Gujarat High Court
District Development Officer & vs Kishor Kantibhai Joshi on 9 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/27368/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 27368 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DISTRICT DEVELOPMENT OFFICER & 1....Petitioner(s)
Versus
KISHOR KANTIBHAI JOSHI....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1 - 2
MR MUKESH H RATHOD, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/03/2017
ORAL JUDGMENT
1. District Development Officer, Rajkot District Page 1 of 28 HC-NIC Page 1 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT Panchayat and Medical Officer, Primary Health Centre, Sultanpur, are aggrieved by the order of the Labour Court in Reference( LCR) of 1996 where the Court has directed the reinstatement of the workman without backwages and continuity of service.
2. The facts in detail are as follows: 2.1 The petitioner was allotted vehicle NO.GUD 4988 being Jeep for the purpose of Primary Health Centre, Sultanpur. It was for petitioner No.2 that the vehicle was allotted. In absence of any regular or permanent driver, the respondent was provided work depending on the availability of funds in the month of January, 1991, this was, of course, without giving any public advertisement on ad hoc and daily wage basis.
3. The respondent continued to work from the year January, 1991 to 26.4.1994. The vehicle was then required to be shifted to Primary Health Centre, village; Khirasara; Taluka: Lodhika; District:
Rajkot, because of the order passed by the Chief District Health Officer, Rajkot on 25.4.1994.
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Thus, the vehicle of Sultanpur Primary Health
Centre had been shifted to Khirasara Primary
Health Centre. The respondent was not continued with effect from 26.4.1994, due to non availability of the work and funds. Aggrieved respondent preferred Reference LCR No.21 of 1996 before the Labour Court, Rajkot. The statement of claim was given and the defence statement was permitted to come on record and eventually after recordance of evidence, the Court passed the award in the month of May, 2007, directing reinstatement in the service with continuity but without backwages. Thus, this petition is preferred with the following prayers: "7. The petitioner therefore, most respectfully prays that this Honourable Court:
(A) Be pleased to admit the present Special Civil Application;
(B) Be pleased to allow this Special Civil Application by way of issuing appropriate writ, mandamus or directions quashing ands etting aside the impugned award passed in the month of May 2007 by the Labour Court in Reference (LCR) No.21 of 1996 annexed and AnnexureB by way of holding that the same is illegal, unjust, arbitrary and contrary to the facts and evidences on record as well as provisions of the Industrial Disputes Act 1947 in in the interest of justice.
(C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the Page 3 of 28 HC-NIC Page 3 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT implementation, execution and operation of the impugned award in the month of May 2007 by the Hon'ble Court at Rajkot in Reference (LCR) No.21 of 1996 annexed as AnnexureB in the interest of justice.
(D) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order."
4. This Court has heard learned advocate Mr.H.S.Munshaw for the petitioners and learned advocate Mr. Mukesh Rathod for the respondent employee. On carefully examining the award of the Labour Court, they both have fervently made rival submissions. On having given a careful thought to the material on record and the rival submissions, it can be noticed that the defence raised on the part of the petitioners is that the respondent was working purely on ad hoc basis as a daily wager and he was not a regular driver. There was no ad hoc arrangement while taking him in service. He had been called sometimes for two days in a month and sometimes for 19 days. It was also their say that the petitioners do not require the services of the respondent, as vehicle has already been transferred from Lodhika Page 4 of 28 HC-NIC Page 4 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT taluka to Khirsara taluka. After framing the issues, the Court concluded on the strength of the evidence, as well as oral submissions that the respondent worked from 13.1.1991 to 26.4.1994.
5. Respondent agreed that his work was of permanent nature. He denied suggestions that he had not worked for 240 days in a particular year. It is also noted that those, who are junior to the petitioner had been called. No notice pay, no pay of one month, notice in lieu of pay nor retrenchment compensation has been provided. The vehicle was transferred at a short notice and, therefore, it is the stand of the petitioners that the respondent cannot continue, as there is no work where he can discharge the duty. Thus, the act of retrenchment has been declared illegal without continuity of service and the backwages. He has been directed to be reinstated in the month of May, 2007.
