Allahabad High Court
U.P.State Electricity Board & Another vs Presiding Officer,Labour Court, & ... on 8 February, 2018
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 25 Case :- WRIT - C No. - 30084 of 1998 Petitioner :- U.P.State Electricity Board & Another Respondent :- Presiding Officer,Labour Court, & Another Counsel for Petitioner :- Ranjit Saxena,A.K. Mehrotra,Deepak Saxena Counsel for Respondent :- C.S.C.,A.S. Diwakar,Amit Kumar Mishra,D.K. Singh,P.C.Jhingan,V.K. Singh,Virendra Singh Hon'ble Siddhartha Varma,J.
After a reference was made on 16.3.1996, the employer and the employee were put to notice. Pleadings were exchanged and thereafter an award was passed. The reference was to the following effect:-"D;k lsok;kstdksa }kjk vius Jfed Jh fouksn dqekj iq= f'ko iwtu in ckVjeSu @etnwj dh lsok;sa 1-10-83 ls lekIr fd;k tkuk mfpr rFkk @ vFkok oS/kkfud gS \ ;fn ugha rks Jfed D;k fgrykHk ikus dk vf/kdkjh gS\"
The respondent employee Vinod Kumar had stated that, he was engaged w.e.f. 1.6.1977 in the Vidhyut Vitran Khand, Varanasi as a waterman/labour and he worked there till 30.9.1983. On 1.10.1983 he was removed from service. Thereafter various communications took place between the employer and the employee and when nothing came out of the various assurances he raised the industrial dispute. When the award was passed in favour of the private respondent no. 2, on 24.3.1997 the instant writ petition was filed.
Learned counsel for the petitioner has submitted that the award was bad on account of the fact that the reference made by the State Government to the Labour Court was made almost after 13 years from the alleged removal of the respondent no. 2 and, therefore, the reference was stale. He had submitted that a delayed reference creates a doubt as to whether there was in fact a bonafide existence of an industrial dispute and that an inordinate delay without a proper explanation, renders the award bad on account of that count itself.
He further submits that if a stale reference is made then there is every possibility that the relevant records are not kept with the employers and it quite often gives birth to frivolous cases and may thus thrust upon the Labour Court adjudications which waste its time.
Learned counsel for the petitioner submitted that if a stale reference is made to the Tribunal and its staleness is not challenged by the employer at the initial stage and they litigate before the Labour Court then it would not preclude the High Court from seeing as to whether the reference was stale.
To substantiate his case that a stale reference should not be made, Learned counsel for the petitioner relied upon the judgments reported in AIR 2006 SC 2670 : (Assistant Engineer, C.A.D., Kota v. Dhan Kunwar), AIR 2011 (129) FLR 1037: ( The Executive Engineer, Public Works Department vs. Namdeo Govindrao Nandukar), AIR 2013 (14) SCC 543 : ( Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohand Lal and Prabhakar vs. Joint Director Sericulture Department and Ors : (MANU/SC/1041/2015) dated 7.9.2015.
Learned counsel for the petitioners further submitted that as the industrial dispute was very belatedly raised the employers could not, despite best efforts to prove that the employee respondent no. 2 had not worked for 240 days produce any evidence to prove their case and stated that only on the basis of an oral statement made by the workman it had been held that he had worked for 240 days. This was according to him a very wrong approach and should not have been adopted by the Labour Court. Reliance was placed on AIR 2002 SC 1147 : (Range Forest Officer vs. S.T. Hadimani) and it was stated that if there was no proper documentary evidence to prove that the workman had worked for 240 days, the Labour Court could not presume that the employee had worked for 240 days. Relying on AIR 2006 SC 2682 : (Chief Engineer, Ranjit Sagar Dam &.. vs. Sham Lal), AIR 2004 (8) JT 98 : (M.P. Electricity Board vs. Hariram), AIR 2004 (4) AWC 2848 : (Municipal Corporation, Faridabad vs. Siri Niwas), AIR 2006 SC 3363 : (Krishna Bhagya Jala Nigam Ltd. vs. Mohammad Rafi) and AIR 2006 SC 110 : (Surendranagar District...vs Dahyabhai Amarsinh), it was submitted that the employee had to prove to the hilt that he had worked for 240 days preceding the date of his termination and for that the workman should have relied upon certain definite evidence. In the end, learned counsel for the petitioner submitted that instead of reinstatement the Labour Court should have considered the grant of compensation in view of AIR 2010 (6) SCC 773 : (Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal And Others).
