General Manager, I.D.C.O. vs Presiding Officer, Labour Court

S.N. Prasad, J.—When this writ petition was pending one miscellaneous petition being Misc. Case No.612 of 2007 was filed by opposite party

no.2 praying therein to direct the Management to disburse the arrear salary w.e.f. April 2007 to till date and further to direct to make payment of

current salary regularly.

This petitioner has been filed in pursuance to the order passed by this court on 18.10.1996 in Misc. Case No.10058 of 1996 whereby and where

under the award has been stayed subject to the condition of fulfilling the requirements of Section 17-B of the Industrial Disputes Act, 1947.

A counter affidavit has been filed in the miscellaneous application by the Management, inter alia stating therein that the petitioner was gainfully

employed as would be evident from the annexures annexed with the counter affidavit from which it would be evident that the petitioner has

tendered his resignation while on the other hand the same has been disputed by opposite party no. 2 by filing reply to the same.

Since dispute has been raised regarding entitlement of opposite party no.2 for getting the benefit U/s. 17-B of the I.D. Act, 1947 and since the

matter is ripe for disposal, hence in stead of entering into these controversies raised by the Management and opposite party no. 2, it would be

proper to decide the entire writ petition itself and accordingly we have thought it proper to decide the writ petition.

This writ petition has been filed by the Management assailing the award passed in Industrial Disputes Case No. 45 of 1994, notified by Labour

and Employment Department, Government of Orissa vide notification dated 3rd September, 1996 whereby and where under the reference has

been answered on contest against the 1st party Management answering the reference in favour of opposite party nos. 2 & 3 for their reinstatement

in their former posts immediately with full back wages from the date of their retrenchment.

The brief fact of the case of the Management who is petitioner in this writ petition is that the workmen, opposite party nos. 2 & 3 were never

been engaged by them, rather they have performed their duties through job contractors and as such there is no employer - employee relationship in

between the Management and opposite party nos. 2 & 3, the workmen, it is the contractor who has disengaged opposite party nos. 2 & 3, hence

there is no question of compliance of provision of Section 25(F) of I.D. Act, 1947.

While on the other hand the case of opposite party nos. 2 & 3, the workmen that they have been allowed to work in the capacity of D.L.R.

under the Management and they were directly in the work of the Management. They have been allowed to continue in service for a period of more

than 240 days in a calendar year and as such before retrenching them it was incumbent upon the Management to comply with the provision of

Section 25(F) of the Act, 1947.

When the dispute arose, the matter has come before the Conciliation Officer, on failure, a failure report was submitted and thereafter the

appropriate Government has referred the dispute by making a reference to the effect that ""Whether the action of the Management M/s. Orissa

Industrial Infrastructure Development Corporation, Sunabeda in retrenching/terminating the services of Sri Laxmidhar Sathua, Ex-Clerk-cum-

Typist, Manoranjan Das, Ex-Clerk-cum-Typist, Gopabandhu Mohanty, Ex-Pump Operator, w.e.f.16.3.1992, 30.1.1992 and 3.7.1992

respectively are legal and/or justified, if not to what relief those workmen are entitled?

The Industrial Tribunal has proceeded to decide the reference and in course thereof the Management as well as opposite party nos. 2 & 3, the

workmen have appeared and contested their cases by submitting documents, they have participated in examination and cross-examination and

thereafter the award has been passed in favour of the workmen which is under challenge in this writ petition.

The contention raised by the learned Sr. Counsel representing the Management that the workmen are not appointed by the Management since

no appointment letter is on record.

He submits that there is no question of engaging them since no post is available with the department.

He has not disputed the fact that the work has been performed by the workmen but through job contractors and if the contractor has disengaged

them the management cannot be held responsible for the same.

He submits that these facts have been produced before the Tribunal but these have not been appreciated and hence the finding given by the

Tribunal is perverse and in view thereof it has been submitted that the writ court can interfere in the award.

