Himachal Pradesh High Court
The State Of H.P. And Another vs Sh. Parveen Kumar on 28 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 4073/2012
Reserved on : October 24, 2016
Decided on : October 28, 2016
.
The State of H.P. and another ................Petitioners
Versus
Sh. Parveen Kumar ..........Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
of
For the petitioners : Mr. P.M. Negi, Additional Advocate General
with Mr. Ramesh Thakur, Deputy Advocate
General.
For the respondent rt: Mr. Bhuvnesh Sharma, Advocate.
Sandeep Sharma, Judge:
Petitioner-State (hereinafter, 'State') being aggrieved with passing of Award dated 15.6.2011 by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala, HP in Ref. No. 207/2007, has preferred the instant petition under Artciels 226/227 of the Constitution of India, praying therein for the following reliefs:
"(a). That the impugned award may be quashed and set aside on limitation grounds.
(b). That seniority and continuity of service from the date of termination awarded vide judgment passed by the Labour Court-Cum-Industrial Tribunal in Reference No. 207/2007 decided on 15.6.11 may kindly be quashed and set aside.
(c). The relevant record be called from Labour Court-
Cum-Industrial Tribunal for perusal.
(d). The cost of petition may kindly be awarded to the petitioners."
2. Briefly stated the facts as emerge from the record are that the appropriate Government vide reference under Section ::: Downloaded on - 15/04/2017 21:28:30 :::HCHP 2 10(1) of the Industrial Disputes Act (herein after, 'Act'), framed following terms of reference for adjudication:
"Whether the termination/retrenchment of Mr. Parveen Kumar S/o Mr. Ishwar Dass Village-Nangal Chowk, P.O. .
Guranwar, Tehsil Dehra, Distt. Kangra, H.P. by the Executive Engineer, I&PH, Division, Dehra, District Kangra, vide Assistant Engineer, I&PH, Sub division, Dada Siba letter No. 709-10 dated 31.07.2000 is legal and justified, if not, what amount back wages, seniority, past services benefits and compensation the above worker is entitled to?"
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3. Respondent-workman (herein after, 'workman'), by way of statement of claim, filed before the learned Tribunal below, claimed that he was engaged by the Executive Engineer rt as daily wage Fitter in 1994 in Dada Siba Division, Tehsil Dehra, District Kangra, and as such, he continued to work till 2000.
Workman further stated that he was a diploma holder in Fitter trade from ITI Nadaun and State had sufficient work available with it but despite that he was not allowed to complete 240 days in all calendar years except 1997 and 1998. On 31.7.2000, his services were disengaged by the State without any rhyme or reason, that too, without following procedure envisaged under Section 25 of the Act. Workman further claimed that the department had sufficient work of fitter at the time of illegal disengagement of his services and junior persons were retained.
It is further averred that the Department has engaged other junior persons on daily wages on the said post. Workman also averred that for the redressal of his grievances, he earlier filed ::: Downloaded on - 15/04/2017 21:28:30 :::HCHP 3 OA No. 3032/2000 before the Himachal Pradesh Administrative Tribunal, which was dismissed for want of jurisdiction.
Workman by way of aforesaid claim, as discussed herein above, .
claimed reengagement with consequential benefits including seniority and continuity.
4. State refuted the claim of the workman by way of a detailed reply by stating therein that services of the workman of were not utilized by the State till 31.7.2000 as claimed by workman, rather he was engaged subject to availability of work and funds and thereafter, vide letter dated 31.7.2000, workman rt was informed that his services were not required due to non-
availability of work. State further claimed that services of petitioner were disengaged by resorting to the principle of 'last come, first go' and no junior, as claimed by workman, was retained at the time of his retrenchment. In the aforesaid background, State prayed for dismissal of the claim put forth by the workman. The learned Tribunal below framed following issues for determination on 22.10.2008:
"1. Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief of service benefits and the amount of compensation the petitioner is entitled to? OPP
2. Whether the petitioner was engaged on daily wages basis subject to availability of work and funds. If so, whether there existed no work or funds at the time of termination of his services. OPR.
