Haridwar Development Authority vs Presiding Officer, Labour Court & Another

Manoj Kumar Tiwari, J

Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this

common judgment. However, for the sake of brevity, facts of WPMS No. 68 of 2012 are being considered.

This writ petition has been filed by Haridwar Development Authority, challenging the award rendered by Labour Court, Haridwar in Adjudication

Case No. 320 of 2009. By the said award, learned Labour Court has declared termination of services of respondent no. 2 to be illegal and unjustified,

however, it has been provided that respondent no. 2 shall not be entitled to backwages from the date of his termination till a day before the date of

passing of the award.

The case set up by respondent no. 2 before Labour Court was that in February, 1993 he was engaged as a daily wager for maintaining parks and

gardens of Haridwar Development Authority and he served continuously in the said capacity upto April, 2003, however, instead of regularising his

services, his services were terminated without following the provisions contained in U.P. Industrial Disputes Act, 1947.

The employer contended before the Labour Court that he had engaged one Mr. Laxmi Chand for supplying manpower and services of respondent

no. 2 were provided by Mr. Laxmi Chand for maintenance and up-keep of parks and further that respondent no. 2 was never directly engaged by

Haridwar Development Authority. It was further contended by the employer that post of Mali (gardener), on which respondent no. 2 claims to have

served, was never sanctioned.

The workman was examined as WW-1, while, one Mr. Kameshwar, Horticulture Inspector serving in Haridwar Development Authority, was

examined as EW-1. Mr. Laxmi Chand, the petty contractor, through whom respondent no. 2 was alleged to have been engaged, was not examined as

witness by the employer.

Learned Labour Court, after considering the material on record, recorded a finding that the workman worked for 240 days in a calendar year and

further that the procedure prescribed under Section 6N of U.P. Industrial Disputes Act, 1947 was not followed while terminating services of the

workman. Based on the aforesaid findings, learned Labour Court declared termination of services of respondent no. 2 to be unjust and illegal.

Section 6N of U.P. Industrial Disputes, Act, 1947 is extracted below for ready reference:-

“[6N. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less

than one year under an employer shall be retrenched by that employer until, -

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the

workman has been paid in lieu of such notice wages for the period of the notice;

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed

year of service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the State Government.]â€​

Learned Labour Court, after considering material on record, has recorded finding of fact that petitioner served for more than 240 days in a year and

his services were terminated without following provisions contained in Section 6N of U.P. Industrial Disputes, Act, 1947. There is no challenge to the

jurisdiction of Labour Court by the petitioner. The findings recorded by Labour Court cannot be said to be perverse. The sole contention raised on

behalf of the petitioner is that Labour Court has not considered that respondent no. 2 was engaged through a contractor. Learned Labour Court

cannot be faulted on this count, as onus was upon the employer to prove that respondent no. 2 was engaged through a contractor, which he failed to

discharge. Even the alleged contractor, through whom respondent no.2 was engaged, was not examined as witness before learned Labour Court,

therefore, petitioner cannot improve his case at this late stage.

It is well settled by now that while exercising power under Article 227 of the Constitution, this Court is not supposed to re-appreciate facts. The

scope is limited to an enquiry as to the existence of some perversity or grave error in the order passed by Court or Tribunal that would call for

rectification, as observed by Hon’ble Supreme Court in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another, reported in (1977) 4 SCC

Paragraph no.5 of the said judgment is reproduced below:

“5. The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of

judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well-settled and perhaps too late

in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh v. Amarnath where the principles have been clearly laid

down as follows:

“This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. 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.â€​

The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora v. Commissioner of Hills Division and

Appeals, Assam. Even recently in Bathutmal Raichand Oswal v. Laxmibai R. Tarta dealing with a litigation between a landlord and tenant under

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows:

“If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori

that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article

227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High

Court cannot in 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 and made the decision of the subordinate court or tribunal final on facts.â€​

In the case of K.V.S. Ram v. Banglore Metropolitan Transport Corpn., reported in (2015) 12 SCC 39, Hon’ble Supreme Court has held that,

while exercising power of superintendence under Article 227 of Constitution, High Court can interfere with the order of Tribunal only when there has

been a patent perversity in the order of the Tribunal or where there has been gross and manifest failure of justice or the basic principles of natural

justice have been flouted.

Similarly, in the case of Ishwar Lal Mohan Lal Thakkar v. Paschim Gujarat Vij Co. Ltd. and others, reported in (2014) 6 SCC 434, it has been held

by Hon’ble Supreme Court that interference with findings of Labour Court/Tribunal would be warranted only in case of error of jurisdiction or

serious error of law apparent on record or judgment based on no evidence. It has been further held that, in the absence of such defect, High Court has

no jurisdiction to re-appreciate evidence to form its own view and record findings on contentious issues.

For the reasons, as indicated above, this Court does not find any good ground to interfere in the matter.

Accordingly, the writ petitions are dismissed.

The amount deposited by the petitioner in terms of order dated 17.01.2012 shall be released in his favour.