Calcutta High Court (Appellete Side)
Food Corporation Of India vs Central Government Industrial ... on 25 February, 2009
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray
And
The Hon'ble Justice Manik Mohan Sarkar.
F.M.A. No. 2345 of 2005
C.A.N. 8685 of 2007
C.A.N. 4726 of 2008
Food Corporation of India
Versus
Central Government Industrial Tribunal, Asansol & Ors.
For Appellants : Mr. Bimal Kumar Chatterjee
Mr. Kamal Kumar Chattopadhyay
Mr. Y. M. Hossain.
For Respondents nos. 4 to 52 : Mr. Sailaja Nanda Bhattacharjya
Mr. Subrata Bhattacharya
For Respondent nos. 10 & 45 : Mr. R.N. Majumder
Ms. Reshmi Mukherjee.
Heard On :
Judgment On : 25TH FEBRUARY, 2009
Pratap Kumar Ray,J.
Challenging the judgment and order dated 18th February, 2005 passed by learned trial Judge in W.P. No. 21368 (W) of 1999 this appeal has been preferred. By the impugned judgment under appeal, writ application was dismissed on merit passed by the learned trial Judge.
The writ petitioner, Food Corporation of India, hereinafter referred to as "FCI", is appellant before us. FCI challenged the award of the Central Government Industrial Tribunal, Asansol dated 9th June, 1999 whereby the Tribunal answered the reference under Section 10 of the Industrial Dispute Act, namely, "whether the demand of Durgapur Casual Workers' Union for absorption of 49 casual workmen as per list enclosed by the management, FCI, Durgapur is justified? If not, what relief they are entitled to?", in the affirmative in favour of the workmen directing the 49 casual workmen to absorb by the management within 3 months from the date of enforceability of the award on the sole ground that continued casualization of service amounts to unfair labour practice vide item no. 10 in part 1 of the Fifth Schedule in the Industrial Dispute Act and that social justice principle demand such order of absorption. The award in connection with reference no. 21 of 1996 passed on 9th June, 1999, reads such:
"AWARD.
1. The Government of India in the Ministry of Labour in exercise of the powers conferred on them by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 has referred the following dispute to this Tribunal for adjudication vide Ministry's Order No. L-22012/348/95-IR (C.II), dated 18-7-96.
SCHEDULE.
"Whether the demand of Durgapur Casual Workers Union for absorption of 49 casual workmen as per list enclosed by the management of FCI, Durgapur is justified? If not, what relief they are entitled to?"
2. The admitted back ground:
The Durgapur Food Corporation District had long back set a rice mill in the name and style of Modern Rice Mill at Durgapur and it had been handed over to Successive contractors for running the same. The concerned workmen (as per list) had been working as contract labour under the contractors in the rice mill. The fast contractor was M/s. Civicon. The contract system was terminated and the rice mill was closed in 1990/1991. Thereafter the concerned workmen were directly employed by the Food Corporation of India in June, 1991 as casual employees on daily wage basis in the Food Storage Depot at Durgapur, for performing the jobs of Sweeping godown floors and wagons, putting covers on infested stocks for fumigation purpose, cutting grass, collection and bagging of spillages from godowns/wagons etc. Even now also their casual employment has been continuing. They are paid wages for six days in a week at the minimum wage rate prescribed by the West Bengal State Government, the seventh day in each week being treated as a break in their employment.
3. The Union's version:
The jobs performed by the concerned casual workmen are indispensable for the Food storage depot and the same are of perennial nature. In fact the concerned workmen have been continuously working for six days in every week. For discharging same and similar type of functions, the management has got the system of engaging its own regular employees. They should be accordingly absorbed permanently.
4. The management's version:
The nature of jobs performed by the concerned casual workmen is of purely temporary nature and the job requirement does not justify their continued deployment. They were employed as casual workers in June, 1991 not because of permanent necessity, but rather on their demand for employment after the rice mill was closed. Therefore they can not be permanently absorbed.
5. In course of hearing, it was felt necessary to ascertain correctly (i) what is the specific nature of duties these workmen have been discharging, (ii) whether the said nature of duties are essential in running the godowns of the Food storage depot and (iii) if so, how such works are being discharged in other FCI districts. Accordingly vide order dated 17.9.98 the parties were instructed to file affidavits giving informations concerning these three specific points. The District Manager of the FCI accordingly filed and affidavit dated 18.11.98 mentioning that the nature of jobs performed by the casual labourers are both of operational and allied technical nature. He further mentioned in his affidavit that the following specific jobs are performed by them:
a) Sweeping of godown and wagon floors.
b) Collection and bagging of spillages from godowns and wagons.
c) Putting covers on the infested stocks for fumigation purpose.
d) Clearing food grains through hand tools for removing foreign particles.
e) Upgradation of upgradable stock by manually sieving from ear marked stocks.
Instead of answering whether the said nature of duties are essential in running the godowns, it has been mentioned in the affidavit that the jobs are purely temporary nature. It is not answered how such works are being discharged in other FCI districts. It is obvious that information on this third point has not been deliberately furnished in the affidavit, lest it may disclose that in other FCI districts these jobs are performed by regular employees. The interesting point is that the District Manager on one hand says that the jobs are operational as well as allied technical in nature and on the other hand says that the same are purely temporary in nature. It cannot be accepted that operational jobs necessary for running Food storage deport would be temporary in nature. A lay-man would say that these jobs are perennial in nature.