3. Relief."::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 4
5. However, the fact remains that on the basis of pleadings of the parties as well as evidence adduced on record by the respective parties, learned Tribunal below held workman .
entitled to reengagement as Fitter Grade II and accordingly issued directions to the department to reengage the workman as Fitter Grade II forthwith and to give benefit of seniority and continuity in service from the date of illegal termination but of without back wages. In the aforesaid background, State approached this Court, by way of instant petition, praying therein for quashing and setting aside of Award dated 15.6.2011 rt passed by the Tribunal below.
6. Mr. P.M. Negi, Ld. Additional Advocate General duly assisted by Mr. Ramesh Thakur, Ld. Deputy Advocate General, vehemently argued that impugned award is not sustainable in the eyes of law since it is not based on correct appreciation of evidence available on record as well as law and as such same deserves to be set aside being contrary to the record as well as law. Mr. Negi, with a view to substantiate his aforesaid argument, invited attention of the Court to impugned Award passed by the Tribunal below to demonstrate that learned Tribunal has misread and mis-interpreted the evidence adduced on record by the department, as a result of which, undue benefit has been extended to the workman, who at no point of time was able to prove that his services were not disengaged by department by resorting to the provisions of the Act. Mr. Negi ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 5 further contended that the department by way of leading cogent and convincing evidence proved on record that workman was appointed on daily wage basis subject to availability of work and .
funds and as such his services were rightly disengaged after 31.7.2000, due to non-availability of work and funds. Mr. Negi, while concluding his arguments also stated that findings recorded that principle of 'last come, first go', was not adhered to of by the department while disengaging services of workman, is also contrary to the record because no person junior to the workman was engaged as fitter, after disengagement of the rt workman and as such, Award being contrary to the record is liable to be set aside.
7. Mr. Bhuvnesh Sharma, counsel appearing for the workman, supported the impugned award. Mr. Sharma, while referring to the award passed by the Tribunal below strenuously argued that the Award is based on correct appreciation of evidence adduced on record by the respective parties. There is no scope for interference by this Court, especially in view of the findings of fact recorded by the learned Tribunal below. Mr. Sharma, further argued that bare perusal of award suggests that each and every aspect of the matter has been dealt meticulously by the Tribunal below while upholding the claim of the workman.
Mr. Sharma, while concluding his arguments forcefully contended that there is ample evidence on record suggestive of the fact that services of workman were disengaged without ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 6 resorting to Section 25 of the Act. Similarly, principle of 'last come, first go' was bid goodbye while disengaging services of the workman because it stands duly proved on record that one Shri .
Ajay Kumar, who was junior to the workman was retained as Fitter Grade II in the Department.
8. I have heard the learned counsel for the parties and gone through the record carefully.
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9. After perusing the record made available to this Court, it is undisputed that workman was appointed as daily wage fitter in 1994 in Sub Division Dada Siba, Tehsil Dehra, rt District Kangra, by Executive Engineer of the Department, where he continued to work till 2000. It is also not disputed that at that point of time, workman was having required qualification of diploma in fitter trade from ITI Nadaun. State, while refuting the claim put forth on behalf of the workman, stated that workman was engaged subject to availability of work and funds but it nowhere refuted the claim of the workman that he kept on serving the Department till 31.7.2000, when his services were illegally dispensed with, without resorting to the provisions contained in Section 25 of Act. State claimed that services of workman were not required due to non-availability of work and funds and principle of 'last come, first go' was adhered to. But this Court carefully perused impugned Award as well as documents available on record, which clearly suggests that Department was not able to prove on record that services of the ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 7 workman were disengaged on 31.7.2000 after following due procedure as prescribed under the Act. Similarly, this Court found that State failed to adhere to the principle of 'last come, .
first go' because it stands duly proved on record that two persons junior to the workman were retained against the post of Fitter after disengagement of workman. State has nowhere disputed that workman was engaged as Fitter Grade II in 1994.
