Gujarat High Court
Jamnagar vs Navalsinh on 12 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/4440/2010 21/ 26 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4440 of 2010
To
SPECIAL
CIVIL APPLICATION No. 4446 of 2010
=========================================================
JAMNAGAR
MUNICIPAL CORPORATION - Petitioner(s)
Versus
NAVALSINH
RAJMALJI - Respondent(s)
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Appearance
:
MR
JAYANT P BHATT for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/04/2010
ORAL
ORDER
Heard learned advocate Mr. JP Bhatt on behalf of petitioner Jamnagar Municipal Corporation.
The Jamnagar Municipal Corporation has challenged common award passed by Labour Court, Jamnagar in reference case no. 190/98 to 196/98 dated 11/1/2010. The Labour Court, Jamnagar has partly allowed reference granted reinstatement in favour of Shri Navalsinh Rajmalji, Shri Hitesh L. Kanjariya, Shri Nilesh Bhanjibhai Nakum, Shri Harilal Dayabhai Nakum, Shri Mansang Tapubha Jadeja and Shri Suresh Ramniklal. One employee Shri Kamlesh Bhikhubhai Hada, died during pendency of reference on 19/9/2007. Therefore, he should have to be considered reinstated upto 19/9/2007 from 9/11/1996 and whatever amount comes to at the rate of 20% back wages is to be paid by Nagarpalika to heirs and legal representative of Shri Kamlesh Bhikhubhai Hada. The rest of workmen are entitled 20% back wages after deducting some period where they were in service w.e.f. 9/11/1996 till date of actual reinstatement. The Labour Court has also awarded Rs. 500/- costs in favour of each workman.
Learned advocate Mr. Bhatt mainly raised contention that none of workman has completed 240 days continuous service with petitioner. He submitted that none of workman has produced any cogent evidence before Labour Court, Jamnagar for establishing 240 days continuous service.
He submitted that workmen were appointed on 23/2/1996 and terminated on 9/11/1996. During this much period, they were not in continuous service with petitioner and not completed 240 days. Therefore, petitioner establishment is not required to comply with provision of section 25 F of I. D. Act, 1947.
He submitted that it was a periodical appointment given in favour of workmen, therefore, it amounts to cover case of workmen in exception of section 2(oo)(bb) of I. D. Act, 1947, which does not amounts to retrenchment. The Labour Court has committed gross error in granting relief of reinstatement with 20% back wages of interim period in favour of respondent.
He also raised contention that in oral evidence of workmen, none of workman has proved 240 days continuous service and documents which are produced by petitioner, has been found to be not genuine. The Labour Court has not properly appreciated evidence of witness of petitioner.
He submitted that one witness Bharatbhai Prabhulal Chauhan was examined vide exh 97 and affidavit was also produced by petitioner vide exh 98 to 103 and xerox copy of muster card also produced on record vide exh 104 to 110, even though, that documents is not properly appreciated by Labour Court and come to contrary conclusion. Therefore, he submitted that Labour Court has committed gross error in coming to conclusion that looking to muster card and Tarij, which has been produced by petitioner is found to be contradictory and whatever working days mentioned in Tarij is not tally with working days mentioned in muster roll.
He submitted that Labour Court has not properly appreciated evidence of witness Bharatbhai Prabhulal Chauhan exh 97.
In short his submission is that Labour Court has committed gross error in deciding all references and also committed error in granting 20% back wages in favour of workmen. He relied upon certain decision which are quoted as under:
(i) in case of Municipal Council, Sanrala Vs. Rajkumar reported in 2006 Law Suit (SC) 20 : 2006 (3) SCC 81 : 2006 (2) LLJ 553,
(ii) in case of Huda Vs. Jagmal Sing reported in 2006 law Suit (SC) 540 :
2006 (5) SCC 764 : 2006 (7) SCALE 114,
(iii)in case of Jaipur Development Authority Vs. Ramsahai & Another reported in 2006 Law Suit (SC) 925 : 2006 (11) SCC 684 : 2007 (1) LLJ 429 : 2006 (11) SCALE 95,
(iv)in case of Ajnala Co op. Sugar Mills Ltd Vs. Sukhraj Singh reported in 2007 Law Suit (SC) 724 : 2007 (8) JT 503 : 2007 (8) SCALE 393 : 2007 (2) LLJ 1060.
