Jasodaben Ramanbhai Parmar vs Swami Tewran Charitable Trust
2021 Latest Caselaw 4887 Guj

        C/SCA/147/2008                                   JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 147 of 2008


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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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 ?                        No

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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                    JASODABEN RAMANBHAI PARMAR
                               Versus
                   SWAMI TEWRAN CHARITABLE TRUST
================================================================
Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
===============================================================

 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                          Date : 31/03/2021

                          ORAL JUDGMENT

1. The petitioner herein has filed the present petition under Articles 226 and 227 of the Constitution of India challenging the impugned award dated 12.01.2007 passed

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by the Labour Court No.8, Ahmedabad in Reference (L.C.A.) No.771/1998, whereby the Labour Court has rejected the reference of the petitioner.

2. According to the petitioner, she was permanent employee of the respondent - Trust and her services were arbitrarily and abruptly terminated and, therefore, the petitioner raised an industrial dispute which was registered as reference as referred to hereinabove. According to her, the said reference came to be rejected by the Labour Court on the ground that the petitioner has not been able to establish that she has worked for 240 days. It is the contention of the petitioner that in the said reference, she has filed statement of claim vide Exhibit 5 on 30.09.1998 and the written statement was filed by the respondent on 14.09.2001. It is also the contended by the petitioner that thereafter, her evidence was recorded vide Exhibit 12 and she was subjected to cross-examination. It is further contended by the petitioner that she has also examined the co-worker vide Exhibit 20. The respondent has not examined any witness nor has produced any documentary evidence except filing of the written statement.

2.1 It is further contended by the petitioner that the issue with regard to completion of 240 days has never been raised at any stage before the Labour Court nor such a plea has been taken by the respondent in the written

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statement. It is also contended by the petitioner that the Labour Court has crossed its jurisdiction and rejected the claim on that sole ground.

2.2 It is further contended by the petitioner that she was never given any identity card, wage slip or any other piece of document to indicate that she was working on permanent basis. It is also contended by the petitioner that in the written statement, it was accepted that the petitioner was working and, then, she has abandoned the employment. According to the petitioner, to controvert the said issue, the petitioner shown her willingness to resume duties but she was not allowed to do so. On all these grounds, it is contended by the petitioner that the Labour Court has erroneously rejected the reference and the same is required to be quashed and set aside and the petitioner may be reinstated in service with full back wages with continuity of service.

3. An affidavit-in-reply has been filed on behalf of the respondent wherein it has supported the reasoning and ultimate conclusion of the Labour Court rejecting the reference of the petitioner. It is stated therein that there is no error of facts and law in rejecting the reference as the petitioner has failed to prove that she has ever worked for 240 days in a year. It is further stated that petitioner has not proved that she was regular employee of the respondent. It is also stated that the petitioner did not

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produce any evidence to substantiate her case. It is stated that the petitioner was not in full time employee. It is also stated that non-production of the evidence on behalf of the respondent does not mean that the petitioner shall need not to prove her case. It is stated that the petitioner used to come in the morning for one to one and half hours for doing miscellaneous work on certain days and, therefore, she should not become the employee of the respondent.

4. Heard Mr.U. T. Mishra, learned advocate for the petitioner and Mr.Dipak Dave, learned advocate for the respondent through video conferencing.

5. Mr.U. T. Mishra, learned advocate for the petitioner has vehemently submitted the same facts which are narrated in the memo of petition. He has submitted that the issue of 240 days work has not been raised in the written statement filed by the respondent and the employer i.e. respondent has not produced any oral as well as documentary evidence. He has further submitted that no notice or notice pay has been paid or issued to the workman and there is breach of Sections 25(F), (G) and (H) of the Industrial Disputes Act, 1947 (hereinafter be referred to as the "I.D. Act") by the respondent. While referring to the deposition, he has submitted that the version thereof has not been properly taken into consideration by the Labour Court. He has also submitted

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that there is clear breach of Section 25(H) of the I.D. Act which has not been replied by the employer. He has also submitted that the Labour Court has not considered the entire evidence on record in its proper perspective and, therefore, the matter is required to be remanded back to the Labour Court. He has submitted that the petitioner was working for 5 years with the respondent. He has further submitted that the respondent has not examined any witnesses, whereas, the petitioner has examined co- worker. According to him, before termination of the services of the petitioner, no show-cause notice was issued to the petitioner - workman by the respondent - employer. He has submitted that during the conciliation proceedings also, the respondent did not remain present. He has submitted that the present petition may be allowed and the impugned award may be quashed and set aside and to grant relief to the petitioner in the form of reinstatement with continuity of service with full time back wages.

6. Per contra, while referring to the cross-examination of the petitioner, Mr.Dipak Dave, learned advocate for the respondent has submitted that the petitioner has admitted that she was working in the hospital. He has submitted that in the written statement especially in para-11, the respondent has specifically stated that the husband of the petitioner namely Ramanbhai Valabhai was working as caretaker. He has submitted that the petitioner was

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working for one to one and half hour in a day and she was not regular employee and, therefore, the claim for reinstatement cannot be permitted. It is submitted by the learned advocate for the respondent that the petitioner herself has abandoned to come on work and there was no retrenchment made by the respondent. He has submitted that there is no relationship of employer-employee between the parties. According to him, no documentary evidence was produced by the petitioner in support of her say that she has worked for 240 days. He has also submitted that the petitioner has not filed any application for production of documents and no such attempt has been made by the workman. While referring to the impugned award, he has submitted that the award is just and proper and the Labour Court has properly appreciated the evidence on record and there is no error of facts muchless of law in rejecting the reference. He has submitted that the finding of facts by the Labour Court is proper and this Court may not interfere with the impugned award by exercising power under Articles 226 and 227 of the Constitution of India. He has further submitted that there was settlement between the husband of the petitioner with the respondent.

6.1 Mr.Dave, learned advocate for the respondent has submitted that the respondent is a Charitable Hospital and it is not charging anything and charging only meagre amount and, therefore, there is no question of relationship

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of employer-employee between the parties as per the provisions of the I.D. Act. He has submitted that much time has elapsed and there is no need of remand back of the matter to the Labour Court. He has relied upon the decision of the Apex Court in the case of Ishwarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Limited and another, (2014) 6 SCC 434, for his submission that under Articles 226 and 227 of the Constitution, the Court has jurisdiction to interfere with the findings of the Labour Court is very much circumscribed and only in case of jurisdiction or serious error apparent not basis on evidence, the High Court can interfere.

7. In rejoinder, Mr.Mishra, learned advocate for the petitioner has relied upon the decisions of the Apex Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 and in the case of R. M. Yellatti Vs. Asstt. Executive Engineer, (2005) 9 Scale 139 = (2006) 1 SCC 106.

8. In the case of Ishwarlal Mohanlal Thakkar (supra), the Apex Court has observed in para-15, 16 and 17 as under:-

15. We find the judgment and award of the Labour Court well-reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings

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of the Labour Court in its award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re-appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice.

16. It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329, with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that: (SCC p. 348) "49.(m) ......The power of interference under [Article 227] is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."

It was also held that: (SCC p. 347, para 49)-

"49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court

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of appeal over the orders of the court or tribunal subordinate to it."

Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.

17. In the case of Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192, this Court held that: (SCC p. 205, para 20)

"20......In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation."

9. In the case of Harjinder Singh (supra), the Apex Court has observed in para-13 as under:-

13. In Surya Dev Rai Vs. Ram Chander Rai, (2003) 6 SCC 675, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:

"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless

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open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a 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.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:

(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (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

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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 the 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.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in

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supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own

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sustenance and that of his family.

10. In the case of R. M. Yellatti (supra), the Apex Court has observed in paras-17, 18 and 19 as under:-

"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This

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exercise will depend upon facts of each case.

18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box.........

19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government." (emphasis supplied)

11. Now, considering the aforesaid legal aspects coupled with the facts of the present case and the contentions raised by both the sides, it is an admitted fact that the petitioner herein has examined herself and her husband was also examined as her witness. The respondent has filed only the written statement against the statement of

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claim of the petitioner. The respondent has not led any evidence either in the form of reply or documentary evidence. On perusal of the pleadings of the parties, it appears that the petitioner has not averred regarding breach of Section 25(H) of the I.D. Act. The version put up in the form of chief-examination of the petitioner as well as of her husband, for the first time, the averment has been made that after termination of service of the petitioner, the other workman has been engaged for the same work. However, no independent witness has been examined by the petitioner in support thereof. The co- worker who is examined by the petitioner is her husband. According to the statement of claim, there were 35 to 40 workmen working in the respondent. Therefore to substantiate the claim put up by the petitioner, she could have examined somebody else in addition to her husband.

12. It is pertinent to note that the workman has filed the statement of claim wherein she has narrated that she is working as a permanent workman at monthly salary of Rs.500/-, whereas, according to the minimum wages, the monthly salary ought to be Rs.1500/-. She has also averred that since she has made demand of pay sleep and to get wages in accordance with Minimum Wages Act, the employer with an ulterior motive has terminated her service without following due process of law and no notice was issued to her nor any wages was paid. She has stated that even after termination of her service, she went to the

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employer, however, he was reinstated and, therefore, she moved the Assistant Labour Commissioner vide complaint dated 30.12.1998. She has also stated that the employer did not remain present in the conciliation proceedings and, thereafter, the matter was referred to the Labour Court. She has narrated that after termination of her service, she tried to get employment, but she could not find it out and she remained unemployed. Thus, she has claimed the relief of continuation of service with 100% back wages thereof. It appears from the statement of claim that the workman has not pleaded anything regarding the facts that after termination of her service, other workmen were engaged by the employer.

13. It also appears from the materials placed on record that the employer has filed its written statement wherein it has taken the stand that it is a charitable institution and it does not come within the definition of 'industry' as envisaged under Section 2(j) of the ID Act. It has also taken the definition that the industrial dispute does not apply to it. It has denied all the contentions raised by the workman in her claim of statement. It has further averred by the employer that the husband of the workman was watchman on going construction of the hospital and was working as caretaker and she was residing with Ramanbhai Valabhai and she was doing the work of sweep and fetching water and she was doing such work only for

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one to one and half hours and she was not a workman. It has also taken a stand that the workman herself has abandoned the work.

14. It is pertinent to note that the workman has examined herself as well as her husband to substantiate their stand that without due process of law the service of the workman has been terminated. It is pertinent to note that the employer has not examined anyone on it's behalf nor produced any documentary evidence. The pleadings of the employer is not supported by any oral or documentary evidence. It is well settled law that mere filing of the pleadings may not be treated as a proof regarding the facts averred in the pleadings. It is incumbent upon the concerned party to prove its pleadings oral or documentary evidence. However, in this case, to prove her pleadings, the workman has examined herself as well as her husband. As referred to in the award that the workman has produced certain documents.

15. On perusal of the award, it appears that the Labour Court has held against the workman on the basis that the documents like pay sleep, muster roll etc. are not produced. But, at this juncture, it is require to peruse the oral evidence of the workman wherein she has categorically stated that the employer was not providing her any documents like pay sleep, attendance sheet or

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anything. It also appears from the observation made by the Labour Court that for non-supply of such documentary evidence, the workman has not made any complaint to the Commissioner of Labour or any institution/s. The Labour Court has observed that the version of the workman regarding her complaint of 240 days in the preceding years, only the oral evidence has produced and there is no documentary evidence produced. At this juncture, it is pertinent to note that even in written statement, no such plea has been raised by the employer. Considering the entire evidence and the material placed on record, it is a case of no evidence on the part of the employer, whereas, the workman has led the evidence in the form of oral evidence which has stood the test of cross-examination by the employer. Therefore, in view of the evidence available on record, it appears that the employer has committed a breach of Section 25F of the ID Act. The observation made by the Labour Court in the impugned award is on the misreading of the evidence and loosing site of the fact that the pleadings of the employer has not been proved by the employer by examining any witness. Therefore, the impugned award needs to be set aside.

16. Now, since there is breach of Section 25F of the ID Act, the question regarding what relief can be granted to the workman. In this regard, it needs to be observed that

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the original reference is of the year 1998 and now, the long span of 23 years has passed. Further, it is well settled by the catena of decisions that in case of breach of Section 25F of the ID Act, instead of granting reinstatement especially when the long span has been passed and the fact that the workman might have attained the age of superannuation, instead of granting reinstatement and back wages the lump sum compensation could be awarded to the workman in a given case. Therefore, considering the totality of the facts and circumstances of the case, and considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177, this Court is of the view that in the facts of this case granting of relief of reinstatement after a long span, no useful purpose will be served and, therefore, this Court deems fit to order grant of compensation of Rs.50,000/- in lieu of the reinstatement. Such amount be paid to the workman by the employer after proper verification of the identify by an account payee cheque / pay order within a period of three months from the date of receipt of this order, failing which the workman shall be entitled to claim interest at the rate of 9% from today till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever paid to her.

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17. With the aforesaid conclusion, the impugned award dated 12.01.2007 passed by the Labour Court No.8, Ahmedabad in Reference (L.C.A.) No.771/1998 is hereby quashed and set aside to the aforesaid extent. The petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL