Gujarat High Court
Shah Nayanaben Nalinkumar vs G4S Security Services ( India ) Pvt Ltd on 7 May, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/7333/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7333 of 2018
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SHAH NAYANABEN NALINKUMAR
Versus
G4S SECURITY SERVICES ( INDIA ) PVT LTD
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MS SNEHA P VAIDYA(957) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 07/05/2018
ORAL ORDER
1. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality, validity and propriety of the order passed by the learned Presiding Officer of the Labour Court, Ahmedabad dated 28th April, 2017.
2. The case of the petitioner is that the respondent authority on 18.8.2010 had employed the petitioner as a Lady Guard in Security Section at a monthly salary of Rs.4,000/ (Four Thousand Rupees). It is the grievance of the petitioner that as per the Labour Laws, the documents, namely, the attendant sheet and identity card which are supposed to have been issued, the same have not been issued so far.
3. It is further the case of the petitioner that on 26.6.2011, the petitioner was entrusted the work as Lady Guard at Cama Hotel, Khanpur where there was no sitting arrangement available. In the recess time, when the petitioner Page 1 of 10 C/SCA/7333/2018 ORDER was taking her meal sitting on staircase of hotel, one of the employees of the hotel has filed a complaint not to take lunch at staircase. Pursuant to this episode, Manager called upon the petitioner on 27th June, 2011, and the Manager has discontinued the services orally and that cause has raised a dispute which was ultimately, referred to for adjudication before the learned Presiding Officer, Ahmedabad. The same was registered as Reference (LCA) No.511 of 2010. Pursuant to registration of the said reference, the claim statement was submitted on the premise that the petitioner has worked for 240 days right from 18th July, 2010 to 26th June, 2011 and despite that fact without complying the procedure prescribed under Section 25 F of the Industrial Disputes Act, the discontinuation in this regard to the mandate of the statute has taken place, and therefore, she is entitled to get reinstatement with full back wages.
4. To meet with the stand taken by the petitioner about violation of Section 25 G and 25 H and against the original claim, the respondent had submitted a reply in writing at Exh:5, inter alia, contending that the respondent agency i.e. Security Services Private Limited is dealing as a security services provider to various industrial establishments and various institutions and as a part of that, these employees who are appointed as security employees can be shifted from one place to another and that is the part of service condition. It Page 2 of 10 C/SCA/7333/2018 ORDER has been submitted that wherever, there is a deficit found about the security guard, the same can be dealt with and the employee is bound to obey the order. In furtherance of this, it has been found that at Gandhidham, there is paucity of availability of security guard. By way of an order dated 27th June 2011 with effect from 2nd July, 2011, the services of the petitioner was placed at Gyanadip Society, Lachwani Dharamsala, Adipur, Kutch that has not been accepted and frivolously this cause of so called termination is generated by the petitioner. In fact, there is no discontinuance of services of the petitioner but as the part of service condition and as per the requirement, she was placed at aforementioned place which the petitioner was supposed to comply and as such, reference is denied. During the course of adjudicating process, the learned Presiding Officer has given due opportunity to both the sides of leading evidence oral as well as documentary and after hearing at length, the learned Presiding Officer upon analysis of evidence found that no case is made out. As a result of this the reference itself came to be rejected vide order dated 28th April, 2017, which is made the subject matter of the present petition under Article 226 and 227 of the Constitution of India.
5. The learned advocate Ms.Sneha Vaidya appearing for the petitioner has vehemently, contended that the action of respondent authority is in complete violation of principles Page 3 of 10 C/SCA/7333/2018 ORDER propounded from the requirement of statute and theres is a clear violation of Section 25 F, G and H and the discontinuance by virtue of it is void ab initio. Hence, the rejection of reference is nothing but an illegal exercise of jurisdiction.
6 Learned advocate for the petitioner has further submitted that adequate documents have been placed on record to justify the claim, but erroneously, the learned Presiding Officer has not examined and only by raising some inferences the reference itself is rejected. It has been contended that though 240 days have been complied with, the respondent authority has chosen not to comply with the mandate of the statute, neither any prior intimation is given nor retrenchment compensation is given and an oral discontinuance has been effected, and therefore, the order is bad. No other submissions have been made.
7. After hearing the learned advocates for the respective parties and after going through the reasons which are assigned by the learned Presiding Officer, few aspects which are eloquent are very much reflecting in paras 22 and 23 of the order in question. The crossexamination of the petitioner herself is indicating that a conclusion which has been arrived at can never be said to be perverse in any manner. On the contrary, it has been found clearly by the Page 4 of 10 C/SCA/7333/2018 ORDER learned Presiding Officer that the petitioner has miserably failed in establishing her case so much so that discontinuance of services was not been able to be proved. It was merely, a transfer to which order, the petitioner has not obeyed and as such, no case is found on the basis of overall analysis of evidence on record. Hence, the reasons which are reflecting in paragraphs 22 and 23 are the reasons based upon the examination of evidence on record and therefore, the learned Presiding Officer has applied his mind, analyze the material on record come to a particular conclusion and within the bounds of his authority order is passed and as such, the order in question cannot be said to be perverse in any manner nor reflecting any material irregularity and as such, looking to the scope of extraordinary jurisdiction while dealing with such references the Court is of the considered opinion that this is not a fit case in which any interference is called for. The Court while coming to this conclusion is mindful of a well propounded proposition of law rendered by the Apex Court in case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374. The relevant observations of the said decision, since relevant, deserve to be quoted hereinafter :
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Page 5 of 10 C/SCA/7333/2018 ORDER Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01 072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (I) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.Page 6 of 10 C/SCA/7333/2018 ORDER
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give Page 7 of 10 C/SCA/7333/2018 ORDER suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Page 8 of 10 C/SCA/7333/2018 ORDER tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative Page 9 of 10 C/SCA/7333/2018 ORDER and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
8. Considering the aforesaid proposition of law laid down by the Apex Court and in view of the specific conclusion arrived at by the learned Presiding Officer on the basis of material, this Court comes to the conclusion that no case is made out to interfere.
9. Accordingly, petition being devoid of merits, deserves to be dismissed. Hence, petition is dismissed.
(A.J. SHASTRI, J) ALI Page 10 of 10