Gujarat High Court
Additional vs Chhatrasinh on 25 April, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/4289/2011 27/ 27 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4289 of 2011
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ADDITIONAL
CHIEF ENGINEER - Petitioner(s)
Versus
CHHATRASINH
TAPUBHA JADEJA C/O BHARTIYA MASDOOR SANGH - Respondent(s)
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Appearance
:
MR
SP HASURKAR for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/04/2011
ORAL
ORDER
1. Heard learned advocate Mr. S.P. Hasurkar appearing on behalf of petitioner.
2. The petitioner has challenged award passed by Labour Court, Rajkot in Reference No.115 of 1999 dated 8th December, 2010 at Ex.46. The Labour court has granted relief of reinstatement with continuity of service without back wages of interim period while setting aside order of termination in favour of respondent workman.
3. Learned advocate Mr. Hasurkar raised contentions before this Court that respondent was appointed for fixed period from 20th November, 1989 to 16th January, 1990, 23rd July, 1992 to 18th September, 1992, 16th November, 1993 to 2nd January 1994 and 18th December, 1994 to 13th February, 1995. Therefore, his service has come to an end because of period mentioned in appointment order has come to an end. Respondent workman was appointed being a Security Staff on contract basis, therefore, Labour Court has committed gross error in deciding/adjudicating dispute which referred for adjudication by appropriate Government on 5th April, 1999. He submitted that there was a delay of four years in raising industrial dispute by workman, because, his service has come to an end on 13th February, 1995 and dispute was raised after a period of four years, therefore, reference itself is bad on ground of delay. He also raised contention that respondent workman was engaged as a security staff on contract basis paying daily wage Rs.31=60 ps., therefore, he has not completed 240 days continuous service and not entitled benefit of Section 25F of Industrial Disputes Act, 1947. He also submitted that no junior was remained continue when service of respondent was terminated and new employee was also not recruited by petitioner subsequent to termination of workman. In short, his submission is that Labour Court has committed gross error in granting reinstatement in favour of respondent workman, instead of that, he submitted that if order of termination is found to be bad in case of daily wager, then, reasonable compensation can be paid or awarded by Labour Court to workman, but, no reinstatement can be awarded in favour of respondent workman.
4. I have considered submissions made by learned advocate Mr. Hasurkar. I have also perused award passed by Labour Court, Rajkot. The statement of claim was filed by workman vide Ex.3 and according to workman, he was appointed on 1st March, 1988 as a Chowkidar remained continue in service upto 13th February, 1995 and without publishing seniority list, his service was terminated violating Section 25F of Industrial Disputes Act, 1947, therefore, order of termination is bad. The reply Ex.24 was submitted by petitioner wherein averments made in statement of claim were denied vide Ex.24. The workman has produced certain documents before Labour Court Ex.35
- office order dated 29th February, 1988, Ex.36 - office order dated 30th March, 1988 and Ex.37 - office order dated 20th November, 1989 and Ex.38 - certificate issued in favour of workman dated 1st January, 1993 and demand notice dated 4th March, 1999 - Ex.42 and acknowledgment receipt from petitioner dated 6th March, 1999 - Ex.43. It is necessary to note that against aforesaid documentary evidence produced by workman, no documentary evidence was produced by petitioner before Labour Court. The workman has given application Ex.29 before Labour Court with a prayer to direct petitioner to produce entire record for the period from 1st March, 1988 to 31st December, 1995. The presence register, pay register and voucher and in support of that, affidavit is filed by workman. Vide Ex.32, reply was given by petitioner. Thereafter, on 3rd December, 2009, Labour Court has passed an order with a direction to petitioner to produce all documents which have been demanded by workman, otherwise, with an option to file affidavit as to why documents are not produced by petitioner. The workman was examined vide Ex.34 before Labour Court who was cross-examined by advocate of petitioner. Thereafter, one witness Shaileshkumar Vasavada was examined vide Ex.41 by petitioner before Labour Court who was cross-examined by advocate of respondent. Thereafter, issues have been framed by Labour Court in paragraph 6 and answer is given in paragraph 7.
