Gujarat High Court
State Of Gujarat Through The Assistant ... vs Gohil Vanrajsinh Rajubha on 22 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/16088/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16088 of 2010
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STATE OF GUJARAT THROUGH THE ASSISTANT ENG. & 3 other(s)
Versus
GOHIL VANRAJSINH RAJUBHA
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Appearance:
MR NIKUNJ KANARA, ASST.GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1,2,3,4
MR TR MISHRA(483) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 22/01/2020
ORAL ORDER
1. By way of this petition, the petitioner seeks to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the judgment and award dated 17.02.2010 passed in Reference (LCB) No. 247 of 1992 whereby the Presiding Officer of the Labour Court, Bhavnagar partly allowed the reference and directed the petitioner authority to reinstate the respondent with 10% backwages with all consequential benefits and with continuity of service within a period of 30 days from the date of award.
2. The petitioner is referred to as the State and the Labourer is referred to as the respondent in the present petition.
Page 1 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER3. The brief facts leading to the present petition are as follows:-
3.1. The respondent was working as a Chokidar with the present petitioner authority from the year 1986 and he was getting the monthly wage as per the pay scale of Rs. 196-232/-.
His services came to be terminated on 01.04.1987. It is alleged by the petitioner that the termination of service was without giving any reasons or without availing the opportunities to the parties. From the year 1987 to 1992, no proceedings have been initiated. The petitioner had issued a notice through RPAD on 29.04.1992, however, no response to the said notice was given.
3.2. The reference was also preferred before the Labour Court.
The petitioner in its defense statement has urged that the appointment of the respondent was for 29 days on 04.04.1986.
He has worked for 27 days for the period from 04.04.1986 to 30.04.1986, 29 days for the period from 05.05.1986 to 02.06.1986 and 29 days for the period from 04.06.1986 to 02.07.1986.
3.3. According to the petitioner, the total period of 85 days the present respondent has served. The appointment was purely ad-
hoc and temporary. He was a work-charge employee. The Page 2 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER appointment of the respondent was for protecting goods which were lying at Bhavnagar District and now there are no goods and therefore, his temporary appointment for the post of Chokidar was not needed to be extended further.
3.4. The present respondent did not complete 240 days in any of the calendar year according to the petitioner, therefore, there was no requirement for following the procedure prescribed under the Industrial Disputes Act, 1947 ('ID Act' hereinafter) for ending his services. The respondent had worked with the petitioner lastly on 02.07.1986 and the reference was filed in the year 1992 after a long delay from the date of termination and therefore, it ought to have been rejected.
3.5. It is the grievance on the part of the petitioner that the Presiding Officer has erred in granting reliefs to the respondent.
Therefore, the present petition is preferred seeking following reliefs:-
"(A) Be pleased to allow the present petition.
(B) Be pleased to issue appropriate order or direction, quashing and setting aside the Award dated 17.02.2010 passed in Reference (L.C.B.) No. 247 of 1992, below Exh. 27, by which Reference preferred by the present respondent has partly allowed and issued direction upon the present petitioner authority to reinstate the respondent with 10% backwages with all consequential benefits and with continuity of service within a period of 30 days Page 3 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER from the date of the Award.
(C) Be pleased to hold that the present respondent workman does not entitle for reinstatement.
(D) Pending hearing, admission of the present petition, Your Lordship may be pleased to grant stay of execution, implementation and operation of the Award dated 17.02.2010 passed in Reference (L.C.B) No. 247 of 1992, below Exh. 27, by which Reference preferred by the present respondent has partly allowed and issued direction upon the present petitioner authority to reinstate the respondent with 10% backwages with all consequential benefits and with continuity of service within a period of 30 days from the date of the Award.
(E) Be pleased to grant any other and further relief in the interest of justice."
4. An affidavit-in-reply is filed by the respondent denying all averments and submissions. According to the respondent, for raising the industrial dispute, he had sent a notice to the petitioner on 29.04.1992. The Superintendent, Road and Building Department has already issued a letter dated 11.07.2006 to the Executive Engineer, Rajkot forwarding the same with seniority list of the employee working with the petitioner. According to the respondent, the seniority list indicates that several people have been recruited after 1986 like the respondent, in the scale of Rs. 196-232. This was meant for Class-IV employees as per the Third Pay Commission Report which was substantially revised. It is also the say of the respondent that on a representation made to the Deputy Page 4 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER Executive Engineer, the appointment of the present respondent had been made as a Chokidar in the regular time-scale of pay and it was not a back-door entry. The interviews had been held and the respondent was selected as an employee by a duly constituted Selection Committee. The statement was duly signed by the Deputy Executive Engineer, Electrical Sub-Division (R&B), Junagadh. It is wrong therefore to say that the appointment was ad-hoc and temporary. He has also further urged that after his termination, five more people have not only been engaged for the very work, they then continued and this fact is noted by the Labour Court. This intend to a discriminatory practice and therefore, the Court has chosen to hold in favour of the respondent by directing reinstatement with continuity and 10% of the backwages.
