Gujarat High Court
Porbandar vs Jagdish on 29 April, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/4354/2004 24/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4354 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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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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PORBANDAR
NAGARPALIKA - Petitioner(s)
Versus
JAGDISH
PRAGJIBHAI PATNESHA - Respondent(s)
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Appearance
:
MR
YOGESH S LAKHANI for
Petitioner(s) : 1,MR MURALI N DEVNANI for Petitioner(s) : 1,
MS
HINA DESAI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/04/2011
ORAL
JUDGMENT
Heard learned Advocate Mr. Murli N. Devnani for petitioner - Porbandar Nagarpalika and learned Advocate Ms. Hina Desai for respondent-workman Shri Jagdish Pragjibhai Patnesha.
By filing this petition, petitioner Nagarpalika has challenged award passed by Labour Court, Junagadh in Reference (LCJ) NO. 1367 of 1990 Exh. 58 dated 27th February, 2004 but according to my reading, this award is dated 27th January, 2004 while perusing certified copy of award produced by petitioner.
It is submitted by learned Advocate Mr.Devnani for petitioner Nagarpalika that despite fact that respondent workman was neither selected employee nor he has completed 240 days' continuous service, therefore, question of following section 25-F of ID Act, 1947 does not arise, even though, erroneously, labour court has come to conclusion that respondent workman has completed 240 days' continuous service and section 25-F of ID Act, 1947 has not been followed by petitioner while terminating service of respondent and, therefore, labour court granted relief of reinstatement in favour of workman with 20% back wages for interim period on the basis of last drawn monthly wages received by workman. Learned Advocate Mr. Devnani for petitioner has further submitted that respondent workman was engaged by petitioner in House Tax Department as and when need arises being a daily wager in fixed time and salary and in that manner, he has not served continuously but on completion of term of appointment order, from time to time, his service has come to an end and in none of year, he has completed 240 days' continuous service and lastly, on completion of two months' appointment order dated 7.12.88, service of workman automatically came to an end as per law , therefore, question of reinstating him in service or paying back wages for interim period is not arising, therefore, on all these aspects, findings given by labour court are contrary to record and, therefore, interference of this court is required in exercise of powers under Article 227 of Constitution of India.
Learned Advocate Ms. Hina Desai appearing for respondent workman has submitted that labour court has rightly examined matter and has rightly appreciated evidence of both parties and has rightly come to conclusion that workman has remained in continuous service from 1981 to 1988 but intentionally, artificial breaks were given and certain employees namely Harsukh Balbhadra and Sarju Gogan both were daily wagers engaged by petitioner Nagarpalika without interview, even though, subsequently, they were made permanent. She further submitted that no periodical orders have been produced on record by petitioner Nagarpalika and no relevant evidence, muster roll or presence register are produced on record by petitioner, therefore, in absence of such evidence from petitioner, oral evidence of respondent workman must have to be accepted which was rightly accepted by labour court because original record was not produced by petitioner before labour court. She further submitted that section 25G and 25H of ID Act, 1947 have been violated as admitted by witness for petitioner Nagarpalika that after termination of service of respondent workman, new employees have been recruited without following procedure of Recruitment Rules, in same post as daily wager, therefore, labour court has rightly come to conclusion that section 25F, 25G and 25H have been violated by petitioner and for that, relief of reinstatement with 20 per cent back wages for interim period has been rightly granted by labour court and for that, no error has been committed by labour court which would require interference of this court in exercise of powers under Article 227 of Constitution of India.
I have considered submissions made by both learned Advocates. I have also perused award in question passed by labour court. Statement of claim was filed by workman at Exh. 11. As per facts stated therein, workman was continuously and uninterruptedly working on post of peon from year 1981 till 8.2.89 in House Tax Department of petitioner establishment and he was receiving monthly salary of Rs.576.80 from petitioner. His service was terminated by petitioner on 8.2.89 while violating section 25F and H Of ID Act, 1947.