5. The Labour Court has considered first question of delay in raising industrial dispute by workman about four years and Labour Court has considered one decision of Apex Court in case of Sahaji v. Executive Engineer, PWD reported in 2007 (115) FLR 675 and another decision of Apex Court in case of Ajayab Singh v. Shri Hind Cooperative Marketing cum Processing Services Society reported in 1999 (1) CLR 1068. This is a well known case of Ajayab Singh. The Labour Court has considered aforesaid two decisions and come to conclusion that there is no time limit provide in raising industrial dispute under provisions of Industrial Disputes Act, 1947. So, in case of Sahaji, industrial dispute was raised after 16 years and in case of Ajayab Singh, industrial dispute was raised after eight years, even though, Apex Court has considered that because of delay, reference is not fatal.
6. Recently also, Apex Court in case of Kuldeep Singh v. G.M., Instrument Design Development and Facilities Centre & Anr. reported in 2010 (13) SCALE 142 = AIR 2010 SC 7233, where, Apex Court has held that once reference is referred by appropriate Government to Labour Court under Section 10(1)(c) of Industrial Disputes Act, 1947, then, Labour Court has no jurisdiction to go beyond scope of reference and validity of reference cannot be examined by Labour Court and even delay aspect cannot be considered by Labour Court once reference is made by appropriate Government to Labour Court, in such circumstances, if reference is bad according to petitioner, then, they should have to challenge such order of reference to higher forum. Therefore, contentions raised by learned advocate Mr. Hasurkar cannot be accepted, because, Labour Court has rightly examined that question in para 8. For that, detailed reasons as well as two decisions of Apex Court have been rightly considered by Labour Court. For that, Labour Court has not committed any error.
7. In respect of periodical appointment made by petitioner, Labour Court has considered that no Contract Deed has been produced by petitioner before Labour Court that workman was appointed on contract basis. Three orders which have been produced by workman suggest that workman was appointed vide Ex.35 to 38 as referred above. Documentary evidence demanded by workman were not produced by petitioner though these documents are in possession of petitioner's establishment. It is necessary to note that from 1993 to 1995, there was no order produced on record by petitioner which proves stand of petitioner that workman was appointed on contract basis or he was appointed by periodical order. Even Vouchers, Presence Register and Pay Register have not been produced by petitioner inspite of fact that order was passed by Labour Court on 3rd December, 2009. According to workman, he was not supplied Presence Register, Pay Slip and Identity Card during course of employment. This fact has not been disputed by petitioner before Labour Court even in cross-examination of witness of petitioner Ex.41, admitted in terms that during course of employment of respondent workman, Presence Card, Pay Slip and Identity Card was not supplied by petitioner to respondent workman. The documents have not been able to trace out by petitioner as specific purshis was submitted vide Ex.39, but, for that, no affidavit has been placed on record by petitioner. Therefore, Labour Court has considered entire evidence on record that subsequently from 1993 onwards upto 13th Feb, 1995, no periodical appointment order was produced on record by petitioner, therefore, workman was remained in continue service which established and satisfied requirement of Section 25B of ID Act, 1947. Therefore, Section 25F of ID Act must have to be followed by petitioner while terminating service of respondent workman. At the time when service was terminated on 13th February, 1995, Section 25F has not been followed by petitioner. That facts remained undisputed between parties. Seniority list was also not published by petitioner, therefore, Labour Court has relied upon recent decision of Apex Court of three Judges in case of R.M. Yellatti v. Assistant Executive Engineer reported in 2006 SCC Labour and Service p.1 = 2005 (3) CLR 1028.
Relevant discussion is made in Para 17 to 19 which are quoted as under :
"17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commnencing from 22/11/1988 to 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workmen had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before the concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of terminations. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper record of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and procuniary liability for the Government."
8. Thereafter, recently, in case of Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda reported in 2010 AIR SCW 542, wherein, same view has been taken while considering earlier decision of Apex Court in case of R.M. Yellatti (supra) in para 13 to 15 which are quoted as under :
"13. The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15. Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed :
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld.""
9. The periodical appointment by itself cannot exclude retrenchment. This aspect, in detail, examined by Apex Court whether periodical appointment covered by exception under Section 2(oo)(bb) or not in case of S.M. Nilajkar and others v. Telecom District Manager, Karnataka reported in AIR 2003 SC 3553.