(v) 2007 (2) CLR 1024.
I have considered submission made by learned advocate Mr. Bhatt and I have also perused common award passed by Labour Court, Jamnagar. Before Labour Court, Jamnagar, dispute has been referred for adjudication on 10/8/1998. According to statement of claim, which has been filed by workmen exh 2, they were appointed as daily wager w.e.f. 23/2/1996 and receiving salary of Rs. 46/- as daily wage. Their services were terminated on 9/11/1996. Thereafter, dispute has been raised on 6/2/1998 by workmen.
According to workmen, their services have been terminated without compliance of section 25 F of I. D. Act, 1947. No seniority list has been published in advance and new persons have been recruited in place of workmen. According to workmen, their services have been illegally terminated by petitioner. Against this statement of claim, vide exh 3 written statement was filed by petitioner. It is made clear that from date of joining 23/2/1996 till date of termination 9/11/1996, each workman remained in service with petitioner. It is not case of petitioner before Labour Court that in between period service of workmen terminated by petitioner. Only contention was raised that during this interim period, they were not in continuous service and completed 240 days.
This factual aspect has been examined by Labour Court, which has been disputed by petitioner. All references were consolidated by exh 11 purshis and reference no. 190/98 is considered to be common reference. On behalf of workmen, certain documents were produced on record as referred in para 6 at Sr. 1 to 86. On behalf of petitioner, certain documents are produced on record at Sr. 1 to 17. Before Labour Court, each workman has been examined and cross examined by other side. The workman has also produced various order of appointment given by petitioner and also copy of payslip given by petitioner. Exh 34, one Hitesh Lavjibhai was examined, exh 48 one Mansang Tapubha was examined, exh 54 Nilesh Bhanjibhai Nakum was examined, exh 55 Harilal Dayalal Nakum was examined, exh 57, Kamlesh Bikhubhai Hada was examined, exh 73 Suresh Ramaniklal was examined. On behalf of petitioner, one witness Shri Bharatbhai Prabhulal Chauhan was examined vide exh 97.
The Labour Court has discussed evidence in respect to each workman while deciding issue no. 1 to 5. The Labour Court has considered submission made by both learned advocates appearing for respective parties. In reference no. 191/98 Hiteshbhai Muljibhai Kanjariya was examined exh 34. According to his evidence, he has supported case narrated in statement of claim and produced documents vide exh 35 to 37, 38 to 47 and in 2001, he was appointed for same period. Thereafter, according to him, he had completed 240 days continuous service from date of appointment 23/2/1996 to 9/11/1996. Similarly, Mansang Tapubha was examined exh 48 in reference no. 194/98 and one Nilesh Bhanjibhai Nakum examined in reference no. 192/98 exh 44 and in reference no. 193/98 Harilal Dayabhai Nakum was examined and in reference no. 195/98 Kamlesh Bikhubhai Hada was examined vide exh
57. Similarly, each workman was examined and cross examined by other side, but facts remained that each workman has established service period from date of joining 23/2/1996 to 9/11/1996.
This Court has asked one question to learned advocate Mr. Bhatt that whether petitioner is disputing aforesaid period 23/2/1996 to 9/11/1996 where each workman was remained in service, in between their services were not terminated and no break is given by petitioner. He admitted this fact that workmen were remained in service 23/2/1996 to 9/11/1996. One Bharatbhai Prabhulal Chauhan, who was examined on behalf of petitioner exh 97 has produced certain muster roll, which has been compared with Tarij produced by respective parties. It is necessary to note one important fact that salary which was paid on salary register to each employee, each original register is in possession of petitioner that fact is admitted by witness of petitioner. It was also called for, but that original pay register was not produced on record by petitioner, though, it was in possession of petitioner.
