Gujarat High Court
Legal Heirs Of Late Amarsinh Ratansinh ... vs Executive Engineer, Narmada Project ... on 5 April, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/21746/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21746 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 21747 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21748 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21749 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21750 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21751 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21752 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21753 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21754 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21755 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21756 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21757 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 21758 of 2017
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LEGAL HEIRS OF LATE AMARSINH RATANSINH CHAVDA Versus EXECUTIVE ENGINEER, NARMADA PROJECT CANAL SYSTEM ========================================================= Appearance:
MR PRABHAKAR UPADYAY(1060) for the PETITIONER(s) No. 1,1.1,1.2,1.3 ========================================================= CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 05/04/2018 ORAL COMMON ORDER
1. The present group of petitions under Article 226 and 227 of Page 1 of 16 C/SCA/21746/2017 ORDER the Constitution of India are filed for the purpose of challenging the legality and validity of the impugned award dated 30.09.2015 passed in Reference (LCN) No. 17 of 2003 and allied matters.
2. Since common questions of law and facts are arising with regard to this group of petitions, as per the request of learned advocate for the petitioners by way of present common order, the present petitions are dealt with and disposed of by way of treating Special Civil Application No. 21746 of 2017 as a lead matter.
3. The case of the petitioners is that the deceased workman was working as a Watchman with effect from 01.01.1984 and the services of the deceased workman came to be terminated by the respondents way back on 14.10.1999. It is the case of the petitioners that while discontinuing the services, no mandatory provisions as required is observed and in utter disregard to the principles enunciated under Section 25F of the Industrial Disputes Act, the termination has taken place. By making such grievance an industrial dispute is raised by the petitioner -
deceased workman, which was ultimately referred to adjudication before the learned Presiding Officer, Labour Court, Nadiad in the form of reference as stated above.
Page 2 of 16 C/SCA/21746/2017 ORDER3.1. Pursuant to the reference a claim statement was submitted at Exhibit6, and later on an amendment has also taken place at the instance of the petitioner. In the claim statement vide Exhibit19 it was the case put up in the claim statement that the name of the deceased workman was entered into the register as a watchman labour and he was discharging the services to the utmost satisfaction of the authority. Though he has completed 240 days in each year, the services have been put to an end without complying any procedure and the workman at the relevant point of time was working at a monthly salary of Rs.700/.
3.2. Pursuant to the notice having been issued, the respondent authority has appeared before the learned Presiding Officer, Labour Court, Nadiad and submitted a detailed reply at Exhibit 9 and after giving an opportunity to both the sides to adduce the evidence the learned Presiding Officer, Labour Court, Nadiad, has disposed of the reference by way of passing the impugned common award. This impugned common award is the subject matter of the present petitions.
4. Learned advocate Mr. Prabhakar Upadhyay appearing for Page 3 of 16 C/SCA/21746/2017 ORDER the petitioners has vehemently contended that the petitioner namely the deceased workman had discharged sincere services for a pretty long period and had completed 240 days in each year and still without any cause, the discontinuance has taken place.
It has also been contended that while passing the impugned award, the learned Presiding Officer has not assigned cogent reasons nor has examined any evidence in detail. It has also been contended that in view of the fact that though voluminous evidence was led before the learned Presiding Officer, Labour Court, Nadiad, in utter disregard to it passed and order which is perverse. As a result of this, the award in question is required to be quashed and set aside.
4.1. Learned advocate Mr. Upadhyay has further contended that there is a clear violation of the provisions of Section 25F of the Industrial Disputes Act. Hence, the discontinuance even if it is of long back the action of termination is arbitrary, the order of reinstatement could have been passed and having not done so, the impugned award is without exercise of jurisdiction. Learned advocate Mr. Upadhyay has further contended that even apart from nongranting the reasons, even the compensation which has been given is not reasonable and just looking to the length of Page 4 of 16 C/SCA/21746/2017 ORDER service and ultimately contended that it is not the case in which the award can be said to be just and proper, The conclusion having arrived at by the learned Presiding Officer, Labour Court, Nadiad, is also not cogent enough to substantiate the ultimate operative order. As a result of this, the impugned award deserves to be quashed and set aside. No other submissions have been made.
5. Having heard the learned advocate for the petitioners and having perused the material on record, the conclusion which has been arrived at by the learned Presiding Officer, Labour Court, Nadiad prima facie, it seems that while exercising the discretion, the learned Presiding Officer, Labour Court, Nadiad has not only examined the material and evidence on record at length but has also taken into consideration each contentions which has been placed which is also reflecting clearly that while coming to the conclusion and also, the effect of the statutory provisions namely the provisions of Section 25B as well as Section 25F of the Industrial Disputes Act is considered. In addition thereto, even the decisions which have been cited before the learned Presiding Officer, Labour Court, Nadiad have been dealt with and after considering every material, the jurisdiction is exercised which Page 5 of 16 C/SCA/21746/2017 ORDER prima facie suggest that there is no perversity nor any material irregularity. A bare reading of the conclusion and the reasons which are assigned are also found to be just and proper. It is clearly appearing from the reading of the award that the chart which has been reflecting at internal page 40 of the petition compilation clearly indicates that the date of the termination is not of the recent past, but way back right from the year 1991, has taken place. The details whereof are consisting in this chart which indicate that the discontinuance has taken place in the year 199199 as well as in the year 2001, meaning thereby, prior to almost more than 18 years by now, and as a result of this, looking to the recent trend, which has been adopted by series of decisions there appears to be no irregularity in passing the impugned award. It is further settled position of law by now, by well recognized series of decisions that not only belated reference would always give rise of giving order of reinstatement, but when such delay is there, on the contrary, it is well recognized that instead of granting reinstatement, lumpsump compensation to be paid to the workmen. Even the coordinate Bench of this Court (Coram : Sonia Gokani, J) has also taken the very same view relying upon the series of decision delivered by the Apex Court and the said decision is rendered in Special Civil Page 6 of 16 C/SCA/21746/2017 ORDER Application No. 27368 of 2007 dated 09.03.2017. The relevant observations are in para 9 and 10 which read as under : "9. xxx xxx xxx
13. xxx xxx xxx "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 bylanes and sidelanes 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 unbearable 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 fact 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 deprived 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."