6. Learned advocate Mr. Munshaw for the petitioners Page 5 of 28 HC-NIC Page 5 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT has pressed into service the decision rendered by the Apex Court in the case of Bhavnagar Municipal Corporation vs. Salimbhai Umarbhai Mansuri, (2013) 14 SCC 456 which would be considered at later stage, whereas learned advocate for the respondent has sought to rely upon the decision of the Apex Court in the case of Harjinder Singh vs. Punjab State Warehousing Corporation,(2010) 3 SCC 558.
7. (a) Having heard both the sides and on throughly regarding pleadings of the parties, at the outset, it is to be noted that in the instant case, it is not in dispute that the service of the respondent had been terminated without complying with the provisions of section 25F of the I.D.Act.
7(b) According the petitioner Corporation workman had not completed 240 days in the preceding 12 months and hence, would not be entitled to any protection for not being in 'continuous service' as per section 25B of the Act. It is the say of the respondent that he has already completed 240 Page 6 of 28 HC-NIC Page 6 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT days and, moreover, his juniors were retired and also called latter in complete contravention the provisions.
Section 25G of the I.D. Act provides for procedure for retrenchment, where any workman in industrial establishment is to be retrenched. If he belongs to a particular category in the establishment and in absence of the agreement with the employer and the workman, the employer shall ordinarily retrench the workman, who was last person to be employed in that category unless the employer retrenches any other workman.
As per the definition of 'retrenchment' under section 2(oo)(bb), nonrenewal of contract would not be included in such definition.
8. The burden of proof of having worked for 240 days is on the workman. Once he deposes before the Court, the burden would shift upon the employer. In the case of Director of Fisheries Terminal Division vs. Bhikhubhai Meghajibhai Chavda, (2010) 1 SC 47, the Apex Court has held thus: Page 7 of 28 HC-NIC Page 7 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT "13) The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14) Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment Page 8 of 28 HC-NIC Page 8 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from 10 February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 198687 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during crossexamination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Page 9 of 28 HC-NIC Page 9 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld." "
9. The decision rendered by the Apex Court in the case of Harjinder Singh (supra) requires consideration where the Court was considering section 25G of the I.D. Act. It was the stand of the Corporation before the Apex Court that the employee concerned did not work continuously for the period of 240 days. Relying on the principle of 'last come first go', the Apex Court held that rule of 'last come first go' could be deviated by the employer only in case of loss of efficiency or loss of confidence, and the burden is on the employer to establish such deviation. Otherwise, in the ordinary course, such deviation is impermissible. Before the Apex Court there was no specific period for specific job. Nature of job was casual and, as such, the workman was held entitled to reinstatement, although he had not Page 10 of 28 HC-NIC Page 10 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT completed 240 days. Relevant paragraphs of the decision are reproduced hereunder: "13. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re employment on a preferential basis. It was argued on behalf of the bank that an offer of reemployment envisaged in Section 25H should be confined only to that category of retrenched Page 11 of 28 HC-NIC Page 11 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT workmen who are covered by Section 25F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo). While rejecting the argument, this Court analysed Section 25F, 25H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25G and held:
"Section 25H then provides for reemployment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for reemployment, and such retrenched workmen who offer themselves for re employment shall have preference over other persons.
Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of reemployment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for reemployment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25H is confined to the category of retrenched workmen to whom Section 25F applies. We are unable to accept this contention.
Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to Page 12 of 28 HC-NIC Page 12 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for reemployment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25F can claim consideration for re employment only if an eligible workman above him in the seniority list is not available. Application of Section 25H to the other retrenched workmen not covered by Section 25 F does not, in any manner, prejudice those covered by Section 25F because the question of consideration of any retrenched workman not covered by Section 25F would arise only, if and when, no retrenched workman covered by Section 25F is available for reemployment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect.
The plain language of Section 25H speaks only of reemployment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further Page 13 of 28 HC-NIC Page 13 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter VA deals with all retrenchments while Section 25F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25F." (emphasis supplied) xxx xxx xxx 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 Page 14 of 28 HC-NIC Page 14 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT 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 of ViceChancellor, 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.
