Gujarat High Court
Siemens vs Presiding on 13 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/4116/2010 33/ 33 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4116 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4117 of 2010
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SIEMENS
HEALTHCARE DIAGNOSTICS LTD & 1 - Petitioner(s)
Versus
PRESIDING
OFFICER & 2 - Respondent(s)
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Appearance
:
MR
UDAY JOSHI FOR M/S TRIVEDI & GUPTA
for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 - 2.
MR
RAJESH P MANKAD for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/04/2010
ORAL
ORDER
1. Heard learned advocates appearing on behalf of respective parties.
2. The petitioner company has challenged award passed by Labour Court, Vadodara in Reference No.1117 of 1997 decided on 20th November 2009 granting reinstatement with 50% back wages of interim period and in Reference No.1118 of 1997 decided on 20th November 2009 granting reinstatement with 40% back wages of interim period.
3. Learned advocate Mr. Joshi raised contentions before this Court that in both cases, workmen have not completed 240 days continue service and workmen were working with petitioner company as a casual workers from 1994 as a Helpers in Distribution Department, for which, he was being paid Rs.40/- per day. He submitted that Labour Court, Vadodara has committed gross error in granting relief in favour of respondent workmen. The respondent workmen were not permanent workmen of petitioner company. He referred Page 36 written statement filed by petitioner company and also Page 43, where, workmen were examined before Labour Court, Vadodara. From Page 43, learned advocate Mr. Joshi has pointed out in cross-examination of workmen that they were entered in service in the year 1994 and they were working as Distribution Helpers, but, no appointment order was issued in favour of respondent workmen. The respondent workmen have not having any proof except provident fund slip for proving 240 days continue service with petitioner company. He has admitted the fact that he was appointed or engaged by petitioner company as a casual workmen. He submitted that in other reference, documents have been produced by petitioner company which has not been taken into account by Labour Court, Vadodara. He also submitted that Labour Court, Vadodara has not given any finding whether workmen have completed 240 days continue service or not. He submitted that no reasoning is given by Labour Court in respect of fact whether Sec.25F is violated by petitioner company or not. He submitted that Labour Court has committed gross error in granting back wages in one case 50% and in another case 40% though offer of work was made by petitioner company through contractors, but, workmen have refused the offer made by petitioner. Therefore, he submitted that back wages which has been awarded by Labour Court is also contrary to law laid down by Apex Court. In short, his submission is that Labour Court has committed gross error in deciding both the reference and ignoring the documents which have been produced by petitioner company and there was no proof produced by workmen that during the course of employment, they have completed 240 days continue service. Therefore, he submitted that interference is required by this Court while exercising the powers under Article 227 of the Constitution of India.
4. Learned advocate Mr. Mankad appearing on behalf of respondents workmen in both cases submitted that Labour Court has rightly considered that respondent workmen were engaged in the year of 1994 as Helpers which was performed as nature of permanent work. Thereafter, petitioner company has introduced contract system and it was directed to respondent workmen to work with contractor workers, for that, workmen were not ready, therefore, their services were terminated by petitioner and petitioner company has adopted unfair labour practise and therefore, he submitted that Labour Court has rightly examined the factual issue and rightly decided matter on the basis of evidence and workmen have proved 240 days continue service because there is no rebuttal evidence produced by petitioner company before Labour Court, therefore, order of termination has been rightly set aside by Labour Court. For that, according to him, Labour Court has not committed any error which requires interference by this Court. He submitted that Labour Court has rightly granted 50% and 40% back wages considering some extent gainful employment of respondent workmen and also offer was not accepted by workmen raising objection that if petitioner company is prepared to reinstate, they are prepared to join with petitioner company. Therefore, he submitted that no error is committed by Labour Court in both cases which requires interference by this Court.
