Ram Ayodhya Singh vs The Presiding Officer, Labour Court-III and Others

Gurmeet Singh Sandhawalia, J.—Challenge in the present writ petition is to the Award dated 26.11.2013 (Annexure P-5) passed by the Labour Court, Faridabad whereby, reference has been decided against the petitioner-workman by holding that the provisions of Section 25-F of the Industrial Disputes Act, 1947 (in short ''the Act'') had been followed by offering one month''s notice pay and other benefits as per the provisions of the Act and the workman had refused to accept the same. A perusal of the file would go on to show that the petitioner was appointed as a Boring Machine Operator from 17.05.1999 onwards. He was retrenched from service on 30.09.2008 and was asked to collect his full and final amount from the Accounts Department while leaving the factory in the evening and it was mentioned that in case he fails to collect the said amount, the same would be sent to him by post. A perusal of Annexure P-6 would show that 3 cheques dated 30.09.2008 for sum of Rs. 65,308/-, Rs. 28,038/- and Rs. 33,588/- were mentioned in the said communication which was also sent to the Labour Officer, Faridabad.

The workman issued a demand notice under Section 2-A of the Act on 15.10.2008 taking the plea that in the first week of October, when he went to attend his duty, he was Stopped on the factory gate and his services were terminated without following the mandatory provisions of the Act.

The respondent-management, before the Labour-cum- Conciliation Officer, brought forward the retrenchment notice dated 30.09.2008 and pleaded that he did not collect his full and final amount on that day and on the very next day, the cheques were sent through registered post, which were received back undelivered. It was further averred that the management was ready to deliver the undelivered cheques of full and final payment to the workman.

In the rejoinder to the said comments, plea taken was that no prior permission had been obtained for closing the machine shop and the provisions of the Act stood violated since other co-workers continued to work.

Resultantly, the matter was referred to the Labour Court where the plea taken was that he had completed 240 days of service and his signatures were taken on the blank papers and he Was not allowed to enter from the first week of October, 2008. His services had been dispensed with without issuing any show cause notice and without conducting any domestic inquiry.

The defence of the management was that two boring machine operators had become surplus since he was appointed in the machine shop and the work relating to the said unit was finished and, therefore, all the statutory dues had been paid. The workman stepped into the witness box as WW1 whereas, the management produced Shaukat Hussain and placed on record all the evidence to show that the retrenchment compensation had been offered. Before the Labour Court, the provisions of Section 25-N of the Act were pressed into action, as has been also contended here.

The said submission was repelled on the ground that there was neither any pleadings or evidence regarding the said fact as to how many workers were employed and mere admission that the total strength was 152, would not be sufficient to examine the issue under Section 25N and as to whether the amount of compensation was to be paid to the tune of 3 months wages. Resultantly, a finding was recorded that compensation under Section 25F of the Act had been duly offered, which the workman had refused to accept.

After hearing counsel for the petitioner, this Court is of the opinion that no fault can be found in the well reasoned order passed by the Labour Court though, the counsel has submitted that strict provisions of the Act do not have to be -pleaded in the claim statement.

On 09.04.2014, the following order was passed by this Court:--

"Counsel prays for some time to place on record the claim statement, if any, filed by the petitioner workman once an argument is raised that prior permission from the Government had not been taken before retrenching the services under Section 25N of the Industrial Disputes Act, 1947.

Adjourned to 09.05.2014."

The said order has not been complied with and the claim statement has not been placed on record. However, the counsel has-produced the same in Court today. Perusal of the same would show that the reasoning which has been recorded by the Labour Court is well justified.

As noticed above, while filing the rejoinder to the reply filed before the Conciliation-cum-Labour Officer, the workman had referred to the noncompliance of Section 25N of the Act but thereafter, as would be clear from the claim statement, there is no such reference in pleadings as to the violation of the mandatory provisions of Section 25-N of the Act and as to whether the management had failed to comply with the said provisions. A general averment has been made that the management had not followed the rules and regulations and the provisions of Labour Law and that the workman was entitled for compensation on retrenchment of 6 months as per the new provisions of Labour Law. Thus, in absence of any specific pleading to the same effect, the management was never in a position to reply to such a plea taken.