While on the other hand learned counsel representing opposite party nos. 2 & 3 have submitted that there is no infirmity in the award for the

reason that both the workmen have been engaged by the Management to perform their duties in daily rated basis. The management witness has

admitted the fact that they have rendered their duties fairly for long period which is more than 240 days, hence they are coming under the definition

of continuous service as stipulated U/s. 25-B of the Industrial Dispute Act, 1947. Since they have performed continuous duties for a period as

required under the statute, hence it was incumbent upon the authority to follow the condition precedent for retrenchment of workmen as provided

U/s. 25(F) of the Act, 1947, but the same has not been followed and the Tribunal after taking into consideration this aspect of the matter has held

while passing the award that there is violation of provision of Section 25(F) of the Act, 1947 and accordingly order of reinstatement has been

passed.

He further submits that the High Court sitting under Article 226 of the Constitution of India may not interfere with the award since this court may

not assume the power of appellate court.

He submits that there is no factual error and also there is no error of jurisdiction.

Heard the learned counsels for the parties and perused the documents available on record and the original record called for by this court vide

order passed in this regard.

The reference which has been answered by the learned Tribunal in this case is regarding the retrenchment of opposite party nos. 2 & 3 as to

whether the retrenchment is legal or justified, if not to what relief these workmen are entitled to.

From perusal of the award it is evident that the Tribunal has framed five issues, namely,

(i) whether there is relationship of employer and employee between the parties ?

(ii) whether the management is required to comply the provisions of Section 25-F of the I.D. Act, before retrenching the workmen?

(iii) whether the action of the management of M/s.Orissa Industrial Infrastructure Development Corporation, Sunabeda in retrenching/terminating

the services of Sri Laxmidhar Sathua, Ex-Clerk-cum-Typist, Shri Manorajan Das, Ex-Clerk-cum-Typist, Sri Gopabandhu Mohanty, Ex - Pump

Operator, w.e.f. 16.3.92, 30.1.92 and 3.7.92 respectively are legal and/or justified?

(iv) whether the workmen are entitled to reinstatement with full back wages as claimed?

(v) To what other benefit, if any, the workmen are entitled?

Issue no.(i) is with respect to relationship of employer and employee between the parties. The Tribunal after taking into consideration the rival

submission, the documents placed before it has found that there is relationship of employer - employee in between opposite party nos. 2 & 3 and

the Management. It transpires from the award that the workmen has adduced oral evidence and deposed that they have joined as pump driver

under the Management in the year 1986. He was operating diesel pump. He was getting monthly salary from the junior engineer. He has signed in

the site register. He was maintaining the Log Book. He was retrenched from the service in July, 1992.

The suggestion regarding the fact that he was working under the contractor has been denied by him. Apart from oral evidence the workmen has

also adduced documentary evidence to substantiate the oral evidence, i.e. Exhibit-1 which is a certificate issued by the Jr. Engineer (Civil) IDCO,

Landiguda. From its perusal it appears that the workmen was working as Pump Operator on D.L.R. basis in Damanjodi Division since November,

1986 to April 1990.

Exhibit-2 has also been perused by this court which has been referred which is a certificate issued by the Assistant Manager (C) IDCO,

Damonjodi Division. From its perusal it appears that the workmen was working as Stenographer-cum-Typist on D.L.R. basis from 15.2.1988 to

25.12.1990.

Exhibit-3 is a letter written by the Deputy Manager, O.T.I.D.C. and from its perusal it appears that Sri L. Sathua joined in the sub-division as

Office Assistant on D.L.R. basis.

Likewise other documents like Exhibits-4, 5 & 6 also supports the fact that opposite party no.3 had performed their duties under the Management.

Exhibits-8 & 9 are the attendance register which has been signed by them in support of the fact that they have performed their duties.

The management has produced Exhibit-8 which is a debit voucher under which advance has been given to the workman Sri L. Sathua. Exhibit-D

and E are the muster rolls under which the workmen have received their wages. Thus Exhibits-B, D & E fully support the case of workmen.

It further transpires that the management has also adduced oral and documentary evidence. The Management witness no.2 has deposed that he

has seen the workmen in their Division Officer, Sunabeda, but however he has submitted that he has not seen taking dictation and typing out official

papers.

In cross examination he has admitted that he has issued Exhibit-1 to Sri G. Mohanty, workman.

It further transpires that the management - petitioner herein has raised the issue that the workmen has been engaged through job contractors but

not a single job contractor has been examined from the side of Management to support the said plea.

The workmen has also made an application to direct the Management to produce certain documents, but that has not been produced and as such

adverse inference has been drawn by the Tribunal as provided under Section 114(g) of the Indian Evidence Act and thereafter issue no.(i) has

been answered in favour of workmen and against the Management.

The Tribunal has given its finding on the basis of the fact that the management has not rebutted the specific stand taken by the workmen either

by way of oral evidence or by documentary evidence and it is very difficult for the daily rated employee to have access to the documents like

muster roll, etc. in connection with his service; and he deposed this before Tribunal, the burden of proof shifts upon the employer to prove that he

did not complete 240 days of service in the requisite period to constitute continuous service; reference in this regard may be made to the judgment

rendered by the Hon�ble Apex Court in the case of Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda reported

in AIR 2010 SC 1236, wherein their Lordships at para-15 has been held, which is being quoted herein below:-

Para-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.

But we find that no such steps were taken by the management to disprove this fact in spite of full contest in the case, hence the Tribunal has come

to finding that the workman has performed his duty regularly for period of 240 days which is the requirement for getting protection under Section

25-F of the I.D. Act, 1947 as contemplated under Section 25-B of the I.D. Act, 1947.

Issue No.(ii) which relates as to whether the provision of Section 25(F) of Industrial Dispute Act, 1947 has been complied with before

retrenchment or not, the Tribunal has came to conclusion that the workmen have performed their duties for a period more than 240 days but the

compliance of provision U/s. 25(F) of the Act 1947 which is the condition precedent to retrenchment has not been followed, hence it has been

held that it is a case of violation of provision of Section 25(F) of the I.D. Act and accordingly issue no. (ii) has been answered in favour of the

workmen.

Issue no. (iii) relates as to whether the retrenchment/termination are legal or justified. By taking into consideration the fact that the provision of

section 25(F) of the Industrial Dispute Act, 1947 is mandatorily to be followed, but since not followed, hence the retrenchment has been held to be

illegal and thereafter the issue no. (iv) and (v) have been answered in favour of workmen.

From perusal of the award it is evident that the Tribunal has gone into the details of the all aspects of the matter which have been produced by

the parties and after taking into consideration all these aspects, all the issues framed by it has been a answered in favour of the workmen.

It transpires that the materials which has been produced by the Management of the opposite parties - workmen has properly been dealt with,

however it has been denied by the learned senior counsel representing the petitioner that the fact regarding engagement of the workmen which has

been done by the job contractors has not been answered, but from perusal of the finding given by the Tribunal, in our considered view the

argument advanced on behalf of the Management is not fit to be accepted and is not accepted as because the matter related to engagement of the

workmen by the job contractors has well been discussed by the Tribunal and after taking into consideration various documents which has been

signed by the functionary of the State Government, and since no job contractor has been cross-examined by the Management, hence the Tribunal

has came to conclusion that there is employer - employee relationship, hence it cannot be said that the point which has been raised by the

Management in this case has not been dealt with by the Tribunal, rather it has well been discussed while discussing the issue no.(i) and thereafter

the award has been passed.

There is no dispute about the fact that if the workmen are being retrenched without following the provision as contained in Section 25 (F) of

the Industrial Dispute Act, 1947 it will be illegal for the reason that before retrenchment the provision as provided U/s.25(F) is mandatory to be

followed.

Reference in this regard may be made to the judgment rendered by Hon�ble Apex Court in the case of State of Bombay and Others v. The

Hospital Mazdoor Sabha and others, AIR 1960 SC 610 wherein at paragraph 6 their Lordships have been pleased to hold that on a plain

reading of Section 25-F(b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The

section provides that no workman shall be retrenched until the condition in question has been satisfied����. Having regard to the fact that

the words used in plain and unambiguous it seems to us that the Court of Appeal was right in holding that section 25-I covered cases of recovery

of monies other than those specified in section 25-F

(b).... Therefore we see no substance in the argument that the Court of Appeal has misconstrued Section 25-F(b). That being so, failure to comply

with the said provision renders the impugned orders invalid and inoperative.

Reference in this regard may also be made to the judgment rendered by Hon�ble Apex Court in the case of Gammon India Limited v.

Niranjan Das, (1984) 1 SCC 509 (para 2 to 4).

It will also be relevant to deal with the finding given by the Tribunal with regard to back wages. Since the tribunal has came to a conscious

finding that retrenchment of the workmen is contrary to the provision as contained in Section 25(F) of the Industrial Dispute Act, 1947, as such the

award for reinstatement along with back wages has been passed. In this regard reference may be made to the judgment rendered by Hon�ble

Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others, (2013) 10 SCC 324

wherein their lordships have been pleased to hold that we are of the considered view that awarding back wages by the finding of Tribunal cannot

be said to be improper and accordingly it is held to be proper.

The proposition laid down by Hon�ble Supreme Court in the case of Deepali Gundu Surwase (supra) has also been followed in the judgment

rendered by Hon�ble Apex Court in the case of Tapash Kumar Paul v. Bsnl & Another, (2014) 4 SCR 875 wherein their Lordships after

taking into consideration the proposition laid down in the judgment rendered by Hon�ble Apex Court in the case of Surendra Kumar Verma

& Others v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Another, (1980) 4 SCC 443 and Deepali

Gundu�s case (supra) have been pleased to confirm the award of the Labour Court of reinstatement with full back wages, since in the absence

of full back wages, the employee will be distressed and will suffer punishment for no fault of his own.

Applying this proposition in the instant case, in our considered view there is no error in the award directing the workman for his reinstatement with

back wages.

Now it is to be seen that in the light of this factual aspect whether this court can interfere with the award assuming the power of appellate court.

In this regard certain authorities of Hon�ble Apex Court needs to be referred.

Judgment rendered by Hon�ble Apex Court by its Full Bench in the case of Syed Yakoob v. K.S. Radhakrishnan and others, AIR

1964 SC 477 wherein it paragraph 7 their Lordships have been pleaded to hold as follows:-

The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 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 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 tact, 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, 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 Article 226 to issue a

writ of certiorari can be legitimately exercised.

The proposition laid down by the Hon�ble Apex Court in the case of Syed Yakoob (supra) still holds good and in this respect reference may be

made to the judgment rendered by Hon�ble Apex Court in the case of M/s.Pepsico India Holding Pvt. Ltd. v. Krishna Kant Pandey,

(2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing

interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 as follows:

In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be

made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not

in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of

appeal. The High Court was not competent to correct errors of facts by examining the evidence and re appreciating. Speaking for the Court,

Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) ""The special civil

application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and

ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the

findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of

superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most

sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere

errors.

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it

was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:

It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not

greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned

order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited

to seeing that the tribunal functions within the limits of its authority.

There is no dispute about the settled proposition that this court sitting under Article 226 of the Constitution of India cannot act as a court of

appeal to defer the finding given by the Tribunal or any authority judicial or quasi-judicial based upon cogent evidence and the materials placed

before it and further there is no mistake apparent on the face of the record.

After taking into consideration the facts as discussed herein above and on the basis of the fact by which the award has been passed by the

Tribunal, in our considered view there is no need to make any interference in the same.

Accordingly the writ petition fails and it is dismissed.