The Deputy Excise vs Presiding Officer

Gurmeet Singh Sandhawalia, J.—Challenge in the present writ petition is to the award dated 11.9.2013 (Annexure P/9) whereby the Labour Court, Ambala directed reinstatement with continuity of service and back wages to the extent of 50% from the date of termination till reinstatement. Respondent No. 2-workman was appointed as Chowkidar on 11.11.2008 and worked upto 31.1.2011 and on account of completing 240 days of service prior to his termination raised an industrial dispute pleading that his juniors were still retained in service and he had been terminated without any notice or retrenchment compensation and even fresh employees had been appointed after his termination.

The stand of the management against the demand notice u/s 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") was that appointment of the workman was only for a period of six months and on the agreed terms till 31.3.2009 and thereafter extended till 31.1.2011 and the workman had accepted the policy of the Government and given an undertaking and therefore, stood estopped from raising the industrial dispute. The plea taken was that he had been relieved from service of the office of the petitioner department i.e. the Excise and Taxation Department, Haryana which was shifted to Mini Secretariat.

2-A. On the matter being referred to the Labour Court, the workman examined himself as WW-1 whereas management examined Anil Rani, Deputy Excise & Taxation Commissioner (Sales Tax), Kaithal. It was noticed that the workman had approached this Court by way of filing Civil Writ Petition No. 2712 of 2009 and initially protection had been granted that respondents would not replace the petitioner with any other person who may be appointed in similar manner. Thereafter, this Court disposed of the said writ petition on 6.4.2010 holding that appointment should be made on regular substantive basis and the petitioner may be allowed to continue. However, his services could be dispensed with in case he was not required but he would not be replaced by other temporary arrangement. It was noticed that the department was maintained a duty roster in April, 2012 and 12 persons were mentioned who had put on duty as Chowkidar and therefore, the work had not ceased and the workers were constantly required by the management. Accordingly, it was held that dispensation of services of the workman was violative of provisions of Section 25-F of the Act. Reliance was placed upon the Division Bench judgment of this Court in Bhiku Ram v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak 1998 (1) RSJ 703 to direct reinstatement with 50% back wages and continuity of service.

After hearing counsel for the State and counsel for the Caveator, this Court is of the opinion that there is no scope for interference with the award passed by the Labour Court. A factual finding of fact has been recorded that the workman had continued in service till 31.1.2011 far beyond his actual contract which was only to continue till 31.3.2009. The petitioners were replacing persons by resorting to unfair labour practice by engaging and out sourcing Chowkidars and the workman had come to this Court and was successful in getting the relief that he would not be replaced with another temporary arrangement. Relevant observations of the order dated 6.4.2010 in Civil Writ Petition No. 2712 of 2009 read as under:--

It is admitted position that the petitioner was appointed on contractual basis for a period of six months. No right vests in the petitioner to continue in service. However, it is equally settled principle of law that a temporary arrangement cannot be replaced by a similar temporary arrangement. The respondents are, however, at liberty to make appointment on regular substantive basis by making appropriate advertisement in consonance with Articles 14 and 16 of the Constitution of India. In the event the services of Chowkidar are required, the respondents may allow the petitioner to continue. However, if the services of the petitioner are not required the respondents are at liberty to dispense with the services of the petitioner but the petitioner shall not be replaced by temporary arrangement.

Disposed of.

The workman''s services were dispensed with without following the mandatory provisions of the Act whereby the workman was never offered retrenchment compensation, neither issued any notice nor any pay in lieu of notice period as required u/s 25-F of the Act having completed 240 days preceding the date of termination. It was noticed that the work was continuing with the department and therefore, the management was utilizing the services of other Chowkidars and only because respondent No. 2-workman had come to this Court seeking legal redressal he had been victimized. The Labour Court had balanced the equity well by granting reinstatement with continuity of service and back wages to the extent of 50% only and thus, there is little scope for interference in the well reasoned award of the Labour Court.

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, wherein it has been held that 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 on an obvious misinterpretation of the relevant statutory provisions or in ignorance of the same. Thus, what can be corrected is an error of law, which should be of such a 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 award of Labour Court and the writ petition is dismissed.