Orissa High Court
Sri Dillip Kumar Pradhan vs State Of Orissa & Ors. ...... Opp. ... on 5 November, 2019
Equivalent citations: AIRONLINE 2019 ORI 321
Author: S. Panda
Bench: S. Panda
W.P.(C) No. 14405 of 2019
Sri Dillip Kumar Pradhan
& Ors. ...... Petitioners
-Versus-
State of Orissa & Ors. ...... Opp. Parties
05. 05.11.2019 Heard Mr. Samarendra Pattnaik, learned counsel for
the petitioners, learned Addl. Govt. Advocate for the State
and Mr. Baidhar Sahoo, learned counsel for the opp. party
no.3.
The petitioners-workmen in this writ petition seek to
challenge the award dated 29th June 2013 passed by the
learned Presiding Officer, Labour Court, Sambalpur in I.D.
Case No. 9 of 2012 vide Annexure-1 as well as rejection of
their representation relating to their absorption by the
opposite party no.3 as per order dated 08.02.2019 vide
Annexure-5.
The following reference was made by the Govt. of
Odisha, Labour and ESI Department in exercise of the
power conferred by sub-section (5) of section 12 read with
clause (c) of sub-section (1) of section 10 of the Industrial
Disputes Act, 1947:-
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"Whether the auction of the management of
Sambalpur District Co-operative Central Bank
Limited, Bargarh in terminating the services of
42 numbers of contingent employees as per
list with effect from 15.12.2008 is legal and/or
justified? If not, what relief these workmen are
entitled to?"
2. The case of the petitioners who are some of the
second party-workmen in the Court below is that they were
employed by the opp. party no.2- the Management of
Sambalpur District Co-operative Central Bank Ltd., Bargarh
since 28.07.2008 pursuant to the decision dated
17.07.2008 of the Appointment Committee of the opp.
party no.2 with a consolidated pay of Rs.4000/- to
Rs.5000/- per month as per their designation and work
allotted. Their appointment was contingent as per the
decision of the Committee for appointment. It is the specific
case of the petitioners that during their functioning, there
was change of management and the Collector -cum-
District Magistrate, Bargarh remained as management in-
charge of the bank since 25.10.2008. He took a decision to
accept the service of one Shri B.C. Sethi, Deputy Registrar
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Co-operative Societies, Sambalpur Division as Secretary in
charge of the bank though his joining report was not
accepted by the Committee of the management. According
to the petitioners, Sri B.C. Sethi, without having any
authority, continued to work as Secretary in-charge of the
bank and he was trying to blame the earlier management.
To satisfy his grudge, he targeted the petitioners and other
workmen by adopting illegal means, disengaged/terminated
them from service by a decision dated 14.12.2008.
According to the petitioners, their termination from service
is illegal, unjustified and contravenes the provisions of
section 25-F and 25-N of the I.D. Act, 1947. It is the case
of the petitioners that the opp. party no.2 retained the
services of some junior workmen violating section 25-G of
the I.D. Act. It is the further case of the petitioners that
they remained unemployed since their date of termination
and leading a miserable life and they prayed to declare
their retrenchment dated 14.12.2008 to be illegal and void
with a further prayer to reinstate them in service and to
direct the opposite party no.2 to pay back wages to them
from the date of the illegal termination of service.
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3. The opp. party no.2 Management filed its written
statement wherein it is stated that the petitioners were not
the workmen and since no industrial dispute existed
between the parties, the case is not maintainable. It is
further stated that one workmen namely Manjit Pradhan
filed W.P.(C) No.19248 of 2008 before this Court relating to
his termination with a further prayer for regularization of
service. The Management admitted that due to shortage of
staff, the Appointment Committee of the bank engaged the
petitioners and other workmen as Junior Assistant/Assistant
Supervisor and peon/night watchman on contingent basis
with conditions that (i) their engagement is purely
temporary; (ii) their engagement was with consolidated pay
of Rs.5000/- and Rs.4000/- for Junior Assistant and peon
respectively; (iii) they cannot claim any service right in
future and can be terminated at any time without assigning
any previous notice. It is the case of the opp. party no.2
that engagement of the petitioners was against the OCS
Act, 1962 and the instruction of the Registrar Co-operative
Societies, Orissa, so also the ORV Act. The decision of the
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Appointment Committee dated 14.12.2008 was just and
proper since no selection procedure was adopted and the
provisions of ORV Act was not followed for the engagement
of the petitioners. With such averments, the opp. party
no.2 contended that the petitioners were not entitled to any
relief.
4. Considering the respective plea of the parties, the
learned Court formulated the following issues:
(a) Whether the action of the Management of
Sambalpur District Co-operative Central Bank
Ltd., Bargarh in terminating the services of 42
numbers of contingent employees as per list
with effect from 15.12.2008 is legal and/or
justified?
(b) If not, to what relief these workmen are
entitled?
5. One Dhabaleswar Meher was examined on behalf of
the petitioners and the opposite party no.2 examined only
one witness, who was the Assistant Secretary of the
Management. From the side of the petitioners, several
documents were filed and marked Ext.1 to Ext.4. The
opposite party no.2 also filed volume of documents which
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were marked Ext.A to Ext.P.
6. Adjudicating the issue no.1, the learned Labour Court
held that there was no disciplinary proceeding against any
of the petitioners and there was no allegation regarding
their inefficiency in the working under the opposite party
no.2 during their period of service for about 4 to 5 months.
