State of Gujarat vs Bijal Ramsing and Others

H.K. Rathod, J.—Heard learned AGP Mr. A.L. Sharma for Petitioner - State of Gujarat.

Though Rule is served to Respondents but, no appearance is filed by any of Respondents and no advocate is engaged by them. Therefore,

matter is taken up for hearing in absence of Respondents considering fact that matter being old one and adjourned in all on 14 occasions.

In present petition, Petitioner has challenged award passed by Labour Court, Surendranagar in Reference No. 293 of 1990, Exh.29, dated

7.8.2000. The Labour Court, Surendranagar has partly allowed reference filed by Respondents workmen and set aside termination order dated

9.12.1989. After aforesaid termination, Respondents workmen were reinstated in service after a period of 4 months, therefore question of issuing

direction or granting relief of reinstatement does not arise. But question of 4 months'' back wages has been considered by Labour Court and only

20% back wages with continuity of service has been granted in favour of Respondents by Labour Court.

Learned AGP Mr. Sharma has raised contention before this Court that Labour Court has committed gross error in granting relief while partly

allowing reference in favour of Respondents. He also submitted that award is erroneous which has been passed by Labour Court without

appreciating facts found from record. He also vehemently submitted that sufficient and reasonable opportunity was not given to Petitioner for

adducing evidence and therefore, it violated basic principles of natural justice. He also raised contention before this Court that Forest Department

is not an ''industry'' because work of Forest Department is of seasonal nature and further, work is a sovereign function and therefore, Forest

Department is not covered by definition of ''Industry'' u/s 2(j) of the I.D. Act,1947. Therefore, Labour Court has committed an error not

considering this contention raised by Petitioner. He also submitted that present Respondents were working as a daily wager purely on ad-hoc basis

for plantation work and they were given work as per grant released by Government. The Respondents were working for plantation at village

Kedaria and grant which was released for said work was over and therefore, there is no question to call workmen for work but for second year,

Government released grant for some other nursery. Therefore, they were directed to report for work but, they did not join the work and under

circumstances, Labour Court has committed gross error in passing award. He further submitted that none of Respondents have completed 240

days continuous service during last preceding 12 months from date of termination. Therefore, Labour Court has committed gross error and finding

which has been recorded by Labour Court is perverse which requires to be set aside. Except that, no other submissions made by learned AGP

Mr. Sharma.

I have considered submissions made by learned AGP Mr. Sharma and also perused award passed by Labour Court, Surendranagar. The

statement of claim has been filed by Respondents workmen vide Exh.3. The Respondents workmen have raised industrial dispute which was

referred for adjudication by appropriate Government on 25.5.1990. According to Respondents workmen, they were working since more than 10

years receiving Rs. 20.60 ps. daily wage and also doing various kinds of work in nursery, even though their services were terminated on

9.12.1989 without following procedure as required u/s 25F of I.D. Act. Therefore, immediately on 12.12.1989 a demand notice was served to

Petitioner which was remained unanswered. No seniority list has been prepared by Petitioner. Therefore, termination order passed by Petitioner is

illegal and contrary to principles of natural justice.

5.1 It is necessary to note that after receiving reference, Labour Court has issued notice to present Petitioner vide Exh.7 which was served to

present Petitioner vide Exh.8. Present Petitioner has given two applications Exh.4 and 5 but, no reply has been filed by Petitioner. Therefore, right

to file reply of Petitioner has been closed by Labour Court vide Exh.6. Thereafter, Petitioner has not made any effort or submitted any application

to Labour Court with a prayer to re-open the right to file reply. Therefore, it remains as it is. Before Labour Court, vide Exh.10 Shri Bijal Ramsinh

was examined and he gave evidence in respect of three workmen, those who were jointly working and doing similar type of work nursery. All the

three workmen were terminated on 9.12.1989 and each of them have completed continuous service of 240 days in a preceding 12 months from

date of termination. Vide Exh.11 workmen have produced documentary evidence which has been exhibited at Exh.12 to Exh.18. On behalf of

Petitioner, one witness was examined vide Exh-21, who was working at Halvad RFO and he made a statement on oath before Labour Court that

these workmen are now continued in service and that record will be produced by him. According to evidence of Petitioner at Exh.21, this being a

seasonal work, as and when work is available they were called by department; that he was not having any personal knowledge as to how and in

which terms these workmen were appointed by department and on what basis, they were terminated from service. The evidence of Petitioner

remained as it is and not completed because certain documents were required to be produced by witness before Labour Court. Therefore,

evidence of witness of Petitioner remained incomplete. But thereafter this witness has not appeared before Labour Court for giving complete

evidence and he was not made available for cross-examination of Respondents workmen. Therefore, vide Exh.27 oral evidence of Petitioner was

closed. Thereafter, matter was heard by Labour Court and considering evidence of workmen at Exh.10 and after four months'' period these

workmen were reinstated in service and at the time of termination, no due procedure has been followed by Petitioner and no rebuttal evidence has

been produced on record against the evidence of Respondents workman at Exh.10. Therefore, Labour Court has come to conclusion that

termination has not been justified by Petitioner by leading proper evidence and producing documentary evidence on record. However, considering

fact that workmen were reinstated in service after a period of four months, therefore question of giving direction to reinstatement does not arise.