5. I have considered submissions made by both learned advocates and I have also perused the award passed by Labour Court, Vadodara in both cases. The short question is whether workmen have completed 240 days continue service with petitioner company or not and whether termination of workmen from service is held to be illegal or not. For that, Labour Court has framed the issue and come to conclusion that there is no dispute between parties in respect of relationship as 'employer employee', but, according to petitioner company, respondent was casual workmen as and when required, they were called by petitioner company and respondent workmen have abandoned the job and question has not been raised that 240 days continue service has not been completed by workmen in written statement as well as in written arguments by petitioner company. The respondent workmen were examined before Labour Court proved 240 days continue service which was a permanent nature of work carried out by workmen and producing cogent evidence in support of oral evidence and no documents have been supplied by petitioner company in respect of identity card and pay slip, therefore, orally service of workmen were terminated w.e.f. 5th May 1997. before that, no opportunity was given to workmen and Sec.25F has also not been followed by petitioner company. One witness Mr. Pradipkumar was examined on behalf of petitioner company before Labour Court, but, he was not having knowledge in respect of appointment of present respondent workmen. He was not having knowledge that on which date, services of respondent workmen were terminated and whether workmen were appointed in the year 1994 or not ? After considering oral evidence led by petitioner company and considering oral evidence of workmen and documents, Labour Court has rightly come to conclusion that initially in both cases, workmen were appointed as casual workmen of petitioner company and remained in service doing permanent nature of work, but, after some time, in the year of 1997, petitioner company has introduced system of contractor and employees are to be appointed by contractor and therefore, it was directed to both respondent workmen to work under contractor which has been objected by both workmen as if amounts to change in condition of service, therefore, their services have been terminated by petitioner company. The petitioner company has accepted the facts in both cases, as per evidence of his witnesses that in case of respondent workmen in both cases, both were working since 1994 with petitioner company, no appointment letter and identity card as well as pay slip were provided to respondent workmen, therefore, considering entire evidence on record and there is no rebuttal evidence produced by petitioner company before Labour Court, therefore, Labour Court has considered decision of Apex Court in case of Surendranagar District Panchayat v. Dahyabhai Amarsinh and Others reported in 2006 (108) FLR 193 and also considered decision of Apex Court in Krishna Bhagya Jal Nigam v. Mohmad Rafi reported in 2006 (110) FLR 1212, but, Labour Court has rightly considered the decision of this Court in case of State of Gujarat v. Jitendra M. Raval reported in 2005 (106) FLR 97. The relevant observation is quoted as under :
Before the Labour Court, the workman was examined vide Exh.11 and witness of the petitioner was also examined at Ex.16. After considering the oral and documentary evidence and submissions made by the respective parties, the Labour Court has come to the conclusion that in all, the workman was in service for ten months continuously and no documentary evidence has been produced by the petitioner though the same was in their possession as regards the workman the muster roll, pay register to prove the working days attended by the workman. Therefore, in absence of the said documents, the Labour Court has drawn adverse inference against the petitioner while relying upon the oral evidence of the respondent workman to the effect that he had completed continuous service of 240 days. It is not the case of the petitioner that while employing the respondent workman in service, or engaging him as daily wager, identity card, pay slip, muster card or any other documents were given to the workman so that the same could have been produced by the workman before the Labour Court. Obviously, when the employer has not given any documentary evidence to the workman at the time of employing him in service, then employer should not have asked from the workman any documents for proving his case about continuous service of 240 days. The law on this issue is very well clear and settled. If the workman having documents and not produced the same, then it is burden on the workman to prove the fact as regard continuous service of 240 days. But if the workman has not been given any documentary evidence, in such eventuality, the employer has to disprove the fact came on record in oral evidence before the Labour Court. In the present case, the petitioner has not produced any documentary evidence. Normally, muster roll, pay register of working days of the workman concerned are in possession of the employer, since not produced by the petitioner before the Labour Court, the Labour Court has drawn adverse inference against the petitioner and relied upon the oral evidence of the workmen. It was also not case of the petitioner before the Labour Court that section 25-F was complied with by the petitioner. Therefore, non-compliance of section 25-F despite of attendance of employment for more than 240 days continuous service by the workman, then, the order of termination becomes ab initio void. This aspect has been examined by the Apex Court in case of Mohanlal v. Bharat Electronics Ltd.
6. Therefore, contentions raised by learned advocate Mr. Joshi cannot be accepted in light of reasoning given by Labour Court in both cases. The services of workmen were terminated on 5th May 1997 without complying mandatory provisions of Industrial Disputes Act, 1947, therefore, Labour Court has rightly come to conclusion that termination is found to be illegal and contrary to Section 25F, 25G and 25H of ID Act. Therefore, reinstatement has been granted after considering gainful employment to some extent and therefore, Labour Court has rightly granted 50% and 40% back wages of interim period. For that, Labour Court has not committed any error which requires interference by this Court. [See : (i) Delhi Administration through Directorate of Social Welfare, Delhi v. Presiding Officer and Others 2004-I-LLJ 910 (Delhi) (ii) Ramesh Kumar v. State of Haryana 2010 (1) Scale 432 (iii) Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda 2010 AIR SCW 542 (iv) Krishan Singh v. Executive Engineer, Haryana State Agriculture Marketting Board, Rohtak (Haryana) - 2010 (2) Scale 848].
7. Therefore, contentions raised by learned advocate Mr. Joshi cannot be accepted, hence, rejected. One fact remains that there is no rebuttal evidence produced before Labour Court by petitioner in respect of fact that from 1994 onwards, in both cases, respondent workmen were not appointed by petitioner company as a casual employees those who were remained in service upto 5th May 1997. Therefore, against which, there is no rebuttal evidence produced by petitioner company, therefore, finding of fact decided by Labour Court in respect of facts cannot consider to be unreasonable and baseless.
8. Recently, the Apex Court has considered the same question in case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010 (1) SCALE 613.