11. (a) In the case of Bhavnagar Municipal Page 15 of 28 HC-NIC Page 15 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT Corporation vs. Salimbhai Umarbhai Mansuri, (2013) 14 SCC 456, admittedly the appointment of the respondent was on contractual basis. The Apex Court, while examining the scope of section 2(oo) (bb) as well as sections 25F, 25G and 25H of the Industrial Disputes Act, has held that the respondent was bound by the terms and conditions of the office order. The termination of service of the respondent was on expiry of the period mentioned in the appointment. In that view of the matter, when he had not worked continuously for 240 days, how could he claim the benefit of sections 25F, 25G and 25H of the Industrial Disputes Act. The Court held that the only question was whether the termination of service of the respondent on the basis of contract of appointment would amount to retrenchment within the meaning of section 25H of the Act. The Court held thus: "8.Clause 1, 2 and 7 to 10 of the office order dated 19.05.1988 are relevant, which are extracted herein below for ready reference:
"1. With reference to your application dated _____, a meeting was held with us/the Commissioner and subject to the following conditions arrived at with mutual consent you are being appointed as a Daily Wager Helper in Page 16 of 28 HC-NIC Page 16 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT the Water Works Department from 1.5.88 to 30.6.88 at a daily minimum wages of Rs.12/13 and dearness allowance, daily special allowance of Rs.10/20 aggregating to Rs.22/33 in accordance with the Approval No.Commi O/CPO/M.No.204 dated 16.5.88 and upon completion of last duty on 30.6.88, your service shall stand automatically terminated.
2. Since a definite date of termination of your service has been specified, the Municipal Corporation shall not be liable and you shall not be entitled to any notice, wages in lieu of notice, retrenchment compensation etc. x x x x x x x x x x x x x x x x
7. If you are transferred as provided in Clause 6 above and if you fail to perform you duty at the appointed time then it would tantamount to that you are not willing to work and this contract of service shall automatically come to an end and as such your services shall stand terminated.
8. As per the aforesaid para no.1 of the Office Order you are being appointed as a daily wager from 2.5.88 to 30.6.66 subject to the condition that you have to come for work as and when required by the Municipal Corporation, that is, if the Municipal Corporation does not require your service during the aforesaid period, then the Municipal Corporation is not bound to give you the work and you shall not be entitled to demand work for that day, of which you may take a special note.
9. Upon termination of your contract on the date specified above, you are not entitled to claim any right of seniority for the period for which you work nor are you entitled to be reinstated or make such a claim on account of the new appointment of daily wagers.
10. The Corporation shall be entitled to relieve you before the prescribed period if it no longer requires your services."
9. The above order was signed by the respondent Page 17 of 28 HC-NIC Page 17 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT and, therefore, bound by the terms and conditions of the office order. The question is, termination of the service of the respondent on the expiry of the periods mentioned above would amount to retrenchment? Facts in this case clearly show, so found by the Labour Court itself that the respondent had not worked continuously for 240 days in an year to claim the benefit of Section 25F, G and H of the ID Act. Therefore, the only question to be considered is whether termination of service of the respondent on the basis of the contract of appointment would amount to retrenchment within the meaning of Section 25H of the ID Act so as to claim reinstatement.
10. A reference to Section 2(oo) and (bb) of the Act would be apposite.
"2 Definitions: (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include xxx xxx xxx xxx xxx xxx (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein."
Section 2(bb) says that if the termination of the service of workman is as a result of nonrenewal of the contract between the employer and the workman on its expiry of such contract being terminated under a stipulation in that behalf contained therein, the same would not constitute retrenchment.
11. Facts would clearly indicate that the respondent's service was terminated on the expiry of the fixed periods mentioned in the office orders and that he had worked only for Page 18 of 28 HC-NIC Page 18 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT 54 days. The mere fact that the appointment orders used the expression "daily wages" does not make the appointment "Casual" because it is the substance that matters, not the form. The contract of appointment consciously entered into by the employer and the employee would, over and above the specific terms of the written agreement, indicates that the employment is shortlived and the same is liable to termination, on the fixed period mentioned in the contract of appointment.