5. This Court has extensively heard learned AGP Mr. Nikunj Kanara, who has submitted to this Court that the person who has been employed purely on a temporary basis would have no right to continue. He further has urged that if the authority concerned deems it appropriate not to continue his service, since his earlier appointment is on a temporary basis, no Court ought to have intervened. The Labour Court committed grave error and exceeded its jurisdiction in granting reinstatement with Page 5 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER backwages.
6. Learned AGP has relied on the decision of the Supreme Court rendered in case of Vidyavardhaka Sangh vs. Y.D.Deshpande, reported in 2006 (12) SCC 482 and also the authority of the Apex Court rendered in case of Regional Manager, SBI vs. Mahatma Mishra, reported in (2006) 13 SCC
727.
7. Per contra, learned advocate Mr. Umesh Mishra has submitted that the Labour Court has neither committed any serious error much less any manifest illegality. The supervisory jurisdiction under Article 227 may not be exercised as the authority concerned has acted within its own bounce. Merely because the Court from the very material may have a different conclusion to arrive at, would be no ground to intervene in a supervisory jurisdiction under Article 227 of the Constitution of India.
7.1. Learned advocate Mr. Mishra has relied on the decision of the Apex Court rendered in case of Harjinder Singh vs. Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192, to urge that the completion of 240 days is not necessary if there is a clear breach of provisions of Sections 25 (G) and 25(H) of the Page 6 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER ID Act. The reliance is also placed on the decision of Jasmer Singh vs. State of Haryana and Another, reported in (2015) 4 SCC 458, to urge that the High Court in exercising its supervisory power under Article 227 of the Constitution of India requires to exercising them sparingly and for the welfare of the people and also for ensuring the equality between the parties.
8. Having heard both the sides, the question of exercising powers under Article 227 of the Constitution of India shall need to be regarded at the outset.
8.1. The Supreme Court in the case of Jasmer Singh (Supra) referred to the decision of Syed Yakoob vs. K.S.Radhakrishnan reported in AIR 1946 SC 477, so also the judgment of Harjinder Singh vs. Punjab State Warehousing Corporation (supra) and that of Anoop Sharma vs. Public Health Division, reported in (2010) 5 SCC 497, and held that while exercising supervisory power under Article 227 of the Constitution of India, the Court is duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments which are made for the social welfare legislations, are required to be interpreted keeping in mind the goals set out by the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39 (a) to (e), 43 and 43-A in particular, which are Page 7 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER meant to secure a social order for the promotion of welfare of people, ensuring equality between men and women and equitable distribution of men and material resources of the community to subserve the common goods and also to ensure that the workers get their dues.
"18. The said Award is challenged by the respondent-employer in Civil Writ Petition No. 9532 of 2001 urging untenable contentions. In the said writ petition, the High Court exercised its jurisdiction contrary to the judgment of this Court in the case of Syed Yakoob v. K.S. Radhakrishnan & Ors.[3] and also the judgment, which was referred to in the case of Harjinder Singh v. Punjab State Warehousing Corporation[4]. The learned counsel for the appellant has aptly placed reliance upon another judgment of Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana)[5] in support of her legal submissions that both the learned Single Judge and the Division Bench of the High Court have erred in exercising their supervisory power under Article 227 of the Constitution of India in setting aside the finding of fact recorded on the facts based on the pleadings and evidence on record.
19. Further in the case of Harjinder Singh v. Punjab State Warehousing Corporation (supra), wherein this Court opined on the exercise of power by the High Court under Article 227 of the Constitution of India as under:-
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the Page 8 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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 sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
20. In view of the aforesaid statement of law the setting aside of the Award by the learned Single Judge which is affirmed by the Division Bench is vitiated in law as the same is contrary to the judgments of this Court referred to supra, upon which the learned counsel for the appellant has rightly placed reliance in support of the correctness of the finding recorded by the labour court on the various issues, particularly the finding of fact that the workman has worked for more than 240 days in a calendar year and termination order is void ab initio in law for non- compliance of Sections 25-F (clauses
(a) and (b)), 25-G and 25-H of the Act, therefore, the Industrial Tribunal-cum-Labour Court has rightly set aside the order of termination of services of the workman and awarded the order of reinstatement with continuity of service and full back wages.
21. The said relief in favour of the appellant- workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors.[6], wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench decision, has held that if the Page 9 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER order of termination is void ab initio, the workman is entitled to full back wages."
9. Apt would be also to refer to the decision in case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil reported in 2010 AIR SCW 6387, where the Court again has made a discretion between Article 226 and 227 of the Constitution of India and has held this:-
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by 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, on 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 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 exercise of its 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 (supra) and the principles in Waryam Page 10 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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 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) 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 the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement 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) 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.