The relevant Paras 17 to 23 and 26 to 44 are quoted as under :
17. 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 the concept of social and economic justice is a living concept of revolutionary import; it gives substances to the rule of law and meaning and significance to the ideal of welfare State: - State of Mysore Vs. Workers of Gold Mines AIR 1958 SC 923.
18. In Y. A. Mamarde Vs. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court while interpreting the provisions of Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economic condition of some its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principle was advocated by the movement for liberal employment in civilized countries and the Act which is a pre constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavor to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conductive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social Justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person.
In other words, the aim of social justice is to attain substantial degree of social economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Court, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Dispute Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd Vs. Subhash Kapoor (2001) 1 SCC 118, R. P. Sethi, J. observed: that after independence the concept of social justice has become a part of our legal system. This concept givens meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system. In L. I. C. of India Vs. Consumer Education and Research Center and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of his device then that is misconduct on the part of the employer can not possibly be permitted to deprive a person of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his teaties:
Democracy, Equality and Freedom, Justice Mathew wrote:
The original concept of employment was that of master and servant. It was therefore held that a Court will not specifically enforce a contract of employment. The law has adhered to the age old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer's directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee's life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule become settled at the time when the words 'master' and 'servant' were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias. The overtones of this ancient doctrine and discernible in the judicial opinion which rationalized the employer's absolute right to discharge the employee. Such a philosophy of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But the philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have not vastly changed and it is difficult to regard the contract of employment with large scale industries and government scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit has job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e., for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these case demonstrate that mutuality is a high sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer's right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting pari against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant can not complain, as he takes the employment on the terms which are offered to him.
22. In Government Branch Press Vs. D. B. Belliappa (1979) 1 SCC 477, the employer invoked the theory of hire and fire by contending that the respondent's appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:
It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute from is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into fossils of time. this rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of household, were not his own, but those of his pater familias. The overtones of this ancient doctrine are discernible in the Anglo American jurisprudence of the 18th century and the first half of the 20th century, which retionalised the employer's absolute right to discharge the employee. Such a philosophy , as pointed out by K. K. Mathew, J. (vide his treatise: Democracy Equality and Freedom , p. 326), of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers . To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Labouratories (India) Ltd Vs. Presiding Officer (1984) 1 SCC 1, in the following words:
In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status of contract, the contract being not left to be negotiated by two unequal persons but statutory imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by lanes and side lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of the workman will put unbrearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fat that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is derived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer public or private.
26. Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Premable, which has been recognized, a part of the Constitution in His Holiness Kesavananda Bharti Sripadagalvaru and others vs. State of Kerala and another (1973 SC 1461), we can discern that as divide in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
(SEE:
Justice R. C. Lahoti, Preamble The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3)
27. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
28. As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question:
After all, for whose benefit was the Constitution enacted?
(Bidi Supply Co. Vs. Union of India and Others AIR 1956 SC 479 at para 23, page 487)
29. 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 as stake, for the butcher, the baker and the candlestick maker . It lays down for this land a rule of 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.
30. 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 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 Defenced and Defiled. Mac Millan 1974 p. 29)
31. I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
32. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and Anr (AIR 1967 SC 1). In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Art. 12. (See paras 100, 101 at page 28, 29 of the report). This minority judgment, His Lordship was endorsed by justice Mathew in Kesavannanda Bharti (supra) (at page 1949, para 1717 of the report) and it was held that the State under Article 12 would include the judiciary.
33. This was again reiterated by Justice Mathew in the Constitution bench judgment in the case of State of Kerala and another Vs. N. M. Thomas and others (AIE 1976 SC 490) where Justice Mathew's view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, 'State' would include 'Court'
34. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavnanda (supra) it was held that judicial process is also state action (Para 1717, page 1949.)
35. That being the legal position under Article 38 of the Constitution, a duty is cast of the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
&fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
The content of the expression equality before law is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and 46. [at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are constitutional invigilators and statutory interpreters they should also be responsive to part IV of the Constitution being one of the trinity of the nation s appointed instrumentalities in the transformation of the socio-economic order . The Learned Judge made it very clear that when the Judges when decode social legislation, they must be animated by a goal oriented approach and the Learned Judge opined, and if I may say so, unerringly, that in this country the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme. [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of Globalisation , may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask progress toward what, and progress for whom , it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
44. How Stunningly relevant are these words and how deep are the ditches created in our society by the so called advanced of globalization.
9. This Court while exercising the powers under Article 227 of the Constitution of India having very limited jurisdiction cannot disturb the finding of fact examined by Labour Court as decided by Apex Court recently in case of State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010. The relevant Para 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23.
More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
10. Therefore, according to my opinion, Labour Court has rightly examined the matter, for that, Labour Court has not committed any error which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India.
11. Hence, there is no substance in present petition, accordingly, present petition is dismissed.
[H.K. RATHOD, J.] #Dave Top