6. The management does not say that after the rice mill was closed and the contract with the contractor for running the mill was terminated, the concerned workmen who had been during the relevant period deployed under him as contract labour were retrenched with full retrenchment benefits and that only after such retrenchment they were given re-employment as casual workers. Therefore whether or not retrenchment benefits were given to them after termination of the contract labour system is very much doubtful. In this connection the following categoric averment in para 8 of the W.S. of the management should be taken due note of.
"The fact remains that the concerned contract workmen, when the mill's function was stopped had raised demand for continuation of their engagement in the FCI deport in the year June, 1991 and the management, though there was no scope for engagement, had agreed to engage them as casual workers on daily wages basis in an emergency and to avoid dislocation of public distribution system at the godown and railway distribution system at the godown and railway siding for doing the work of ..."
The management has omitted to speak about the question of retrenchment of the concerned workmen, after the contract labour system was stopped. It seems the management concealed the actual position on this question, lest it would disclose that there was no due retrenchment of the contract labours after the contract system was brought to an end.
7. The factual position which thus emerges from the fore going discussions is that the (1) concerned workmen were straight away brought to the employment under the FCI by engaging them as casual workers without retrenching them with full benefits after the contract system was terminated for preventing dis-location in public distribution system and (2) that since then they have been continuously engaged on daily wage basis in every week for the operational requirements of running the FSD at Durgapur. (3) They stand deprived from the privileges of permanent workmen through such continued casualisation and it amounts to unfair labour practice vide Item No. 10 in part-I of the fifth schedule in the I.D. Act. Social Justice requires that an end to it should be brought through their permanent absorption.
8. Concluding observation and direction:
The demand of Durgapur Casual Workers Union for absorption of 49 casual workmen (as per list) by the management of FCI Durgapur is justified. The concerned casual workmen be absorbed by the management within three months from the date of enforceability of this award.
The reference is answered accordingly."
The impugned judgment under appeal passed by Writ Court below reads such:
"Food Corporation of India is the petitioner in this writ petition. It is aggrieved by the award of the Central Government Industrial Tribunal, Asansol, dated June 9th, 1999. The tribunal answered the reference in favour of the forty-nine respondent-workmen; it directed the petitioner to absorb them within three months.
On June 8th, 2000, when the writ petition was admitted, an interim order was made that during its pendency service of the workmen should not be disturbed, and benefits given to them and the departmental workers should be at par; such interim order is still in force.
The issue stated in the order of reference dated July 18th, 1996 was:
"Whether the demand of Durgapur Casual Workers Union for absorption of 49 casual workmen as per list enclosed by the management FCI, Durgapur is justified? If not, what relief they are entitled to?"
It is to be noted that before the tribunal the parties chose not to lead any oral evidence, but to get the issue decided on the basis of affidavit evidence. It is also to be noted that under the rules the tribunal was free to decide the referred issue on the basis of affidavit evidence alone.
The issue was clarified by the tribunal for the purpose of giving opportunity to the parties of filing their affidavits. Three aspects of the issue were identified and recorded by the tribunal; they were: "(i) what the specific nature of duties these workmen have been discharging, (ii) whether the said nature of duties are essential in running the godowns of the food storage deport and (iii) if so, how such works are being discharged in other FCI districts."; and the parties were given liberty to file affidavits for addressing those aspects. The parties availed of the opportunity and filed affidavits.
After considering the affidavits filed by the parties, the tribunal reached the conclusion (a) that even a lay-man would say that the jobs performed by the workmen were perennial in nature, and (b) that in its own interest and to prevent dislocation in public distribution system, the petitioner had brought the workmen in its direct employment. The tribunal held that the action of the petitioner in keeping the workmen as causal for years together amounted to unfair labour practice. For this the tribunal referred to item 10 of para 1 of the fifth schedule to the Industrial Disputes Act, 1947.
In my view, contention of counsel for the petitioner that evidence on record was not sufficient to reach such a conclusion as was reached by the tribunal, should not detain me even for a moment, for the simple reason that sitting in writ court I am not supposed to examine whether there was sufficient evidence in support of the findings of fact recorded by the tribunal. It is not the case of the petitioner, and I am sure that it cannot be the case, that the findings of fact recorded by the tribunal are based on no evidence.
After reading the written statements and affidavits filed by the parties, I find that the findings of fact recorded by the tribunal are eloquently supported by the evidence on record.
It is not disputed that sometime in 1976 the contractors engaged by the petitioner for running its rice mill engaged the workmen. There is no dispute that till 1991, when the petitioner decided, as a matter of policy, to sell its rice mill, they worked continuously, and without any break. There is no dispute that for preventing dislocation in public distribution system (it seems to me, this was the principal reason for taking the workmen in the employment of the petitioner), the petitioner, once again as a matter of policy, decided to engage them, describing them as casual workmen. There is nothing to show that the several specified duties assigned to them from the year 1991 till the year 1996, when the dispute was referred to the tribunal, were not perennial in nature or that during such period they were engaged casually whenever their services were needed, or that the need to engage them was purely temporary, or that for the duties assigned they were surplus.
I could not persuade myself into agreeing with counsel for the petitioner that the "perennial in nature" aspect did not receive adequate attention of the tribunal. He found little to justify his argument when I pointed out the evasive nature of the affidavit that was filed by the petitioner before the tribunal. It simply stated that the engagement was of temporary nature and no permanent need existed. Such a stand, in my view, was correctly rejected by the tribunal. Since apart from a vague statement, the petitioner did not take care to substantiate its stand by producing relevant documents and records to show (a) that the jobs (on their face appearing to be of perennial nature) were actually not of perennial nature, and (b) that the workmen had always worked casually as against a temporary need to engage a small workforce.
