State Of Gujarat vs Ramanbhai Budhabhai Thakor
2021 Latest Caselaw 9971 Guj

     C/SCA/7870/2012                             JUDGMENT DATED: 30/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7870 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                Sd/-

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         Yes

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                           STATE OF GUJARAT
                                 Versus
                 RAMANBHAI BUDHABHAI THAKOR & 1 other(s)
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Appearance:
MR SOHAM JOSHI, AGP (1) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 2
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 30/07/2021

                            ORAL JUDGMENT

1. The original respondent has preferred present petition under Articles 14, 16 and 226 of the Constitution of India with a prayer to issue writ, order of direction in the nature of certiorari and/or any other appropriate writ, order or direction in the nature of certiorari to quash and set aside judgment and

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award dated 13.9.2011 passed by the court of learned Presiding Officer, Labour Court (S.D.), Anand in Reference (LCA) No.70 of 1997.

2. Heard Mr.Soham Joshi, learned advocate for the petitioner and Mr.Yogen Pandya, learned advocate for the respondent-workman through video conferencing.

3. The brief facts of the case are that the workman has filed Reference (LCA) No.70 of 1997, wherein he has stated that he was working with the petitioner department since 1.9.1980 as daily wager and Rs.450/- was being paid to him as monthly salary. It was contended by the workman that inspite of his continuous and satisfactory service, he was orally terminated with effect from 1.9.1989 without any notice, notice pay or retrenchment compensation in lieu of notice. The workman has issued demand notice dated 24.4.1996 for reinstatement. It is further the case of the workman that when his service was terminated, the department has kept juniors to him in service and, thus, there is breach of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act. On all these grounds, he has prayed for reinstatement in original post with full backwages.

3.1 The petitioner herein has filed written statement before the Labour Court and denied all the averments of the workman. It is also contended that the workman has never completed 240 days in any calendar year and the application of the respondent is barred by limitation. It was further stated that the pay slip as well as presence card was issued to the workman as per the rules and regulations of the petitioner. It was also contended that the workman stopped to come on

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service with effect from 29.2.1992 at his own volition. On all these grounds, it was prayed to dismiss the reference.

3.2 On the basis of the evidence produced by both the sides and the submissions of both sides, the Labour Court has ultimately granted relief of reinstatement along with continuity of service with 25% backwages and all consequential benefits with effect from 6.8.1996. The Labour Court has specifically held that there was breach of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act and the workman has worked for more than 298 days during the period from 1.7.1988 till 31.8.1989. Being aggrieved by the said award, present petition is filed.

4. Mr.Soham Joshi, learned AGP appearing for the petitioner has vehemently submitted that there is no iota of evidence on record to suggest that the workman has completed 240 days in any calendar year. According to him, it was for the workman to prove that he has worked for 240 days in a calendar year. He has also submitted that there is no evidence regarding breach of Sections 25-F, 25-G and 25-H of the Act. He has further contended that the petitioner herein is not an "industry" and, therefore, there is no relationship of employer-employee between the parties as per the provisions of the Industrial Disputes Act. According to him, learned Labour Court has not considered all these aspects and has erroneously passed the impugned award. He has also submitted that even if it is believed that there is breach of Section 25-F, then in view of judgment of Bharat Sanchar Nigam Limited v. Man Singh and Others reported in (2012) 1 SCC 558, the order of reinstatement could not have been passed and instead thereof

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some sort of compensation ought to have been granted. He submitted that learned Labour Court has misread the evidence on record and committed serious error of facts and law in passing the impugned award. According to him, the impugned award is not sustainable in the eyes of law and, therefore, the same may be set aside by allowing present petition.

5. Per contra, Mr.Yogen Pandya, learned advocate for the respondent-workman has vehemently supported the impugned award. He has submitted that the contention regarding the point that the petitioner herein is not an "industry" was never raised before the Labour Court. He has also submitted that the Labour Court has properly considered the evidence on record, which suggests that the workman has worked for 298 days in a calendar year and, as the service of the workman was terminated without any prior notice, notice pay or retrenchment compensation, there is clear breach of Section 25-F of the Industrial Disputes Act. He has further submitted that the statement reproduced in the award itself suggests that juniors to the workman have been retained in service and others have been recruited and, at that time, the workman was not offered the job and, therefore, there is clear breach of Section 25-G and 25-H of the Industrial Disputes Act. He has submitted that the Labour Court has considered all these aspects in proper perspective and the Labour Court has not committed any error of facts and law in passing the impugned award. He has further submitted that since there is clear breach of Sections 25-G and 25-H, the workman need not to prove that he had worked for 240 days in a calendar year. He has also submitted that since there is breach of Sections 25-G and 25-H of the Industrial Disputes Act, reinstatement of the

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workman to his original post is rightly granted by the Labour Court. According to him, the Labour Court has properly passed the impugned award. While relying upon the following decisions, he has prayed to dismiss the present petition and to confirm the award passed by the Labour Court.

(i) Harjinder Singh v. Punjab State Warehousing Corporation reported in (2010) 3 SCC 192.

(ii) Director, Fisheries Terminal Department v.

Bhikhubhai Meghajibhai Chavda reported in (2010) 1 SCC 47.

(iii) Ghaziabad Development Authority and Others v.

Sri Vikram Chauhdary and Others, reported in AIR 1995 SC 2325.

(iv) Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana), reported in (2010) 5 SCC 497.

(v) Devinder Singh v. Municipal Council, Sanaur reported in (2011) 6 SCC 583.