According to evidence of Bharatbhai Prabhulal Chauhan witness of petitioner, as and when work was available, they were called on duty but they were not in continuous service in between period. The dispute has been raised after a period of two years from date of termination. The Labour Court has appreciated this documents and oral evidence of respective parties and given finding in para 14. According to Labour Court, whether workmen have completed 240 days continuous service or not? For that, in support of statement of claim, evidence of workman was considered as well as cross examination of workmen also considered and documents which has been produced by workmen including pay slip given by petitioner. The facts which has been found by Labour Court from record that each workman was in service with petitioner 23/2/1996 to 9/11/1996. The finding is also given by Labour Court that each workmen was in service continuously, which has been proved on the basis of documents as well as oral evidence. The evidence of Bharatbhai Prabhulal Chauhan who was witness of petitioner has produced xerox copy of muster roll and also presence of Tarij which was produced after long time, which has been compared by Labour Court and found contradictory facts noted in muster roll and Tarij.
Therefore, Labour Court has come to conclusion that marked 93/1 xerox copy of muster roll and Tarij, which was produced prior to point of time found to be contradictory which has been in hand writing of one person noted presence at same time of all employee, even break has been given on same time to each employee that may not be corrected and found to be natural documents recorded by petitioner because all employees can not be go on leave on same day.
Considering contradiction between muster roll and details of presence, it was directed to petitioner to produce original record before Labour Court in respect to muster roll and pay register. It was found by Labour Court that whatever record is produced, it create some doubt against petitioner. Therefore, Labour Court in terms come to conclusion that though admitted by witness of petitioner that original record of muster roll and pay register are in possession of petitioner, original record not produced by petitioner and whatever record was produced where signature of concern officer is not there. Whether such record is correct or not, can not be decided by Labour Court. On the contrary, Labour Court has come to conclusion that record, which has been produced before Labour Court has been subsequently got up by petitioner to find out a way in such manner that none of workman had completed 240 days continuous service.
The Labour Court has rightly appreciated facts which found from record and original record though in possession of petitioner, not produced by petitioner before Labour Court. Ultimately, Labour Court has come to conclusion that respondent employees were remained in service from 23/2/1996 to 9/11/1996, more than 8 months remained continue and completed 240 days continuous service which required compliance of 25 F of I. D. Act, 1947 by petitioner, which has not been complied with and juniors and subsequently new persons were appointed. The Labour Court has also come to conclusion that section 25 F, G and H of I. D. Act, 1947 are violated.
The Labour Court has considered decisions of Apex Court as well as this Court. The Labour Court has considered decision of Division Bench of this Court in case of Surat Mahila Nagrik Sahkari Bank Vs. Mamtaben Mahendrabhai Joshi reported in 2001 (90) FLR 666, where question of 2(oo)(bb) has considered and such kind of service as completed by workmen can not covered any exception of section 2(oo)(bb) of I. D. Act, 1947 because none of workmen were appointed against specific project/skill and also not appointed against any specialized work. Therefore, Labour Court has come to conclusion that each workman has completed continuous service of 240 days and their services have been terminated without compliance of section 25 F of I. D. Act, 1947. Therefore, termination order has been rightly set aside.
The Labour Court has considered question of back wages and looking to period from date of termination, more than 14 years and from date of reference 12 years, only 20% back wages has been granted because gainfully employment has not been proved by petitioner before Labour Court.
Learned advocate Mr. Bhatt has relied upon certain decision as referred above. I have considered decision which has been relied by learned advocate Mr. Bhatt but that decisions are not applicable to facts of present case because in present case, 240 days has been established by workmen after producing cogent evidence in support of their case and original record, pay register, muster roll were in possession of petitioner as admitted by witness Bharatbhai Prabhulal Chauhan exh 97 but not produced on record with an intention to hide correct facts from Labour Court and whatever xerox copy of muster roll and Tarij produced by petitioner found to be contradictory to each other. Therefore, it has been rightly doubted such documents by Labour Court.
According to my opinion, Labour Court has not committed any error which would require interference by this Court. The Labour Court has rightly drawn adverse inference against present petitioner.
