Gujarat High Court
State vs Kharadi on 1 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3799/2010 19/ 24 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3799 of 2010
To
SPECIAL
CIVIL APPLICATION No. 3805 of 2010
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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STATE
OF GUJARAT - Petitioner(s)
Versus
KHARADI
LAXMANBHAI GALABHAI & ORS. - Respondent(s)
=========================================================
Appearance
:
MR
AL SHARMA, MS MATHUR AND VANDANA BHATT AGP
for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/04/2010
ORAL
ORDER
1. Heard learned AGP Mr.A.L.Sharma, Ms.Mathur and Ms.Vandana Bhatt on behalf of petitioner State of Gujarat.
2. In this group of petitions, the petitioner has challenged award passed by Labour Court, Godhara, Exh.36, in Reference Nos.500 to 506 of 1998, dated 1.7.2008. The Labour Court, Godhara has come to conclusion that amount of cost of Rs.5000/- which was not paid by petitioner, therefore, original ex-parte award has been restored against present petitioner with further additional cost of Rs.2000/-
to be paid by petitioner to each respondents workmen.
3. Learned AGP submitted that services of workmen were terminated according to workmen w.e.f. 22.8.1997 and they were engaged w.e.f. 1.6.1993, receiving daily wage of Rs.46.55 ps. The service of workmen were terminated illegally and contrary to provisions of Section 25F of the I.D.Act,1947 as well as violative of Section 25G of the I.D.Act,1947.
Against the termination order, dispute was raised by each respondent workman which ultimately referred for adjudication before Labour Court, Godhara. The statement of claim was filed by workmen on 7.12.1998. Thereafter, Labour Court, Godhara has decided reference in absence of present petitioner being an ex-parte award. Though notice was issued by Labour Court, Godhara which was served to petitioner but, petitioner remained absent. The dispute in respect to termination referred for adjudication on 17.6.1998. The copy of statement of claimant was sent by workmen to petitioner through RPAD and original acknowledgment was produced before Labour Court, Godhara by workmen. The notice of hearing Exh.2 which was served to petitioner and original acknowledgment was also on record before Labour Court, Godhara Exh.3 and Exh.4. The right of reply of petitioner has been closed by Labour Court, Godhara vide Exh.10 application. Thereafter, workmen were examined before Labour Court, Godhara but, no one remained present on behalf of petitioner.
Therefore, evidence of workmen has remained unchallenged because no one has cross-examined on behalf of petitioner before Labour Court, Godhara. Ultimately, the Labour Court, Godhara has granted reinstatement with continuity of service with back wages of interim period and with cost of Rs.4000/- imposed against petitioner by award dated 24.11.2004. This ex-parte award has been passed by Labour Court, Godhara in each reference.
4. Against this ex-parte award, Misc. Civil Application made by petitioner before Labour Court, Godhara under Rule 26A of the Industrial Disputes (Gujarat) Rules,1966 with a prayer to set aside ex-parte award. The affidavit has been filed in support of such application by the Range Forest Officer, Santrampur. That Misc. Civil Application Nos.25 to 31 of 2005 have been preferred by petitioner before Labour Court, Godhara which have been decided by common judgment and order Exh.11 by Labour Court, Godhara. The Labour Court, Godhara has allowed application filed by petitioner under Rule 26A of the Industrial Disputes (Gujarat) Rules,1966 and set aside common award passed by Labour Court, Godhara in Reference Nos.500 to 506 of 1998 dated 24.11.2004 being an ex-parte award. The Labour Court, Godhara has restored each reference while setting aside ex-parte award on condition that petitioner shall have to pay cost of Rs.5000/- to each workman and said amount of cost is to be paid within 30 days from date on which order is received by petitioner, failing which ex-parte award must have to be restored. Thereafter, the matter was fixed for hearing on 21.7.2007. The order passed by Labour Court, Godhara in said MCAs on 23.5.2006. This order has been challenged by petitioner before this Court by filing SCA Nos.8238 to 8244 of 2007 which came to be dismissed by this Court on 28.3.2007. Relevant observations of aforesaid decision are in Para.2 to 7 which is quoted as under :
2. In the present petitions, the petitioner has challenged the order passed by Labour Court, Godhara in Misc. Application dated 23.5.2006.
3. Brief facts of the present case are that initially respondent workmen raised industrial dispute which was referred for adjudication in the year of 1998 by Assistant Commissioner of Labour while exercising the power under Section 10(1) of the I.D.Act,1947. The Labour Court has issued notice to the petitioner which has been served to the petitioner. The copy of the statement of claim was also served to the petitioner through R.P.A.D. and original receipt was produced by respondent before the Labour Court. Notice issued by the Labour Court has been served to the petitioner and original acknowledgment vide Exh.3 placed on record. But, petitioner remained absent through out.
