The Chairman Market Committee and Others vs Suresh Kumar

Tarlok Singh Chauhan, J—This petition under Articles 226/227 of the Constitution of India is directed against the award passed by the Industrial Tribunal cum Labour Court (for short ''Tribunal'') on 24th July, 2012.

Facts in brief may be noticed.

The following reference was sent by the appropriate Government for adjudication to the Industrial Tribunal cum Labour Court.

"Whether the termination of service of Shri Suresh Kumar S/o Shri Ratti Ram by the (1) Chairman Market Solan, H.P. (2) Secretary, Market Committee Solan, H.P. w.e.f. 1.12.2003 without complying the provisions of the Industrial Disputes Act, 1947, whereas junior to him are retained by the employer as alleged by the workman is proper and justified? If not, what relief and service benefits and amount of compensation the aggrieved workman is entitled to?"

The workman (respondent herein) filed claim petition stating that he was appointed as Motor Mate by the petitioners herein vide memorandum dated 6.12.1999 on contractual basis for a period of six months. However, workman continued in service and completed 240 days in a calendar year with the respondents. He was illegally terminated by the petitioners vide letter dated 22.9.2003 and the services were terminated w.e.f. 1.12.2003. Said termination was challenged by the workman as being violative of Section 25-F of Industrial Disputes Act, 1947 (for short the Act). The workman further stated that other workmen namely Manish and Kulwant Kumar junior to him were retained by the petitioners thereby causing injustice to him. The workman also stated that earlier he had filed an Original Application No. 3522/2003 before the Administrative Tribunal, Shimla which was decided on 19.10.2005 and it was ordered that the matter was covered under the Industrial Disputes Act. Consequently, the workman served demand notice. Said notice was sent to the Labour-cum-Conciliation Officer, but conciliation failed and the matter was referred to the Court.

Petitioners contested the petition by filing reply wherein it was stated that the workman was appointed as a helper on 3.8.2002. The remaining allegations made by the workman were denied. It was stated that appointment of workman was purely on temporary basis and he was employed on contractual basis. There was a condition that the agreement would not give right to the workman to claim for absorption in Market Committee services against the regular vacancies which may occur in future. The termination of workman was, therefore, legal as per provisions of law. Since, the services of workman were not required, so one month''s notice was duly served upon him. Since the workman was not a regular employee, hence, there was no violation of provisions of Section 25-G & 25-H of the Industrial Disputes Act. It was further contended that the claim of the workman had already been rejected by the H.P. Administrative Tribunal, therefore, the petition be dismissed

The workman filed rejoinder wherein he denied all the preliminary objections taken by the petitioners in reply and reasserted the averments made in the petition.

On the pleadings of the parties, the following issues were framed:

"1. Whether the termination of services of petitioner (respondent herein) w.e.f. 1.12.2003 is in violation of the provisions of Industrial Disputes Act, 1947? OPP

If issue No. 1 is proved in affirmative to what relief the petitioner is entitled to? OPP

Relief."

On the basis of the pleading and evidence, the learned Tribunal held that the services of the workman had been wrongly and illegally terminated by the petitioners without complying with the provisions of Industrial Disputes Act, 1947. After arriving on such conclusion, the workman was held entitled for reinstatement in service with seniority and continuity w.e.f. date of his termination, but without back wages.

The award has been challenged by the petitioners on various grounds as taken in the petition.

I have heard the learned counsel for the parties and have gone through the records of the case.

At the outset, it may be observed that while adjudicating upon the case of the present kind, this Court is duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and provisions contained in Part IV thereof in general and Articles 38, 39 (a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. Once the Labour Court has exercised the discretion judiciously, the High Court can interfere with the award of the Labour Court only if it is vitiated by any fundamental flaw and not otherwise. (refer Harjinder Singh Vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116 : (2010) 124 FLR 700 : (2010) 1 JT 598 : (2010) 2 LLJ 277 : (2010) 1 SCALE 613 : (2010) 3 SCC 192 : (2010) 1 SCC(L&S) 1146 : (2010) 1 SCR 591 : (2010) 2 SLR 15 , K.V.S. Ram Vs. Bangalore Metropolitan Transport Corpn.(2015) 2 AD 202 : AIR 2015 SC 998 : (2015) 144 FLR 994 : (2015) 1 LLJ 257 : (2015) 1 SCALE 436 : (2015) 2 SCT 81 : (2015) 2 SLJ 197 : (2015) 1 SLJ 400 , Jasmer Singh Vs. State of Haryana(2015) 2 AD 215 : (2015) 144 FLR 837 : (2015) 1 SCALE 360 : (2015) 4 SCC 458 : (2015) 2 SCJ 391 : (2015) 2 SCT 91 : (2015) 1 SLJ 389 .)

It has been the well established principle that industrial adjudication is not merely adjudicating contractual rights based on strict principles of law. The higher courts can interfere against the awards passed by the Labour Courts only if there are manifest errors or the order is contrary to the provisions of law and the order has been passed without jurisdiction and that is the scope of jurisdiction of this Court under Article 226 of the Constitution of India. It was held that the High Court cannot sit on appeal over the findings recorded by the competent tribunal by converting itself into a court of appeal.

In a plethora of judgments, while deciding about the jurisdiction of the Hon''ble Supreme Court under Article 226 of the Constitution of India, the Hon''ble Supreme Court has held that in a writ of certiorari, it is not merely an error but it must be something more which must be manifest on the face of the records and that alone gives jurisdiction to interfere with the awards. When once the tribunal having jurisdiction decides the question and comes to a finding of fact, it is certainly not open to the High Court to interfere with such finding of fact by re-appreciation of evidence unless the finding is perverse and the award passed is wholly based on unwarranted evidence. Therefore, one has to see the overall view of the award passed by the Labour Court while dealing with the writ of certiorari.