It was further held that the appointment/engagement of
the petitioners workmen was not legal and they had no
right to continue in the service particularly when there was
specific mention in their appointment orders that their
services can be terminable at any time without assigning
any reason or previous notice and therefore, no fault can
be found with the decision taken by the opposite party no.2
in terminating their services.
So far as issue no.2 is concerned, the learned Labour
Court held that since the appointment of the petitioners
was illegal and the decision of the Management in
terminating their services is legal and justified, the
petitioners are not entitled to any relief in this case.
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In the conclusion, it was held that the action of the
opposite party no.2 in terminating the services of the
petitioners and other workmen as contingent employees
with effect from 15.12.2008 was held to be legal and
justified.
7. The learned counsel for the petitioners contended
that since the termination of the petitioners contravenes
the provisions of the I.D. Act, 1947, it is per se illegal and
therefore, the impugned award should be set aside. The
learned counsel for the opposite party no.3 supported the
impugned award.
8. Before addressing the contentions raised by the
learned counsel for the petitioners, it is necessary to
discuss the scope of interference with the award passed by
the learned Labour Court in the certiorari jurisdiction of this
Court under Article 226 of the Constitution of India.
In case of Syed Yakoob -Vrs.- K.S.
Radhakrishnan reported in A.I.R. 1964 S.C. 477, a
Constitution Bench of the Hon'ble Supreme Court held as
follows:-
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"7. 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
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Court or Tribunal as a 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
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a point and the inference of fact to be
drawn from the said finding is within the
exclusive jurisdiction of the Tribunal, and
the said points cannot be agitated before
a writ Court. It is within these limits that
the jurisdiction conferred on the High
Courts under Article 226 to issue a writ of
certiorari can be legitimately exercised
(vide Hari Vishnu Kamath -Vrs.-
Ahmad Ishaque, A.I.R. 1955 S.C. 233;
Nagendra Nath -Vrs.- Commr. of Hills
Division, A.I.R. 1958 S.C. 398 and
Kaushalya Devi -Vrs.- Bachittar
Singh, A.I.R. 1960 S.C. 1168)."
The Hon'ble Supreme Court in case of Sadhu Ram
-Vrs.- Delhi Transport Corporation reported in A.I.R.
1984 S.C. 1467 held as follows:-
"3. We are afraid the High Court
misdirected itself. The jurisdiction under
Article 226 of the Constitution is truly
wide but, for that very reason, it has to
be exercised with great circumspection. It
is not for the High Court to constitute
itself into an appellate Court over
Tribunals constituted under special
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legislations to resolve disputes of a kind
qualitatively different from ordinary civil
disputes and to re-adjudicate upon
questions of fact decided by those
Tribunals. That the questions decided
pertain to jurisdictional facts does not
entitle the High Court to interfere with the
findings on jurisdictional facts which the
Tribunal is well competent to decide.
Where the circumstances indicate that the
Tribunal has snatched at jurisdiction, the
High Court may be justified in interfering.
But where the Tribunal gets jurisdiction
only if a reference is made and it is
therefore impossible ever to say that the
Tribunal has clutched at jurisdiction, we
do not think that it was proper for the
High Court to substitute its judgment for
that of the Labour Court and hold that the
workman had raised no demand with the
management...."
In view of such settled position of law, under Article
226 of the Constitution of India, this Court will not interfere
with weighing of evidence led before the learned Labour
Court or Tribunal as if a Court of appeal. A finding of fact
cannot be challenged on the ground that relevant materials
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and evidence adduced before the Court below was
insufficient or inadequate to sustain the findings. The
adequacy or sufficiency of evidence and the inferences to
be drawn from the evidence are the exclusive domain of
the Court below and the same cannot be agitated before
this Court. Even if another view is possible on the evidence
adduced before the learned Court below, this Court would
not be justified to interfere with the findings recorded by
the Court. When the findings recorded by the Court are
perverse or irrational or arrived at by ignoring materials on
record or arbitrary or contrary to the principles of natural
justice, the same can be interfered with by this Court in a
petition under Article 226 of the Constitution.
9. After hearing the learned counsel for both the parties
and going through the documents relied upon by petitioners
and the impugned award, we find that the learned Labour
Court has framed the issues correctly and discussed all the
issues elaborately with reference to the materials available
on record. The learned Court has rightly held that the
petitioners were working under the Management for about
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four to five months and there was no disciplinary
proceeding against them or any allegation regarding their
inefficiency in the working under the Management. It is also
rightly held not the appointment/engagement of the
petitioners was not legal and in their appointment orders, it
is specifically mentioned that their service can be
terminated at any time without assigning any reason or
previous notice and therefore, they had no right to continue
in service. The learned Court rightly held that there was no
fault with the Management in terminating the service of the
petitioners. There is no error of law apparent on the face of
the record and it cannot be said that the view taken by the
learned Labour Court is not possible on the evidence
adduced before it. We find no patent illegality for interfering
with the impugned award which appears to be just and
reasonable. In that view of the matter, there is little scope
for interference with the same in exercise of writ
jurisdiction.
Accordingly, the impugned award passed by the
learned Presiding Officer, Labour Court, Sambalpur in I. D.
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Case No.9 of 2012 stands confirmed and the writ petition
being devoid of merits, stands dismissed.
.......................
S. Panda, J.
....................... S. K. Sahoo, J.
RKM/Skb