Ultimately, the Labour Court has decided the reference in absence of petitioner on 24.11.2004. The Labour Court has allowed the reference and granted reinstatement with full back wages of interim period and awarded Rs.4000/- towards cost against the petitioner in favour of respondents. Thereafter, Misc. Applications were filed by the petitioner being No.25/05 to 31/05. The Labour Court, Godhara has considered the Misc. Applications filed by the petitioner and ultimately, the Labour Court, Godhara has allowed the applications setting aside the ex-parte award after hearing the respective parties and condoning the delay and considering the fact that matters were old where service of respondents were terminated in the year 1993, the Labour Court, Godhara has considered that termination of 1993;
reference of 1998 and ex-parte award was passed by the Labour Court, Godhara on 24.11.2004; more than 11 years have passed, therefore, if these applications are allowed, then, matters have to be restored and workmen should have to come again for hearing on number of occasions and looking to the status of the workmen, who remain unemployed, now further delay will occur and ultimately the employees will be the sufferer economically and socially. Therefore, the Labour Court, Godhara has come to the conclusion that if reasonable amount of cost is awarded to the petitioner while restoring the reference which will meet the ends of justice between the parties. Therefore, the Labour Court, Godhara has decided the amount of Rs.5000/- in each case to be paid to the petitioner to the respondents workmen. If the said amount is not paid by the petitioner within a period of 30 days from the date of receiving the copy of the order, then, ex-parte award passed by the Labour Court, Godhara dated 24.11.2004 shall remain intact.
4. Learned AGP, Mr.Shukla, submitted that the order has been passed by the Labour Court, Godhara in favour of petitioner restoring the reference but, objection against the amount of cost of Rs.5000/- which has been awarded by the Labour Court, Godhara. He also submitted that because amount reduced to some extent or quantified some lesser amount because Labour Court, Godhara has granted Rs.5000/- being a cost which is not just and proper.
5. I have considered the submissions made by learned AGP, Mr.Shukla and considering the difficulty which has been faced by the workmen concerned when reference has been restored by the Labour Court, Godhara. The termination is of 1993; dispute referred in the year of 1998; ex-parte award passed in the year of 2004 and ultimately, it was restored on 23.5.2006; now further period of 3 to 5 years to decide the restored reference on merits. So, more than 15 years will be a total period to have adjudication against the termination order passed by petitioner. Therefore, Labour Court, Godhara has considered all the aspects and detailed reasons have been given why cost of Rs.5000/- has been quantified and also considering the unemployment of the respondents workmen and further delay to decide the reference on merits after hearing the respective parties. Therefore, according to my opinion, the Labour Court, Godhara has rightly quantified the amount of Rs.5000/- while setting aside the ex-parte award and condoning the delay in filing such applications, therefore, the cost which has been awarded by the Labour Court, Godhara for two reasons;
one is to condone the delay and another to set aside ex-parte award.
Therefore, according to my opinion, the Labour Court, Godhara has not committed any error while imposing the amount of cost of Rs.5000/-
against the petitioner in favour of respondents and this cost is considered to be reasonable, just and proper looking to the facts and circumstances of the case.
6. It is necessary to note one important aspect that when ex-parte award was passed, at that occasion, cost of Rs.4000/- has been awarded by the Labour Court, Godhara. Now, because of setting aside of the ex-parte award that cost of Rs.4000/- is not required to be paid by the petitioner to the respondents. So, in short, only Rs.1000/- has been added to the original ex-parte award by the Labour Court, Godhara. Therefore, in reality, there is no much amount of cost has been awarded by the Labour Court, Godhara.
7. Therefore, according to my opinion, no error has been committed by the Labour Court, Godhara while imposing the cost against the petitioner in favour of respondents which requires interference by this Court while exercising the power under Article 227 of the Constitution of India.
Hence, there is no substance in the present petitions. Present petitions are dismissed with no order as to costs.
5. This Court has dismissed all the SCAs as referred above by an order dated28.3.2007. Thereafter, it is a duty of petitioner to pay Rs.5000/- being a cost to each workman but, petitioner has not paid amount of cost to each workman. Therefore, condition which has been incorporated by Labour Court, Godhara while setting aside ex-parte award has not been complied with by petitioner. Therefore, again the matter has been kept for hearing being by-parte hearing. At that occasion, notice was issued to petitioner for payment of cost as directed by Labour Court, Godhara. The Labour Court, Godhara has also passed an order that if amount of Rs.5000/- cost is not paid during the period which has been directed by Labour Court, Godhara, further amount of Rs.1000/- cost is to be paid by petitioner to each workman. But this order though passed on 4.10.2007, event hen no amount of cost has been paid to any of workman by petitioner.
