Himachal Pradesh High Court
State Of Himachal Pradesh And Another vs Biri Singh And Another on 22 September, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1587 of 2016
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Date of decision: September 22, 2016.
State of Himachal Pradesh and another ...... Petitioners
Vs.
Biri Singh and another ..... Respondents
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No
rt 1
For the petitioners : Ms. Meenakshi Sharma, Additional
Advocate General with Mr. J.S. Guleria,
Assistant Advocate General.
For the respondent : Mr. Rahul Mahajan and Mr. Vijay
Kaundal, Advocates, for respondent
No.1.
Tarlok Singh Chauhan, Judge (oral)
This writ petition under Article 226/227 of the Constitution of India is directed against the award passed by the learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala (Camp at Mandi) (for short 'Tribunal') on 30.6.2015..
The facts, in brief, may be noticed.
2. The following reference was sent by the appropriate Government for adjudication to the Tribunal:
"Whether time to time termination of the services of Shri Biri Singh, S/o Sh. Khayali Ram,R/o V.P.O. Harabag, Tehsil Joginder Nagar, District Mandi, H.P. during 2004 to 2012 by the Divisional Forest Officer, Joginder Nagar Forest Division, Joginder Nagar, District Mandi, H.P. without complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP ...2...
past service benefits and compensation the above worker is entitled to from the above employer?"
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3. The workman (respondent herein) filed a claim petition stating therein that he had been engaged by the petitioners herein on muster- roll basis as daily waged forest worker w.e.f. January, 1995 and was being given fictional breaks simply in order to ensure that he of does not complete 240 days in each calendar year and the petitioners have also not followed the principle of last come first go as many rt persons junior to him had been retained, were not being given such fictional breaks and, therefore, he should be deemed to be in continuous service of the petitioners and be granted all consequential benefits.
4. The petitioners in their reply did not dispute the averments made by the respondent herein with regard to his having been engaged in the year 1995 and thereafter having worked with the petitioners. But would only state that the respondent had been working intermittently with the department as it was carrying on the work of seasonal in nature and only casual labourer were being engaged by the department on the basis of need of work and availability of funds and these workers were disengaged after completion of the works or on account of non-availability of funds. As regards, the violation of principle of "Last come first go' it has been stated that no person junior to the respondent had been engaged.
5. On the basis of the pleadings and evidence led by the parties, the Tribunal framed the following issues: ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP
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1. Whether time to time termination of services of petitioner by the respondent during 2004 to 2012 is illegal and unjustified as alleged. If so, its effect? OPP .
2. Whether the claim petition is not maintainable in the present form?
OPP
3. Whether the petition is bad on account of delay and laches as alleged. If so, its effect? OPR
4. Whether the claim petition has become infructuous as alleged. If so, its effect? OPR of
5. Relief.
6. On the basis of the pleadings and evidence, the learned rt Tribunal held that the respondent was deemed to be in continuous uninterrupted service with the petitioners from the date of his initial engagement and the breaks given by the petitioners were fictional in nature and would, therefore, have no effect on the seniority and continuity of service of the respondent and his seniority would be reckoned from his initial date of engagement. However, the respondent was not held entitled to the back wages and directed to be considered for regularisation as per the policy framed by the State Government and operative from time to time.
7. It is vehemently argued by Ms. Meenakshi Sharma, learned Additional Advocate General assisted by Mr. J.S. Guleria, Assistant Advocate General that the award passed by the learned Tribunal is absolutely erroneous whereby it has been concluded that the fictional breaks were being granted to the respondent, whereas it was duly proved on record that the works available with them was that of seasonal nature and that too dependent upon the availability of funds. On the other hand, learned counsel for the respondent would support the award.::: Downloaded on - 15/04/2017 21:17:30 :::HCHP
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I have heard learned counsel for the parties and carefully and meticulously perused the material placed on record.
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8. At the outset, it may be observed that while adjudicating upon the case of the present kind, this Court is 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 of to be interpreted keeping in view the goals set out in the Preamble of the Constitution and provisions contained in Part IV thereof in general rt and Articles 38, 39 (a) to (e), 43 and 43-A 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 subserve the common good and also ensure that the workers get their dues. Once the Labour Court has exercised the discretion judiciously, the High Court can interfere with the award of the Labour Court only if it is vitiated by any fundamental flaws and not otherwise. (Refer: Harjinder Singh Vs. Punjab State Warehousing Corporation (2010) 3 SCC 192, K.V.S. Ram Vs. Bangalore Metropolitan Transport Corporation JT 2015 (1) SC 252, Jasmer Singh Vs. State of Haryana and another (2015) 4 SCC 458.)