Recently, Apex Court has considered identical issue in case of Director, Fisheries Terminal Department Vs. Bhikhubhai Meghajibhai Chavda reported in 2010 (1) SCC 47. The Apex Court has come to conclusion that delay in raising dispute of eight years, such delay is not fatal looking to facts of present case. There is a delay of two years in raising dispute. Therefore, naturally, such delay can not be fatal in deciding dispute raised by respondent employee. The relevant facts and law has been discussed in para 16 to 21 which are quoted as under:
16) This Court in R. M. Yellatti V. Asstt. Executive Engineer has observed:
17. 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 in the witness box. This burden is discharged only 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 or termination. There will also be no receipt or 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 or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case.
17.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.
18. 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.
19. 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."
20. 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."
21. 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.
22) It is also the case of the appellants that there is unexplained delay in approaching the labour court in adjudicating the imaginary grievance by the respondent-workman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the labour court for final adjudication.
Similar aspect has been considered in case of Ramesh Kumar Vs. State of Haryana reported in 2010 (1) SCALE 432.
The relevant para 4, 10 to 12 are quoted as under:
4). It is the case of the Department that the workman has not completed 240 days of service except in the year 1992. He has not fulfilled the circular dated 24th May 1993 entitling him for regularization of his service. Further, the Government has not framed any policy to regularize the service of persons who have completed 240 days as claimed.
10) It is not in dispute that the appellant was appointed as a Mali and posted at the residence of the Chief Minister in the year 1991. The materials placed by the appellant before the Labour Court clearly show that he had worked for three years and there was no break during his service tenure. He was issued identity card to work in the residence of the Chief Minister and no reason was given for his termination. It is also his case that there was no show cause notice and no inquiry was conducted. The perusal of the order of the Labour Court clearly shows that one Shri Nasib Singh, Junior Engineer, who deposed as MW-1 on behalf of the Department has categorically stated that the workman was engaged by the Department on muster rolls as Mali in December, 1991 and he worked up to 31.01.1993. He also stated that there was no break from December, 1991 to January, 1993 during which the workman was engaged.
The Labour Court as per the materials placed rightly found that the workman has continuously worked from December 1991 to 31.01.1993. It also found that the workman worked for 240 days with the Department within 12 calendar months preceding his date of termination i.e. 31.01.1993. It is useful to refer the definition of "retrenchment" and "workman" in the Act which reads thus:
"2 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include......."2
(s) "workman" means 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, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person............."
25F.
Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
It is not in dispute that the appellant is a "workman" as defined under Section 2 (s) and "retrenchment" if any it should be in accordance with Section 25F of the Act. Admittedly, in the case on hand, the workman was not given any notice or pay in lieu of notice or retrenchment compensation at the time of his retrenchment. In view of the same, the Labour Court has correctly concluded that his termination is in contravention of the provisions of Section 25 F of the Act. Though the Department has relied on a circular, the Labour Court on going through the same rightly concluded that the same is not applicable to the case of the retrenchment.
(11)In addition to the factual conclusion by the Labour Court, namely, continuance for a period of 24 days in a calendar year preceding his termination, the appellant has also placed relevant materials to show that persons similarly situated have already been reinstated and their services have been regularized. It is his grievance that appellant alone has been meted out with the hostile discrimination by the Department. He also highlighted that in respect of some of the workmen who were appointed and terminated, after similar awards passed by the Labour Court, the Management did not challenge the same before the High Court by filing writ petitions. He also pointed out that out that in some cases where a challenge was made before the High Court by filing writ petitions however, after dismissal of the writ petitions those persons were reinstated. In fact, according to the appellant some of them were even regularized. It is his grievance that appellant alone has been meted out with the hostile discrimination by the Department. He also highlighted that in respect of some of the workmen who were appointed and terminated, after similar awards passed by the Labour court, the Management did not challenge the same before the High Court by filing writ petitions. He also pointed out that in some cases where a challenge was made before the High Court by filing writ petitions however, after dismissal of the writ petitions those persons were reinstated. In fact, according to the appellant some of them were even regularized.