6. Mr.Yogen Pandya, learned advocate for the respondent has vehemently submitted that the petition is filed under Article 226 of the Constitution of India and as per the catena of decisions of the Apex Court, jurisdiction of the High Court in the matter is Industrial Disputes Act is very much circumscribed. He also submitted that the Labour Court or the Tribunal is a fact finding Court and the High Court being a revisional Court, generally should not interfere with such finding of fact, unless and until it is shown that the Labour Court or the Tribunal has misdirected itself or misread the evidence on record.

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7. In the case of Bharat Sanchar Nigam Limited v. Man Singh (supra), relied upon by learned AGP appearing for the petitioner, the Apex Court has held as under:-

"4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.

5. In view of the aforementioned legal position and the fact that the respondents - workmen were engaged as 'daily wagers' and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice."

8. In the case of Harjinder Singh v. Punjab State Warehousing Corporation (supra), relied upon by Mr.Pandya, learned advocate for the respondent-workman, the Apex Court has observed in paragraph 16 that in case of breach of Section 25-G of the Industrial Disputes Act, the workman is not required to prove that he had worked for 240 days during 12 calendar months preceding termination and it is sufficient if the workman plead and prove that while effecting retrenchment, employer has violated rule of "last come first go", without any tangible reason.

8.1 Regarding jurisdiction of the High Court, in issuing writ of certiorari under Article 226, the Supreme Court has followed its

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own decision in the case of Syed Yakoob v. K.S. Radhakrishnan and others, reported in AIR 1964 SC 477 and quoted paragraphs 7 and 8 thereof, which reads as under:-

""7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction.

A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be

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regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the

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record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."

8.2 In paragraph 17, the Apex Court has observed as under:-

"17. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H 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 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2 (oo)."

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8.3 Regarding distinction between Section 25-F and 25-G of the Industrial Disputes Act, the Apex Court has quoted the portion of judgment of Bhogpur Cooperative Sugar Mills Limited v. Haramesh Kumar reported in (2006) 13 SCC 238 as under:-

"9. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and aipur Development Authority v. Ram Sahai."

8.4 In the case of Director, Fisheries Terminal Department (supra), regarding delay it has been observed that reference was filed by the workman after 8 years of termination of his service. On the factual aspect, it was held that the workman approached the Conciliation Officer for resolution of the dispute and only when conciliation failed, the matter was referred to the Labour Court for final adjudication and, therefore, delay was held as not fatal.

8.5 Rest of the decisions relied upon by Mr.Pandya are based on the power of the High Court under Article 226 as well as on compliance of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act.

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9. Having considered the submissions made on behalf of both the sides, coupled with aforesaid decisions as well as impugned award and the material placed on record, it clearly transpires that the petitioner herein has not raised any issue that there is no relationship of employer-employee between the parties nor it has raised any defence that it is not an "industry". Thus, both these points are raised for the first time in the present petition, which is admittedly filed under Articles 226 of the Constitution of India, and the Labour Court has specifically referred this fact in its award in paragraph 13.

10. It also appears from the impugned award that there was inspection carried out in presence of the workman in the office of the petitioner from where it was found that during the period from 1.7.1988 to 31.8.1989, the workman has worked for 298 days. This fact cannot be denied by the petitioner as it has came out from the official record. Thus, the very version of the petitioner that the workman has not worked for 240 days in any calendar year is contrary to its own record. Now, admittedly in the present case, no notice pay or retrenchment compensation has been given to the workman. Therefore, in absence of any such procedure being followed, there is clear breach of Section 25-F of the Industrial Disputes Act. Now, so far as decision relied upon by learned AGP in the case of Bharat Sanchar Nigam Limited (supra) is concerned, there was only breach of Section 25-F of the Act, whereas in the present case, there is breach of Section 25-G also. As reflected from various particulars in the form of list, which was prepared during inspection of office of the petitioner in presence of the workman, it reveals that such list consists of 205 workmen,

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who have joined duty in the year 1980 and out of them various workmen are continued after termination of service of the present respondent. The present respondent has been retrenched on 1.9.1989, whereas from the list which has been referred by the Labour Court in paragraph 12, it is crystal clear that many workmen have been retained even in 2005, 2007 and those persons have joined the duty later in point of time as compared to present respondent. Thus, there is breach of Section 25-G of the Industrial Disputes Act. Further, it is not the case of the petitioner herein that after termination of service of the workman, he was called to join the duty, however, it appears from record that his juniors were continued in service. Thus, considering the factual aspect of the case, it clearly transpires that there is breach of provisions of Sections 25-F, 25-G and 25-H of the Industrial Dispute Act. Since there is breach of Section 25-G and 25-H, there is no question of granting lumpsum compensation to the workman.

11. On perusal of the impugned award, it clearly transpires that learned Labour Court has considered every aspect in its proper perspective. It also transpires from record that while granting 25% backwages, the Labour Court has considered the fact that the workman has clearly stated that they are three brothers and they are doing labour work and from there they are maintaining their families. He has also deposed that there is also agricultural land and after coming from the labour work, he and his wife are working in the agricultural land. Thus, considering this fact, the Labour Court has granted 25% backwages. Considering the factual matrix, grant of 25% backwages is justified and the Labour Court has not committed any error of facts and law in passing the impugned award

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granting 25% backwages from 6.8.1996 with continuity of service and all consequential benefits.

12. In view of above, present petition deserves to be dismissed and the same is dismissed. The impugned judgment and award dated 13.9.2011 passed by Presiding Officer, Labour Court (S.D.), Anand in Reference (LCA) No.70 of 1997 is hereby confirmed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK