Madhya Pradesh High Court

Indian Council Of Medical ... vs Central Govt. Industrial ... on 21 May, 2021

Author: Sanjay Dwivedi

                                1

         THE HIGH COURT OF MADHYA PRADESH
             PRINCIPAL SEAT AT JABALPUR
                        W.P.No.4107/2001
              Indian Council of Medical Research
                            Versus
  Central Government Industrial Tribunal Cum Labour Court
Date of Order               21/05/2021
Bench Constituted           Single Bench
Order delivered by          Hon'ble Shri Justice Sanjay Dwivedi, J
Whether approved for        YES
reporting
Name of counsels for the    For Petitioner: Shri Ashish Shroti,
parties                     Advocate

                            For Respondent-State: Shri S.K.Rao,
                            Senior Advocate with Shri Santosh
                            Tiwari, Advocate
Law laid down                As per the available material
                            Indian Council of Medical Research is
                            not an "Industry".
                             It does not involve in any type of
                            commercial activity generating any
                            income.
                             It carries out research work for the
                            Central Government and as such it does
                            not come within the category of
                            "Industry" as has been defined under
                            Section 2(j) of Industrial Disputes Act,
                            1947.
                             Every retrenchment is termination
                            but    every  termination  is   not
                            retrenchment.
                               If termination is made in terms of
                            the contract/appointment the same
                            would not come within the definition of
                            2(oo) of the Act, 1947 as the same falls
                            under Exception Clause as defined
                            under Section 2(oo)(bb) of Industrial
                            Disputes Act, 1947.
Significant Para Nos.       11,12,13 and 15
Reserved on: 18/03/2021
Delivered on: 21/05/2021
                               2

                         ORDER

With the consent of learned counsel for parties, matter is

heard finally.

2. This petition has been filed by the petitioner under

Articles 226/227 of the Constitution of India challenging the

award dated 16/04/2001 (Annexure-P-16) passed by the

Central Government Industrial Tribunal cum Labour Court,

Jabalpur directing reinstatement of respondent no.2 with full

back wages and setting aside the order of termination dated

23/01/1990.

3. Challenge is made mainly on two grounds that the

petitioner is a society registered under the Society

Registration Act, is not an industry and as such respondent

no.2 is not a workman and provision of Industrial Disputes

Act, 1947 (hereinafter referred to as 'Act 1947') are not

applicable and the termination of respondent no.2 does not

come within the definition of retrenchment as defined under

Section 2(oo) of the'Act 1947' but govern with Exception

Clause i.e 2(oo)(bb) of the 'Act 1947'. It is also submitted

that the impugned award directing reinstatement with full

back wages is also not proper for the reason that the tribunal

has not properly appreciated the fact regarding gainful

engagement of respondent and further failed to consider the

fact that the reference has been answered by the Labour Court

consuming a long period for which the petitioner can not be

held responsible.

4. Respondents denied the said contention of the petitioner

and submit that there is no infirmity in the impugned award.

According to the respondents, petitioner has rightly been

considered to be an industry by the Tribunal. It is also

contended that the termination of the petitioner is in violation

of required procedure of the 'Act 1947' and in any manner

the said termination cannot be said to be out of the scope of

'retrenchment'. Further, considering the facts situation of the

case, it does not fall under the Exception Clause as has been

defined in Section 2(oo)(bb) of the 'Act 1947'.

5. To resolve the controversy involved in the case relevant

facts are briefly stated below:-

(i) As per the petitioner, the petitioner i.e Indian Council of

Medical Research is a society registered under the 'Society

Registrikaran Act'. The respondent no.2 was a Field Lab

Attendant posted at the filed station of Malaria Research

Center, at Jabalpur. He was appointed in the year 1987 and

according to the petitioner his appointment was co-terminus

with the life of the project or so long as his services are

required. The appointment order of the Respondent no.2 is

(Annexure-P-2).

(ii). As per the petitioner the project was initially

approved for a period of five years from 1985-1990 and

thereafter extension was granted on year to year basis. As per

the petitioner, the project was phasing out and on assessment

of the work and conduct of respondent no.2, it was found

that his services were no longer required. Consequently an

order has been issued on 23/01/1990 (Annexure-P-3),

whereby services of respondent no.2 were dispensed w.e.f

31/01/1990.

(iii). The petitioner thereafter raised a dispute before the

Assistant Labour Commissioner (Central) Jabalpur under

Section 10 of the 'Act 1947'. A reference was made to the

Central Government Industrial Tribunal cum Labour Court

(hereinafter referred to as the 'Tribunal') is as follows:-

"Whether the action of the management of Malaria Research Center, New Delhi in terminating the service of Shri Chandrashekhar Tiwari, Field/Lab Attendant vide their order dated 23/01/1990 is justified ? if not, what relief he is entitled to".