Learned counsel for the petitioner has also submitted that if an appointment is made de hors the Service Rules then the provisions of the Industrial Disputes Act would not be applicable. In this regard, he has relied upon the decisions rendered in 1986 (2) LLJ 492 : (Eranallor Service Co-operative Bank Ltd. v. Labour) and AIR 1996 SC 1271: (Sub-Divisional Inspector Of ... vs Theyyam Joseph Etc).
In reply, learned counsel for the respondent no. 2 the workman has submitted:-
I. The High Court has a very limited scope of inference with the award of a Labour Court and to bolster his submissions cited 2015 (12) SCC 754 : (Gauri Shanker vs. State of Rajasthan). As the learned counsel read out paragraph 23 and 24 of the judgement, the same are being reproduced here as under:-
"23. The learned Singe Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in Harhinder Singh v. Punjab State Warehousing Corporation wherein this Court has held thus:
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that:
"10.....the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.
(State of Mysore v. Workers of Gold Mines (AIR 1958 SC 923) page 928, para 10)"
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana ((2015) 4 SCC 458 : (2015) 2 SCC (L&S) 46)
24. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court.
He further cited 2012(5) SCC 443 : (Heinz India Private Limited and Another vs. State of Uttar Pradesh and Others. As he has read out paragraphs no. 60, 66 and 68, the same are being reproduced here as under:-
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus:
"Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury1 unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system... ...
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
66.That the Court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the Court does not supplant 'the feel of the expert' by its own review, is also fairly well-settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. [See Union of India v. S.B. Vohra, (2004) 2 SCC 150 , Shri Stia ram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223, and Thansingh Nathmal and Ors. v. Supdt. Of Taxes and Ors., Dhubri, AIR 1964 SC 1419].
68. We may while parting with the discussion on the legal dimensions of judicial review refer to the following passage from Reid v. Secretary of State for Scotland : [1999] 1 All ER 481, which succinctly sums up the legal proposition that judicial review does not allow the Court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case.
"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."
The other decisions which the learned counsel cited were 2003 (3) UPLBEC 2286 : Ram Prasad Prajapati vs. Labour Court(U.P.) at Allahabad and another and 2014 (4) AJD 320 : (State of U.P. And Another vs. Raj Kumar and Others). Paragraph 14 of 2003 (3) UPLBEC 2286 which is relevant is being quoted here as below:-
"14.From perusal of the record it appears that the labour court has recorded a categorical finding regarding the guilt and participation of the workman in riotous behaviour inciting the workers and beating the Chief Executive Officer of the company. The punishment of dismissal awarded for such riotous and disorderly violent behaviour cannot be said to be too harsh. Peace and harmony are necessary elements for creation of industrial atmosphere conducive for production and if this is disturbed, the relationship between the master and the servant would be strained and production will suffer. If this is viewed with notional angle, loss in production could be national loss. The reasons given by the Labour Court for not reinstating the petitioner are cogent reasons. After examining the evidence and the arguments I find that the labour court has neither committed any error in law in holding the workman guilty nor the award is perverse. The findings of fact, which are not perverse, should not be overturned in exercise of powers under Article 226 of the Constitution of India. I am also supported with my view by a recent judgment of the Apex Court in M/s Esen Dinki v. Rajiv Kumar, 2002 (1985) FLR 949, in this regard."
In 2014 (4) ADJ 320, the paragraph 24 is relevant and is being reproduced here as below:-
"24.There can be no quarrel with the argument of learned counsel for the respondent no.1 that the scope of interference under Article 226 of the Constitution of India against the award is limited and the Court cannot go into the question of fact decided by the labour court or the Tribunal, which is the final fact finding court. Interference can be made only if a finding of fact is perverse or if the same is not based on legal evidence. In the case of Management of Madurantakam Co-operative Sugar Mills Vs. S. Vishwanathan, (2005) 3 SCC 193, Hon'ble Supreme Court held in para 12 as under :
"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court.""
Learned counsel for the respondents also cited in 2010 (3) SCC 192 : (Harjinder Singh v. Punjab State Warehousing Corpn.) and since he has read out paragraphs 38 and 39, the same are being produced here as under:-
"38. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
"I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the "butcher, the baker and the candlestick maker". It lays down for this land a "rule lof law" as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all."
39. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words:
"Our Constitution is primarily shaped and moulded for the common man. It takes no account of "the portly presence of the potentates, goodly in girth". It is a Constitution not meant for the ruler "but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load."" [N. A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p. 29] I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist."
The crux of the decisions cited above is that the High Court should, while interfering with the findings of the Labour Court, be very circumspect before interfering with the findings arrived at by a Tribunal.
II. The other submission raised by the learned counsel for the respondent was that the petitioner is estopped from raising the issue regarding the staleness of the reference. He submits that when the petitioner did not question the reference at the right stage then now before the High Court the question of delay could not be raked up and thus, the petitioner going by the principles of constructive res judicata was barred from raising the question of staleness of reference.
Learned counsel for the respondents has stated that the Industrial Dispute Act has not given any period of limitation during which a dispute could be raised. In fact, it has said" it should be raised at any time" and for this purpose he relies upon 2014 (10) SCC 301 : Raghubir Singh v Gneral Manager, Haryana, Roadways, Hissar and 2001 (6) SCC 222 : Sapan Kumar Pandit vs. U.P. State Electricity Board and Others.
Learned counsel further submitted that a Labour Court is a referral Court and it cannot go beyond the reference which is sent to it. He cited 1979 (38) FLR 38 : (Pottery Mazdoor Panchayat vs. The perfect Pottery Co. Ltd and Orthers), 2004 (101) FLR 219 : (Mukand Ltd. vs. Makand Staff and Officers' Association) and 2006 (1) AWC 134 : (U.P.S.R.T. Corporation vs. State of U.P. And Others) and submitted that the Labour Court is bound by a reference and it has to decide the dispute as is referred to it by the State Government.
III. Learned counsel for the respondent no. 2 specifically pointed out by reading from the award that it was proved beyond doubt by the letter which was sent by the Executive Engineer on 1.2.1986 that the workman had worked from July 1977 to September 1983 and if the employer had not been able to prove that the communication of his own official was actually not sent by him then it could not be said that the employee had not been able to prove his case. The employee, he submits was, therefore entitled to the relief as was granted by the Labour Court.
Having heard the learned counsel for the parties, I am of the view that the Labour Court correctly passed the impugned order and no interference is required to be made in it. The question of staleness of the reference was not raised at the proper stage. In fact, the reference was not stale as communications between the employer and the employee always were being exchanged. The Labour Court being a Court which is bound by the reference which is made to it, could not have transgressed the reference and further even this Court under its powers of judicial review cannot interfere with the findings which have been arrived at by Labour Court. The fact that the workman had worked for more than 240 days was not only proved by oral evidence which was led by the workman but also by the communication dated 1.2.1986 of the Executive engineer of the petitioner. Since, the petitioner is an organization which is continuously expanding it would definitely not be difficult for the petitioner to reinstate the workman. Also, as the workman had throughout wanted to be in service and had pleaded to be taken back in service the awarding of back wages was also not wrong. Definitely the workman was wronged.
The writ petition therefore, lacks merits and thus is dismissed.
Order Date :- 8.2.2018 praveen.