6. In light of this background when ex-parte award has been set aside by Labour Court, Godhara being a condition imposed against petitioner to pay amount of Rs.5000/- cost to each workman which has not been complied with, therefore, application has been made by each workman vide Exh.27 before Labour Court, Godhara. For that also, notice was issued by Labour Court, Godhara to petitioner but, after receiving such notice from Labour Court, Godhara, no amount of cost has been paid by petitioner to respondents workmen. However, on behalf of petitioner vide Exh.35 some time has been prayed for payment of cost to concerned workman but, that application was rejected. The Labour Court, Godhara has considered for deciding MCA, cost has been imposed by the petitioner must have to be complied with, otherwise ex-parte award is to be restored. From that date onward, more than 2 years have passed but, petitioner has not paid any amount of cost to the concerned workmen. Not only that after the order passed by this Court as referred above, more than 1 year is over, even though cost which has been imposed in MCAs has not been paid to respondents workmen and petitioner remained negligent and due to inaction of petitioner of not complying with the condition incorporated by Labour Court, Godhara in deciding MCAs filed by petitioner, therefore, Labour Court, Godhara has come to conclusion that sufficient time and opportunity though given to petitioner to pay cost of Rs.5000/- and Rs.1000/- as referred above to workmen but, no amount has been paid by petitioner to respondents workmen. Therefore, considering this negligence and inaction intentionally and willfully, the Labour Court, Godhara has come to conclusion that in light of this background, ultimately the workmen are sufferer because workmen are out of job since 22.8.1997. Therefore, more than 11 years have passed from date of termination and more than 2 years have passed from date of order passed in MCAs and more than 1year has been over from date of order passed by this Court, therefore, ultimately Labour Court, Godhara has restored ex-parte award because of non-compliance of condition incorporated in the order passed in MCAs and over and above, Labour Court, Godhara has also again awarded cost of Rs.2000/- to be paid by petitioner to concerned workmen vide award dated 1.7.2008.
7. Before this Court, present petitioner has challenged award passed by Labour Court, Godhara. This award has been published on 11.7.2008 and petition has been filed by petitioner on 12.3.2010. So from award dated 1.7.2008 which was published on 11.7.2008, more than 2 years again passed in between also but, no amount of cost has been paid to any of workman by petitioner. Therefore, I have considered submissions made by learned AGP that one opportunity may be given to petitioner for payment of cost to concerned workmen. But I am not accepting such submissions because of reason that workmen those who are waiting for final result adjudication made by Labour Court, Godhara, but till date workmen are not reinstated in service and even amount of cost is also not paid by petitioner. Therefore, petitioner being a State authority not respecting the order passed by Labour Court, Godhara and more than 2 years have passed and thereafter, one year has also been passed from date of order passed by this Court but, condition incorporated by Labour Court, Godhara has not been complied. In such a case the deliberate attempt made by petitioner which considered to be a willful lapse or negligence on the part of petitioner officer, who remained negligent and officer has worked in an irresponsible manner and even not taken care to comply with the condition incorporated by Labour Court, Godhara in its order dated 23.5.2006. The workmen are out of job since 22.8.1997 and from that date also, more than 13 years have been passed, still workmen are not reinstated in service though ex-parte award passed by Labour Court, Godhara on 24.11.2004 and from that date, more than 6 years have passed. Therefore, in light of this background, ultimately workers are sufferer. Not only that but their family members are also sufferer and without service and salary, the family members are put in the hardships and inconvenience caused to them for maintaining the family by concerned workmen. It is the duty of State authority to act promptly in a labour matters where question of livelihood is involved of workman but, even though no prompt action has been taken by petitioner and having lethargic approach it has rightly been discouraged by Labour Court, Godhara while restoring ex-parte award on file which is binding to petitioner. Therefore, contentions raised by learned AGP in present petitions that one opportunity may be given, cannot be accepted, because otherwise it amounts to endorsing lethargic approach adopted by petitioner of not complying with condition incorporated by Labour Court, Godhara while setting aside ex-parte award.
8. Recently, the Apex Court has considered how to pass effective order in labour Legislation which are considered to be a beneficial Legislation while keeping in mind Article 38, 39(a) to 9e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues, in the case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010 (1) Scale 613.
Relevant observations of aforesaid decisions are in Para.17 to 44, which are quoted as under :
17.
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 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that 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 State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economiccondition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen s Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118, R.P. Sethi, J. observed: that after independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system. In L.I.C. of India v. Consumer Education and Research Centre and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of what he is entitled to get. Obviously when a workman has been illegally deprived of his device then that is misconduct on the part of the employer and employer can not possibly be permitted to deprive a person of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treaties: Democracy, Equality and Freedom, Justice Mathew wrote:
The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer s directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee s life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule became settled at a time when the words `master and `servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias. The overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employer s absolute right to discharge the employee. Such a philosophy of the employer s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these case demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer s right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from over-reaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him.