While holding that the jurisdiction of the High Court under Article 226 of the Constitution of India is very wide but while exercising it great care has to be taken, especially in respect of the orders of the tribunals constituted under the special legislation, the Hon''ble Supreme Court in Sadhu Ram Vs. Delhi Transport Corporation, AIR 1984 SC 1467 : (1983) LabIC 1516 : (1983) 2 LLJ 383 : (1983) 2 SCALE 136 : (1983) 4 SCC 156 : (1983) 3 SCR 725 : (1983) 2 SLJ 372 has observed as follows:

"3. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court."

By applying the above said broad principles of law laid down categorically, I am not able to see any manifest error in any of the awards passed by the Labour Court. While deciding about the jurisdictional fact and the interference by the higher courts against the orders of the inferior courts or tribunals, Lord Esher, M.R., in an illustrative judgment in Queen v. Commissioners for Special Purposes of Income Tax (t), [1888] 21 QBD 313 has made the following remarkable assertion:

"When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by an Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature is establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned that it is an erroneous application of the formula to say that the tribunals cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. The above said principle of law is an universally acclaimed one."

Bearing in mind the aforesaid principles, it would be seen that it was after evaluating the oral and documentary evidence on record that the learned Tribunal passed the award.

The workman had stepped into the witness box as PW-1 and proved with the help of Annexure P-7 dated 6.12.1999 that he had been engaged as Mortar Mate on contractual basis for a period of 4 years and 6 months and worked under the respondents till 30.11.2003. If that be so, then the Tribunal below has rightly concluded that the provisions of the Act, more particularly Section 25 thereof was attracted to the facts of the instant case and non compliance thereof made the order vulnerable and was rightly set aside.

Learned counsel for the petitioners would contend that the provisions of the Industrial Disputes Act are not at all applicable to the instant case. This argument to say the least is fallacious, because admittedly prior to making reference to the Industrial Tribunal cum Labour Court, the respondent herein had filed an Original Application No. 3522 of 2003 before the Administrative Tribunal, Shimla, which was decided on 19.10.2005, wherein it was held that the matter was covered under the Industrial Disputes Act. Admittedly not only the said order has attained finality, but thereafter the workman even served a demand notice, which was sent to the Labour cum Conciliation Officer and after failure of conciliation, the matter was ultimately referred to the Industrial Tribunal cum Labour Court. Pertinently, neither the reference nor the issue of jurisdiction had ever been raised before the learned Tribunal and having attained finality, the same is not open to question at this stage.

In addition to above, the learned Tribunal has come to a categoric conclusion that S/Sh. Manish and Kulwant Kumar, who were juniors to the workman had been retained, while the services of the respondent had been dispensed with. Now, even if for a moment it is to be assumed that the provisions of the Industrial Disputes Act are not applicable, even then this action of the petitioners is against the principle of "last come first go" and any violation of the aforesaid principle would be discriminatory in terms of Article 14 of the Constitution of India.

In the decision reported as Harjinder Singh Vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116 : (2010) 124 FLR 700 : (2010) 1 JT 598 : (2010) 2 LLJ 277 : (2010) 1 SCALE 613 : (2010) 3 SCC 192 : (2010) 1 SCC(L&S) 1146 : (2010) 1 SCR 591 : (2010) 2 SLR 15 , it was held that for attracting the applicability of Section 25G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of ''last come first go'' without any tangible reason.

In decision reported as Central Bank of India Vs. S. Satyam and others, (1996) 5 AD 732 : AIR 1996 SC 2526 : (1996) 74 FLR 2063 : (1996) 7 JT 181 : (1996) LabIC 2248 : (1996) 2 LLJ 820 : (1996) 5 SCALE 567 : (1996) 5 SCC 419 : (1996) 4 SCR 214 Supp : (1996) 3 SLJ 1 : (1996) 2 UJ 506 , the Hon''ble Supreme Court considered an issue in the context of Section 25H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25H should be confined only to that category of retrenched workmen who are covered by Section 25F and a restricted meaning should be given to the term ''retrenchment'' as defined in Section 2(oo). While rejecting the argument, this Court analysed Section 25F, 25H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 referred to Section 25G and held:

"7. Section 25H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ and persons, he shall, in such a manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re- employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribe and mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention.

Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is in applicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on. The category of workmen-can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re- employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the Other retrenched workmen not cove-red by Section 25-f does not, in Any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of ''retrenched workmen'' in Section 25-H because of Rules 77 and 78, even assuming the rules framed- under the Act could have that effect.

The plain language of Section 25-H speaks only of re- employment of ''retrenched workmen''. The ordinary meaning of the expression ''retrenched workmen must relate to the wide meaning of ''retrenchment'' given in Section 2(oo). Section 25-F also uses the word ''retrenchment'' but qualifies it by use of the further words ''workman'' who has been in continuous service for not less than one year''. Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words workman. Who has been in continuous service for not less than one year. It is clear that Section 25-F applies to the retread a workman who has been in continuous service for not less: one year and not to any workman who has bean in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less the one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of ''last come first so'' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F."

Thus, on the perusal of the above decisions, it becomes clear that:

"a) The employer may deviate from rule of ''last come first go'' enshrined in Section 25G of the Act in cases of lack of efficiency or loss of confidence, etc. on the part of the workman but in such a case the onus will be on the employer to justify such deviation;

b) It is sufficient for a workman to plead and prove that while effecting retrenchment, the employer violated the rule of ''last come first go'' without any tangible reason for the purpose of applicability of Section 25G of the Act.

c) Section 25G of the Act prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25F."

In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.