of Department, with a view to substantiate that no junior person was retained after disengagement of the workman, placed on record seniority list of Fitters and Beldars as RW-1/D, which rt shows that Ashok Kumar son of Om Prakash and Ajay Kumar son of Vidya Sagar, were engaged as Fitter Grade II in 1987-88 and regularized w.e.f. 1.1.1998, whereas, admittedly, workman was appointed as daily wage fitter in 1994. As per Department, workman was disengaged strictly on the principle of 'last come, first go', as per Section 25-G of the Act, whereas learned Tribunal below, on the basis of record made available by the workman, i.e. photocopy of muster roll pertaining to 1994, wherein person namely Ajay Kumar, son of Vidya Sagar, has been reflected as Pipeline Man in 1994, came to conclusion that juniors to workman were retained at the time of illegal disengagement of workman.
10. Workman by leading cogent and convincing evidence before learned Tribunal below established beyond doubt that Ajay Kumar son of Vidya Sagar, was initially engaged as Pipeline ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 8 Man in 1987-88 and thereafter he was engaged as Fitter Grade II in 1998 i.e. after workman, who was admittedly appointed as Fitter Grade II in 1994. Since workman by way of placing copy of .
muster roll pertaining to 1994 successfully proved on record that Ajay Kumar son of Vidya Sagar was initially appointed as Pipeline Man in 1987-88, meaning thereby, his retention, if any, as Fitter Grade II, after disengagement of workman i.e. of 31.7.2000, was completely in violation of Section 25-G of the Act and principle of 'last come, first go'.
11. Perusal of Award clearly suggests that it had occasion rt to peruse the original record produced by the department, wherein, in para-14 of the Award, learned Tribunal below has clearly stated that perusal of muster roll of Ajay Kumar son of Vidya Sagar, clearly suggests that he was engaged as Beldar.
Similarly, muster roll of 1994 shows that till 1994, Ajay Kumar was reflected as Pipeline Man and muster roll of 1998 further demonstrates that Ajay Kumar was Fitter Grade II meaning thereby Ajay Kumar became Fitter Grade II in 1998 i.e. definitely after the workman, who was appointed as Fitter Grade II in the year 1994.
12. Hence, this Court sees no illegality and infirmity in the findings returned by Tribunal, which are based on correct appreciation of record made available to it that Ajay Kumar was initially engaged as Beldar and till December, 1998, he was working as Pipeline Man. Since, Ajay Kumar, referred to herein ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 9 above, was made Fitter in 1998, learned Tribunal below, while placing reliance upon the muster roll pertaining to 1994, placed on record by the respondent workman, has rightly come to the .
conclusion that Ajay Kumar was junior to the respondent workman, in the category of Fitter Grade II.
13. At the cost of repetition, it may be again stated that it is undisputed that respondent workman was engaged as Fitter of Grade II in 1994 i.e. prior to Ajay Kumar, learned Tribunal below, on the basis of record made available, has returned categorical findings that initially Ajay Kumar son of Vidya Sagar, rt was engaged as Beldar and thereafter, he was working as Pipeline Man till December, 1994. Record further reveals that aforesaid Ajay Kumar was engaged as Fitter Grade II in the year 1994, hence, this Court sees no force in the contentions put forth by the State that findings returned by the Tribunal are contrary to records.
14. Similarly, perusal of the Award passed by Tribunal below suggests that State was not able to prove on record by way of convincing evidence that services of respondents were disengaged for want of work and funds. Shri Rohit Dubey, while appearing as RW-1 though stated that no fresh hand was engaged after disengagement of respondent but failed to render explanation, if any, as far as retention of Ajay Kumar, Fitter Grade II, after disengagement of workman, is concerned. To demonstrate that services of workman were disengaged for want ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 10 of funds, State has placed reliance upon Ext. RW-1/E but the Tribunal below has categorically concluded that perusal of extract RW-1/E shows that total budgetary allocation under the .
repair and maintenance head during the financial year 2000-01 was `345.00 Lakh, which was inclusive of the expenditure i.e. labour, material and vehicles. As per the said extract, the scheme was still being run under repair and maintenance head since the of time of its completion.