12. The perusal of all these details clearly shows that the appellant alone was singled out and discriminated. We have already noted the specific finding of the Labour Court that the appellant had fulfilled 240 days in a calendar year before the order of termination. The appellant has also highlighted that he is sole bread earner of his family and his family consists of his old mother, wife and two minor sons and a minor daughter. The above mentioned chart also shows that identical awards passed in the case of Mast Ram, Rajesh, Parmajit and Amarjit was upheld by the High Court and the award in favour of the appellant alone was quashed by the High Court in the second round of litigation. Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. In such circumstances, the High Court ought not to have interfered with the factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to have challenged the order of the Labour Court. In addition to the above infirmities, the appellant has also pointed out that one Gurbax Singh who was engaged subsequent to the appellant on casual basis has challenged his termination order, which was quashed by the Labour Curt; interestingly the Department did not challenge the award of the Labour Court by filing writ petition. It was also highlighted by the appellant that on the basis of the award, Gurbax Singh was not only taken back in service but his services were regularized w.e.f. 01.07.2004.
In case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) reported in 2010 (2) SCALE 848. The relevant discussion made by Apex Court while considering same aspect in para 6 to 8 are quoted as under:
6. The only question that we have to decide in this case is whether the High Court was right in setting aside the Award dated 18.07.2006 of the Labour Court directing reinstatement of the appellant with 50% back wages and directing instead payment of compensation of Rs.50,000/- to the appellant. We find that the dispute that was referred to by the State Government under Section 10 of the Act to the Labour Court was: "whether the termination of the services of the appellant was justified and if not, to what relief he was entitled to?" As per the claim-statement filed by the appellant before the Labour Court, he was appointed by the respondent as a daily wager against a regular post on 01.06.1988 under the Junior Engineer at Meham and the appellant worked therefor different periods until the respondent terminated his services in December, 1993 without any notice and without complying with the provisions of Section 25F of the Act. The respondent in its objections did not take a plea that the engagement of the appellant was either against a post which was not sanctioned or contrary to the statutory rules and admitted in the objections that the services of the appellant were engaged for different periods during 1988-1989, 1989-1990, 1990-1991 and 1992-1993. The respondent also furnished a statement of the works in which the appellant was engaged during the years 1988-1989 and 1989-1990, which was marked as Exb. MW-1. Taking into consideration Exb. MW-1, the Labour Court held that the appellant has completed 267 days from 1.6.1988 to 30.4.1989 and without any notice or notice pay and without retrenchment compensation. In the relief portion of the Award, the Labour Court held that as the services of the appellant had been terminated illegally, he was entitled to be re-instated in his previous post with continuity of service and 50% back wages from the date of demand notice, i.e. 31.12.1997.
7.
In a recent judgment of this Court in Harjinder Singh v. Punjab State Warehousing Corporation [JT 2010 (1) SC 598], the Labour Court, Gurdaspur, by its Award directed re-instatement of the workman with 50% back wages, but the Award of the Labour Court was modified by a learned Single Judge of the Punjab and Haryana High Court in the writ petition and this Court has held that the order of the learned Single Judge of the High Court was liable to be set aside only on the ground that while interfering with the Award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution. Learned Brother G.S. Singhvi, J., in his opinion, has observed that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, 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 of the Constitution including Articles 38, 39(a) to (e), 43 and 43A thereof. Learned Brother Asok Kumar Ganguly, J. agreeing with learned Brother G. S. Singhvi, J., has also observed 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.
8. Section 11A of the Act clearly provides that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct re-instatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well- settled principles laid down by this Court for a writ of certiorari against an order passed by a Court or a Tribunal.
In view of above observation made by Apex Court recently, where identical cases have been examined by Apex Court and considering reasoning given by Labour Court and appreciation made by Labour Court in respect to documents and oral evidence led by respective parties. The Labour Court has rightly come to conclusion that from 23/2/1996 to 9/11/1996 each workman has completed 240 days continuous service, for that, Labour Court has not committed any error which would require interference by this Court.
This Court under Art. 227 can not disturbed factual finding given by Labour Court as this Court having limited powers under Art. 227 as in case of State of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990. The relevant observation made in para 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
Hence, there is no substance in present petition. Each petition is dismissed.
(H.K.RATHOD, J) asma Top