Page 11 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER(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 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 counter-productive and will divest this extraordinary power of its strength and vitality."
10. Thus, it can be seen from the discussion held herein above that the Court while exercising its power under Article 227 of the Constitution of India requires to ensure that the Courts below have acted within their bounds. It is, however, to remember that the Court is not acting in exercise of the appellate jurisdiction Page 12 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER but in a supervisory jurisdiction. Ordinarily, there should be no interference unless the Court found that the Court below has acted beyond his jurisdiction or has acted in a manifest illegality.
11. In this backdrop, this Court shall need to examine as to whether the judgment and award which is questioned by the State, deserves any interference.
11.1. As can be noticed from the facts presented before the Trial Court and the oral as well as documentary evidence adduced before it, the petitioner was appointed as a Chokidar on an ad-
hoc basis although it is alleged that his entry was a back door entry. According to the respondent, it was an interview which had resulted into selection and thereafter, the appointment has taken place. Not only he had been given the pay scale as was prevalent at the relevant point of time but, the benefits as per the Third Pay Commission have been made available to all the employees. Even seniority list had been made of all those who were working as Class IV employees and the name of present respondent figures at Serial No. 25 in the said seniority list produced by the Road and Building Department, Gandhinagar, under the signature of Executive Engineer dated 31.12.2005.
Undoubtedly, the 31.03.1986 office order says that his appointment was for 29 days and without notice he can be Page 13 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER terminated, on completion of 29 days.
11.2. He was appointed on 31.03.1986 thereafter his termination has come on 01.04.1987. The total period he has served is from 04.04.1986 to 30.04.1986, 05.05.1986 to 02.06.1986 and 04.06.1986 to 02.07.1986 i.e. total 85 days. The petitioner has emphasized on the aspect of non-service for 240 days in all however, it is not disputed that four people Mr. V.R.Patel, Mr. B.B. Mehta, Mr. K.D.Katara and Mr. H.N. Vaghela have been appointed after terminating the service of the present respondent. The seniority list also was not published. Assuming that there is no breach of Section 25(F) of the ID Act, the Court below has dealt with Section 25(H) and 25(G) to hold that once, there is a breach of Section 25(F) and (G) the non-completion of 240 days will pale into insignificance. Chapter 5(A) of the ID Act deals with all retrenchment whereas Section 25(F) is for the mode of retrenchment in continuous service for not less than one year. Section 25(G) of the ID Act discusses the principle of 'last come first go', however, the same is not confined only to the workmen who have continuously served for not less than one year. Section 25(H) also will not be applicable to any particular class of retrenchment but to all retrenched workmen.
11.3. The seniority list had not been disputed since it is prepared Page 14 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER and produced by the petitioner. It is a part of the Trial Court's record. The seniority list as on date 31.12.2005, where the name of the present respondent is clearly reflecting as having joined on 26.04.1991. It is to be noted that there is no evidence to the effect that all those who figured in the seniority list have not been continued. On the contrary, it is a categorical case of the respondent that not only those whose names have appeared in the seniority list but, those of them who were not there at the time the said seniority list prepared also have been taken into service and they have continued. They have been appointed after the services of the respondent had been terminated. Assuming that he was initially appointed on an ad-hoc basis but served for a temporary period and assuming that the provision of Sections 25(G) and 25(H) of the ID Act on the strength of the decision rendered in the case of Regional Manager, SBI vs. Mahatma Mishra (supra) is questioned, the fact remains that it is a clear discriminatory practice to continue the rest while terminating the services of the respondent. Not only that, to appoint others without offering the very nature of work to the petitioner also is apparent and clear breach of provisions of ID Act.
12. This Court finds that the Labour Court has appreciated the fact that the respondent was appointed on a temporary basis Page 15 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER only for initial 29 days and had completed 85 days however, in wake of non-adherence to the seniority list and for appointment of others for the very work after terminating the services of the petitioner, was the ground for the Court to hold in favour of the respondent by cumulatively examining the entire material.
13. The decision of Regional Manager, SBI vs. Mahatma Mishra (supra) requires consideration at this stage, where the respondent was appointed on a temporary basis in the year 1982 for a period of 88 days and his services came to be terminated.
In an industrial dispute raised for adjudication where the respondent relied upon a purported circular issued by the Personnel Department of the appellant Bank who had prescribed a temporary appointment for maximum period of 90 days in case of sub-staff and 180 days in case of temporary staff upon obtaining the suitable number of names from the employment exchange. An engagement of casual worker was directed to be resorted to for work of casual nature only and such casual employees were not to be engaged as members of subordinate staff.