(iv) The respondent-employee submitted his statement of

claim, claiming reinstatement with full back wages

(Annexure-P-4). The management also submitted their

reply/statement (Annexure-P-5).

(v) As per the stand taken by the respondent (petitioner

herein) the termination of the workman was made strictly in

terms of the appointment. There was no permanent staff in

the cadre of Lab Attendant at Jabalpur and services of entire

staff was co-terminus with cecession of the project. It is also

stated that the Malaria Research Center is not an 'Industry'

and as such respondent-employee is not a 'workman' under

the Act, 1947, therefore, provisions of the Act are not

applicable. It is also stated that the proceedings of the

reference consumed long time as from 26/08/1994 till

06/04/1998 there was no presiding officer.

(vi) Petition had also been preferred by the respondent-

employee before the High Court which was registered as

W.P.No.1007/1996) and because of the interim order granted

by the High Court proceeding of the reference case was

stayed and finally writ petition was withdrawn on

20/11/1997. Thus, it is tried to establish that the delay

occurred in concluding the proceedings is at the instance of

employee and as such awarding interest and directing

reinstatement with full back wages is not proper.

(vii) The Labour Court initially passed an award on

01/12/1999 directing the reinstatement of respondent-

employee with full back wages. The said award was assailed

by the petitioner by filing a Writ Petition i.e

W.P.No.1733/2000 which was finally allowed on 01/11/2000.

The Court set-aside the award and remanded the case to the

tribunal to decide a preliminary issue whether petitioner is an

'industry' as per the definition of Section 2(j) of the 'Act

1947' or not ?

(viii) The petitioner after remand filed an additional

statement of claim (Annexure-P-9) before the tribunal and

also an application with an affidavit for taking documents on

record. With the said application an affidavit of one Dr.Neeru

Singh, Assistant Director Malaria Research Center, Jabalpur

was filed. Her statement was also recorded by the tribunal

and finally award has been passed on 16/04/2001 (Annexure-

P-16) by setting aside the order of termination dated

23/01/1990 holding the same to be illegal directing

reinstatement of respondent no.2 with full back wages.

Hence, this petition has been filed criticizing the award

passed by the tribunal on 21/04/2001.

(ix) A reply has also been filed by respondent-workman

denied the contentions made by the petitioner.

6. Learned counsel for the petitioner submitted that the

tribunal has framed as many as four issues. Issue No.1

relates to the point as to whether petitioner is an industry or

not ? Although issue is answered by the tribunal against the

petitioner holding that the petitioner is an industry as has

been defined under Section 2(j) of the 'Act 1947'. Learned

counsel for the petitioner submits that the tribunal has

misconstrued the statement of Dr.Neeru Singh, Deputy

Director and Incharge, Malaria Research Center, who has

very categorically stated and clarified that ICMR only carries

out research activities which are neither sold nor marketed.

He relied upon a judgment of the Supreme Court reported in

(1997) 4 SCC 257 (Physical Research Laboratory Vs.

K.G.Sharma) and observed that the officer has clearly stated

that the research findings are sold to pharmaceutical

companies for manufacturing medicines of malaria and

therefore such activity of petitioner-company brings it under

the definition of 'Industry'. The petitioner has also relied

upon an award passed by the tribunal in case of another

employee of petitioner's society holding that the petitioner is

an industry as defined in Section 2(j) of the 'Act 1947.'

7. Shri Shroti criticized the findings given by the tribunal

with regard to issue no.1 saying that the said finding is

perverse. The statement of Dr.Neeru Singh was misread by

the tribunal. He further submits that from the statement of

Dr. Neeru Singh, it is clear that she had nowhere stated that

the research made by the petitioner society was sold to

pharmaceutical company for manufacturing the medicines.

8. Shri Shroti appearing for the petitioner submits that

with the available material relating to issue no.1, the tribunal

had no option but to hold that the petitioner-society does not

fall within the definition of 'industry' as has been defined

under Section 2(j) of the 'Act 1947'. It is therefore apt to see

as to how the tribunal has dealt with the available material for

determining the issue no.1.

