Rajasthan High Court - Jaipur
State Insurance And Provident Fund ... vs Rameshwar Prasad And Anr. on 19 April, 1994
Equivalent citations: (1998)IIILLJ706RAJ, 1994(2)WLC227, 1994(1)WLN406
JUDGMENT G.S. Singhvi, J.
1. This writ petition is directed against the award dated June 17, 1993 passed by the Labour Court, Jaipur in case No. LCR 85/1991-Rameshwar Prasad v. Director. State Insurance and Provident Fund Department. Admitted facts which are borne out from the record of the case are that the workman Rameshwar Prasad was appointed in the service of the State Insurance Department with effect from July 2. 1985 and his service was terminated with effect from July 5, 1986. Against the termination of his service, the workman raised a dispute. Conciliation proceedings were held. When the parties failed to arrive at a settlement, the Conciliation Officer submitted his failure report to the State Government. By its notification dated March 5, 1991 issued under Section 10(1)(c) of the Industrial Disputes Act, 1947, the State Government made reference of the dispute to the Labour Court. Jaipur for adjudication.
2. In his statement of claim, filed before the Labour Court the workman pleaded that he had worked for a period of 240 days in a period of 12 months counted from the date of termination of his service and since his service had been terminated without compliance of requirements of Sections 25F and 25G, he had a right to be reinstated in service. He also pleaded that persons junior to him had been retained in service and the rule of 'last come, first go', has not been followed. He pleaded that no seniority list had been prepared before terminating service of the petitioner. In the statement of claim, the petitioner also pleaded that he was unemployed and was facing starvation. In its reply, the employer pleaded that the workman had been engaged as a daily wage class IV servant and one of the conditions of his service was that he could be removed at any time without prior notice. His service was not regular between July 2. 1985 to July 5, 1986. He has not disclosed names of the j unior persons. The employer pleaded that termination of service of the workman does not fall within the scope of the term 'retrenchment' under Section 2(oo) of the 1947 Act.
3. Petitioner gave his statement in support of his claim while the Department produced Shri Madan Lal Verma and Shri Abdul Razak as its witnesses.
4. After considering the rival pleadings and evidence, the Labour Court held that from the evidence of parties factum of working for 240 days by the workman has been established. The Labour Court held that even though in the order of appointment issued on October 24, 1985 the term of appointment had been fixed for 3 months, but after October 24, 1985 no order extending the term of appointment of petitioner was issued and, therefore, termination of service of the workman cannot but be treated to be a case of retrenchment. The Labour Court further held that there was a clear violation of Section 25F of the Act of 1947. On the basis of this conclusion, the Labour Court passed impugned award directing reinstatement of the workman with benefit of backwages from August 6, 1989.
5. Shri Akhil Simlot, Learned Counsel for the petitioner, has streneously argued that when the term of appointment of the workman had been fixed as 3 months with a clear stipulation that his service will automatically stand terminated after expiry of this period, the termination of service of the workman cannot be treated as retrenchment. He pleaded that said termination is in accordance with Section 2(00)(bb) of the Act of 1947. According to Shri Simlot, even though no written order had . been passed by the employer extending the term of employment of the petitioner after January 24, 1986, the same terms and conditions should be treated as implied and, therefore, the termination of service brought about with effect from June 5, 1986 cannot but be treated as termination of service according to terms of contract. Shri Simlot further argued that it was a case of voluntary abandonment of service and, therefore, it could not be treated as retrenchment. He lastly argued that award of backwages to the workman is highly arbitrary and unreasonable. According to Shri Simlot even if the Labour Court could grant a declaration of invalidity in respect of termination of service it ought not to have reinstated the workman with backwages. Shri P.K. Sharma, learned counsel for the workman has stoutly opposed the submissions of learned counsel for the petitioner and pleaded that the impugned award does not suffer from any infirmity warranting interference by this Court.
6. Before proceeding further I may say that the writ petition filed by the petitioner is for issue of a writ of ceriiorari. The principles governing exercise of jurisdiction by the High Court in its certiorari jurisdiction have been laid down by the Supreme Court in Sayyed Yaqub v. S. Radhakrishnan AIR 1964 SC 477 and which has recently been reiterated in Instrumentation Limited, Kota v. Rajasthan Pradesh Hind Mazdoor Sabha and Anr. 1993(1)WLR 318. These two decisions show that an award or order passed by a Tribunal or quasi-judicial body can be interfered with by the High Court in exercise of its certiorari jurisdiction only when it is found to without jurisdiction or in violation of rules of natural justice or where it suffers from error of law apparent on the face of it. An error of fact cannot be treated an error apparent on the face of record. Even an error of law does not call for interference by the High Court unless it is shown to be patent. The High Court cannot act as Court of appeal to reappreciate and reevaluate the evidence led by the parties before the quasi-judicial bodies or the tribunals and merely because the High Court may form a different opinion on re-appreciation of evidence it does not furnish a valid ground for interference by the High Court.
7. In the light of these principles arguments of learned counsel for the petitioner require examination. First submission of Shri Simlot that termination of service of the workman cannot be treated as retrenchment because it has been brought about in accordance with the terms of the contract of employment is based on a misconceived assumption about terms and conditions of employment. No doubt order dated October 24, 1985 fixes term of employment as 3 months and automatic termination on the expiry of period of 3 months. However, after expiry of 3 months the workman continued in service. The employer had not discontinued his service with effect from; January 24, 1986. No order extending the term of appointment or fixing further term of appointment was issued by the employer. It can thus be said that no limitation was fixed regarding period of employment of the workman. That being the position, it is not possible to uphold the plea of the petitioner that termination of service of the petitioner will not be covered by Section 2(oo) of the Act. The Labour Court has very carefully examined this aspect of the matter and recorded finding of fact that the termination of service of the petitioner amounts to retrenchment.
8. Argument of learned counsel for the petitioner about voluntary abondonment of service also merits rejection. The learned Judge of the Labour Court has taken note of the fact that in the written statement filed by the employer it has not raised plea of voluntary abandonment and therefore, the Court cannot take cognizance of this plea. Even before this Court, no material has been placed by the petitioner to show that case of voluntary abandonment of service by the workman was set up by it before the Labour Court. No evidence has been produced before the Court to show that the workman had abandoned the service on his own. Therefore, it is not possible to accept the submissions of learned counsel that the workman had himself left the service.
9. In regard to his argument that the Labour Court should not award backwages, 1 need only mention that before the Labour Court the employer had not pleaded that the workman was gainfully employed after termination of service. No evidence was produced by the employer before the Labour Court to show that after termination of service the workman was employed elsewhere and was earning a particular salary. On the other hand, the workman specifically pleaded that he was unemployed and was facing starvation. Since the petitioner has not raised this question before the Labour Court, I am not prepared to allow it to raise the same before this Court for the first time.
10. In Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Lim-ited (1978-II-LLJ-474), Supreme Court has clearly held that it is for the employer to plead and prove that the workman was gainfully employed and, therefore, was not entitled to claim full backwages.
11. In umpteen number of cases, the Supreme Court has held that when a workman is retrenched from service without compliance of Section 25F, he is entitled to relief of reinstatement and backwages. Deviation to this rule can be made only when the employer pleaded and proved that the workman is gainfully employed and, therefore, he is not entitled to backwages. Insofar as this case is concerned, there is total absence of any pleadings as well as evidence of the employer regarding workman being in gainful employment after termination. Thus, there is no justification to upset the award of the Labour Court regarding backwages.
12. In my considered opinion, the award of the Labour Court does not suffer from infirmity warranting interference by this Court. Consequently the writ petition fails and is dismissed.