Veraval Patan Joint Municipality vs Jyotibala Bhikhubhai Beradiya on 26 March, 2018

[Cites 14, Cited by 0]

Gujarat High Court

Veraval Patan Joint Municipality vs Jyotibala Bhikhubhai Beradiya on 26 March, 2018

Bench: A.J. Shastri

         C/SCA/4628/2018                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 4628 of 2018

==========================================================
                  VERAVAL PATAN JOINT MUNICIPALITY
                               Versus
                   JYOTIBALA BHIKHUBHAI BERADIYA
==========================================================
Appearance:
MR AMAR D MITHANI(484) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                             Date : 26/03/2018

                               ORAL ORDER

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of challenging the legality and validity of the impugned award dated 20.3.2017 passed by the learned Presiding Officer, Labour Court1, Junagadh in Reference (T ) Case No.136 of 2014 .

2. The factual details which has generated the present litigation is that it is the case of the respondent - workman that she was discharging her services as 'Peon' with all her sincerity and honesty continuously from 23.5.2000. In each year, 240 days have been completed by her and without any just reasons, after almost a period of three years, her services were put to end on 2.8.2002. At the time when the discontinuance has taken place orally, neither any notice is given nor any retrenchment compensation is given and in utter disregard of the provisions of law, the services were put to an end, which has constrained the Page 1 of 16 C/SCA/4628/2018 ORDER respondent - workman to raise the dispute, which was ultimately referred for adjudication before the learned Presiding Officer, Labour Court, Junagadh. The said dispute was registered as Reference (T) Case No.136 of 2004 in which a claim of statement was submitted by the respondent - workman pointing out the aforesaid details and has also pointed out that despite the notice having being given through R.P.A.D., since the petitioner - Municipality has not taken the respondent - workman in service, the claim was submitted.

2.1. It appears from the record that the said reference has been contested by the petitioner - Municipality by submitting reply at Exhibit8 inter alia contending that the respondent - workman was not appointed through the recruitment procedure and therefore, the respondent is not entitled to claim any benefit and therefore also the respondent - workman is not entitled to claim anything and her services were rightly discontinued on account of the fact that her services were not through the recruitment procedure and not within the set up of the petitioner Municipality.

2.2. After submitting reply, at Exhibit9 the documents have been placed before the learned Presiding Officer, Labour Court, Junagadh as well as oral testimony was submitted at Exhibit10 in support of the claim of the respondent workman, whereas at Exhibit17, the evidence was led by the petitioner Municipality witnesses and also produced documentary evidence and subsequently after giving purshis at Exhibit11 and Exhibit18 respectively, the matter was taken up for final adjudication, in which after hearing both the sides and after considering the Page 2 of 16 C/SCA/4628/2018 ORDER material, the learned Presiding Officer, Labour Court, Junagadh came to the conclusion that the action on the part of the petitioner - Municipality is illegal. As a result of which, without considering the request of back wages, the respondent - workman was ordered to be reinstated on her original post without back wages within a period of 30 days from the publication of the award, by the present petitioner - Municipality and it is this award passed by the learned Presiding Officer, Labour Court, Junagadh is made the subject matter of the present petition.

3. It has been contended that the respondent - workman was working on a permanent basis and was not appointed through the process of recruitment as per the rules and therefore, no order of reinstatement could have been passed. It has been further contended that exfacie the appointment of the respondent - workman was illegal and as a result of this, discontinuance cannot be termed as illegal. It has also been contended that there is an alternative remedy available to the respondent - workman by virtue of Section 33A of the Industrial Disputes Act and reference could not have been entertained. It has also been submitted by learned advocate that the attendance sheet was already provided before the learned Presiding Officer, Labour Court, Junagadh which clearly indicate that in the preceding year, 240 days have not been completed which would not entitled the respondent - workman to seek any direction under Section 25F of the Industrial Disputes Act. As a result of this, this discontinuance in services cannot be stated to be illegal. A reference has been made to a decision delivered by the Page 3 of 16 C/SCA/4628/2018 ORDER Apex Court in the case of State of Bihar & Ors., v.

Chandreshwar Pathak reported in (2014) 13 SCC 232 and by referring to page 238 it has been observed that serious error is committed by the learned Presiding Officer, Labour Court, Junagadh in passing the impugned award. Learned advocate has further submitted that even the reasons which are assigned by the learned Presiding Officer, Labour Court, Junagadh are not just by virtue of which any support to the conclusion is possible. Learned advocate has further relied upon the decision of this Court in the case of Bhanvarsingh Pukhrajsingh Chuhan v.

Gujarat Urja Vikas Nigam Ltd. reported in (2007) 3 GLR 2140, but the same is having a different set of circumstance on the basis of which no order could have been passed. Ultimately, a request which has been made is not to allow such award to stand in the eye of law. Hence, the reliefs prayed for in the petition is requested to be granted. No other submissions have been made.