9. After remitting the matter by the High Court to the

tribunal to decide the preliminary issue regarding the status of

the petitioner-society, an additional affidavit of Dr.Neeru

Singh, Deputy Director, Incharge, Malaria Research Center,

Jabalpur was filed. In the said affidavit she has categorically

stated that the research center does not carry out any business

activity. It is involved in research activities confined to the

disease Malaria and Filaria. It is also stated that the research

is carried out and report of the said research is made available

to the Indian Council of Medical Research, New Delhi and

the same is used by the Government of India. She was also

cross examined. The respondent although in cross

examination tried to establish that a pharmaceutical Company

i.e Phizer used to make payment to the petitioner organization

but that fact has been denied by the said witness and it is also

denied that in the research center Neem Oil and Neem cream

are prepared and sold. The respondent-workman has also

filed an affidavit but did not produce any material to

substantiate that the petitioner is engaged in any type of

business activities, although produced one document i.e

document no.2 a pamphlet issued by the petitioner center in

respect of their research containing description of Neem Oil

and other products relating to provide protection from

Mosquitoes. As per the respondents, these products are

prepared and sold by the petitioner firm but nothing is

produced to substantiate whether these products are sold by

the petitioner firm.

10. As has been stated by the witness of the petitioner that

research is carried out in the research center of the petitioner

relating to the disease Malaria and Filaria. The pamphlet does

not reveal and indicate that it is an advertisement for selling

the product but the said document indicates that what type of

research has been done to get the protection from mosquitoes.

11 I do not find any material to indicate that the

petitioner's center is involved in any type of commercial

activities generating any income and it is also not available

on record to show that the result of the research are sold by

the petitioner-firm to any industry for the sake of earning

profit. On the contrary, it is established that the said center

works for Government of India and research is carried out

discharging governmental functions and infact it is a closed

door domestic enterprises having no outlet of information to

the common man. The results of research are neither sold nor

made available to any industrial enterprises for their use in

the production or distribution.

12. Counsel for the petitioner has placed reliance upon a

decision of the Supreme Court in the case of Physical

Research Laboratory (supra) in which the Supreme Court

dealing with the issue regarding research laboratory whether

the same comes within the definition of 'industry' or not has

observed as under:-

4. The Labour Court rejected the contention of the appellant that it was not an 'industry' within the meaning of Section 2(j) of the I.D. Act. Though it recorded a finding that PRL is purely a research institute and the research work carried on by it is not connected with production supply or distribution of goos or services yet it took the aforesaid view following the decision of this court in Bangalore Water Supply & Sewerage Board Vs. A. Rajappa 1978 (2) SCC 213 as it further found that PRL is carrying on, in an organised and systematic manner, the activity of research in its laboratory by active co-operation between itself and its employees and the discoveries and invention made would be eligible for sale. in taking the view that PRL is an 'industry' it also followed the decision of the Gujarat High court in physical Research Laboratory Employees Union vs. A.N. Ram (special civil Application No. 1082 of 1979), a case under the Trade Unions Act, wherein it was observed that "In view of the decision of the supreme Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa and others A.I.R. 1978 S.C. 548, it is not open to doubt that the employees working with the physical Research Laboratory Ahmedabad, would come within the definition of " workmen" under the Industrial Disputes Act and other similar legislation in the field of relations between employers and employees." on merits, it held that the respondent having worked for a long period from 1948 to 1976 on a technical post could not have been treated as a person working on the administrative side merely because towards the fag end of his career he was transferred to a post on the administrative side and at the time of attaining the age of 58 years he was working on such a post. The Labour Court held that the respondent was entitled to continue in service up to the age of 60 Years. Therefore, the order, retiring him earlier, was declared as bad and it was held that he was entitled to reinstatement with full back wages. As the respondent had already completed the age of 60 years by then no order of reinstatement was passed but only back wages for those two years were ordered to be paid.

6. Our attention was first drawn by the learned Attorney General who appeared for the appellant to the facts which are not in dispute. PRL is a public trust registered under the Bombay public Trust Act., 1950. It is a research institute and was established bu Dr. Vikram Sarabhai for research in space and allied science. It is financed mainly by the central Government by making provision in that behalf in the Union Budget and nominally by the Government of Gujarat, Karmakshetra Education Foundation and

Ahmedabad Eduction society. it is virtually an institute falling under Government of India's Department of space. Its object is to conduct and is, therefore, engaged in conducting advance research in (1) astronomy and Astrophysics, (2) planetary atmosphere and aeronomy , (3) earth science and solar system studies and (4) theoretical physics. It is the case of the appellant that the research work is done in the institute by eminent scientists who engage themselves in resolving problems of fundamental sciences on their own. It is not directly of indirectly carrying on any trade or business and its activities do not result into production or distribution of goods or services calculated to satisfy human wants and wishes. The knowledge acquired as a result of the research carried on by it is not sold but is utilised for the benefit of the government. it was, therefore, submitted by the learned Attorney General that PRL being a purely research institute of the central Government engaged in carrying on fundamental research regarding the origin and evolution of the Universe and the atmosphere of the earth is not an 'industry' as defined by section 2(j). He further submitted that the activity of research is carried on mainly by the scientists engaged for that purpose and incidentally with the help of a few other employees. He also submit that the research work carried on by the PRL is more in the nature of venture and, therefore, also it would not fall within the purview of section 2(j) of the I.D. Act