The gainful employment has not been proved by Petitioner while leading appropriate evidence on record. Therefore, in light of this background, the

Labour Court has granted only 20% back wages with continuity of service for a period of four months from date of termination - 9.12.1989 to

date of reinstatement and except that, no other benefit / direction has been given in favour of workmen by Labour Court.

The contentions which are raised by learned AGP Mr. Sharma before this Court, have not been raised by Petitioner before Labour Court

because no reply is filed by Petitioner before Labour Court and right to file reply has been closed by Labour Court which has not been

subsequently re-opened by Labour Court, because no application was made by Petitioner before Labour Court, Surendranagar. Therefore,

question of examining contentions which have been raised before this Court for the first time by Petitioner, does not arise because same have not

been raised before Labour Court by Petitioner. Therefore, contentions raised by learned AGP Mr. Sharma cannot be accepted, which have been

raised before this Court for the first time. (See: State Bank of India and Others Vs. Bidyut Kumar Mitra and Others,

After considering reasoning given by Labour Court as well as appreciating evidence on record by Labour Court, according to my opinion,

Labour Court has not committed any error in relying upon evidence of workmen at Exh.10 and evidence of Petitioner at Exh.21 which was not

completed and said witness was not remained present for cross-examination. Therefore, Labour Court has not committed any error which requires

interference by this Court while exercising power under Article 227 of the Constitution of India. This Court is having limited jurisdiction under

Article 227 of Constitution of India while considering award in question. This Court cannot interfere with award while exercising power under

Article 227 of Constitution of India. This Court cannot exercise powers as an appellate court. This Court cannot disturb finding of fact as examined

by Labour Court. This view has been taken by apex court in case of Jai Singh and Ors. v. Municipal Corporation of Delhi and Anr. With

Municipal Corporation of Delhi v. Sh. Jai Singh and Ors., AIR 2010 SC 5968. Relevant para 25 of said judgment is quoted as under:

Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the

Constitution of India had been discussed in the case of M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., wherein it was observed as follows:

The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and

explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts

and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is

not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the

subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious

dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice

remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or

substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High

Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse,

that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.

In our opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the

Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the

accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the

ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land

No:2, Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being

Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.

7.1. In MA Azim v. Maharashtra State Road Transport Corporation, 2011 I CLR 283, it has been observed by Bombay High Court as under in

para 11 and 12:

At this stage, it would be appropriate to refer to few important judgments of Hon''ble Supreme Court and this Court laying down therein the

scope to entertain petition under of Article 226 and 227 of the Constitution of India. The Hon''ble Supreme Court in a case of "" Nagendra Nath

Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, in para No. 30 held thus:

the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the

powers 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.

Yet in another case, in a case of "" Surya Dev Rai Vs. Ram Chander Rai and Others, the Hon''ble Supreme in its conclusion held:

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following

requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter

disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated

argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one

view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and 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 should occasion. Care, caution and

circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or

proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in

an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct

the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not

corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or

where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or

evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.And in a case of Babulal S/o.

Navalmal Pipada v. Dropadbai W/o. Manohar Gore and Ors. 2010(5) Mh. LJ, this Court has held thus:

One cannot be oblivious of the parameters required to be observed for the purpose of exercising supervisory jurisdiction under Article 227 of the

Constitution of India. Unless it is demonstrated that the impugned judgment suffers from vice of perversity, arbitrariness or is rendered without

considering material evidence or is rendered on the basis of no material interference with the finding of Courts/Tribunals is impermissible. The writ

jurisdiction cannot be invoked for reappreciating of the evidence or for the purpose of rectification of minor errors committed by the Tribunals.

Unless it is demonstrated that the view taken by the MRT is per se against the settled principles of law, it is difficult to interfere with the findings

recorded by the Tribunals below.

Therefore, it is clear from the pronouncements of Supreme Court and this Court which are referred supra that the Writ Jurisdiction cannot be

invoked for reappreciating the evidence or for the purpose of rectification a minor errors committed by the Tribunals. Supervisory jurisdiction

under Article 227 cannot be invoked unless it is demonstrated that the impugned judgments suffers from the vice of perversity, arbitrariness or is

rendered without considering material evidence or is rendered on the basis of no material evidence or is rendered on the basis of no material,

interference with the findings of Courts/Tribunals is impermissible. Therefore, in light of above, it is relevant to summarized here in below the

findings recorded by the Labour Court on the basis of evidence brought on record by the parties.

In view of above discussion and observations made by apex court and Bombay High Court, according to my opinion, no error found apparent

on face of record has been committed by Labour Court and therefore it would not require any interference of this Court in exercise of powers

under Article 227 of Constitution of India. Therefore, contentions raised by learned AGP Mr. Sharma for Petitioner cannot be accepted. Same

are, therefore, rejected. Hence, there is no substance in this petition and same is required to be dismissed.

For reasons recorded above, this petition is dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith. There shall be no

order as to costs.