4. To meet with the submissions made by learned advocate appearing for the respondent - workman has vehemently contended that from the entire reading of the award it cannot be said in any way that it suffers from the vice of non application of mind. On the contrary, while passing the award, each and every contention has been taken care of and only thereafter by assigning cogent reasons, the award is passed. As a result of this, when such exercise is undertaken by the learned Presiding Officer, Labour Court, Junagadh in due discharge of its authority, unless and until any perversity is reflecting, the petitioner - Municipality cannot be allowed to invoke extra Page 4 of 16 C/SCA/4628/2018 ORDER ordinary jurisdiction of this Court. Learned advocate has further contended that the respondent - workman is merely a 'sweeper' and the work which is being undertaken by her is indispensable in nature. On the contrary, it is in the interest of the petitioner - Municipality to cater the need of the public if the respondent - workman is allowed to work. It has been further contended that only an order of reinstatement is passed without awarding any back wages and when that be so, there seem to be no prejudice caused to the case of the petitioner - Municipality. It has been further contended that the respondent - workman was working undisputedly working since the year 2000 and her services were discontinued in the year 2009. Hence, for a pretty long period, her services were allowed to be discharged by the petitioner - Municipality and instead of considering her case for regularization, in autocratic manner, without complying the mandate of the statute, the services were put to an end by oral order. In fact, mere attendance sheet would not establish that the respondent has not served for a period of more than 240 days in a year. The petitioner is a Municipality armed with entire record and it ought to have placed full material to establish that the respondentworkman has not discharged duties for 240 days or more and since this is not reflecting from the record, it cannot be said that the learned Presiding Officer, Labour Court, Junagadh has committed any error in passing the impugned award. It has also been contended that it is this very Municipality who kept the respondent - workman in service, allowed her services upto the year 2002 and now after a period of more than three years, has come out with a ground that her appointment was not in consonance with the recruitment rules.

Page 5 of 16 C/SCA/4628/2018 ORDER

In fact, nor before this Court nor before the Labour Court, Junagadh any recruitment Rules is pointed out to suggest that her appointment is without compliance of the recruitment Rules. It has further been contended that it is illfounded in the mouth of the petitioner management now to contend that her appointment was contrary to the recruitment Rules after availing services for a period of three years and more. It is in this background, the award passed by the learned Presiding Officer, Labour Court, Junagadh is just and proper and there seem to be no infirmity.

4.1. Apart from that learned advocate has contended that the petitioner has invoked extra ordinary jurisdiction of this court and what is to be seen in view of the settled position of law is a decision making process by the learned Presiding Officer. In exercise of the extra ordinary jurisdiction there are self imposed limitation in which even if another view is possible, but the same is not permissible so far the Labour Court, Junagadh has exercised jurisdiction well within its bounds of the authority, as a result of this, a well reasoned award passed by the learned Presiding Officer, Labour Court, Junagadh may not be disturbed. In fact, learned advocate has relied upon the decision of this Court passed in Special Civil Application No. 10334 of 2004 dated 26.08.2004, in which the very Municipality was confronted with almost similar situation and after dealing with the contention with respect to Section 33 of the Industrial Disputes Act, the Court has not entertained the petition and disposed of summarily. Considering this set of circumstance, the present petition is also to be dealt with in the same manner as contended by learned advocate.

Page 6 of 16 C/SCA/4628/2018 ORDER

5. Having heard learned advocates for the respective parties and having gone through the material on record, more particularly, the reasons which are assigned by the learned Presiding Officer, Labour Court, Junagadh, the following circumstance and the conclusion is not possible to be ignored by this Court while considering the case of the petitioner.

5.1. It is revealed from the award that the respondent - workman had worked from March 2000 till her oral discontinuance in the month of August 2002, so practically for a period of around three years, she has worked as a 'Peon'.

5.2. It is emerging from the record that based upon the pleadings, it has been found by the learned Presiding Officer, Labour Court, Junagadh that the petitioner - Municipality has not proved nor produced any material to indicate that the respondent - workman has worked for a period of 240 days neither any seniority list is maintained as required under Rule 81 of the Industrial Disputes Rules nor has produced any cogent material to dislodge the case of the respondent - workman. It has also been found that the attendance sheet which has been produced on record is without any authenticity and just prepared without any support and based upon such examination, it has been found by the learned Presiding Officer, Labour Court, Junagadh that it has not been established by the petitioner - Municipality that she has not worked for more than 240 days.

