unerringly, that in this country the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme. [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of Globalisation , may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask progress toward what, and progress for whom , it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
44. How Stunningly relevant are these words and how deep are the ditches created in our society by the so called advanced of globalization.
Recently, Apex Court in case of International Airport authority of India Vs. International Air Cargo Workers Union and Ors reported in 2009 (6) SCALE 169, wherein it is held that in case when labour contract is bogus, sham and merely paper arrangement then remedy is available to Union/workers under provision of Industrial Dispute Act, 1947. The legal background and question for decision in above referred decision has been discussed and highlighted position as well as made it clear by Apex Court and in light of aforesaid decision of Apex Court. The decision which has been relied by learned advocate Mr. Mehta in case of State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 and in case of Steel Authority of India as referred above are not much relevant and applicable to facts of present case because legal position has been now made clear by Apex Court recently. In recent decision of International Airport Authority as referred above, relevant observation made by Apex Court in para 16 to 20, which are quoted as under:
16. When the learned Single Judge considered the matter, the legal position was governed by the decision in Gujarat Electricity Board Vs. Hindu Mazdoor Sabha 1995 (5) SCC 27, partly modified by Air India Statutory Corporation Vs. United Labour Union 1997 (9) SCC 377. by the time the Division Bench decided the writ appeal, the decision of the Constitution Bench in Steel Authority of India Ltd., Vs. National Union Waterfront Workers 2001 (7) SCC 1 (for short 'SHAIL') had been rendered, but on account of the short gap between the two dates, the Division Bench did not notice the decision in SAIL.
17. In Gujarat Electricity Board, this Court held:
....the exclusively authority to decide whether the contract labour should be abolished or not is that of the appropriate Government under the said provision. It is further not disputed before that the decision of the Government is final subject, of course, to the judicial review on the usual grounds. However, as stated earlier, the exclusive jurisdiction of the appropriate Government under Section 10 of the Act arises only where the Labuor contract is genuine and the question can be examined and adjudicated upon by the court or by the industrial adjudicator, as the case may be. Hence, in such cases, the workmen can make a grievance that there is not genuine contract and that they are in fact the employees of the principal employer.
If the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Section 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have no espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within meaning of Section 2(k) of the I. D. Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under section 10 of the Act.
In view of the provisions of section 10 of the Act, it is only the appropriate government which has the authority to abolish genuine labour contract in accordance with the provisions of the said section. No court including industrial adjudicator has jurisdiction to do so.
18. Gujarat Electricity Board was partly overruled in Air India in regard to the question whether on abolition of contract labour system, the contract labour have to be automatically absorbed by the principal employer, this Court held as follows in Air India:
The moment the contract labour system stands prohibited under section 10(1), the embargo to continue as a contract labour is put an end direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes reasonable for taking the services of the workmen hitherto regulated through the contractor. The linkage between the contractor and the employee stood snapped and direct relationship stood restored between the principal employer and the contract labuor as its employees. Considering from this perspective, all the workmen in the respective services working on contract labour are required to be absorbed in the establishment of the employer.
19. A course correction, if we may use that expression, was applied by the Constitution Bench, in SAIL. This Court made it clear that neither section 10 nor any other provision in CLRA Act provides for automatic absorption of contract labour on issuing a notification by the appropriate government under section 10(1) of the CLRA Act and consequently the principal employer can not be required to absorb the contract labour working in the establishment. This Court further held that on a prohibition notification being issued under section 10(1) of the CLRA Act, prohibiting employment of contract labuor in any process, operation or other work, if an industrial dispute is raised by any contract labour in regard to conditions of service, the industrial adjudicator has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract, or as a mere rule/camouflager to evade compliance with various beneficial legislations so as to deprive the workers of statutory benefits. If the contract is found to be sham or nominal and merely a camouflage, then the so called contract labour will have to be treated as direct employees of the principle employer and the industrial adjudicator should direct the principal employer to regularize their services in the establishment subject to such conditions as it may specify for that purpose. On the other hand if the contract is found to be genuine and at the same time there is a prohibition notification under section 10(1) of CLRA Act, in respect of the establishment, the principal employer intending to employ regular workmen for the process, operation or other work of the establishment in regard to which the prohibition notification has been issued, it shall give preference to the erstwhile contract labour if otherwise found suitable, if necessary by giving relaxation of age. As noticed above, SAIL did not specifically deal with the legal position as to when a dispute is brought before the Industrial Adjudicator as to whether the contract labour agreement is sham, nominal and merely a camouflage, when there is no prohibition notification under section 10(1) of CLRA Act.
20. But where there is no abolition of contract labour under section 10 of CLRA Act, but the contract labour contend that the contract between principal employer and contractor is sham and nominal, the remedy is purely under the ID Act, the principles in Gujarat Electricity Board continue to govern the issue. The remedy of the workmen is to approach the industrial adjudicator for an adjudication of their dispute that they are the direct employees of the principle employer and the agreement is sham, nominal and merely a camouglage, even when there is no order under section 10(1) of CLRA Act. The Industrial adjudicator can grant the relief sough if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service to initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. The tests that are applied to find out whether a person is an employee or an independent contract may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. The principal employer only controls and directs the work to be done by a contract labour, when such labuor is assigned/alloted/sent to him. But it is the contractor as employer who chooses whether the worker is to be assigned/alloted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.
In view of observations made by Apex Court as referred above, according to my opinion, there is no substance at all in present petition. The Industrial Tribunal, Baroda has not committed any error and no such error are pointed by learned advocate Mr. Mehta on behalf of petitioner which required interference and which exercised power under Art. 227 of Constitution of India. Accordingly, present petition is dismissed.
Let petitioner Corporation may consider observation which is already made by this Court in body of present order. It is necessary to issue certain direction for doing substantial justice to respondent workmen. The service of workmen were terminated on 5/10/1999 and an industrial dispute was raised by Union which referred for adjudication on 20/3/2002 being ITC no. 17/2002. The award passed by Industrial Tribunal, Baroda on 22/10/2003 granted reinstatement with full back wages as direct employees of petitioner and also directed to pay all benefits as permanent employee of petitioner. They should have to consider permanent from date on which they were join in service. Thereafter, petition was filed by petitioner being SCA no. 2193/2004 and order was passed by this Court on 23/2/2002. The review application was preferred by petitioner in the year 2009 being no. 2/2009 exh 9 decided on 15/2/2010. this award is not implemented so far by petitioner as admitted by learned advocate Mr. Mehta before this Court. Even after such long gap of more than 10 years from date of termination and seven years from date of award, workmen are not able to get fruit of such award. Therefore, it is directed to petitioner to implement and to execute award passed by Industrial Tribunal, Baroda in reference no. 17/2002 dated 22/10/2003 within a period of two months from date of receiving copy of present order.
(H.K.RATHOD, J) asma Top