Relevant discussion is made in paragraph 11 to 14 which are quoted as under :
"11. It is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfilling the need of such passing-phase-projects or schemes were to become a liability on the employer-State by too liberally interpreting the labour laws in favour of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting-in onerous obligations entailed upon it by extended application of the labour laws. Sub-clause (bb) in the definition of retrenchment was introduced to take care of such like- situations by Industrial Disputes (Amendment) Act, 1984 with effect from 18.8.1984.
12. 'Retrenchment' in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well-settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well-settled that the Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever"
while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term 'retrenchment' a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term 'retrenchment', and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of 'retrenchment' de-hors the reason for termination. To be excepted from within the meaning of 'retrenchment' the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within the categories (a), (b), (bb) and (c) would fall within the meaning of 'retrenchment'.
13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied :-
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily-wager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract.
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
10. In view of above decision which is squarely covered issue raised by respondent workman before Labour Court and accordingly, Labour Court has appreciated oral evidence of both parties and considered documentary evidence produced by workman and also considered fact that from 1993 to 13th February, 1995, no documentary evidence have been produced to establish the fact before Labour Court by petitioner that workman was appointed on periodical basis. Therefore, Labour Court has come to conclusion that Section 25F has been violated by petitioner establishment while terminating service of workman and workman has established continuous service under Section 25B of ID Act and for that, breach of Section 25F rendered termination order is ab initio void as decided by Apex Court in case of Mohan Lal v. The Management of M/s. Bharat Electronics Ltd. reported in AIR 1981 SC 1253.
Therefore, contentions raised by learned advocate Mr. Hasurkar cannot be accepted, hence, rejected, which are contrary to record. The Labour Court has not committed any error in granting only reinstatement in favour of workman without back wages of interim period.
11. The contention which has been raised by learned advocate Mr. Hasurkar that instead of granting reinstatement in such a daily wager case, merely compensation can be awarded, but, for that, petitioner has not made any pleadings before Labour Court in written statement that there is no possibility of reinstatement of workman. No evidence has been led by petitioner before Labour Court to justify that reinstatement was not possible. So, in absence of pleadings and evidence, Labour Court cannot simply grant compensation, because, it is a case of daily wager. In support of such defence or stand, employer must have to establish first before Labour Court that in such cases, if reinstatement is directed, then, it is not possible either work is not available, project is closed or there is no possibility of reinstatement of workman. But, in facts of this case, this being a stand taken before this Court first time and not raised by petitioner before Labour Court, therefore, in absence of evidence, submission made by learned advocate Mr. Hasurkar that compensation can be awarded, which cannot be accepted by this Court. For that, first before Labour Court, petitioner must have to establish the fact that there is no possibility of reinstatement of workman, for that, petitioner has failed to establish before Labour Court and no such contention was raised before Labour court and no such evidence was led to prove such fact before Labour Court. Therefore, contentions raised by learned advocate Mr. Hasurkar cannot be accepted.
12. The Labour Court, Rajkot has rightly examined entire reference and rightly appreciated oral evidence as well as documentary evidence which was led before him and produced before him and Labour Court has given detailed reasons in support of its conclusion. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of Constitution of India.
13. This Court having very limited jurisdiction under Article 227 of Constitution of India and cannot act as an appellate authority. In labour matter, under Industrial Law, while exercising power under Article 227, this Court has to consider social justice and mandate of constitution. This aspect has been in detailed considered by Apex court recently in case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010(1) Scale 613.
The relevant para 10 and 11 are quoted as under :
"10.
We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In Syed Yakoob's case, this Court delineated the scope of the writ of certiorari in the following words:
"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 properly, as for instance, it decides a question without giving an opportunity, 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 not 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 the appreciation of evidence cannot be reopened or 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 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 inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference 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 (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
11. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the 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 CPC Amendment Act 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 a 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.
(6)A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn 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 thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the 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 convert 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 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."
A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family."
14. In view of above observations made by Apex Court as referred above, contentions raised by learned advocate Mr. Hasurkar cannot be accepted, hence, rejected. There is no substance in present petition. Labour Court has not committed any error which requires interference by this Court under Article 227 of Constitution of India.
15. Accordingly, present petition stands dismissed. No order as to costs.
[H.K. RATHOD, J.] #Dave Top