9. It has been the well established principle that industrial adjudication is not merely adjudicating contractual rights based on strict principles of law. The higher courts can interfere against the awards passed by the Labour Courts only if there are manifest errors or the order is contrary to the provisions of law and the order has been passed without jurisdiction and that is the scope of jurisdiction of ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP ...5...
this Court under Article 226 of the Constitution of India. It was held that the High Court cannot sit on appeal over the findings recorded by .
the competent tribunal by converting itself into a court of appeal.
10. In a plethora of judgments, while deciding about the jurisdiction of the High Court under Article 226 of the Constitution of India, the Hon'ble Supreme Court has held that in a writ of certiorari, it of is not merely an error but it must be something more which must be manifest on the face of the records and that alone gives jurisdiction to rt interfere with the awards. When once the tribunal having jurisdiction decides the question and comes to a finding of fact, it is certainly not open to the High Court to interfere with such finding of fact by re- appreciation of evidence unless the finding is perverse and the award passed is wholly based on unwarranted evidence. Therefore, one has to see the overall view of the award passed by the Labour Court while dealing with the writ of certiorari.
11. While holding that the jurisdiction of the High Court under Article 226 of the Constitution of India is very wide but while exercising it great care has to be taken, especially in respect of the orders of the tribunals constituted under the special legislation, the Hon'ble Supreme Court in Sadhu Ram vs. Delhi Transport Corporation (1983) 4 SCC 156 has observed as follows:
"3. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP ...6...
entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at .
jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There of was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial rt dispute and referring it to the Labour Court."
12. While deciding about the jurisdictional fact and the interference by the higher courts against the orders of the inferior courts or tribunals, Lord Esher, M.R., in an illustrative judgment in Queen vs. Commissioners for Special Purposes of Income Tax
(t), [1888] 21 QBD 313 has made the following remarkable assertion:
"When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by an Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature is establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned that it is an erroneous application of the formula to say that the tribunals cannot give themselves jurisdiction ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP ...7...
by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of .
their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. The above said principle of law is an universally acclaimed one."
13. Adverting to the facts of the case, the workman of (respondent) while appearing in the witness box had clearly deposed on oath that his services from the year 1995 to 2014 had been rt engaged by Range Officer, Joginder Nagar by giving fictional breaks, that too, with an object so as to ensure that he did not complete 240 days of work for the purpose of continuous service. He also deposed on oath that co-workers namely Ram Singh, Hari Ram, Sharu Ram, Piar Chand and Surat Ram were not given fictional breaks and were allowed to complete 240 days in each year and their services have now been regularized.
14. Ex. RW-1/B is the manday's chart of the workman reflecting therein that the workman had been appointed in the month of October, 1995 and had been working at the time when his statement had been recorded. The respondent had worked for 235 days in the year 2013, 157 days in 2012, 74 days in 2011, 61 days in 2010, 86 days in 2009, 159 days in 2008 and 220 days in 2007. Seniority list Ex.RW-1/H shows that the name of the respondent is at serial No.8 and his date of joining is reflected as 07.01.1995.
15. On the other hand, it would be noticed that petitioners had not placed/exhibited or filed any documents to establish that the services of the respondent were engaged for undertaking forestry ::: Downloaded on - 15/04/2017 21:17:30 :::HCHP ...8...
works only or to establish that the work was seasonal and dependent upon the grant from the Government.
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16. Even the plea of 'abandonment' raised before the Tribunal has been negated and rightly so because it otherwise destroys the plea of the petitioners regarding the work being seasonal or dependent upon the grant from the Government. However, even if of the plea of abandonment is considered, there is no iota of evidence on record establishing that any notice was ever issued/served upon rt the workman calling upon him to resume his duty or explaining the cause for his unauthorized absence. After all, it cannot be denied that absence from duty is a serious misconduct.
17. Apart from the above, RW1, the then Divisional Forest Officer on oath clearly stated that one Shyam Singh, who was junior to the respondent has been regularised by counting his seniority from the date of his first appointment i.e. 1.2.1998 with all consequential benefits of service except payment of back wages. Likewise, Love Kumar, who had joined on 1.2.1998 and had worked for 231 days in the year 1998, 203 days in 1999, 168 days in 2000 had been regularised pursuant to award dated 13.1.2005. On the basis of such evidence, the learned Tribunal rightly concluded that there had been a violation of provisions of Section 25 -G of the Act.
18. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, so also the pending applications, leaving the parties to bear their own costs.
September 22, 2016 ( Tarlok Singh Chauhan ),
(GR) Judge
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