Orissa High Court
The M.D. M/S.Text Book Production & ... vs Smt. Basanti Das Rep. Through ... on 4 March, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.21895 OF 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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The Management of the Director
M/s. Text Book Production &
Marketing, Bhubaneswar .... Petitioner
Versus
Smt. Basanti Das represented
through Bhubaneswar Industrial
Workers' Union .... Opp. Party
For petitioner ... Mr. S.N. Mohapatra, Advocate
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 04.03.2015 : Date of judgment: 04.03.2015
Dr. A.K.Rath, J The instant challenge is to laciniate the award dated 23.11.2011 passed
by the learned Presiding Officer, Industrial Tribunal, Bhubaneswar (hereinafter
referred to as "the Tribunal") in Industrial Dispute Case No.74 of 2010 whereby and
whereunder the learned Tribunal held that termination of service of the second party-
workman is illegal and awarded a sum of Rs.1,00,000/- towards compensation.
2. Shorn of unnecessary details, the short facts of the case are that
opposite party-workman was working as a casual worker continuously under the
petitioner with effect from 8.3.1999 to 21.9.2008. On 22.9.2008, her services were
terminated. According to her, some casual workers, who are much juniors to her, are
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still under employment of the petitioner. Thereafter, she raised an industrial dispute.
The matter was referred under Section 10 of the Industrial Disputes Act, 1947
(hereinafter referred to as "the I.D Act") by the Government of Orissa in the Labour
& Employment Department vide order No.ID-114/10/8499/LE., dated 4.10.2010.
The schedule of reference is quoted hereunder;
"Whether the action of the management of Director, M/s.Text Book
Production & Marketing, Bhubaneswar in terminating the services of
Smt. Basanti Das, daily wage worker w.e.f. 22/9/2008 is legal and/or
justified ? If not, what relief Smt. Das is entitled to?"
3. Pursuant to issuance of notice by the Tribunal, the petitioner-first
party, entered appearance and filed its written statement. The case of the petitioner is
that as there were some accumulated works, such as, loading, unloading, stacking
and folding of printing papers, store materials and books, it engaged the opposite
party as a voucher-paid worker to complete the accumulated work on 10.03.1999.
The petitioner used to pay her wages daily. The engagement was purely temporary in
nature subject to availability of work. In the meantime the work of printing and
binding of text books was outsourced to some private firms. Thus no sufficient work
was available to the voucher-paid workers. When the work was not available,
opposite party voluntarily abandoned the job. Further, the Government of Orissa
directed the petitioner to disengage the casual workers engaged after 12.4.1993. In
view of the same, the opposite party cannot be taken back in employment. It is
further stated that since no disengagement order had been issued to the opposite
party, compliance of Section 25-F and 25-H of the I.D Act does not arise.
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4. On an anatomy of the pleadings of the parties and evidence on record,
learned Tribunal came to hold that the opposite party has completed more than 240
days of work in each of the calendar years starting from 2000 to 2008. Since the
workman has completed 240 days of continuous service as contemplated under
Section 25-B of the I.D Act, denial of employment to her with effect from 22.9.2008
is illegal. But then, the learned Tribunal did not reinstate the workman on the ground
that the same would be against the decision of the Government contained in the ban
order. Having held so, the learned Tribunal awarded a sum of Rs.1,00,000/- to the
workman towards compensation.
5. Heard Mr.S.N.Mohapatra, learned Standing Counsel for the S&ME.
6. Mr.Mohapatra learned counsel submits that the opposite party was a
voucher-paid worker in the establishment of the petitioner. The opposite party was
paid wages daily. She was engaged on 10.3.1999, which was purely temporary in
nature subject to availability of work. Since the work of printing and binding of text
books was outsourced from private firms and no sufficient work was available for
the voucher-paid workers, the opposite party voluntarily abandoned the job. He
further submits that the Government of Orissa had directed the petitioner to
disengage the casual workers engaged after 12.4.1993, thus, reinstatement of the
opposite party does not arise. He further submits that since engagement of the
opposite party-workman was for a specific period, the case is squarely covered by
Section 2(oo) (bb) of the I.D Act and, as such, Section 25-F of the I.D. Act would be
inapplicable. To buttress his submission, he cited the decision of the apex Court in
the cases of Punjab State Electricity Board v. Darbara Singh, 2006 SCC (L&S) 64
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and Kishore Chandra Samal v. Orissa State Cashew Development Corpn. Ltd.,
Dhenkanal, 2006 (SC (L&S) 241.
7. The scope of interference in the award passed by the learned Tribunal
is well known. In Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC
477, the apex Court held as follows;
"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 in excess of it, or as a result of failure to exercise jurisdictions. 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 thedispute 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 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 tact, 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."
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8. Further, in Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3
SCC 192, the apex Court held that while exercising jurisdiction under Articles 226
and/or 227 of the Constitution in matters like the present one, the High Court is duty-
bound to keep in mind that the I.D. Act and other similar legislative instruments are
social welfare legislations and the same are required to be interpreted keeping in view
the goals set out in the Preamble of the Constitution and the provisions contained in Part
IV thereof in general and Articles 28, 39(a) to (e), 43 and 43-A in particular, which
mandate that the State should secure a social order for the promotion of welfare of the
people, ensure equality between men and women and equitable distribution of material
resources of the community to subserve the common good and also ensure that the
workers get their dues. It is further held that the concept of social and economic justice
is a living concept of revolutionary import; it gives sustenance to the rule of law and
meaning and significance to the ideal of welfare State.
9. The instant case may be examined on the anvil of the decisions cited
supra. The opposite party-workman was working as a casual worker with effect
from 8.3.1999 continuously till 21.9.2008. Her continuous engagement is not denied
by the first party, as would be evident from the finding of the learned Tribunal.
Relying on Ext.1, statement showing the number of days the opposite party has
worked for the period from March, 1999 to September, 2008, which was marked on
admission and the evidence of M.W.1, learned Tribunal came to hold that the
opposite party has completed more than 240 days of work in each of the calendar
years starting from 2000 to 2008. Though the plea was taken by the petitioner that
the opposite party voluntarily abandoned the work, the same was answered in
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negative by the learned Tribunal. It was held that though the Management appeared
before the Labour Machinery during conciliating proceeding, the plea of
abandonment of job was not taken. It was further held that since opposite party had
completed one year of continuous service as contemplated under Section 25-B of the
I.D. Act, denial of employment to her with effect from 22.9.2008 is illegal.
10. Reliance placed by Mr. Mohapatra on the decisions cited supra is
totally misplaced. In Punjab State Electricity Board (supra) the legality and propriety
of the judgment rendered by a Division Bench of the Punjab and Haryana High
Court holding that the respondent had rendered service in excess of 240 days in
twelve calendar months preceding his retrenchment and therefore, the provisions of
Section 25-F of the I.D Act were required to be followed was the subject-matter of
dispute. The factual position in the said case shows that on 4.2.1988 the Punjab State
Electricity Board appointed the respondent as peon on daily-wage basis from
8.1.1988to 29.2.1988. It was indicated that if the work of the daily-wager was not found satisfactory or if a regular employee joins, his services would be deemed to be terminated without any notice. It was also indicated therein that the daily-wager was appointed against a vacant post, which was temporary in character. On 7.3.1988, the period indicated was extended on the same terms. There were similar extensions on 30.6.1988, 10.11.1988 and 7.4.1989. On 12.5.1989, one Surat Singh was appointed on a permanent basis. In terms of the orders of the engagement, the respondent's services were dispensed with in the month of June 1989 in terms of the terms and conditions of the contractual appointment. After about 8 years on 1.4.1997 the respondent sent a demand notice questioning the order of disengagement. The 7 Presiding Officer, Labour Court passed an award on 14.1.2003 holding that disengagement of respondent was illegal and he was entitled to reinstatement. However, taking note of the delayed demand, the wages were restricted. The writ petition filed before the Punjab and Haryana High Court, as noted above, was dismissed. A contention was advanced that the appointment was for a fixed period and, therefore, the provisions of Section 2(oo)(bb) of the I.D Act were clearly applicable. The apex Court held that the engagement of the respondent workman was for a specific period and conditional and quashed the orders of the Labour Court and High Court. In Kishore Chandra Samal (supra), the same view was taken.
11. In the instant case, the opposite party was engaged as a casual worker on 8.3.1999 and worked continuously till 21.9.2008. The petitioner has not denied the continuous engagement of the opposite party from March, 1999 to September, 2008. The plea taken by the petitioner that the work of printing and binding of text books was outsourced to some private firms pre-supposes that the work is of perennial in nature. In view of the same, the decisions cited by Mr. Mohapatra, learned counsel are distinguishable.
12. In view of Schedule V, Item 10 of the I.D Act, 1947, the petitioner is prohibited from engaging the opposite party-workman as a casual worker on permanent basis. The fact that the opposite party has been continuously working for more than nine years and that too rendered more than 240 days of service as a casual worker in a calendar year until her termination order is statutorily prohibited. The same amounts to an unfair labour practice as defined under Section 2(ra) read with 8 Section 25 I.D Act, which action of the petitioner is punishable under Section 25-U of the I.D Act.
13. In Chief Conservator of Forests v. Jagannath Maruti Kondhare, (1996) 2 SCC 293, the apex Court in para-22 of the report held as follows:
"22. ... In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to the Industrial Court of Pune (and 15 to the Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them of the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered, that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment- pollution-care work of Ahmednagar, whose need is on the increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second position also against the appellants."
14. On taking a holistic view of the matter, this Court is of the considered opinion that there is no error apparent on the face of the record warranting interference of this Court.
Accordingly, the writ application, sans any merit, is dismissed. No costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 4th March, 2015/pks.