Page 7 of 16 C/SCA/4628/2018 ORDER

5.3. In addition thereto, upon construction of the provisions contained under Section 25B of the Industrial Disputes Act, the fact of continuous service is also appears to have been examined by the learned Presiding Officer, Labour Court, Junagadh and based upon that it has been concluded that it is not in dispute that there was any 'employee' or 'employer' relationship.

5.4. Even on the basis of the examination of the witness of the petitioner - Municipality who happened to be serving as a Chief Officer, Exhibit17 has also been analyzed and upon such analysis it has been revealed that neither any notice was given nor any retrenchment compensation was given prior to discontinuance. It has been found that the demand case was pending and discontinuance has taken place for seeking permission as envisaged under Section 33A of the Industrial Disputes Act and overall consideration of the material led the learned Presiding Officer, Labour Court, Junagadh to indicate that there is clear violation of the provisions contained under Section 33 2(B) of the Industrial Disputes Act. As a result of this, the award of reinstatement came to be passed. Apart from that despite having found specific violation of provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act as well as Rule 81 of the Industrial Disputes Rules, balance has been struck of between the parties in which the back wages have not been awarded. As a result of this, the petitioner - Municipality is not saddled with any financial responsibility. It is also appearing that the work of the respondent - workman is of permanent nature and that is the vital work rather it is the duty of the petitioner - Municipality to maintain proper environment and Page 8 of 16 C/SCA/4628/2018 ORDER cleanliness to which this respondent - workman and other persons similarly situated were part of such functions of the Municipality. Hence, it has not been established by the petitioner

- Municipality. Additionally, the emphasis which has been made by the learned advocate for the respondent appears to be some what forceful in view of the fact that this very provision contained under Section 33 of the Industrial Disputes Act has been considered by the Court in Special Civil Application No.10334 of 2004 on 26.08.2004 and dealt with and the relevant observations contained in the said decision is referred and reproduced hereinafter : "5. In view of the undisputed position that the References seeking regularisation of the concerned workmen was pending before the Tribunal and in view of the undisputed position that their services were terminated without following any procedure under the law, without issuing any notice or giving notice pay or without following provisions of Section 33 of the Industrial Disputes Act, I find that the Industrial Tribunal has not committed any illegality in striking down such termination."

5.5. A conjoint reading of the aforesaid material is leading to a situation where it is found that while passing the impugned award, the learned Presiding Officer, Labour Court, Junagadh has applied its mind and has exercised jurisdiction vested in him and has dealt with the contentions which have been raised by the respective parties and has passed the award after assigning cogent reasons. Hence, the decision making process by the learned Presiding Officer appears to be perfectly in consonance with the jurisdictional limits. As a result of this, there appears to be no perversity reflecting.

Page 9 of 16 C/SCA/4628/2018 ORDER

5.6. So far as attendance sheet is concerned a specific conclusion is arrived at as to how and in what manner this attendance sheet is placed on record without any other document in support or authenticity of it. Since this being the position, it is not appearing to this Court that any material error is committed, which can permit the Court to dislodge the findings.

6. Looking to the scope contained under Articles 226 and 227 of the Constitution of India, the Court is of the opinion that no error much less error of law is committed nor any perversity, which would permit this Court to dislodge the findings arrived at and looking to the scope even if another view is possible, the same is not possible to be adopted in absence of any distinguishable material. Hence, no case is made out by the petitioner - Municipality.

7. While coming to the conclusion, this Court find some relevant observations contained in one of the decision of the Apex Court in the case of Sadhana Lodha v. National Insurance Co. Ltd., & Anr., reported in AIR 2003 SC 1561. The relevant extract of the said observations contained in para 7 is reproduced hereinafter : ""7.The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Page 10 of 16 C/SCA/4628/2018 ORDER Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."

8. Yet another decision of the recent past in the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 in which para 6 and 7 certain stipulation are provided as guiding feature as in which circumstance extra ordinary jurisdiction can be exercised and which also permits this Court to come to a conclusion that this is not a fit case in which any extra ordinary jurisdiction deserves to be exercised. The relevant extract of the said decision is reproduced 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 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 Page 11 of 16 C/SCA/4628/2018 ORDER 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.

(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.

Page 12 of 16 C/SCA/4628/2018 ORDER

(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 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 Page 13 of 16 C/SCA/4628/2018 ORDER 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 tribunals and courts subordinate to it, "within the bounds of their authority".

Page 14 of 16 C/SCA/4628/2018 ORDER

(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 Page 15 of 16 C/SCA/4628/2018 ORDER administrative 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."

9. After considering the aforesaid situation prevailing on record, the petition being devoid of merit, deserves to be dismissed. Accordingly, the same is hereby dismissed. Notice is discharged. No order as to costs.

(A.J. SHASTRI, J) Bharat Page 16 of 16

Unlock Advanced Research with PRISMAI

Gujarat High Court