13.1. The Labour Court held that no written notice was served before terminating the services, the same was illegal and upon referring to the bipartite settlement by and between the parties, Page 16 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER the Court held that in a sum and substance that it is not an absolute consequence of reinstatement that in every case, full backwages are to be granted. Since the person had been paid idle wages for nearly 20 years, the Apex Court since had found that the appointment of the respondent was as a casual worker for a fixed period and termination of his service was in terms of contract of employment, section 25(H) of the ID Act would not have any implication. On unfair labour practice, it is not to be readily inferred, the conditions precedent thereof must be satisfied. The Labour Court needed to show as to how the payment employment had taken the recourse to unfair labour practice. It since was not a case of the employee being appointed consistently for a number of years with artificial breaks, it was also not a case where the purport and object for such appointment was to violate the provisions of ID Act.
14. This Court notices that in case of Vidyavardhak Sangha Vs. Y.D.Deshpande (supra) the Court held that it is a well established law that the person holding any post on having been appointed on probation or on ad-hoc basis, he would have no right to continue on the post.
15. Decision of the Apex Court rendered in the case of Harjinder Singh (supra) shall need to be regarded, where the Page 17 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER Court in no unclear terms has held that the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding termination and it is sufficient for him to plead and prove that while effecting retrenchment employer violated rule of 'last come first go' without any tangible reason.
" 16. 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 25-G 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.
17. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H of the Page 18 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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 re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo).
18. While rejecting the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:
"7. Section 25-H then provides for re- employment 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 re- employment, 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 re- employment 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 re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention.
8. Rule 77 requires the employer to maintain Page 19 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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 25-F 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 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 25-F 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 re-employment 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 25-F can claim consideration for re- employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25- F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect.
9. The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate Page 20 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F 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 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F 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 V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G 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 25-F."
(emphasis supplied)
19. The ratio of the above noted judgment was reiterated in Samishta Dube v. City Board Etawah (1999) 3 SCC 14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:
"7. ...No as to length of service contained in Section 6-N (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6- P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P Page 21 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection Central Bank of India v. S. Satyam.
8. Nor was the High Court correct in stating that no rule of seniority was applicable to daily- wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines "workman".
9. It is true that the rule of "first come, last go" in Section 6-P could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.w this provision is not controlled by conditions
20. The distinction between Sections 25-F and 25- G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following words:
"9. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v.Page 22 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER
City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai."
In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582/- by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the regulations.
21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "10. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.
22. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed:
Page 23 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER"The anxiety on the part of the society for improving the general economic condition of some of 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 principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised 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 endeavour 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 conducive 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."
23. 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.
24. In a developing society like ours which is full of Page 24 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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 Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
25. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118, R.P. Sethi, J. observed that:
"21. After independence the concept of social justice has become a part of our legal system. This concept gives 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."
26. In L.I.C. of India v. Consumer Education and Research Centre 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 what he is entitled to get. Obviously when a workman has been illegally deprived of his device then that is misconduct on the part of the employer and employer can not possibly be permitted to deprive a person of what is due to Page 25 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER him.
27. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treaties: 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 became settled at a 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 are discernible in the judicial opinion which rationalised 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 that philosophy is incompatible with these days of large, impersonal, corporate employers. The Page 26 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER conditions have now vastly changed and it is difficult to regard the contract of employment with large 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 his 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 over-reaching 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 part against the harshness Page 27 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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 cannot complain, as he takes the employment on the terms which are offered to him." (emphasis added)
28. In Government Branch Press v. 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:
"25. ...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 form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the 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 the 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 rationalised 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, Page 28 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER 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.
29. The doctrine of laissez faire was again rejected in Glaxo Labotratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:
"12. 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 to contract, the contract being not left to be negotiated by two unequal persons but statutorily 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."Page 29 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER
30. 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 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.
31. 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."
16. The facts in the instant case since are totally different as established before the Labour Court, both the decisions which are sought to be relied upon by the State, though in principle are Page 30 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020 C/SCA/16088/2010 ORDER binding to this Court with humility at its command, it can be said that they would have no applicability. The Labour Court has committed no error in granting reinstatement with continuity and 10% backwages.
17. The Court notices that the birth date of the respondent is 16.10.1962. He has completed 58 years and has attained the age of superannuation. He has also been paid, on regular basis, the wages under Section 17(B) of the ID Act, therefore, what all he will be entitled to is the difference between the 10% backwages and the amount received by him under Section 17(B) so also any post retiral benefits, if there be any. Let the same be paid to him, without further delay, which shall be within 12 weeks' from the date of receipt of copy of this order, in consonance with the existing policy and as given to rest of his coworkers.
18. This petition stands disposed of, accordingly.
(SONIA GOKANI, J) Bhoomi Page 31 of 31 Downloaded on : Mon Jun 15 03:30:09 IST 2020