Before labour court, written statement was filed by petitioner establishment at Exh. 13 and workman was examined vide Exh. 45. His oral evidence was closed vide purshis Exh. 46 whereas on behalf of petitioner, documentary evidence was produced vide list Exh. 43 and vide Exh. 50 on behalf of petitioner establishment, evidence of witness Dhanjibhai Khimjibhai Shiyal recorded and thereafter, labour court raised issues for determination and answered issues which are on the basis of oral and documentary evidence on record produced from both side. Thereafter, labour court has come to conclusion that for engaging daily wager, question of issuing advertisement or following recruitment rules does not arise. Seniority list of daily wager was prepared by Nagarpalika and on that basis, they were giving appointment to daily wager according to seniority. Labour Court has come to conclusion that there is no periodical appointment made by Nagarpalika with respondent workman and no such contract was produced on record by petitioner establishment and in absence of original record, muster roll and presence register, it is very difficult to accept such contentions of petitioner Nagarpalika that workman has not completed 240 days' continuous service in preceding 12 months from date of termination. Vide Exh. 43, engagement orders have been produced by petitioner and after perusing those orders, labour court has come to conclusion that workman was given artificial break in service. After appreciating oral evidence on record, labour court has come to conclusion that workman has remained in service from 1981 to 8.2.89 but in between,artificial break have been given by petitioner Nagarpalika with a view to deprive respondent workman from getting benefit of section 25F of ID Act, 1947. Labour court has come to conclusion that respondent workman is covered by section 2(s) of ID Act, 1947 and entitled for benefit of section 25F of ID Act, 1947 which has not been followed by petitioner nagarpalika while terminating service of respondent workman. Labour Court has also rightly appreciated evidence of petitioner nagarpalika Exh.50 and has rightly come to conclusion that after terminating services of respondent workman, new persons have been recruited as daily wagers on the basis of seniority list without advertising post in question. Petitioner Nagarpalika has not proved satisfactorily before labour court that respondent workman has not completed 240 days continuous service in preceding 12 months from date of termination. It is also necessary to note that during course of employment from 1981 to 1989, no documentary evidence has been supplied by Nagarpalika to workman by maintaining record of presence register, identity card and pay slip and, therefore,when employer is not supplying any document to workman, then, oral evidence of workman for completion of 240 days continuous service must have to be accepted by labour court and that has been rightly accepted by labour court as decided by apex court in case of RM Yellatti versus Asstt. Executive Engineer reported in 2006 SCC (L&S) 1. Relevant para 17 to 19 of said judgment 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 afore stated 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."
Recently, apex court has, in case of Director, Fisheries Terminal Division versus Bhikhubhai Meghajibhai Chavda, 2010 AIR SCW 542 held as under in para 13,14, 15 and 16:
"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.
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."
16. It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads-
"25G.
Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference."
The Apex Court in case of Ramesh Kumar v. State of Haryana reported in 2010 (1) SCALE 432 has considered said question and observed in paragraphs 13 as under :
13) We are conscious of the fact that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court."
Recently, in Devinder Singh vs. Municipal Council, Sanpur, 2011(4) SCALE pg. 631, this aspect has been examined by Apex Court. Relevant paragraph 6-7-10 to 23, 25 to 27 are quoted as under:
"6. The Division Bench of the High Court entertained and allowed the writ petition filed by the respondent by relying upon the judgments of this Court in Secy., State of Karnataka v. Umadevi (2006) 1 SCC 1; State of MP v. Lalit Kumar Verma (2007 (2) SCC (L&S) 813; MP Administration v.Tribhuvan (2007) 9 SCC 748; Mahboob Deepak v. Nagar Panchayat Gajraula (2008) 1 SCC 575 and Ghaziabad Development Authority v. Ashok Kumar (2008) 4 SCC 261. The Division Bench was of the view that the Labour Court should not have ordered reinstatement of the appellant because his application was contrary to the recruitment rules and Article 14 and 16 of the Constitution and it would not be in public interest to sustain the award of reinstatement after long lapse of time. Simultaneously, the the Division Bench Declared that the appellant shall be entitled to wages in terms of Section 17-B of the Act.
7. Shri R.L. Batta, learned senior counsel for the appellant argued that the impugned order is liable to be set aside because while interfering with the award of the Labour Court, the Division Bench of the High Court ignored the judicially recognized parameters for the exercise of power under Article 226 of the Constitution. Learned senior counsel further argued that the High Court was not justified in upsetting the award of reinstatement simply because there was some time gap between reference of the dispute by the State Government and adjudication thereof by the Labour Court. Learned senior counsel then relied upon the judgments of this Court in Harjinder Singh v. Punjab State Warehousing Corporation (2010) 3 SCC 192 and Anoop Sharma v. Public Health Division, Haryana (2010) 5 SCC 497 and argued that the Labour Court did not commit any illegality by ordering reinstatement of the appellant because his service was terminated in clear violation of sections 25F and 25G of the Act.
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10. The definition of the term 'retrenchment' is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman retirement on reaching the age of superannuation, termination of service as a result of non renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.
11. In State Bank of India v. N. Sundara Money (1976) 1 SCC 822, a three Judge Bench of this Court analysed section 2(oo) and held;
".............Termination...
for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employees's service have been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2 (oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita but area covered by an expansive definition. It means 'to end, conclude, cease'............."
The ratio of the aforementioned judgement was approved by the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682.
12. Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person who has been dismissed, discharged or rtrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute.The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act,1950 or the Army Act, 1950 or the Navy Act, 1957 is applicable or who is employed in police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term 'workman'.
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of section 2(s) of the Act.
14. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
15. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of 'workman'.