12. The learned counsel appearing for the respondent submitted that the respondent is entitled to the benefit of Section 25G & H, the same are extracted herein below:
"25G. Procedure for retrenchment. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25H. Reemployment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re employment and such retrenched workman] who offer themselves for re employment shall have preference over other persons."
13. Section 25H will apply only if the respondent establishes that there had been retrenchment. Facts will clearly indicate that there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. Consequently, Section 25H would not apply to 10 the facts of the case. Similar is the factual and legal situation in the civil appeal arising out of SLP(C) No.5387 of 2012 as well."
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11(b) It is clear from the decision of Bhavnagar Municipal Corporation (supra) that the appointment was based on a written contract, a ready reference of which has been made by the Apex Court in its judgment and the person had worked only for a period stipulated in the contract. It was a case of nonrenewal of contract as was specified at the time of initial appointment and the case fell clearly under section 2(oo)(bb) of the said Act.
12. In the instant case, as could be noticed and as also has been held by the Labour Court, initial appointment of the respondent was without issuance of public advertisement and, there has been no written contract nor has any appointment order been issued. He has, however, continued to work all four years on the post of driver. He was terminated without following procedure and another person who was also engaged was his junior, who continued to serve, violating the principle of 'last come fist go'.
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12(a) According to the petitioner Corporation, the car itself has been sent to the Primary Health Centre, Khirasra taluka and, hence, the services of the respondent had been terminated. Nothing came on record as to why the respondent could not have been sent along with car and what was the need to retain his junior. In absence of any material indicating either notice, pay in lieu of notice, retrenchment compensation etc., the continuation of job of another person without proving lack of efficiency and loss of confidence, deviation of principle of the 'last come first go' is impermissible. And, burden being on the employer to justify such deviation, the Labour Court rightly has held that the same has not been discharged.
13. The Court does not find any error in the findings of the Labour Court, and therefore, no interference is needed in the petition under Articles 226 and 227.
13(a) The Constitution Bench of the Apex Court considered the scope of High Courts' jurisdiction Page 21 of 28 HC-NIC Page 21 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT to issue a writ of certiorari involving challenge to the orders passed by the authorities entrusted with the quasi judicial functions. In the case of 'SYED YAKOOB Vs. K.S. RADHAKRISHNAN & OTHERS', AIR 1964 SC 477, the Apex Court held that the writ of certiorari can be issued for correcting an error of jurisdiction committed by the inferior Court or the Tribunal, where, the orders are passed by the Tribunal or the Court without jurisdiction or is in excess of it or as a result of failure to exercise the jurisdiction vested in it. A writ can be issued by the High Court in exercise of jurisdiction conferred on it, when the decision taken by the inferior Court or tribunal is legal or impermissible. Wherein, the Apex Court observed and held thus:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise Page 22 of 28 HC-NIC Page 22 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had, erroneously refused to admit admissible and material evidence, or had, erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, Page 23 of 28 HC-NIC Page 23 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque(1), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi v. Bachittar Singh(3). It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has Page 24 of 28 HC-NIC Page 24 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
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 Page 25 of 28 HC-NIC Page 25 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT 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 Page 26 of 28 HC-NIC Page 26 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT 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 ViceChancellor 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 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.
15. The judgment and order of the Labour Court passed in May, 2007 in Reference (LCR) No.21 of 1996 in wake of forgoing discussion on facts and Page 27 of 28 HC-NIC Page 27 of 28 Created On Mon Aug 14 07:57:56 IST 2017 C/SCA/27368/2007 JUDGMENT law, is confirmed with the modification of operative order. On the ground of pendency of litigation for nearly two decades as the the respondent has lost opportunity to get the job elsewhere, the respondent be given a compensation of Rs.3 lakhs. The procedure to avail such compensation as directed shall be completed within eight (8) weeks from the date of receipt of the copy of this order.
Petition stands dismissed. Rule is discharged.
(MS SONIA GOKANI, J.) SUDHIR Page 28 of 28 HC-NIC Page 28 of 28 Created On Mon Aug 14 07:57:56 IST 2017