I think, I should make a reference to the proposition of law mentioned by Mr. P.S. Sengupta, counsel for the workmen, that if on evidence two views are possible, then the view taken by the tribunal should not ordinarily be interfered with by the writ court. It seems to me that we need not trouble ourselves with application of this proposition to this case, since I am of the view that on the evidence on record there was really no scope of taking two views and I think the view taken by the tribunal was the only view, and it was the right one. I would like to mention one fact that the common case of the parties before the tribunal was that the petitioner had taken the workmen in its employment in the interest of public distribution system.
I am impressed by the attempt made by Mr. Sengupta to remind me of the proposition laid down by the Apex Court in P. Kasillingam v. P.S.G. College of Technology [(1981) 1 SCC 405]. In para 11 of the report their Lordships said:
"The supervision of the High Court exercised through writs of certiorari goes on two points. One is the area of jurisdiction and the qualifications and conditions of its exercise, the other is the observance of law in the course of its exercise. Such writs are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice."
I agree with him that this is not a case where the award of the tribunal has caused any manifest injustice to the petitioner on any of the grounds stated in the authority.
He has also cited to me the Apex court decision in Calcutta Port Shramik Union v. The Calcutta R.T. Association, [AIR 1988 SC 2168], and from its para 10 read:
"The object of enacting the Industrial Disputes Act, 1947 and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties, which requires to be resolved by adjudication. In all such cases an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper-technical grounds. Unfortunately the orders of the single Judge and of the Division Bench have resulted in such frustration and have made the award fruitless on an untenable basis."
I appreciate his endeavour made to make me conscious of the law declared by the highest court of the country.
The necessity aspect as contended by counsel for the petitioner also does not impress me at all. He has contended that it was the duty of the tribunal to record the specific finding that the corporation needed the service of the workmen. I wanted to know from him why such a duty of the tribunal should be seen by me when admittedly from 1991 till 1996 the corporation continuously took the service of the workmen. I say continuously, because nothing was brought before the tribunal or before me to show that the workmen had been disengaged for any period on the ground that their services were not needed.
The retrenchment aspect has been argued by counsel for the petitioner on the strength of the Apex Court decisions in Morinda Co-op. Sugar Mills Ltd. v. Ram Kishan & Ors. [AIR 1996 SC 332], and Himanshu Kumar Vidyarthi & Ors. V. State of Bihar & Ors., [(1997) 4 SCC 391].
I am unable to agree with him that the tribunal was swayed by the retrenchment aspect. As rightly pointed out by counsel for the workmen his clients in their affidavits made the statements that without giving retrenchment compensation to them they had been given employment in the corporation. The retrenchment aspect was not the foundation of the award, and it was also not necessary for it. The issue has not been answered in the affirmative on the ground that the workmen had not been given retrenchment compensation, or that since they had not suffered retrenchment, they should be made permanent. It seems to me that the facts connected with the retrenchment aspect were narrated only for keeping the records straight.
Counsel for the petitioner has concluded his submission by saying that in view of the Apex court decision in Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra & Ors. [AIR 1995 SC 962], the tribunal exceeded its jurisdiction in directing absorption of the workmen in breach of the relevant recruitment rules. In think counsel for the workmen is right in commenting that this authority has no manner of application to the present case for the simple reason that rights, obligations and duties of the parties in the present case were to be governed entirely by the Industrial Disputes Act, 1947, item 10 of part 1 of the fifth schedule whereof says that unfair labour practice on the part of employers means, "to employ workmen as "badlis", casuals or temporaries and to continue them as such for year4s, with the object of depriving them of the status and privileges of permanent workmen." To my mind, once the tribunal reached the conclusion that the actions of the corporation amounted to unfair labour practice, it was empowered to direct the petitioner to absorb the respondent-workmen and given them same benefits as are given to its permanent workmen.
For these reasons I do not find any merit in the writ petition, and accordingly I dismiss it.
In the facts and circumstances of the case, there will be no order for costs in the writ petition.
Urgent certified xerox copy of this judgment and order shall be supplied to the parties, if applied for."
It is the case of the appellant-writ petitioner that those workmen worked until closure of a unit named Modern Rice Mill of FCI as contract labour under contractors. The unit as a matter of policy was wound up and mill and machinery were sold. There was no need of further workmen. Due to violent agitation obstructing the functioning of food storage depot at Durgapur, FCI was not in a position to supply food grains to different Ration Shops in the region and to save such a situation under compelling circumstances, the concerned Manager of FCI engaged those workmen as daily rated casual employee on "no work no pay basis" since July, 1991 though there was no need to engage those workmen by the FCI to run Durgapur Depot. In 1994, those workmen filed a writ petition C.O. No. 5109 (W) of 1994 seeking writ of mandamus for absorption in regular establishment on permanent basis as Class-IV employee of FCI. On 22nd March, 1994 an order of status quo was passed when the writ application was moved in the Writ Court and writ petitioner did not proceed with the writ application further but through union made a demand to the Central Government for their regularization by way of absorption, which resulted the Central Government, the appropriate authority, to refer the reference no. 21 of 1996 for adjudication by said Central Government Industrial Tribunal, Asansol. Those factual matrix are admitted.