It is settled principle of law that matters have to be decided on the basis of pleadings and evidence led therein. A line from here and there" in the evidence cannot be picked up to rely upon and submit that the provisions of Section 25-N of the Act had been pleaded. The whole case of the petitioner-workman was centered around the non-payment of compensation from day one and it was very clear that he had been offered compensation but he had refused to accept the same and the same was sent to him by registered post on the next day and it was received back undelivered. Thus, it is clear that the workman himself has not been very fair in the stand taken before the Labour Court. Section 25-N of the Act provides that the workman has to be given 3 months'' notice in writing indicating the reasons for retrenchment or has to be paid for those 3 months and prior permission "is to be required from the appropriate Government. Thus, the specific averment had to be pleaded by the workman that the mandatory prior permission had not been taken. Section 25-K of the Act further provides that the provisions of Chapter V-B would apply where not less than 100 workmen were employed at an average per working day from the preceding 12 months. Thus, to bring the dispute within the ambit of Chapter V-B and to invoke the provisions of Section 25-N of the Act, specific pleadings had to be there to bring it within the ambit of the said provisions and it does not lie in the mouth of the workman to say that the specific provisions of the Act do not have to be pleaded. The applications under the Act rather have to be very specific and it has to be clearly mentioned that which of the provisions of the Act are violated, whether the violation is of Section 25-F, 25-G or 25-H since it would necessarily imply whether the retrenchment compensation was not paid, principle of last come first go was not followed or re-employment was not offered.

The Apex Court in Pramod Jha and Others Vs. State of Bihar and Others, rejected the similar plea whereby, the provisions of Section 25-N of the Act were sought to be invoked. It was held that without laying a factual foundation, attracting the applicability of the provision which was a question of fact in the absence of requisite pleadings, the plea could not be entertained. The relevant observations read thus;-

"Faced with this situation, a last effort was made by the learned senior counsel for the appellants urging for relief being allowed on the ground of noncompliance with the provisions of Section 25N of the Act. Section 25N is placed in Chapter V-B of the Act which according to Section 25K has an application only to industrial establishment in which not less than 100 workmen were employed on an average per working day for the preceding 12 months. The plea was not raised before the High Court. It is not even taken in the special leave petitions. It was sought to be taken only at the time of hearing. The plea need not detain us any longer. The infirmity in retrenchment by reference to Section 25N cannot be ventured to be found out without laying factual foundation attracting applicability of the provision. It is basically a question of fact. In the absence of requisite pleadings having been raised and documents having been brought on record, we are not persuaded to entertain the plea. On the contrary, Shri B.B. Singh, the learned counsel for the State has pointed out that the controversy in this case is confined only to 55 workers and therefore the submission based on Section 25N of the Act is totally irrelevant and devoid of any merit. We find substance in the opposition so offered. In Hindustan Steel Works Construction Ltd., etc. etc. Vs. Hindustan Steel Works Construction Ltd. Employees'' Union, Hyderabad and another etc. etc., , this Court refused to entertain a plea raised on behalf of the workers by reference to Chapters V-A and V-B of the Act as the contention was not urged before the High Court."

Thus, the submission made by counsel for the petitioner with great vehemence cannot be accepted. The findings recorded by the Labour Court are well justified in the facts and circumstances of the case and warrant no interference. It is settled principle that his Court is not sitting as a Court of Appeal and is only to see whether the Labour Court has acted within its scope of jurisdiction or has failed to exercise jurisdiction vested in it by law.

It has time and again been held by the Apex Court that while exercising the powers of writ jurisdiction under Article 226 of the Constitution of India, this Court is to exercise its power only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice has taken place. The High Court will not convert itself into a Court of appeal and indulge, appreciate or evaluate evidence and correct errors in drawing inferences or correct errors of mere formal or technical character. The said principle was laid down in Surya Dev Rai Vs. Ram Chander Rai and Others, . It is where the Tribunal has acted illegally in exercise of jurisdiction conferred on it and 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 the principles of natural justice, this Court would interfere. The error of law has to be apparent on the face of the record and it has to be manifestly clear that the conclusion of law recorded by the Tribunal is in misinterpretation of the relevant statutory provisions or in ignorance in regard of the same. Thus, what can be corrected is an error of law, which would be of such character which is apparent on the face of the record and if the statutory provision is capable of two constructions and one of it had been adopted by the tribunal, it may not be desirable to correct the same by way of writ of certiorari. In the present case, no such error of law or fact has been shown which would warrant interference by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Accordingly, there is no scope for interference in the well reasoned order of Labour Court and the writ petition is dismissed in limine. Needless to say the petitioner shall be entitled for the retrenchment compensation and the respondent-management shall pay the same as directed by the Labour Court.