State of Rajasthan and Others vs Vice President, Tonk Division Irrigation Employees Union and Others

Mohammad Rafiq, J.�Writ Petition No. 181/2012 has been filed by the management for quashment of award dated 28.07.2011 (Annexure-3) of the Labour Court No. 2, Jaipur, in L.C.R. Case No. 991/1998, whereby the Labour Court has held the termination of respondent-workmen, namely, Sarva Shri Kailash, Mohan, Ramkaran and Satyanarayan, with effect from 14.01.1988 to be illegal and, instead of reinstatement, held each of them entitled for lump sum compensation of Rs. 2,00,000/- (Rupees two lac only), however, claim of workmen, namely, Prabhu, Heera and Mangilal for their reinstatement, has been rejected.

Writ Petition No. 15181/2011 has been filed by petitioners-workmen, namely, Kailash Chand Parashar, Mohan Lal Parashar and Satyanarayan Gurjar, challenging the aforesaid award, whereby their statement of claim was partly allowed and awarded them lump sum compensation of Rs. 2,00,000/- each. It has been prayed that the impugned award may be modified with direction to the management to reinstate them in service with all consequential benefits instead of lump sum compensation.

Briefly stated the facts of the case are that services of workmen, namely, Sarva Shri Kailash S/o. Gokul Sharma, Mohan S/o. Ramgopal, Heera S/o. Bhagwana Keer, Ramkaran S/o. Kalyan Bairwa, Prabhu S/o. Tulsi Gwala, Mangilal S/o. Gokul Sharma and Satyanarayan S/o. Panchu, working under the Irrigation Department of the Government of Rajasthan, were terminated vide order dated 14.01.1988. They raised an industrial dispute before the Government and the appropriate Government referred the matter to the Labour Court, Jaipur vide reference dated 31.03.1990 under Section 10(C) read with Section 12(5) of the Industrial Disputes Act, 1947 for adjudication. The question referred to the Labour Court was as to whether removal of services of Sarva Shri Kailash S/o. Gokul Sharma, Mohan S/o. Ramgopal, Heera S/o. Bhagwana Keer, Ramkaran S/o. Kalyan Bairwa, Prabhu S/o. Tulsi Gwala, Mangilal S/o. Gokul Sharma and Satyanarayan S/o. Panchu, who were represented by their representative Shri Narendra Kumar Patriya, Vice president, Tonk Division irrigation Employees Union, Tonk, through Junior Engineer, Irrigation Division II, Ghosi Mohalla, Deoli, Tonk, by the Assistant Engineer, Irrigation Sub Division-II, Tonk, vide order dated 14.01.1988 is legal and justified? If not, then for what relief and amount they are entitled to?

The Labour Court, on discussion of the entire evidence, held that retrenchment of workmen Kailash S/o. Gokul Sharma, Mohan S/o. Ramgopal, Ramkaran S/o. Kalyan Bairwa and Satyanarayan S/o. Panchu was made in breach of mandatory provisions of Section 25F of the ID Act and, in lieu of reinstatement, they were held entitled to lump sum compensation of Rs. 2,00,000/- each. So far as workmen Heera S/o. Bhagwana Keer, Prabhu S/o. Tulsi Gwala and Mangilal S/o. Gokul Sharma, are concerned, the Labour Court held that they failed to prove that their retrenchment was illegal or invalid, hence it rejected their claim.