16. In Birdhichand Sharma v. First Civil Judge, Nagpur 1961 (3) SCR 161 this Court considered the question whether bidi rollers were workmen within the meaning of the term used in the Factories Act, 1948. The factual matrix of the case reveals that the workers who used to roll the bidis had to work at the factory and were not at liberty to work at their houses. Their attendance was noted in the factory and they had to work within the factory, though there was freedom of doing work for particular hours. They could be removed from service on the ground of absence for eight days. The wages were paid on piece-rate basis. After considering there facts, the Court held that the bidi rollers were workmen. The Court observed that when the operation was of a simple nature and did not require supervision, the control could be exercised at the end of the day by the method of rejecting bidis which did not meet the required standard and such supervision was sufficient to establish the employer employee relationship.
17. In Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments 1974 (3) SCC 498 the three Judge Bench held that the tailors employed in a tailoring shop, who were paid according to their skill and work and the quality of whose work was regularly checked were employees covered by the Andhra Pradesh (Tilengana Area) Shops and Establishments Act, 1951.
18. In L. Robert D'souza v. Executive Engineer (1982) 1 SCC 645 the Court held that even a daily rated worker would be entitled to protection of Section 25-F of the Act if he had continuously worked for a period of one year or more.
19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons fro retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25F (a) and
(b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/ inoperative - State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617, State Bank of India v. N.Sundara Money (supra), Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Southern Railway (supra), Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619.
21. In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F (a) and (b) should ordinarily result in his reinstatement.
22. We may now advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of labour court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. KS Radhakrishnan AIR (1964) SC 477, Swaran Singh v. State of Punjab 91976) 2 SCC 868 P.G.I. Of Medical Education & Research, Chandigarh v. Raj Kumar 92001) 2 SCC 54, Surya Dev Rai v. Ram Chander Rai 92003) 6 SCC 675 and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329.
23. In Syed Yakoob v.
K. S. Radhakrishnan (AIR 1964 SUPREME COURT 477) this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is 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 Art. 226 to issue a writ of certiorari can be legitimately exercised."
In the second judgment Swaran Singh v. State of Punjab [(1976) 2 SCC 868], this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan (supra) and observed;
'In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases, the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Surya Dev Rai v. Ram Chander Rai (supra) the two Judge Bench noticed the distinction between the scope of Articles 226 and 227 of the Constitution and culled out several propositions including the following:
'(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.
In furtherance of the aforesaid resolution, the respondent engaged the appellant, who was already in its employment, as a Clerk for a period of six months on contract basis on consolidated salary of Rs.1,000/- per month. At the end of six months, the respondent passed another resolution dated 30.11.1995 and again employed the appellant for a period of six months from 1.11.1995 to 20.4.1996. This exercise was repeated in 1996 and the appellant's term was extended for six months from 1.5.1996. However, his engagement was discontinued w.e.f. 30.9.1996 without giving any notice or pay in lieu thereof and compensation as per the requirement of clauses (a) and (b) of Section 25-F of the Act. It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/ engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self Government, Pubjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the appellant and that too without complying with the mandate of Section 25-F(a) and (b).
The other reason given by the High Court is equally untenable. The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant's case.
27. The plea of the respondent that the action taken by it is covered by Section 2(oo)(bb) was clearly misconceived and was rightly not entertained by the Labour Court because no material was produced by the respondent to show that the engagement of the appellant was discontinued by relying upon the terms and conditions of the employment."
In view of above observations made by apex court and considering facts of present case, according to my opinion, evidence of workman has been rightly relied upon and rightly appreciated by Labour Court while appreciating evidence of witness for petitioner, Exh. 50. In absence of original record, labour court has rightly considered evidence of workman and has rightly held that workman has completed 240 days' continuous service in preceding 12 months from date of termination 8.2.89. Labour Court has rightly appreciated unemployment period of workman and as gainful employment of workman has not been proved by petitioner Nagarpalika before labour court, considering total interim period, and other relevant aspects, labour court has rightly granted only 20 per cent back wages for interim period on the basis of last drawn monthly wages of workman and for that, labour court has not committed any error which would require interference of this Court.
Labour Court has not committed any error in deciding matter and has rightly recorded finding of fact after appreciating oral and documentary evidence on record and in doing so, no error has been committed by labour court. Finding recorded by labour court on basis of oral and documentary evidence on record cannot be considered to be contrary to record and/or perverse and baseless. This Court is having very limited jurisdiction under Article 227 of Constitution of India.This Court cannot interfere or disturb finding of fact while exercising powers under Article 227 of Constitution of India unless it is established that such findings of fact are baseless, perverse and contrary to record. Therefore, contentions raised by learned Advocate Mr. Devnani for petitioner cannot be accepted by this Court. Same are, therefore, rejected by this Court. Hence, there is no substance in this petition and same is, therefore, dismissed. Rule is discharged. Interim relief granted earlier by this Court stands vacated with a direction to petitioner Porbandar Nagarpalika to implement award in question in favour of respondent workman as early as possible within one month from date of receiving copy of present order. There is no order as to costs.
(H.K. Rathod,J.) Vyas Top