(emphasis added)
22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477, the employer invoked the theory of hire and fire by contending that the respondent s appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:
It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias . The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employer s absolute right to discharge the employee. Such a philosophy , as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom , p. 326), of the employer s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers . To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Labotratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:
In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer public or private.
24. In the result, the appeal is allowed. The impugned order of the High Court is set aside and the award passed by the Labour Court is restored. The appellant shall get cost of Rs.25,000/- from the corporation.
Ganguly,J.- I entirely agree with the views expressed by my learned Brother Justice G.S. Singhvi. Having regard to the changing judicial approach noticed by His Lordship and if I, may say so, rightly, I may add a few words. I consider it a very important aspect in decision making by this Court.
26. Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Preamble, which has been recognised, a part of the Constitution in His Holiness Kesavananda Bharati Sripadagalvaru and others vs. State of Kerela and another - [1973 SC 1461], we can discern that as divided in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
[See Justice R.C. Lahoti, Preamble- The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3]
27. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
28. As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question:
After all, for whose benefit was the Constitution enacted?
[Bidi Supply Co. vs. Union of India and others - AIR 1956 SC 479 at Para 23, pg. 487]
29. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the butcher, the baker and the candlestick maker . It lays down for this land a rule lof law as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all.
[Ibid, Emphasis supplied)
30. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words:
Our Constitution is primarily shaped and moulded for the common man. It takes no account of the portly presence of the potentates, goodly in girth . It is a Constitution not meant for the ruler but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load.
[N. A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p. 29]
31. I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
32. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and others vs. State of Maharastra and Anr. - [AIR 1967 SC 1]. In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the report]. This minority view of His Lordship was endorsed by Justice Mathew in Kesavananda Bharati (supra) [at page 1949, para 1717 of the report] and it was held that the State under Article 12 would include the judiciary.
33. This was again reiterated by Justice Mathew in the Constitution bench judgement in the case of State of Kerela and another vs. N. M. Thomas and others [AIR 1976 SC 490] where Justice Mathew s view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, State would include Court .
34. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavananda (supra) it was held that judicial process is also state action [Para 1717, pg. 1949]
35. That being the legal position under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
This is echoing the preambular promise
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
&fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
The content of the expression equality before law is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and 46.
[at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are constitutional invigilators and statutory interpreters they should also be responsive to part IV of the Constitution being one of the trinity of the nation s appointed instrumentalities in the transformation of the socio-economic order . The Learned Judge made it very clear that when the Judges when decode social legislation, they must be animated by a goal oriented approach and the Learned Judge opined, and if I may say so, unerringly, that in this country the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme. [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of Globalisation , may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask progress toward what, and progress for whom , it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
44. How stunningly relevant are these words and how deep are the ditches created in our society by the so called advance of globalization.
9. In view of above observations made by Apex Court in recent decision and also considering financial conditions of workmen, those who are out of job since 22.8.1997, though ex-parte award was passed in their favour on 24.11.2004 which has been set aside in MCAs and thereafter, that order has been challenged before this Court which came to be dismissed on 28.3.2007, even though amount of cost being condition imposed by labour Court has not been complied with by petitioner State authority and State authority has acted in a manner which adversely affect the livelihood of workmen concerned. Therefore, lethargic approach has been adopted by State authority in an irresponsible manner and not respect the order of labour Court and also not made the payment to concerned workmen. Therefore, after these many years, giving reasonable opportunity to petitioner for making the payment of cost to respondents workmen, even after rejecting petition filed by petitioner in the year 2007 and from that onward, more than 3 years have passed and even today also no amount of cost has been paid to respondents workmen by petitioner. Not only that even from date of award 1.7.2008 where ex-parte award has been restored which was published on 11.7.2008 and petition is filed after a period of 2 years, even in between also, cost has not been paid to concerned workmen.
10. Therefore, according to my opinion, the contentions raised by learned AGP cannot be accepted, otherwise it will cause great prejudice to the right of livelihood of concerned workmen. Therefore, on that ground, the contentions raised by learned AGP are rejected. The order passed by labour Court, Godhara restoring ex-parte award because of non-compliance of condition incorporated by labour Court, Godhara cannot consider to be an erroneous decision or there is no error committed by labour Court, while passing such order on 1.7.2008 which was published on 11.7.2008 which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India. Hence, there is no substance in present petitions. Accordingly, present petitions are dismissed.
(H.K.Rathod,J.) (vipul) Top