Learned senior advocate, Mr. Chatterjee, appearing for the appellant submits that the appointment of those workmen admittedly were made without following any recruitment rule and procedures framed by the FCI and there is even no rule framed for appointment of casual employee as under the statute i.e. the standing order and also the staff recruitment rule, there is no such provision for casual employment. It is further contended that there was no advertisement inviting names of candidate of identical footing similar to those workmen for casual employment. On that contention, it is submitted that learned Tribunal below committed an error in law, which is prima facie on record, by directing absorption, which is contrary to the judgment of Constitution Bench passed in the case Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1, which practically confirmed by reviewing, clarifying and reiterating the law already established, which was being followed consistently by the Apex Court in large number of cases. It is contended that learned Tribunal in the award under challenge in the writ application did not advance any logic considering the settled legal position of Uma Devi (3) & Ors. (supra), the ratio decidendi of which was existing from long before the said decision by other judgments of the Apex Court and no reason assigned by the learned Tribunal as to why the workmen should be absorbed in permanent establishment as a permanent Class-IV employee putting a heavy financial burden upon the FCI on account of payments of salary, allowances and service benefits of them as permanent appointee when law provides otherwise. The award has been attacked further on the ground of non-adhering to the settled legal position that absorption is not a mode of appointment. The same has been attacked also on the ground that even if it is assumed for argumendo that there was unfair labour practice as held by the learned Tribunal, but the statute, namely, Industrial Dispute Act, does not provide a remedy of permanent absorption to those who are victim of such but it prescribes a different mode of treatment in the nature of penal consequences under Section 25U of the Industrial Dispute Act, which was not considered by the learned Tribunal below. Similarly, learned trial Judge also did not consider Apex Court view in Uma Devi (3) & Ors. (supra), which is now law of the land. It is asserted further that judicial review is permissible challenging the award when the award prima facie depicts that there was error of law apparent on the face of the record, which in the instant case, direction to absorb on the logic of social justice principle and unfair labour practice though Apex Court has settled the law by holding otherwise that absorption/regularization is not other mode of appointment. It has been further urged that there was no mens rea to identify the unfair labour practice as has been done by the learned Tribunal below as burden of prove of such issue rested upon the workmen concerned who failed to discharge it. On issue of public employment without applying the rules and the relevant constitutional provision of equal opportunity and its resultant effect thereof, the following judgments has been relied upon, namely, Secretary, State of Karnataka vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1, State of M.P. & Ors. Vs. Arjunlal Rajak, reported in (2006) 2 SCC 711, Municipal Council, Sujanpur vs. Surinder Kumar, reported in (2006) 5 SCC 173, Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408, Gangadhar Pillai vs. Siemens Ltd., reported in (2007) 1 SCC 533.
On the point of mens rea as required to be proved on issue of unfair labour practice and failure to prove by the workmen, the judgment passed in the case Gangadhar Pillai vs. Siemens Ltd., reported in (2007) 1 SCC 533 has been relied.
On issue of jurisdiction of the Writ Court to issue writ of certiorari for judicial review on the ground of error of law, the following judgment Municipal Council, Sujanpur (supra) has been relied upon.
Learned advocate for the appellant has distinguished the judgments relied upon by the workmen-respondent in this appeal by contending, inter alia, that submission of the respondent-workmen that Industrial Dispute Act would override/operate in derogation of constitutional provision, is a submission, which is not only dangerous but legally preposterous as constitution is the main guiding factor to test different acts, pre or post constitutional period. The contention raised by the respondent-workmen that once the award becomes final by notification under Section 17 by the appropriate government in terms of the Industrial Dispute Act, the same could not be challenged, is also a dangerous and preposterous proposition. It is contended that judicial review is permissible, which is a basic feature of the constitution to test any order even if statute impose a seal of finality. Reference has been made from the Book of De Smith, Judicial Review of Administrative Action, 5th Edition, pages 232-249 and the Book of Wade and Forsyth, 8th Edition on Administrative Law, pages 700-712. The other decisions relied upon by the workmen-respondent has been answered by contending that those are not relevant for adjudication of this case as those were in the field of different act, namely, Contract Labour (Regulation and Abolition) Act, 1970 and Maharashtra Reorganization of Trade Union and Prevention of Unfair Labour Practices Act, 1971.
The respondent-workmen appeared in two groups by engaging different counsels. The workmen-respondent no. 10 and 45 have been represented by Mr. R.N. Majumdar, learned advocate and other respondents-workmen have been represented by Mr. Sailaja Nanda Bhattacharjya, learned advocate. It is the contention of learned advocate Mr. Majumdar appearing for the said workmen that the Industrial Dispute Act was enacted with a particular purpose to maintain the peace in the industrial field and a different procedural steps prescribed for negotiation, conciliation and adjudication etc., which is squarely applicable to the FCI, which is an industry as per definition of Section 2(a)(i) of the Industrial Dispute Act and the issue raised was Industrial Dispute under Section 2(k) of the said Act. It is contended that Industrial Tribunal in deciding such type of dispute not only has the power to adjudicate the reference but also has the power to create rights opposed to contractual rights of the parties. Reliance has been made to the judgment passed in the case The Bharat Bank Ltd., Delhi vs. The Employees of the Bharat Bank Ltd. & Ors., reported in AIR 1950 SC 188. In that angle, it is submitted that learned Tribunal was justified to create the new right directing that the concerned workmen to be appointed permanently in permanent establishment by way of absorption and it is not contoured by any constitutional limitation in terms of the provision of the constitution. It has been further contended that Tribunal is not bound to follow the rigid rules of law. Reliance has been placed to the judgment passed in the case Western India Automobile Association vs. Industrial tribunal, Bombay, reported in 1949 F.C.B. 321. Uma Devi (3) & Ors. (supra) has been distinguished by contending, inter alia, that by said judgment, the Court restrained the different Court of law to pass any order of permanent absorption by way of regularization but not to the Industrial Tribunal. It has been further contended that Industrial Tribunal is not required to consider the question of violation of Article 14 and 16 of the Constitution of India and Tribunal can direct regularization. It has been urged that in Uma Devi (3) & Ors. (supra) the absorption by industrial adjudication and/or regularization of service decided by the Constitution Bench in the case Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors., reported in (2001) 7 SCC 1, was not overruled and strong reliance has been made on the said judgment to advance the argument that under Industrial Dispute Act, which is complete and self- contained code, the Tribunal may act without any limitation. Judgment passed in the case Bharat Coop. Bank (Mumbai Ltd.) vs. Coop. Bank Employees Union, reported in (2007) 4 SCC 685 has been relied upon in support of said contention. The award has been supported on the ground of unfair labour practice. Regularization of industrial worker is permissible is also the another phase of argument by referring judgment passed in the case G.M., O.N.G.C., Shilchar vs. O.N.G.C. Contractual Workers Union, reported in 2008 AIR SCW 3996. Jurisdiction of Writ Court under Article 226 is limited and as such, there is no scope to interfere with the award passed by the learned Tribunal is also the point advanced by learned advocate Mr. Majumdar relying upon the judgment passed in the case Syed Yakoob vs. K.S. Radhakrishnan & Ors., reported in AIR 1964 SC 477, Sadhuram vs. Delhi Transport Corporation, reported in AIR 1984 SC 1467.
Mr. Bhattacharjya, learned advocate appearing for other workmen also has taken those points advanced by Mr. Majumdar, learned advocate. Learned advocate practically has adopted all those points, namely, finality of the award under Section 17, no scope to issue any writ of certiorari due to the limitation as per judgment of the Apex Court etc. It has been contended further that regularization and/or absorption was justified and reliance has been placed to the judgment passed in the case Municipal Council vs. Surinder Kumar, reported in (2006) 5 SCC 173.
The argument of Mr. Bhattacharya has been countered by Mr. Chatterjee, learned senior advocate by contending that judicial review is maintainable as there is an error of law ex facie on record, that finality of award under Section 17 of Industrial Dispute Act is not a bar for judicial review and that judgments as relied upon by respondents-workmen, all relates to Contract Labour (Regulation and Abolition) Act, 1970 and that act has no applicability in the instant case.
Having regard to the rival contentions of the parties, the points emerge for our adjudication are to this effect:
(1) Whether writ is maintainable particularly the writ of certiorari under Article 226 of the Constitution of India to quash the direction passed in the award by the learned Tribunal directing to regularize by way of absorption of the casual appointees in permanent post under principle of "error of law" and "jurisdictional contour".
(2) Whether award of Tribunal was legally sustainable by not considering the judgment of the Apex Court on the point that regularization/absorption is not a mode of appointment when such appointment de hors of the rule and/or when such appointment was made without following any recruitment process?
(3) Whether finality of the award under Section 17 of Industrial Dispute Act could be an embargo for judicial review of the award under challenge in writ jurisdiction?
(4) Whether the learned trial Judge was right to pass the order rejecting writ application and the power of the Tribunal whether is contoured by constitutional provision or not?
To answer the aforesaid points as framed, the provisions of the Industrial Dispute Act, 1947, the constitutional provisions and the judgments on the point of absorption/regularization of the service of the workmen will help us to answer those.
Under Section 2(ra) "unfair labour practice" has been defined as the practices prescribed in the Fifth Schedule of the Act. Under Fifth Schedule, Clause (10) it is provided that continuance of casual appointment with the object of depriving them of status and privileges of permanent workmen is unfair labour practice. Rule 2(ra) and the relevant portion of Fifth Schedule Clause (10) reads such:
"Rule 2(ra). "unfair labour practice" means any of the practices specified in the Fifth Schedule."
Fifth Schedule, Clause (10).- To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
For unfair labour practice statute has dealt with the issue in Chapter VC of the said Industrial Dispute Act not only by way of prohibition of such unfair labour practice under Section 25T but also a coercive measure in the nature of penalty in the event of proved unfair labour practice under Section 25U. The relevant provisions, Section 25T and 25U read such:
"25T. Prohibition of unfair labour practice.-No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.
25U. Penalty for committing unfair labour practices.-Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both."
There is no such provisions in the four corners of the statute, namely, Industrial Dispute Act, except the penal consequences in the event any workmen is continued in casual status for continuous period to grant absorption in service by elevating status from casual to permanent appointee, in a permanent post.
It is a settled legal position of law that the appointment always relates to a post but the Appointing Authority may appoint on contract basis, casual basis and temporary basis. The Constitution bench in the case Satish Chandra Anand vs. The Union of India, reported in AIR 1953 SC 250 held "Article 14 and 16 has no applicability as there is no denial of equal opportunity in treatment of such other temporary appointee under a contract". It has been further observed in the said case "State can enter into contracts of temporary employment and impose special terms in his case provided they are not inconsistent with the constitutional provision and those who choose to accept those terms and entered into contract are bound by them, even as the State is bound". The Apex Court dealt with the issue about power of the Appointing Authority to appoint employee in the case P.K. Sadhu vs. Shivraj V. Patil, reported in (1997) 4 SCC 348 by observing "power to make an appointment includes power to make an appointment on substantive basis, temporary or officiating basis or on daily wages or contractual basis". The view of the P.K. Sadhu (supra) has been referred to and relied in the case Retd. Armed Forces Medical Association & Ors. Vs. Union of India & Ors., reported in (2006) 11 SCC 731.
Hence, it appears that Appointing Authority has every right to appoint either in substantive capacity or in casual manner and/or ad-hoc. It is also a settled legal position of law that regularization/absorption of casual appointee/ad-hoc appointee in a permanent post is not other mode of appointment. In the case State of M.P. vs. Dharam Bir, reported in (1998) 6 SCC 165 in para 26, the Court held "the status in employment - ad- hoc/temporary/casual cannot be changed automatically to a status of permanency unless there is a rule for such elevation and no regularization is the mode of such". In the case B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., reported in AIR 1979 SC 1676, a three Judges Bench judgment as relied upon in the case A. Umarani vs. Registrar, Cooperative Societies & Ors., reported in (2004) 7 SCC 112, the Court held "when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive power of the government under Article 162 of the Constitution of India in contravention of rule". The Apex Court considered at length in a Constitution Bench judgment Uma Devi (3) & Ors. (supra) dealing with the earlier judgments to this effect "appointment on violation of constitutional scheme would render it as nullity" and "no regularization if it violates the basic features of the constitution under Article 14 and 16". In the case Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408, the Apex Court relying upon the Uma Devi (3) & Ors. (supra) held "creation of post/abolition etc. are executive function and Court cannot pass any order of regularization of service". It has further observed "even under the Industrial Dispute Act, if Tribunal allows the ad-hoc/temporary, casual/daily rated employee to continue till superannuation, same is hit by the law settled in the case Uma Devi (3) & Ors. (supra)". Same view was reiterated in the case Hindustan Aeronautics Ltd. vs. Dam Bahadur Singh & Ors., reported in (2007) 6 SCC 207 following the Indian Drugs and Pharmaceuticals Limited (supra). Uma Devi (3) & Ors. (supra) is the law of the land has been reiterated in the case Official Liquidator vs. Dayanand & Ors., reported in (2008) 10 SCC 1, a three Judges Bench judgment by holding, inter alia, that contra view taken in the case U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors., reported in (2007) 11 SCC 92, is a obiter and had no binding effect to High Curt, Tribunal and other judicial foras. Only exception has taken so far as treatment of casual appointees in para 53 of Uma Devi (3) & Ors. (supra), which reads such:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
But the said exception is applicable satisfying the factors, namely, there must be existence of the post and appointees are working for more than 10 years as per decision of the employee by way of irregular appointment not illegal and not as per order of the Court and/or Tribunal.
In the instant case it appears that the workmen, illegal appointees, moved the writ application in the year 1994 and got an order of status quo to maintain their service condition passed by the Writ Court and as such, service of the workmen since 1994 till this date is covered by the order of the Court, which is accordingly attracted by the said riders of para 53 as quoted, to negative their claim.
Even in the case of appointee as daily wager, the Apex Court considered the issue whether continuous working of more than 240 days ipso facto would entitle any relief for regularization of service in the cases Indian Drugs & Pharmaceuticals Ltd. (supra), Gangadhar Pillai (supra), M.P. Housing Board & Anr. vs. Manoj Shrivastava, reported in (2006) 2 SCC 702, Madhyamik Shiksha Parishad, U.P. vs. Anil Kumar Mishra & Ors., reported in (2005) 5 SCC 122 in negative way. The same view reiterated by the Apex Court in the case Pankaj Gupta & Ors. Vs. State of J&K & Ors., reported in (2004) 8 SCC 353. Those cases further have been relied upon in the case Dhampur Sugar Mills Ltd. vs. Bhola Singh, reported in (2005) 2 SCC 470. In the case Dhampur Sugar Mills Ltd. (supra), in para 18, the Court held "when a workman is appointed in terms of a scheme on daily wages, he does not derive any legal right to be regularized in his service. It is settled law that 240 days work in a year by itself cannot be a ground for regularization when workman not being appointed in accordance with rule".
Having regard to the aforesaid judgments of the Apex Court, now the law has got its firm root being the law of the land that no regularization even in respect of a workman under Industrial Dispute Act is permissible unless the contingencies of the law is satisfied, namely, appointment following the rule, appointment in a post and appointment for a long continuous period in the angle of Uma Devi (3) & Ors. (supra). This law of the land was existing and it has been re-echoed and reviewed in Uma Devi (3) & Ors. (supra).
Tribunal below whether in passing the award considered it or not that to be looked into on scanning the award itself to answer the limitation of judicial review under Article 226 of the Constitution of India in the angle of "error of law"
and "jurisdiction angle" principle by which only an award could be touched. If the regularization is done on breach of those settled legal position, surely it is coming within the ambit of error in law. Writ of certiorari under Article 226 of the Constitution of India, is similar to exercise of jurisdiction under Article 227 of the Constitution of India. Jurisdiction under Article 227 of Constitution of India could be invoked when Court below comes to a finding of fact by asking itself a wrong question or approaches the question in an improper manner and the said findings cannot be said to be one rendered with jurisdiction, which is amenable to under Article 227 of the Constitution of India and even failure to render necessary finding to support its order would also be a jurisdictional error liable to be corrected in an application under Article 227. Reliance is placed to the judgment passed in the case Kishore Kumar Khaitan & Anr. Vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312.
Point no. (1) could be answered on the reflection of the aforesaid legal position of regularization in service even in case of the workman guided under Industrial Dispute Act and the relevant provision.
Judicial review under Article 226 of the Constitution of India is practically an exercise of supervisory jurisdiction akin to jurisdiction under Article 227 of the Constitution of India, in case of challenge of any award passed by any Tribunal. In exercise of such supervisory jurisdiction surely Writ Court does not exercise the power of Appellate Court to scan the evidence on records for the purpose of substituting its own views in place and lieu reached by the learned Tribunal, but an error of law, which is apparent on the face of the record, can be touched by a Writ Court. Only embargo that no error of fact, however grave it may be, could be considered. Furthermore, adequacy or sufficiency of evidence laid on a point and the inference of fact as drawn therefrom by the Tribunal on such finding being within the jurisdiction of Tribunal exclusively, it cannot be agitated before a Writ Court. Reliance is placed to the Constitution Bench judgment passed in the case Syed Yakoob (supra). In this case the Apex Court referred and considered the earlier judgments passed in the cases Hari Vishnu Kamath vs. Ahmad Ishaque & Ors., reported in AIR 1955 SC 233, Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., reported in AIR 1958 SC 398 and Kaushalya Devi & Ors. Vs. Bachittar Singh & Ors., reported in AIR 1960 SC 1168. Judicial review in writ jurisdiction under Article 226 relating to challenge of any award passed by Industrial Tribunal, accordingly, is contoured and limited only on the issue of jurisdictional ground and also on the ground of error of law.
In the instant case, from the decision under challenge in the writ application passed by the learned Tribunal below, it appears that the Tribunal did not answer by any findings as to why workmen were legally entitled to be absorbed permanently on considering the settled legal position of law that absorption and/or regularization are not the mode of permanent appointment. Even the reasoning as advanced, namely, "unfair labour practice", it also does not support the decision to regularize in absence of any statutory provision for regularization of service of the workmen under the four corners of the Industrial Dispute Act, 1947. On the other hand, Industrial Dispute Act provides under Chapter VC as already quoted above by Section 25U, a penal consequences for imprisonment and fine. The very essence and concept of unfair labour practice in the angle and anvil of Section 25T and 25U is that in the industrial sector there is complete bar to appoint the casual appointees for a continuous period with the object to deprive them the status and privileges of permanent workmen and as a coercive measures to avoid such contingency, law has been framed in a negative angle restraining/prohibiting such unfair labour practice under the pain of punishment with imprisonment for a term in Section 25U. Hence, even if any unfair labour practice is assumed though it requires to be proved by leading the evidence that such appointment as casual appointee for a continuous period was with the mens rea to deprive the workmen from their permanent status and privileges, the award prima facie speaks an "error of law" due to a decision applying principle of "unfair labour practice" for "permanent absorption" and it also covers the field of "without jurisdiction" principle. Hence, we are of the view that writ application is maintainable for judicial review. Furthermore, judicial review, an access to the Court of law, is the basic feature of the Constitution. The point no. (1) is answered accordingly by holding that writ is maintainable.
Point no. (2) on the basis of our finding and observation as detailed above and discussed to conclude the decision of point no. (1), could be answered. Regularization/absorption is not a mode of appointment and learned Tribunal did not approach the issue taking note of settled legal position reiterated by the Apex Court in the case Uma Devi (3) & Ors. (supra) by confirming earlier cases as already referred to. Power to pass absorption order, by the Tribunal, was within its jurisdiction, as has been canvassed before us by referring the judgments from the side of the learned advocate for the workmen, namely, Municipal Council (supra), other cases, all arose out of application of Contract Labour (Regulation and Abolition) Act, 1970. In that angle, the judgments have no relevancy to adjudicate this case. Learned Tribunal did not pass any reason of absorption on distinguishing the settled legal position that absorption is not mode of appointment, as such, award of the Tribunal is not legally sustainable so far as direction of permanent absorption. Furthermore, absorption always relates to a post. Tribunal did not identify by discussing as to whether there are permanent posts in the organization. The Tribunal cannot burden the employer with financial liability when particularly employer is an authority under Article 12 of the Constitution of India and the money of this organization comes from public exchequer.
So far as the question no. (3) is concerned whether Section 17(2) of Industrial Dispute Act is a bar to challenge the award published in a Court of law now to be answered. Section 17(1) and (2) reads such:
"17. Publication of reports and awards.-(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.
(2) Subject to the provisions of section 17A, the award published under sub-section (1) shall be final and shall not be called in question by any Curt in any manner whatsoever."
The statutory embargo of finality of any decision is limited so far as the particular statutory provision is concerned. Writ jurisdiction under Article 226 and/or Article 227 of the Constitution of India as are part of basic structure of the Constitution forming the integral and essential feature, cannot be tampered with even by Constitutional Amendment far to say by a parliamentary legislation. Reliance is placed to the judgment passed in the case L. Chandra Kumar vs. Union of India & Ors., reported in (1997) 3 SCC 261. Finality clause of any order does not limit the jurisdiction of the High Court in exercise of its power under Article 226 and 227 of the Constitution of India.