10. In such view of the matter, the Court is of the opinion that this is a case for entitlement of the compensation. For so doing, this Court relies upon the decisions of the Apex Court in the case Page 7 of 16 C/SCA/21746/2017 ORDER of Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh vs. Akhilesh Kumar Khare and another, 2016(1) SCC 521 and Workmen Rastriya Colliery Mazdoor Sangh vs. Bharat Coking Coal Limited and another, (2016)9 SCC 431.
14. Thus, even without interfering with the factual findings, so far as the conclusion arrived at by the Labour Court is concerned, some indulgence is found desirable. The Labour Court has directed reinstatement to the original post without continuity of service and without backwages. As discussed above, when the respondent was appointed it was without any public advertisement and he continued to work for about nearly 4 years. Much time has flown from the date of retrenchment which, even though held illegal, had come in the year 1994. The period of nearly 22 years has lapsed. In such circumstances, relying on the decisions to be discussed hereinafter, lump sum compensation requires to be ordered.
14(a) In the case of Workmen Rastriya Colliery Mazdoor Sangh (supra), out of 20 original workmen employed between 19871989, 14 left in fray i.e. their services were not regularised. The Tribunal passed the order of directing regularisation of services were of workmen but without backwages. The same was modified by the High Court on 18.5.2004 and consequent to which, the management was required in case it intended to employ regular workman, to give preference to workmen in question by relaxing conditions as to age and eligibility. As 27 years had elapsed since their engagement and most of them were on verge of retirement left without any relief/remedy, payment of compensation of Rs. 2 lakhs each in full and final settlement of their claims, dues and outstanding were directed by the Apex Court.
14(b) In the case of ViceChancellor, Lucknow University, Lucknow, Uttar Pradesh (supra) the respondents originally were engaged as daily wager in Accounts Section by Finance Officer, University of Lucknow. They were paid from different contingency funds. In order to prevent the process of engaging daily wager on 3.8.1990, it was noted that they would not be allowed to continue after 31.12.1990, until prior written approval was accorded by the Vice Chancellor and the respondents were terminated with effect from 1.1.1991. Thus, total period of their service was for 1 ½ years. The Apex Court considered the fact Page 8 of 16 C/SCA/21746/2017 ORDER that requirement of section 17B of the I.D.Act had not been complied with, the University was directed to pay the respondent Rs.4 lakhs each within four months from the date of judgment, on the ground that on account of pendency of litigation for more than two decades and as some of the respondents were overaged and thus had lost opportunity to get the job elsewhere."
6. As a result of this, the Court finds no perversity nor any irregularity in exercising jurisdiction by the learned Presiding Officer, Labour Court, Nadiad. So far as compensation is concerned, it prima facie it appears that looking to the nature of work, which the petitioner - workman was discharging and at the relevant time the daily wage which was existing, the compensation which has been awarded is also appeared to be reasonable and such a balanced view which has been taken is not possible to be dislodged by this Court in exercising the extra ordinary jurisdiction. So far as the law relating to the manner of exercising extra ordinary jurisdiction is concerned is well propounded by the Apex Court in the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374, and the relevant observations contained in para 6 and 7 are reproduced hereinafter : "6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of Page 9 of 16 C/SCA/21746/2017 ORDER power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC
675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01 072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact Page 10 of 16 C/SCA/21746/2017 ORDER or of law unless the following requirements are satisfied :
(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of Page 11 of 16 C/SCA/21746/2017 ORDER supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in Page 12 of 16 C/SCA/21746/2017 ORDER exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Page 13 of 16 C/SCA/21746/2017 ORDER Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
6.1. Yet another decision which has been taken note of by this Page 14 of 16 C/SCA/21746/2017 ORDER Court that simply because there reflects violation of provisions of Section 25F of the Industrial Disputes Act, no automatic reinstatement must follow. On the contrary, the Court has to strike balance between the same and belated decision over a period of 18 years or more would not automatically entitle to relief of reinstatement. The decision in the case of Chief Administrator Housing Board Haryana v. Diwan Chand reported in (2014) 15 SCC 353 is taken note of by this Court.
Considering the aforesaid propositions of law, the overall reading of the impugned award and the latest trend, the award cannot be branded as perverse in any manner. In absence of material irregularity or perversity it is not possible for this Court to substitute any another view even if possible. As a result of this, the petitions being devoid of merit deserve to be dismissed and the impugned award passed by the learned Presiding Officer, Labour Court, Nadiad is confirmed.
7. Before parting with the order, it is directed that the amount which has been ordered to be paid to the respective petitioners may be paid within a reasonable period preferably within a period of three months from the date of receipt of writ of this order.
Page 15 of 16 C/SCA/21746/2017 ORDER8. In view of the above, petitions being devoid of merit are dismissed with no order as to costs.
(A.J. SHASTRI, J.) /phalguni/ Page 16 of 16