15. Close scrutiny of pleadings as well as findings returned in the Award makes it crystal clear that the workman rt was appointed as Fitter Grade II in 1994, whereas, Shri Ajay Kumar though was appointed as daily wager in 1987-88 but, admittedly, he was appointed as Fitter Grade II in 1998 i.e. after the appointment of workman. Since workman was senior to Ajay Kumar in the cadre of Fitter Grade II, his services could not have been disengaged by retaining Ajay Kumar, who was admittedly junior to workman, rather, retention of Ajay Kumar, Fitter Grade II, strengthens the claim of the workman that at the time disengagement of workman, work of Fitter Grade II was available with the Department and services of workman were illegally dispensed with, in violation of the principle of 'last come, first go'.
16. It is well settled by now that principle of 'last come, first go', as contained in Section 25G of the Act, is not confined to the workmen, who have been in continuous service for not ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 11 less than one year. Reliance is placed upon the judgment rendered by their lordships of Hon'ble Apex Court in Central Bank of India v. S. Satyam, reported in (1996) 5 SCC 419, .
wherein it has been held as under:
"8. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is in applicable. There is no practical difficulty in maintenance of of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on. The category of rt workmen-can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re- employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available.
Application of Section 25-H to the. Other retrenched workmen not cove-red by Section 25-f does not, in Any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of 'retrenched workmen' in Section 25-H because of Rules 77 and 78, even assuming the rules framed- under the Act could have that effect.
9. The plain language of Section 25-H speaks only of re- employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen must relate to the wide meaning of 'retrenchment' given in Section 2(oo). Section 25-F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman' who has been in continuous service for not less than one year'. Thus, Section 25-F does not restrict the meaning of ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 12 retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words workman. Who has been in continuous service for not less than one year. It is clear that Section 25-F applies to the retread a workman who has been in continuous service for not less: one year and not to any workman who has bean in .
continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less the one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the of principle for retrenchment and applies ordinarily the principle of 'last come first so' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F.
10. The next provision is Section 25-H which is couched rt in wide language and is capable of application to all retrenched workmen not mere; covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The Provision for re- employment of retrenched workmen merely gives performance to a retrenched workmen in the matter of re- employment over other persons. It is enacted for the benefit of the retrenched workmen and there in no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman.
17. In view of aforesaid, this Court sees no reason to disagree with the findings of learned Tribunal below which appear to be based on correction appreciation of evidence, led on record by the respective parties.
18. Hence, this Court, after carefully examining the Award passed by the Tribunal below, sees no reason to interfere in the findings recorded by the Tribunal, which are otherwise also based on correct appreciation of evidence led on record by ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 13 the parties, as such, impugned award deserves to be upheld. It is well settled law that the Courts while examining correctness and genuineness of award passed by Tribunal have very limited .
powers to re-appreciate the evidence led before the Tribunal below, especially the findings of fact recorded by the Tribunal below. Apart from above, findings of fact recorded by learned Tribunal below on the basis of appreciation of evidence cannot of be questioned in writ proceedings and writ court cannot act as an appellate court. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case titled Bhuvnesh rt Kumar Dwivedi vs. M/s Hindalco Industries Ltd. 2014 AIR SCW 3157. It is profitable to reproduce paras 16, 17 and 18 of the judgment herein:
"16. .........The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is no entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 14 the appreciation of evidence cannot be reopened for questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be .
issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or rt inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
17. The judgments mentioned above can be read with the judgment of this Court in Harjinder Singh's case (supra), the relevant paragraph of which reads as under:
21. 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 43-
A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP 15 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. More than 41 years ago, Gajendragadkar, J. opined that:
.
10.... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.
18. A careful reading of the judgments reveals that the High Court can interfere with an order of the Tribunal only on the procedural level and in cases, where the decision of the lower Courts has been arrived at in of gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting rt evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant." [Emphasis added]
19. Consequently, in view of the aforesaid discussion, there is no merit in the present petition and the same is dismissed. Pending applications, if any, are also dismissed.
(Sandeep Sharma) Judge October 28, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:28:31 :::HCHP