The question of curtailing the jurisdiction of the Supreme Court or High Courts as conferred by the Constitution does not arise in India. The jurisdiction conferred by the Constitution can be taken away only by amending the Constitution and not by statutory enactments. Reliance is placed to the judgment passed in the case Surya Deb Rai vs. Ram Chandar Rai, reported in (2003) 6 SCC 675 at page 694 and 695. Even a provision in the Constitution conferring finality to the decision of an authority is not construed as completely exclusion of judicial review under Article 136, 226 and 227 of the Constitution of India. Reliance is placed to the judgment passed in the case Kilhota Hollohan vs. Zachilhu, reported in 1992 Suppl. (2) SCC 651. The only limitation of such judicial review is jurisdictional error, namely, infirmities based on violation of constitutional mandate, non-compliance of rule of natural justice, perversity etc. Even in legislative enactments, where provision of decision of the Court or Tribunal as final and conclusive exists, the remedies available under the Constitution is unfettered, is the view of the Apex Court passed in the case Raj Kumar Bose vs. Vinod Kanungo, reported in AIR 1954 SC 202. Even in England, where Parliament is supreme, there is a strong presumption against exclusion of supervisory jurisdiction of statutory Courts. Thus, a remedy by writ of certiorari is not construed as excluded except in case of express statutory provision to that effect and provisions thereof, found in statutes conferring powers on Tribunals, to the effect that there decision shall be final and be construed as taking away the remedy by writ of certiorari. Reliance is placed to the judgment passed in the cases Re, Gilmore's Application, (1957) 1 All. E.R. 796, Pearlman vs. Harrow School, (1979) 1 All. E.R. 365, R vs. Hallstram, reported in (1985) 3 All. E.R. 775, Commissioner of Sales Tax vs. D.V. Super Cotton Bowl Refilling Works, reported in AIR 1989 SC 922. The word "final" on analysis of the judgments above to be meant as "without appeal" is the view of the Apex Court passed in the case South Asia Industries Private Limited vs. Swarup Singh, reported in AIR 1965 SC 1442 at page 1447, 1448 and the view of the English Court passed in the case Jones vs. Secretary of State, reported in (1972) 2 All. E.R. 145.
Having regard to such, we are of the view that the publication of the award cannot be an embargo to test the award under the anvil of judicial review under Article 226 of the Constitution of India. This point is accordingly answered against the workmen-respondent.
The point no. (4) framed in view of the submission made by the learned advocate for the workmen-respondent that Industrial Tribunal is not bound by the Constitutional provision and Tribunal has right to pass any decision even by creating new rights. Industrial Dispute Act, 1947 came into effect from 1st April, 1947 is a law under Article 13 of the Constitution of India. Article 13 reads such:
"13. Laws inconsistent with or in derogation of the fundamental rights.-(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]"
Even the pre-constitution law is required to pass through the test of Article 14 and 16 of the Constitution of India, Industrial Dispute Act, 1947 cannot be an exception to that. Furthermore, Chapter VC under the heading "unfair labour practices" was inserted by Act 46 of 1982 with effect from 21st August, 1984. The definition of Section 2(ra) on unfair labour practice also was inserted by the said Act 46 of 1982 with effect from 21st August, 1984. Those provisions inserted at the post constitution stage and all provision of the constitution accordingly is applicable so far as dealing with an issue in the context of "unfair labour practice" under Industrial Dispute Act. Fifth Schedule also inserted by said Act 46 of 1982. The argument that constitutional provision has no applicability really an argument, which will lead us to a dangerous and preposterous situation as has been rightly submitted by Mr. Chatterjee, senior advocate appearing for the appellant.
The constitutional provision, basic structure of the Constitution, equality clause under Article 14, all are applicable with full vigour and force to test any decision arose out of Industrial Dispute Act, 1947. On a bare scanning of the award, this Court has identified an ex facie error in law to this extent, which goes to the jurisdiction field also, as learned Tribunal did not consider the settled legal position, which is law of the land under Article 141 of the Constitution of India that a workman due to long continuous service without being an appointee in legal way following the rules and without any post at all, but on casual basis only, ipso facto was not entitled for regularization in a permanent post. Unfair labour practice issue also will not assist to grant the relief. The Apex Court answered this point in different cases already referred to. The counter judgments as referred to by the respondent-workmen to support the views of Tribunal, all are relating to the Contract Labour (Regulation and Abolition) Act, 1970, where the Court identified by unveiling the appointment to hold that those workmen practically were employee of the employer and not of the contractor and it was only a camouflage by issuing appointment letter by contractor. On considering those factors, Apex Court answered the issue holding that they became the employees of the organization automatically from the very beginning. In the instant case, it is not such a position.
Considering those aspect of the matter and having regard to the findings above, the award directing permanent absorption, in our view, is not legally sustainable. Similarly learned trial Judge while dismissing the writ application failed to consider that issue in the angle, which we have followed and without considering the legal impact and effect of Apex Court judgment, which is the law of the land, particularly, the judgment of Uma Devi (3) & Ors. (supra) and the earlier judgments as relied upon thereto and passed a decision rejecting the writ application. Hence, judgment under appeal is not legally sustainable.
Having regard to our findings and observation above, we do hold that writ application filed by the present appellant was maintainable seeking judicial review of the award challenging it under anvil of "error in law ex facie on record"
and "jurisdictional contour". We hold further that the Tribunal did not consider the settled legal position that absorption was not mode of appointment. The award passed by the learned Tribunal below directing permanent absorption accordingly stands set aside and quashed. The impugned judgment under appeal passed by the learned trial Judge is also stand set aside and quashed. The appeal is, thus, allowed.
(Pratap Kumar Ray,J.) I agree, (Manik Mohan Sarkar,J.) Later:
All interim orders passed earlier in this appeal granting payment of salary in view of our observation and finding is quashed.
The application relating to stay stands disposed of in view of our finding and observation above allowing the appeal.
The application being C.A.N. No. 8685 of 2007 praying appropriate order for payment stands dismissed relying upon our finding passed above. All interim orders stand vacated.
Stay has been prayed for by the learned Advocate for the workmen-writ petitioner, which has been strongly opposed by the learned Senior Advocate, Mr. Bimal Kumar Chatterjee.
Having regard to our finding we are not inclined to pass any stay. Prayer stands refused.
(Pratap Kumar Ray,J.) (Manik Mohan Sarkar,J.)