Shri H.P. Bairwa, learned Deputy Government Counsel appearing for the respondents State, argued that the award passed by the Labour Court is contradictory inasmuch as the Labour Court having held that the industrial dispute should have been raised by the Union before the Conciliation Officer of the State Government, answered the reference in respect of workmen Kailash S/o. Gokul Sharma, Mohan S/o. Ramgopal, Ramkaran S/o. Kalyan Bairwa and Satyanarayan S/o. Panchu, ignoring the fact that none of them completed 240 days in a calendar year preceding the date of their retrenchment. The Labour Court further erred in law in observing in last ten lines of para 29 of the award that no notice or compensation in lieu of retrenchment has been given to the aforesaid workmen. This finding, as per learned Deputy Government Counsel, is contrary to the facts as services of none of the aforesaid workmen were retrenched rather, they were removed from service since they, on their own, decided not to come on duty. It was argued that the Labour Court was also unjustified in drawing an inference against the Department that the afore-mentioned four workmen completed 240 days in a calendar year. The adverse inference is not based on any documentary evidence available on record and the award cannot be passed on mere presumption. The Labour Court has erred in law while reading the statement of Naveen Gupta, as discussed by it in Para 19 of the award, who has stated in clear terms that workman Satyanarayan did not work for the period from January 1986 to November, 1986. The Labour Court further erred in law in ignoring the fact that workman Ramgopal had worked only for 209 days (134+75) and workman Satyanarayan had worked only for 178 days (103+75), after adding 75 days in their actual working days. The evidence on record produced before the Labour Court proved that working of workman Ramgopal was only for 134 days and that of Satyanarayan was only for 103 days. The Labour Court has failed to appreciate that workman Ramkaran did not submit any affidavit before the Labour Court to substantiate his claim, which fact has itself been mentioned in para 7 and 25 of the award. It has also erred in law while ignoring the fact that after 1993-94, the roster system was closed and none of the person was employed on daily wage basis and, therefore, workmen, namely, Kailash S/o. Gokul Sharma, Mohan S/o. Ramgopal, Ramkaran S/o. Kalyan Bairwa and Satyanarayan S/o. Panchu, were not entitled to lump sum compensation.

It is next argued that the Labour Court has erred in law while believing the version of the workmen that muster roll No. 4369 was issued in the month of September, 1987, which cannot at all be possible by any stretch of imagination, and the adverse inference drawn by it regarding this muster roll is imaginary and the award has been passed on the basis of assumption.

On the other hand, Shri Mahesh Kumar Sharma, brief holder of Shri Raghunandan Sharma, and Shri Surendra Kumar Saini, appearing for the workmen, argued that instead of awarding lump sum compensation, the Labour Court ought to have directed their reinstatement in service with all consequential benefits. From the impugned award it is clear that services of the workmen were terminated by way of retrenchment and the State Government did not follow the procedure of retrenchment prescribed in Section 25F of the ID Act. The workmen had completed two years continuous service before their termination and they became entitled for declaring them semi-permanent, but the State Government, instead of declaring them semi-permanent, terminated their services. Had the State Government wanted to terminate the services of the workmen then it ought to have prepared the seniority list of the Drivers and retrenched the junior-most person first. The principle of last come first go should be maintained. The workmen specifically asserted in their statement of claim and the documents placed on record that the nature of work, which they were discharging, was regular in nature and it is still available with the State Government. The State Government could not rebut the contention of the workmen.

I have given my thoughtful consideration to rival submissions and perused the material on record including the impugned award of the Labour Court.

In respect of each workmen, specific order was passed by the Labour Court for production of the records, such as, muster roll etc., but despite specific order, the management withheld the record and did not produce the same before the Labour Court on the ground that the documents related to the period of 18 or more years ago. The retrenchment was made in January, 1988. It was taken to the Conciliation Officer in the year 1989 and since then the matter was in the notice of the management. When the matter was taken to the conciliation officer, the management ought to have kept the documents related thereto safely because the same would have been called to be produced in the court and that is what has been done in the present case, but the management has failed to produce the same before the court on the pretext that it related back to 18 years or more. In view of above, the Labour Court has rightly drawn an inference against the management State Government. Admittedly, the management neither gave any notice nor notice pay nor compensation in lieu of retrenchment. The finding recorded by the Labour Court to the extent of violation of the provisions of Section 25F of the ID Act therefore cannot be faulted and has rightly held to be proved by the Labour Court.

The workmen were admittedly engaged on daily rate basis on the post of Beldar and the work was also of temporary nature, thus there was no question of preparing the seniority list. Though the workmen have alleged that new hands were engaged by the management after retrenchment of their services, but no such evidence has been produced on their behalf to prove this fact as on such and such date such new hands were engaged.

This Court in Vikash Adhikari and Another v. Judge, Labour Court, Bikaner and Another - S.B. Civil Writ Petition No. 473/2001, decided on 20.11.2006 on consideration of similar arguments observed as under:--

"There are certain judgments from this Court as well on the same subject matter which provides for award of lump sum compensation in lieu of reinstatement in appropriate cases. Their Lordships of Hon''ble the Supreme Court on this aspect have evolved very many guiding principles in number of judgments. Some of these judgments have been delivered in Rolston John Vs. Central Government Industrial Tribunal-cum-Labour Court and others, , Gujarat State Road Transport Corporation v. Mulluamr, 1995 SCC (L&S), Surjeet Ghosh v. UCCO Bank, 1995 SCC(L&S) 529, Gorabha Corporating Marketing v. Presiding Officer, LLR 1996 (1) 644, Ratan Singh v. Union of India, 1998 SCC (L&S) 170, Dharmveer Singh v. State of Rajasthan, WLC (Raj.) 1999, 301(DB), Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., AIR 1979 SC 95 , Chandu Lal Vs. Management of Pan American World Airways Inc., , Sain Steel Products Vs. Naipal Singh and Others, , O.P. Bhandari Vs. Indian Tourism Development Corpn. Ltd. and Others, , Arjun Singh and Others Vs. Labour Court and Others, , U.P. State Road Transport Corporation Vs. Man Singh, and Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others, . These cases have been followed by this Court in number of Division 10 Bench judgments in Resident Engineer Housing Board, Kota v. Lakpath and Anr., reported in 2003(3) WLC (Raj.), 564, in State of Rajasthan v. Rashid Mohammad in D.B. Civil Writ Petition No. 406/2000, reported in 2004 (5) WLC (Raj.), 463 , in Arjun Singh and Others Vs. Labour Court and Others, and in Ram Niwas v. Mining Engineer (D.B. Civil Special Appeal (Writ) No. 270/2003), decided on 24th April, 2003. Principles of law which can be culled out from the aforesaid judgments are that relief of lump sum compensation in lieu of reinstatement may be awarded (i) when the nature of appointment of the workman is only casual and temporary and such appointment was not made by following due process of law(ii) when there had been delay in making of reference (iii) when a long time has otherwise elapsed from the date of alleged retrenchment till passing of the award and subsequently till deciding the matter by the Court (iv) when length of service of the workman has not been much (v) when the workman was engaged in a temporary project or scheme which has come to end (vi) when the management does not have any post or means to accommodate and continue the workman in there services. Normal rule of reinstatement can be departed in favour of the payment of lump sum compensation in any appropriate case where the matter falls in any of these broad categories."

Whether the workmen had left the job on their own or their services were terminated in violation of provisions of Industrial Disputes Act, is a pure question of fact, which cannot be gone into and decided by this Court in its jurisdiction under Article 227 of the Constitution of India. Though this petition is labelled under Articles 226 and 227 of the Constitution of India, but strictly speaking it is a petition under Article 227 of the Constitution of India, the scope of which is very narrow and limited as explained by the Supreme Court in Sameer Suresh Gupta Tr. PA Holder Vs. Rahul Kumar Agarwal, , wherein the Supreme Court has held that while deciding the writ petition filed by the respondent, the High Court should not ignore limitations of its jurisdiction under Article 227 of the Constitution. The High Court should exercise its power under Article 227 in compliance with the principles laid down in its earlier judgment in Surya Dev Rai Vs. Ram Chander Rai and Others, especially principles 4, 6 and 7 laid down therein in para 38, which are as follows:--

"(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(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 the 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."

On valid and lawful appreciation of evidence, this court cannot substitute its own conclusions for the conclusions reached by the labour court. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice. The Supreme Court in Jai Singh and Others Vs. Municipal Corporation of Delhi and Another, , has held that the High Court, under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial review, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. Their Lordships further held that exercise of jurisdiction by the High Court must be within the well recognized constraints. It can not be exercised like a ''bull in a china shop'', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.

Applying the afore-noted parameters as laid down by the Hon''ble Supreme Court, I do not find any perversity or illegality in the findings recorded by the Labour Court. The impugned award, therefore, cannot be said to suffer from any error apparent on the face of the record. Both the writ petitions are accordingly dismissed.