Jharkhand High Court
Employer In Relation To Management Of ... vs Madan Mohan Singh on 1 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 W.P. (L). No. 4620 of 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L ) No. 4620 of 2011
Employer in relation to Management of Food Corporation
of India, a body corporate, incorporated under the Food
Corporations Act, 1964, through its Area Manager, District
Officer Chhapra, P.O. , P.S. and Dist.- Chhapra, Bihar
.......... Petitioner
Versus
Madan Mohan Singh, son of Pradip Narayan Singh,
represented by State Joint Secretary, FCI Executives Staff
Union of Arunachal Building, P.O.- Exhibition Road, P.O. &
P.S.-Exhibition Road, Dist.- Patna, Bihar
........... Respondent
For the Petitioner : Mr. Shubham Sinha, Adv.
Mr. Nipun Bakshi, Adv.
Mr. Mrinal Singh, Adv.
For the Respondent : Mr. Abhijeet Kr. Singh, Adv.
Mr. Harsh Chandra, Adv.
Ms. Ayushi, Adv.
Mr. Saif Ali Ansari, Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This writ petition has been filed invoking the jurisdiction of this
court under Article 226 of the Constitution of India, with a prayer
to set aside the award dated 04.11.2009 passed in Reference Case
no. 121 of 1994, by which, the Central Government Industrial
Tribunal No. 1 , Dhanbad has held in the award that the action of
the management of the FCI in not regularising the services of the
class IV workman, denying all other benefits, with effect form
22.04.1984 to Madan Mohan Singh- causal workman, is not legal
and justified hence, the respondent workman is entitled for
regularisation of class IV workman with effect from 22.04.1984
with 50% back wages and other consequential benefits.
3. The brief facts of the case is that Central Government, Ministry of
Labour, in exercise of power conferred under clause (d), sub-
section (1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act 1947, referred the following dispute for adjudication
to the Central Government Industrial Tribunal:-
"Whether the action of the management of FCI, in not regularising the
services of class IV workman and denying wages and all other benefits of
a regular class IV, workman w.e.f. 22.04.1984, to Shri Madan Mohan
Singh, casual workman is legal and justified? If not, to what relief the
workman is entitled to?"
4. The case of the respondent workman of this writ petitioner is that
the respondent workman was employed by the writ petitioner
management at Food Storage Depot of Hazipur on 22.04.1984 as
causal workman to perform the duty of the subordinate cadre on
pay roll and since then, he had been performing his duty as a
regular class IV employee, without any break to the full
satisfaction of the management. Under a scheme, the writ
petitioner management, decided to regularise the causal
workman, who have completed at least 90 days of service on or
before 02.05.1986 as per their qualification against entry level
class III and class IV post in the light of the headquarter circular
dated 06.05.1987 and accordingly, many causal / daily related
workmen were regularised as the watchmen in the year 1988-89
and they are getting wages and all other benefits of regular class
IV workmen of the management.
5. The case of the management is that though the respondent
workman has been continuing to render his services to writ
petitioner since 22.04.1984 but he was engaged only as causal
labour from time to time to carry out some odd jobs at the depot
office by cleaning the office room and the furniture, which takes
half an hour and also to fetch drinking water and storing the
same in pitchers. In support of his contention, the workman
examined himself as sole witness besides proving the documents,
which have been marked as Exhibit W1 while from the side of
the writ petitioner management, two witnesses were examined
and two documents have been proved which have been marked
as Ext. M-1/1 and Ext. M-1/2. Learned tribunal considered the
testimony of workman to the effect that on the basis of the said
circular of the year 1986-87, a number of causal workers were
regularised, hence the workman being similarly placed, with the
other workers, who have been regularised, the petitioner-
workman be also regularised.
6. Learned tribunal after considering the materials available in the
record, came to the conclusion that the communication made by
the regional office at Patna, to the Zonal Manager requesting
therein in the last but one para, that compromise with the
workman-respondent of this writ petition, may give good effect,
whenever, the respondent likes to forego the past benefit and
from that, the tribunal concluded that the workman has been
discharging his duties as class IV workman as sweeper from
cleaning of office and godown and opening and cleaning of
godown and sheds and is also doing other miscellaneous works
of messenger and the tribunal came to the conclusion that the
respondent workman was discharging his duties as sweeper and
messenger which are substantive posts in the writ petitioner
corporation. From Ext. W3, the tribunal came to the conclusion
that there are huge vacancies, hence in the light of the judgment
of the Hon'ble Supreme Court of India in the case of Bhagwati
Prasad vs. Delhi State Mineral Development Corporation
reported in AIR 1990 SC 371, the workman is entitled to get
wages and other benefits of regular employees since 22.04.1984
and being thus satisfied, passed the said order.
7. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Vice Chancellor
Lucknow University vs Akhilesh Kumar Khare & Anr.
reported in (2016) 1 SCC 521 and submits that as observed in
para 17 of the said judgment, causal workers do not have any
vested right to be regularised on the posts. It is submitted by
learned counsel for the petitioner that the judgment of the
Hon'ble Supreme Court of India in the case of Secretary, State of
Karnataka and Others v. Umadevi (3) and Others reported in
(2006) 4 SCC 1 is applicable to labour court and industrial
tribunals. Learned counsel for the petitioner further submits that
as the respondent-workman is a casual worker, he has no right to
be regularised. It is next submitted by learned counsel for the
petitioner that learned Industrial Tribunal committed perversity
by attributing that MW1 has stated in his cross-examination that
the workman was working for 20-25 days with a break of one or
two day as the same is incorrect and the workmen working for
20-25 days has come in a suggestion, which was denied by MW1
and learned tribunal has also committed perversity by attributing
to the MW2 that he has stated that the respondent workman was
closing room of the office in the evening also, though MW2 has
categorically stated that the watchman, was doing the job of
closing the office in the evening, hence, it is submitted that the
award dated 04.11.2009 passed in Reference Case no. 121 of 1994
be quashed and set side.
8. Learned counsel for the respondent, on the other hand,
vehemently opposes the prayer of the petitioner and submits that
the following facts are undisputed :
(i) that the respondent workman has been continuing with the
services of the petitioner till today starting from 22.04.1984
(ii) that there are huge vacancies against the posts as is evident
from the Ext. W3.
(iii) that, it is the admitted position that the circular dated
06.05.1987, has been implemented and benefit has been
extended to similarly situated persons, which is also evident
from the judgment dated 31.07.2019 in WP (L ) No. 6918 of 2012
passed by a co-ordinate Bench of this Court.
9. Under such circumstances, it is submitted that the respondent -
workman is entitled for regularisation of his services with the
petitioner corporation. Drawing attention of the court to the
judgment of the Co-ordinate Bench of this Court passed in WP
(L) No. 6918 of 2012 dated 31.07.2019, in the case of Employer in
relation to Management of FCI vs. Ram Vilash Paswan and
Ors., it is submitted by learned counsel for the respondent that
similarly placed workmen therein, were directed to be reinstated
by the Central Government, Industrial Tribunal no. 2 , Dhanbad
and said WP (L) No. 6918 of 2012, having been filed to quash the
said award passed by the Central Government Industrial
Tribunal in Reference Case no. 130 of 1996, has been dismissed by
the Co-ordinate Bench vide judgment dated 31.07.2019 and the
LPA preferred against the said judgment vide LPA No. 630 of
2019 , has also been dismissed by the Division Bench of this
Court. It is next submitted by learned counsel for the respondent
that another Co-ordinate Bench of this Court, in WP (L) No. 4466
of 2016 in the case of Food Corporation of India vs. Union of
India & Ors. has also dismissed the prayer to quash the award
dated 27.08.2015 passed in Reference Case no. 165 of 1997 by the
Central Government Industrial Tribunal I, Dhanbad and the LPA
No. 582 of 2019, preferred against the said judgment of the Co-
ordinate Bench of this Court, has also been dismissed by the
Division Bench of this Court hence, it is submitted that this writ
petition, being without any merit, be dismissed.
10. Having heard the rival submissions made at the bar and after
going through the materials available in the record, it is pertinent
to mention here that it is a settled principle of law that the power
of judicial review of award passed by the tribunal in a reference
of a High Court under Article 226 of Constitution of India, is
limited, as has been held by the Hon'ble Supreme Court of India,
in the case of Syed Yakoob v. K. S. Radhakrishnan and others
reported in AIR 1964 SC 477, which has been reiterated by the
Hon'ble Supreme Court of India, in the case of Heinz India (P) Ltd.
and Another v. State of Uttar Pradesh and Others reported in (2012) 5
SCC 443, para 66 and 67 of which reads as under :-
"66. That the court dealing with the exercise of power of judicial review does not
substitute its judgment for that of the legislature or executive or their agents as to
matters within the province of either, and that the court does not supplant "the feel
of the expert" by its own review, is also fairly well settled by the decisions of this
Court. In all such cases judicial examination is confined to finding out whether the
findings of fact have a reasonable basis on evidence and whether such findings are
consistent with the laws of the land. (See Union of India v. S.B. Vohra [(2004) 2
SCC 150 : 2004 SCC (L&S) 363] , Shri Sitaram Sugar Co. Ltd. v. Union of India
[(1990) 3 SCC 223] and Thansingh Nathmal v. Supdt. of Taxes [AIR 1964 SC
1419] .)
67. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra [AIR 1957 SC 264]
this Court held that decision of a tribunal on a question of fact which it has
jurisdiction to determine is not liable to be questioned in proceedings under Article
226 of the Constitution unless it is shown to be totally unsupported by any
evidence. To the same effect is the view taken by this Court in Thansingh Nathmal
case [AIR 1964 SC 1419] where this Court held that the High Court does not
generally determine questions which require an elaborate examination of evidence
to establish the right to enforce for which the writ is claimed."
11. Hon'ble Supreme Court of India, in the case of General Manager,
Electrical Rengali Hydro Electric Project, Orissa and Others v.
Giridhari Sahu and Others reported in (2019) 10 SCC 695 , has also
reiterated the settled principle of law, that if a finding recorded
by the court is erroneous and based upon perversity, such order
can be quashed and set aside.
12. So the law is well settled that the power of issuance of writ of
certiorari by a High Court, in exercise of its jurisdiction under
Article 226 of the Constitution of India, in the matter of
interference of the award passed by a Labour court or a tribunal is
very limited and that can only be exercised if any perversity is
shown in the award.
13. Now coming to the facts of the case, true it is that there is a some
error committed by learned tribunal in referring to the deposition
of MW1 and MW2, though MW1 has not stated specifically that
the petitioner was working for 20 to 25 days each month, with a
break of 1-2 days, but he has stated that the petitioner, was
working for 15-25 days in a month and this minor discrepancy in
referring to the deposition of MW1 by learned tribunal when the
maximum days of employment is same but there is a difference
between the minimum days for which, the respondent workman
worked in a month, in considered opinion of this court, and in the
facts and circumstances of the case, cannot be termed to be
perverse or a finding based on no evidence.
14. Similarly, learned tribunal has referred to MW2 having stated
that he used to close the room of the office in the evening even
though MW2 has stated that the same was closed in the evening
by the Watchman but again, this kind of a minor discrepancy
cannot be termed as a perversity in the facts and circumstances of
the case.
15. It is pertinent to mention here that Hon'ble Supreme Court of
India, in the case of Hari Nandan Prasad and Another v. Employer
I/R to Management of Food Corporation of India and Another
reported in (2014) 7 SCC 190, para 39 of which reads as under:
"39. On a harmonious reading of the two judgments discussed in detail above, we are of
the opinion that when there are posts available, in the absence of any unfair labour
practice the Labour Court would not give direction for regularisation only because
a worker has continued as daily-wage worker/ad hoc/temporary worker for number
of years. Further, if there are no posts available, such a direction for regularisation
would be impermissible. In the aforesaid circumstances giving of direction to
regularise such a person, only on the basis of number of years put in by such a
worker as daily-wager, etc. may amount to back door entry into the service which
is an anathema to Article 14 of the Constitution. Further, such a direction would
not be given when the worker concerned does not meet the eligibility requirement
of the post in question as per the recruitment rules. However, wherever it is found
that similarly situated workmen are regularised by the employer itself under some
scheme or otherwise and the workmen in question who have approached the
Industrial/Labour Court are on a par with them, direction of regularisation in
such cases may be legally justified, otherwise, non-regularisation of the left-over
workers itself would amount to invidious discrimination qua them in such cases
and would be violative of Article 14 of the Constitution. Thus, the industrial
adjudicator would be achieving the equality by upholding Article 14, rather than
violating this constitutional provision." (Emphasis supplied)
has laid down the circumstances when regularisation in service,
can be directed by the labour court or Industrial Tribunal. Now
coming to the facts of this case, as already indicated above, the
undisputed facts remains
(i) that the respondent workman has been continuing with the
services with the petitioner till today starting from 22.04.1984
(ii) that there are huge vacancies against the posts as is evident
from the Ext. W3.
(iii) that, it is the admitted position that the circular dated
06.05.1987, has been implemented and benefit has been
extended to similarly placed persons, which is also evident
from the judgment dated 31.07.2019 in WP (L ) No. 6918 of 2012
passed by a co-ordinate Bench of this Court.
16. Under such circumstances, this court is of the considered view
that no perversity has been committed by learned tribunal which
no doubt, was having the jurisdiction, in answering such
reference, and passing the order of reinstatement.
17. Under such circumstances, this court do not find any justification
for interfering with the award dated 04.11.2009 passed in
Reference Case no. 121 of 1994.
18. Accordingly, this writ petition, being without, any merit is
dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 1st February, 2024
Smita /AFR
