Superintending Engineer vs Santosh Devi

G.S. Sandhawalia, J.—The present writ petition has been filed by the State for quashing the Award dated 07.11.2013 (Annexure P-1) vide which, the reference has been answered against the State and in favour of the respondent-workwoman and she has been held entitled to be reinstated alongwith continuity of service and 50% back wages from the date of demand notice i.e. 20.09.2002 after recording a finding that there was violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 (in short ''the Act'') and also the provisions of Sections 25-G and 25-H of the Act since juniors are still working.

Counsel for the State has vehemently submitted that the respondent-workwoman was only a daily wager and had not completed a period of 240 days in the year 2001 and, therefore, the reinstatement is not justified.

A perusal of the paper book would go on to show that the case of the workwoman was that she was serving since 01.02.1994 as a coolie and she had filed a writ petition for regularization of her services and her services were terminated on 01.07.2000. The writ petition was dismissed on 30.07.2002 with liberty to seek her remedy. Resultantly, the notice u/s 2-A of the Act dated 20.09.2002 was served pleading contravention of provisions of Section 25-F of the Act and that juniors namely Satinder, Gindori and Bedo were still working and the procedure of last come first go'' had not been followed.

The matter being referred to the Labour Court, the claim statement was filed on the same set of allegations, which has been contested on the ground that the petitioner was engaged on daily wages for emergent work like repairs of patch work and other petty repair works from time to time. Labourers found surplus with the department were terminated in accordance with the provisions of Section 25-F of the Act and notice was issued to the petitioner on 27.04.2001 offering retrenchment compensation of Rs. 1,950/- but was not received and the petitioner had rushed to this Court for relief. The details of the working of the petitioner from the year 1994 were also given which admittedly showed that preceding the termination in the year 2001, she had worked for 122 days in the said year and in the year 2000, she had completed 258 days whereas, in the year 1999 also, she had completed 279 days. Another notice dated 16.01.2002 had been sent as retrenchment compensation but she had refused to take the delivery of the letter and the demand draft. The factum of the juniors being retained was denied.

The petitioner examined herself as WW1 and deposed on the basis of a claim statement and also examined Pardeep Kumar Store Keeper as WW2, who produced the muster rolls for the year 1999. The muster rolls of juniors namely Satinder, Gindori and Bedo were also produced and it was noticed that they had been regularized in the department. MW-1 B.K. Gupta, the SDO, PWD (B & R) also admitted the claim in the cross examination to the extent that the juniors were working. Similarly, MW-2 Chhaju Ram, Sub Divisional Engineer also admitted the said fact. It is on the basis of such evidence produced before the Labour Court, reinstatement has been ordered with continuity of service and 50% back wages. Submission of the counsel for the State that 240 days are not complete is not justified in view of the finding recorded above and admittedly, even the State itself had offered compensation, though it was not accepted by the workwoman. Thus, they themselves were aware that 240 days had been completed and, therefore, it does not lie in the mouth of the State to submit that she had not completed 240 days. A factual finding has been recorded that juniors had been retained and the principle of ''last come first go'' had been violated, on the basis of which, reinstatement has been ordered.

In Harjinder Singh Vs. Punjab State Warehousing Corporation, it was noticed that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and indirectly punishing the tiny beneficiary of the wrong. The relevant observations read thus:-

Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d''etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer-public or private.

It is now settled principle that even daily wagers are entitled for this protection under the provisions of Section 25-F of the Act, as has been held by the Apex Court in Devinder Singh Vs. Municipal Council, Sanaur, It has been held that the source of employment and the method of recruitment are not relevant for deciding the said issue and there is no difference between a full time and part time employment. The relevant paragraph reads thus:-

The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.

In the recent judgment of the Apex Court in B.S.N.L. Vs. Bhurumal, the Apex Court also held that reinstatement may not be ordered in cases where there is violation of only Section 25-F of the Act but where juniors have been retained, then the Court would direct reinstatement instead of compensation. The relevant observations read thus:-

We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. While retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.

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 since the juniors of the workwoman who have been retained have been regularized. Accordingly, there is no scope for interference in the well reasoned order of Labour Court and the writ petition is dismissed in limine.