Gujarat High Court
Executive Engineer Geb Now Pgvcl & vs Narendrabhai Hargovindbhai Raval & on 22 December, 2017
Author: A.J.Shastri
Bench: A.J. Shastri
C/SCA/12236/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12236 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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 or any order made thereunder ?
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EXECUTIVE ENGINEER GEB NOW PGVCL & 1....Petitioner(s)
Versus
NARENDRABHAI HARGOVINDBHAI RAVAL & 1....Respondent(s)
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Appearance:
MR SP HASURKAR, ADVOCATE for the Petitioner(s) No. 1 - 2
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
MR UT MISHRA, ADVOCATE FOR MR TR MISHRA, ADVOCATE for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 22/12/2017
ORAL JUDGMENT
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1. The petitioners - Gujarat Electricity Board through his Executive Engineer have brought the petition under Article 226 of the Constitution of India for challenging the judgment and award dated 18.12.2007 passed by the Presiding Officer, Labour Court, Rajkot in Reference (LCR) No.679 of 1992.
2. The facts of the case are that respondent - workman has asserted his claim on the premise that he was working as a daily rated employee drawing daily rate of Rs.25/ w.e.f. 16.6.1982 continuously and abruptly, without giving notice and without paying retrenchment compensation, unauthorizedly his services have been put to an end on 1.1.1986. It has been asserted by the respondent - workman that on 3.3.1992, a notice was given about such illegal termination which was not complied with, as a result of which an industrial dispute was raised initially before the Conciliation Officer and later on, same was referred to the Presiding Officer of Labour Court which was registered as Reference (LCR) No.679 of 1992. It is against this reference, upon service of summons, the present petitioners - respondents in reference, Page 2 of 39 HC-NIC Page 2 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT appeared and contested the reference by submitting reply at Exh.12. It has been contended that it is not correct that the workman has worked continuously. It has also been contended that for the first time in the year 1992, the dispute has been raised by the respondent - workman and it has also been contended that the workman had worked in the month of January for 24 days and the terminated, as stated, is not established. After allowing the parties to lead the evidence, the Labour Court has framed the issues for adjudication and later on, after considering the evidence on record, the reference filed by respondent
- workman came to be allowed and the order of termination is held to be bad and set aside and directed the petitioners to reinstate the respondent - workman to his original post and pay 30% back wages to be calculated from 1.1.1992 and upon such payment of back wages, the interest @ 12% came to be awarded and thereby, the reference of respondent was disposed of on 18.12.2007 and it is against this award passed by the Labour Court, the petition is brought before this Court by the petitioners by invoking extraordinary jurisdiction under Article 226 of the Constitution of Page 3 of 39 HC-NIC Page 3 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT India.
2.1 This petition appears to have been entertained by this Court initially on 22.12.2008, wherein after hearing the learned advocates for the parties, the same came to be admitted and by way of interim relief, subject to compliance of Section 17B of the I.D.Act,1947, the award impugned in the petition ordered to be stayed and it is also ordered that if the workman is not engaged or reinstated within 30 days, it would be open for the workman to file appropriate affidavit indicating that he has not been gainfully employed so as to receive the last drawn wages under Section 17B of the I.D.Act,1947. Since this order is material to the controversy, same is reproduced hereinafter:
"Heard learned Advocates for the parties.
The award impugned has proceeded on the basis as if there was cogent evidence with regard to completion of 240 days on the part of the workman on the basis of one witness's evidence that he did not speak that workman did not compete 240 days. Apart therefrom, there is no evidence indicated by the workman that he has completed 240 days. Hence, Rule. Mr.Mishra, learned Page 4 of 39 HC-NIC Page 4 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT Advocate for respondent waives service of notice of Rule. By way of interimrelief, the award impugned is stayed. However, the staying of the award will as a necessary consequence entail payment of last drawn wages as per Section 17 - B of the ID Act. It is, therefore, clarified that despite the operation and implementation of the award being stayed, it would be open to the petitioner to reengage, reinstate the workman without prejudice to the rights and contentions challenging the award in its entirety that includes reinstatement and back wages and in case the workman is not engaged or reinstated within 30 days from today, it would be open to the workman to file appropriate affidavit indicating that he has not been gainfully employed so as to receive last drawn wages under Section 17B of the ID Act."
2.2 The petition thereafter appears to have been adjourned from time to time and it is in between come up for hearing in the month of February,2015. It appears that civil application for amendment came to be filed by the petitioners bearing Civil Application No.1033 of 2015 and vide order dated 2.2.2015, said Civil Application is allowed and respondent No.2 is permitted to be impleaded in the main proceedings. Subsequently, the petition has come up for Page 5 of 39 HC-NIC Page 5 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT consideration finally before this Court in the month of September,2017 and the learned advocates have been heard at length and later on, learned advocates representing the respective sides have submitted the copies of the decisions which they are relying upon, the matter was kept for orders.
3. Mr.S.P.Hasurkar, learned advocate representing the petitioners, has vehemently contended that the award passed by the Labour Court is not just and proper. It reflects arbitrary exercise of jurisdiction and same is also not supported by cogent reasons and, therefore, such award which reflects nonapplication of mind, deserves to be quashed.
3.1 Mr.S.P.Hasurkar, learned advocate, has further contended that the tenure of service, as alleged, is seriously disputed by the petitioners by filing detailed reply at Exh.12 and the reference itself has been made only in the year 1992 for a grievance of 1986 termination and, therefore, such belated reference ought not to have been entertained by the Labour Court in view of the settled position of law.
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3.2 Mr.S.P.Hasurkar, learned advocate, has further contended that in view of interpretation of Section 25F, G and H of the I.D.Act,1947 in corelation with Section 2(oo)(bb) and Section 25B, it is quite clear that an error of jurisdiction is committed by the Labour Court. Learned advocate has further contended that so called termination took place in the year 1986, but the fact is ignored by the Labour Court that even after so called termination, for few days the respondent had worked in the year 198788, as well. It has been pointed out vehemently that in none of the years, the respondent workman has completed 240 days which is the basic yardstick to grant any relief to the workman and though it is reflecting clearly that respondent workman has not completed 240 days in any year, still, the Labour Court has passed the impugned award and, therefore, very exercise of jurisdiction is erroneous.
3.3 Relying upon the decision of the Apex Court reported in 2006 SCC (L&S) 1, Mr.S.P.Hasurkar, learned advocate, has contended that burden of proof Page 7 of 39 HC-NIC Page 7 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT is on the workman to prove whether he has worked for 240 days or not. On the basis of bald statement and mere assertion in the reference, it cannot be presumed by the Court that workman has completed 240 days and, therefore, the law laid down by the Apex Court has not been properly observed by the Labour Court and, therefore, such an error of jurisdiction is required to be corrected.
3.4 Mr.S.P.Hasurkar, learned advocate, has further contended that almost in a similar situation the question of applicability of Section 25G and H of the I.D.Act,1947 came up for consideration in case of Surendranagar District Panchayat v. Dahyabhai Amarsingi, reported in 2006 (2) GLR 1004, though clear case was made out and admissions were extracted from the crossexamination of respondent - workman, the Labour Court has not considered the principle laid down by this Court in the said decision and has erroneously come to the conclusion and passed the order. It has also not been established from the evidence that juniors have been retained or recruited after so called termination. The entire evidence of Page 8 of 39 HC-NIC Page 8 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT respondent workman if to be taken on face value, then also as per the say of Mr.S.P.Hasurkar, learned advocate, no case is made out which ought to have been considered by the Labour Court. Mr.S.P.Hasurkar, learned advocate, has further contended that even otherwise, the reasons which are assigned by the Labour Court are not so cogent which would satisfy the conscience of this Court that no error is committed by the Presiding Officer. In fact, by assigning a brief reason which is based upon mere inference and non consideration of material evidence, such error of jurisdiction is required to be corrected by quashing and setting aside the impugned award. 3.5 Mr.S.P.Hasurkar, learned advocate, for the purpose of strengthening his submissions, has relied upon following decisions, which will be dealt with by the Court in later part of the judgment at an appropriate stage.
(1) Range Forest Officer v. S.T.Hadimani, reported in 2002 (0) GLHELSC 23839.
(2) Municipal Corporation, Ludhiana v. Ram Pal, reported in 2006 (0) GLHELSC 48039.Page 9 of 39
HC-NIC Page 9 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT (3) Punjab State Electricity Board v. Sudesh Kumar Puri, reported in 2007 (0) GLHELSC 38635. No other submissions have been made by Mr.S.P.Hasurkar, learned advocate, learned advocate for the petitioners.
4. To meet with the stand taken by learned advocate for the petitioners, Mr.U.T.Mishra, learned advocate representing the respondent - workman, has specifically contended that no error is committed by the Labour Court and on the contrary, the entire conclusion is based upon true appreciation of material on record and, therefore, it is not possible to digest that any error is committed. Learned advocate has further contended that when such detailed exercise is undertaken and the conclusion is based upon appreciation of evidence, in exercise of jurisdiction under Article 226 of the Constitution of India, no interference is called for.
4.1 Mr.U.T.Mishra, learned advocate, has further Page 10 of 39 HC-NIC Page 10 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT contended that a clear case has been made out about illegal termination of the respondent and it has also been specifically averred in the reference as to which period, the petitioners have taken the work from the respondent - workman and, therefore, when such specific stand is taken, it was obligatory on the part of petitioners to counter to this stand by leading cogent evidence and, therefore, according to Mr.U.T.Mishra, learned advocate, there appears to be no error in passing the impugned award. Mr.U.T.Mishra, learned advocate, has further contended that the stand taken by the petitioners in their written submissions is self contradictory and on the basis of entire evidence, a clear conclusion about violation of Section 25F, G and H of the I.D.Act,1947 is arrived at by the Labour Court and, therefore, when the exercise of jurisdiction is based upon appreciation of evidence on record, this is not a fit case in which extraordinary jurisdiction be resorted to, with a view to substitute the finding arrived at by the Labour Court.
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Mr.U.T.Mishra, learned advocate, has further contended that not only the illegal termination is emerging from the record but even fact is also admitted which is coming out from the cross examination that juniors have been retained after termination of the respondent - workman and even new persons have also been engaged and, therefore, there emerging a clear case of violation of Section 25G and H of the I.D.Act,1947 and hence, it cannot be said in any way that error is committed by the Labour Court. 4.2 Mr.U.T.Mishra, learned advocate, has further contended that though the case is tried to be diverted by asserting that respondent - workman was engaged in a project and the said project came to an end, but there are no opportunities provided so as to believe that plea and, therefore, when nothing comes out from the evidence of the petitioner establishment, the Labour Court has not committed any error in arriving at a conclusion. Learned advocate has further contended that even in a case where there Page 12 of 39 HC-NIC Page 12 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT was a delay of 4 years in submitting the reference, in the absence of any prescription of period of limitation, the Courts have entertained the reference. On the contrary, it was a responsibility of the petitioner establishment to dislodge the findings which have been arrived at and having not done so, it is illfounded in the mouth of the petitioner - establishment to contend that there is a belated reference. 4.3 Mr.U.T.Mishra, learned advocate, to support his submissions, has relied upon following decisions:
(1) Surat Mahila Nagrik Sahakari Bank Ltd. Surat v.
Mamtaben Mahendrabhai Joshi c/o. Sharad S. Pathak, reported in 2001 (3) LLN 469.
(2) R.M.Yellatti v. Asst. Executive Engineer, reported in 2005 (0) GLHELSC 35956.
(3) Devinder Singh v. Municipal Corporation, Sanaur, reported in (2011) 6 SCC 584.
(4) Bhuvnesh Kumar Dwivedi v. M/s.Hindalco Industries Ltd., reported in AIR 2014 SC 2258.
4.4 Learned advocate has ultimately requested that since there appears to be no illegality or any Page 13 of 39 HC-NIC Page 13 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT infirmity, the award passed by the Labour Court may not be interfered with.
4.5 Mr.U.T.Mishra, learned advocate, has pointed out that when the petition came to be entertained in the year 2008 and when it has been finally heard, in the meantime the respondent has attained the age of superannuation as on 15.5.2015 and, therefore, now the question of back wages and awarding lumpsum compensation in view of reinstatement order is the question to be dealt with by the Court in the present proceedings. Therefore, by mentioning such, a request is made by learned advocate for the respondent - workman to pass suitable orders in the present proceedings.
5. Having heard learned advocates for the respective sides and having gone through the material on record, it appears that to arrive at just decision in the present proceedings, some facts are very much to be kept in mind;
(1) What has been aggrieved in the present
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proceeding is the illegal termination dated 1.1.1986 and it is also not in dispute that for the first time a notice came to be given on 3.3.1992 i.e. almost after a period of more than 6 years. To prove the case, both the sides have led their respective evidence, out of which Exh.12 - written submissions filed by the petitioner establishment. A bare reading of the written submissions indicates that respondent had not worked for a continuous period and has also not given any detail that during the passage of more than 6 years period, he has remained unemployed. It is also reflecting from Para.7 of the said written submissions that there are Rules framed by the petitioner establishment to engage the employee on work charge basis and one has to pass through the said process of employment as provided in the Rules and the respondent has not complied with said process and, therefore, no legal right is available. It was also contended that after discontinuance Page 15 of 39 HC-NIC Page 15 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT from the petitioner establishment, the respondent - workman had gainfully employed himself and, therefore, on the basis of this premises, the reference is made.
(2) So far as documentary evidence is concerned, on Page43A a typed copy of the schedule in which the respondent had worked is stated to be a part of the record of the Labour Court. But this indicates that for few days, the respondent was in the employment.
(3) Now, coming to the evidence of respondent -
workman, though he has stated that he was intermittently working right from 16.6.1982 as helper on a daily rate of Rs.25/, but for no reason he was discontinued with effect from 1.1.1986. Now, the cross examination of this witness is indicating that for the purpose of engaging himself in the employment, he has neither applied nor being interviewed and was merely remained as daily rated employee. It was also coming out Page 16 of 39 HC-NIC Page 16 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT from the crossexamination that as and when respondent was working, for those days only he was getting the payment / salary. Now, as far as violation of Section 25G and H of the I.D.Act,1947 is concerned, in Para.11 it is coming out that respondent is not aware about the fact of employment of other person after his discontinuance and there is no other details with him. Even on gainful employment, the respondent has stated in crossexamination that he is merely earning Rs.500/ to Rs.600/ and hardly mitigating the routine needs of the family.
(4) Now, as far as the evidence of petitioner establishment is concerned, an affidavit is submitted by Mr.Madhav Mathurbhai Chotai, who was working as Deputy Engineer since one and half year at Section1, Rajkot city and on the basis of record, he has deposed in the affidavit. The deponent of this affidavit has submitted that respondent has never worked as permanent employee nor he was interviewed nor kept in consonance with Page 17 of 39 HC-NIC Page 17 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT the Rules of the establishment and hence, submitted as per the settlement which has been arrived at with the union, regular persons are to be employed from the list of apprentice and, therefore, has denied the claim of respondent workman. In cross examination, this very witness of petitioner establishment has stated that whether juniors are retained or not, he is having no details. He has also admitted that as far as attendance of the respondent workman is concerned, he has not examined the record and has also admitted that there are no written documents attached with his affidavit and the affidavit is prepared as per his instruction by the learned advocate. He has also admitted specifically in cross examination that there is no material available with him for the payment of rates of the respondent workman.
(5) On the basis of these evidences, the Labour Court upon examination has concluded that Page 18 of 39 HC-NIC Page 18 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT Exh.39 evidence, since has not provided any details, the respondent workman has established that he has continuously worked with the petitioners and this is because of the fact that there is no denial about no working for 240 days reflecting in exh.39. (6) On the basis of said evidence it has also been observed that plea of Section 2(oo)(bb) of the I.D.Act,1947 has been dealt with by the Labour Court and relying upon the decision of the Apex Court, it has been reiterated in the conclusion that workman has successfully established that he has continuously worked.
(7) After considering the evidence and the ratio laid down by series of decisions which were pressed into service, it has been concluded that since the documents have not been produced by the petitioners to deny the claim of respondent workman, the stand of the petitioners in the court below is not believed and, therefore, according to the Page 19 of 39 HC-NIC Page 19 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT Labour Court, violation of Section 25G and H has also been established and since the reference is filed after a period of 6 years, instead of awarding 100% back wages, the same has been curtailed and ordered to pay 30% back wages and, therefore, by this conclusion, basically, the case of the respondent workman is believed by the Labour Court.
6. Now, in the context of these circumstances prevailing on record to examine the decisions of the petitioners, the first judgment which has been pressed into service is a decision of the Apex Court in case of Municipal Corporation, Ludhiana v. Ram Pal, reported in 2006 (0) GLHELSC 48039, in which no doubt, the Apex Court has opined that Section 25F will not apply and similarly, no question of applicability of Section 25G. But this was the case in which it was not in dispute that there was a contract of service between the appellant and respondent and further, there was undisputedly nonrenewal of contract of employment and in that context, the Apex Court has Page 20 of 39 HC-NIC Page 20 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT considered the applicability of Section 2(oo)(bb) of the I.D.Act,1946 and then, arrived at a conclusion. Whereas here the case on hand is on a different footing that here there is no case of contract of service. Here is a case where a daily rated employee was continued throughout and discontinued from the service and that was the subject matter of scrutiny before the court below and, therefore, the ratio of the said decision, in respectful consideration of the Court, is not applicable.
7. Yet another decision which has been pressed into service is in case of Range Forest Officer v. S. T. Hadimani, reported in 2002 (0) GLHELSC 23839 in which the termination of workman without payment of retrenchment compensation was examined by the Apex Court. The Apex Court, after considering series of decisions, has concluded that the Tribunal was not right in placing the onus on management without first determining on the basis of cogent evidence that respondent had worked for more than 240 days in a year preceding the termination and in that case, no proof of receipt of salary for 240 days was produced by the Page 21 of 39 HC-NIC Page 21 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT workman. But then in that case the respondent was given an employment on the same terms engaged prior to his termination and accordingly, the case was not precipitated further and, therefore, such a brief order is not possible to be heavily relied upon in the present proceedings where the facts are altogether different.
8. Yet another decision which has been relied upon is a decision in case of Punjab State Electricity Board v. Sudesh Kumar Puri, reported in 2007 (0) GLHELSC 38635 wherein also, upon construction of Section 2(oo)(bb) of the I.D.Act,1947, the termination of service was examined in the context of statutory provisions of Section 25F of the I.D.Act,1947 and there again it was a case where the contract of service was governing the terms of engagement and there was nonrenewal of contract of employment which was not accepted by the Court as retrenchment and accordingly, by applying the provision of Section 2(oo)(bb), the Apex Court has disposed of the proceedings and, therefore, it seems that the facts are quite distinct from the facts on hand and hence, Page 22 of 39 HC-NIC Page 22 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT the Court is left with no other option but to examine as to whether any perversity is reflecting from the order passed by the Labour Court in the context of evidence which was led before it.
9. The reading of the award is reflecting that there is no adequate material in the form of documentary evidence led by the petitioner establishment. It has also been found from the deposition as well as from the order that the conclusion so arrived at by the Labour Court can be treated as perverse to the record as the relevant record has not been placed at all by the petitioner establishment. Even nothing concrete has come out from the affidavit of Shri Mr.Madhav Mathurbhai Chotai at Exh.39. On the contrary, the crossexamination is revealing that he does not have knowledge or record to met with the stand of the respondent and, therefore, on conjoin reading of the evidence in relation to the conclusion arrived at by the Labour Court, it is not possible for this Court to establish that there is any fatal infirmity or any perversity is reflecting in exercise of jurisdiction by the Labour Court.
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10. This Court is examining the validity of the award much after a lapse of several years, but the Court cannot ignore the fact that in extraordinary jurisdiction of this Court, the parameters which are prescribed by series of decisions cannot be given a gobye and while considering the case of the petitioner, the Court is also mindful of the well defined proposition of law laid down by the Apex Court in case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374. Since these observations with regard to exercise of jurisdiction either under Article 226 or 227 are relevant, the same are quoted hereinafter:
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court Page 24 of 39 HC-NIC Page 24 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(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.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or Page 25 of 39 HC-NIC Page 25 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of
certiorari and the supervisory jurisdiction
are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.Page 26 of 39
HC-NIC Page 26 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, Page 27 of 39 HC-NIC Page 27 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and
(f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just Page 28 of 39 HC-NIC Page 28 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come Page 29 of 39 HC-NIC Page 29 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
11. Now, as against this, since the Court has considered the decisions which are pressed into service by learned advocate for the respondent, the same have some bearing on the present case on hand. The first decision which has been relied upon is in case of R.M.Yellatti v. Asst. Executive Engineer, reported in 2005 (0) GLHELSC 35956 in which the appellant of that case was appointed as a daily rated employee; he worked for a period from 1988 to 1994 and thereafter, was discontinued from the service and to establish the days of working, the nominal muster roll Page 30 of 39 HC-NIC Page 30 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT was not produced by the management and thereafter, explanation given for such nonproduction; no material was also produced by the management to disbelieve the certificate issued by the management itself and, therefore, the Labour Court in that case has believed the stand of the workman and found in contravention of Section 25F of the I.D.Act,1947 and, therefore, reinstatement with 50% back wages was awarded. The said case went up to the Apex Court in which the Apex Court has restored the award passed by the Labour Court having found that no material is produced by the management. Now, if we consider the case on hand in the context of aforesaid decision, it would appear that the management i.e. petitioner has not produced any record with regard to the service of the respondent. The petitioner establishment has also not produced any other material except affidavit at Exh.39 and that too, the same was after opening of the right to lead the evidence which was closed at Exh.38 and, therefore, here also on the case on hand, no evidence was produced to dislodge the assertion of the respondent - workman.
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12. Yet another decision which has been pressed into service is a decision in case of Surat Mahila Nagrik Sahakari Bank Ltd., Surat v. Mamtaben Mahendrabhai Joshi c/o. Sharad S. Pathak, reported in 2001 (3) LLN 469 in which the termination of service of respondent was the subject matter of scrutiny by the Division Bench of this Court. The Division Bench of this Court found that there was no material on record to satisfy the court's conscience that noncontinuance of the respondent was bonafide. On the contrary, there was a positive finding that Section 2(oo)(bb) cannot be made applicable. In the backdrop of such factual matrix, the Court found that since there was a technical fault of noncompliance of Section 25F of the I.D.Act,1947, the back wages were confined to 50%. A detail reading of the said judgment would indicate that finding of the Labour Court was not disturbed in exercise of extraordinary jurisdiction.
13. Further, a decision which has been pressed into service is a decision in case of Devinder Singh v. Municipal Council, Sanaur, reported in (2011) 6 SCC 584 in which also an issue whether interference in labour matters under Article 226 of the Constitution Page 32 of 39 HC-NIC Page 32 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT of India is germane or not. The Apex Court, while dealing with the said case, has found that Labour Court held the termination illegal and without compliance of mandatory requirement of Section 25F of the I.D.Act, directed the reinstatement by discarding the plea of Section 2(oo)(bb) of the I.D.Act. The Apex Court also found that since there was no material produced by the employer to show that the termination could be brought within the scope of Section 2(oo)(bb) of the I.D.Act,1947, the Apex Court was pleased to restore the award of the Labour Court. Though the engagement of the appellant was preceded by an advertisement or after consideration of other eligible persons, but it was found that the High Court in that case did not notice and decided the petition by assuming that the appointment was contrary to the recruitment rules and Articles 14 and 16 of the Constitution of India and, therefore, it found that there was no good ground for the employer to put an end of the engagement of the appellant and that too, without complying with the mandate of the statute, namely, Section 25F of the I.D.Act,1947. Here also, if the case is to be considered from the context of Page 33 of 39 HC-NIC Page 33 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT evidence which was brought on record by the employer - petitioner, it is found that to justify the plea of Section 2(oo)(bb), no material is produced and no case is made out, on the contrary, even for establishing their stand, there is no iota of evidence led except bare assertion in the form of affidavit and, therefore, considering this fact situation, it is not possible for this Court to arrive at a conclusion that there is a serious error committed by the Labour Court.
14. The other decision which has been relied upon is a decision delivered by the Apex Court in case of Bhuvnesh Kumar Dwivedi v. M/s. Hindalco Industries Ltd., reported in AIR 2014 SC 2258 in which two issues were dealt with by the Apex Court (i) the interference by the High Court in exercise of jurisdiction under Articles 226 and 227 and (ii) the termination of service whether amounts to retrenchment and what would be the position if noncompliance of mandatory requirement of the provisions i.e. Section 6 of the U.P. Industrial Act almost parallel to Section 25F. A bare perusal of this judgment is indicating Page 34 of 39 HC-NIC Page 34 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT that the High Court shall interfere with the factual aspect placed before the Labour Court only when it is convinced that the Labour Court has made patent mistakes in admitting the evidence illegally or has made any grave error of law by coming to the conclusion on fact and the High Court in extraordinary jurisdiction has got a limited scope to interfere. So far as other issues whether termination amounts to retrenchment and on the effect of noncompliance of mandatory requirement, it has been culled out by the Apex Court that if there is a noncompliance of mandatory provision of statute, then termination is void abinitio and, therefore, considering this set of circumstance and keeping in view the aforesaid law laid down by the Apex Court, what is emerging from the present case on hand is that there is no material produced by the petitioner - establishment to establish that workman has not continuously worked right from 1982 onwards and it is also not established by leading any cogent evidence that plea of Section 2(oo)(bb) of the I.D.Act,1947 is available to the petitioner and further, no case is made out that any compliance is made by the petitioner establishment of Page 35 of 39 HC-NIC Page 35 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT the mandatory provision of Section 25F of the I.D.Act,1947. So far as the contravention of Section 25G and H is concerned, a complete ignorance is pleaded by the deponent - Shri Madhavbhai Mathurbhai Chotai at Exh.39. On the contrary, his evidence is reflecting that he is unaware about the case of the respondent workman and has not seen at all the record nor produced the same and, therefore, this is a case in which the petitioner establishment has defended itself without any cogent material and, therefore, what has been arrived at by the Labour Court is not possible to be treated as any manifest error or any perversity in exercise of jurisdiction and, therefore, the conclusion arrived at by the Labour Court is not possible to be dislodged in exercise of extraordinary jurisdiction of this Court. The Court found that since the respondent workman has belatedly approached, the back wages have been curtailed to the extent of 70% and, therefore, such a reasonable award which has been passed on the factual data on hand, it is not possible to come to a different conclusion than what has been concluded. As stated earlier, unless any perversity or manifest error is reflecting, no extraordinary Page 36 of 39 HC-NIC Page 36 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT jurisdiction is possible to be exercised to substitute the finding arrived at by the court below and, therefore, keeping these parameters in mind, the Court is of the considered opinion that no case is made out by the petitioner.
15. It is noted from the record and the submissions that by now, since the respondent workman has attained the age of superannuation i.e. 60 years as on 15.5.2015, the question of reinstatement is not arising. Hence, whatever consequential benefits to be passed on to the respondent workman, same may be determined on the basis of aforesaid date i.e. 15.5.2015.
16. While parting with the judgment, three important decisions delivered by the Apex Court have also been found to be relevant and the same are reported in Jasmer Singh v. State of Haryana & Anr., reported in (2015) 4 SC 458 and Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda, reported in (2010) 1 SCC 47. In case of Jasmer Singh (supra), it was held that since the appellant had worked for Page 37 of 39 HC-NIC Page 37 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT more than 240 days in the establishment of respondent employer immediately preceding the date of his termination and having found that the termination is without complying with the statutory requirement of Section 25F, found to be unsustainable and by interfering with the order of the High Court, it was held by the Apex Court that violation of Section 25F, G and H renders the termination void abinitio and thereby, confirmed the award passed by the Labour Court.
17. The Apex Court has, in case of Director, Fisheries Terminal Department (supra), held that delay in approaching the industrial forum should not be treated as fatal.
18. Therefore, keeping these propositions in mind also, the Court finds that no case is made out by the petitioner establishment. Hence, the present petition being devoid of merit deserves to be dismissed and same is dismissed hereby. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated.
Page 38 of 39 HC-NIC Page 38 of 39 Created On Sat Dec 23 01:55:19 IST 2017 C/SCA/12236/2008 JUDGMENT (A.J.SHASTRI,J.) (vipul) Page 39 of 39 HC-NIC Page 39 of 39 Created On Sat Dec 23 01:55:19 IST 2017