12. PRL is an institution under the Government of India`s Department of Space. It is engaged in pure research work is already stated earlier. The purpose of the research is to acquire knowledge about the formation and evolution of the universe but the knowledge thus acquired is not intended for sale. The Labour Court has recorded a categorical finding that the research work carried on by PRL is not connected with production supply or distribution of material goods or services. The material on record further discloses that PRL is conducting research not for the benefit or use of others. Though the results of the research work done by it are occasionally published they have never been sold. There is no material to show that the knowledge so acquired by PRL is marketable or has any commercial value. IT has not been pointed out how the knowledge acquired by PRL or the results of the research occasionally published by it will be useful to persons other than discloses that the object type of study. The material discloses that the object with which the research activity is undertaken by PRL is to obtain knowledge for the benefit of the Department of Space. Its object is not to render services to others nor in fact it does so expect in an indirect manner.

13. It is nobody`s that PRL is engaged in an activity which can be called business trade or manufacture. Neither from the nature of its organisation nor from the nature and character of the activity carried on by it, it can be said to be an `undertaking' analogous to business or trade. It is not engaged in a commercial industrial activity and it cannot be described as an economic venture or a commercial enterprise as it is not its object to produce and distribute services which would satisfy wants and needs of the consumer community. It is more an institution discharging Governmental functions and a domestic enterprise than a commercial enterprise. We are, therefore, of the opinion that PRL is not an industry even though it is carrying on the activity of research in a systematic manner with the help of its employees as it lacks that element which would make it an organisation carrying on an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services which are intended or meant for satisfying human wants and needs, as ordinarily understood.

13. In this judgment, the Supreme Court has also

considered the judgment of Bangalore Water Supply(supra)

and comparing the observation of the Supreme Court in that

case (Bangalore Water Supply(supra) held that Physical

Research Laboratory since involved in research activities for

the Government of India does not fall within the category of

'industry' as has been defined under Section 2(j) of the 'Act

1947'.

14. Apart from this, in one of the cases decided by the

Industrial Tribunal relating to an employee working in the

petitioner-organization, the tribunal has decided the said issue

as to whether the petitioner research center is an 'industry' or

not ? and held that the said center does not fall within the

definition of 'industry' as has been defined under Section 2(J)

of the 'Act 1947'. A copy of that award is also relied upon by

the petitioner and is filed as Annexure-P/17-A but during the

course of argument counsel for the respondent did not meet

out as to whether the said finding of tribunal has ever been set

aside by any higher forum.

15. Thus, in view of the available material and in view of

the law laid down by the Supreme Court in the case of

Physical Research Laboratory (supra), I am also of the

opinion that the petitioner-society cannot be said to be an

'industry' and does not fall within the ambit of 'industry' as

has been defined under Section 2(j) of the 'Act 1947'.

Accordingly, the issue no.1 decided by the tribunal is not

sustainable as the finding in regard to the said issue is

perverse and is accordingly set aside holding that the

petitioner society cannot be considered to be an 'industry'.

16. Shri Shroti, learned counsel appearing for the petitioner

has also criticized the award contending that the tribunal

erred in deciding the issue no.2 which reads as under:-

"Whether the services of the applicant (workman) were terminated by the non-applicant on

23/01/1990 illegally?"

He submits that the tribunal further erred in holding that the

termination of respondent is a retrenchment as has been

defined under Section 2(oo) of the 'Act 1947'. According to

him, the said termination does not come within the purview

of 'retrenchment' but it comes under the Exception provided

in the definition of 'retrenchment' itself. The submissions

made by counsel for the petitioner and the issue decided by

the tribunal goes to the root of the matter and could resolve

the controversy involved. To proceed further, it will be

convenient to quote Section 2(oo)(bb) of the 'Act 1947' to

consider merits of the case, which reads as under:-

(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason, whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

         (a)    voluntary     retirement     of     the
         workman; or
         (b)    retirement of the workman on

reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf ; or (bb) : termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being termination under a stipulation in that behalf contained therein; or

17. On a plain reading of the statutory provision, it is clear

that any termination of service of a workman by the employer

for any reason whatsoever comes within the meaning of

expression 'retrenchment' as has been defined in Section

2(oo) of the 'Act 1947' as quoted above. The said Section

further provides few exceptions to the wide and

comprehensive definition of the term 'retrenchment'. The

exceptions are as under:-

(1) termination of appointment inflicted by way of disciplinary action;

(2) voluntary retirement of the workman; (3) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (4) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (5) termination of the service of a workman on the ground of continued ill health."

18. Counsel for the petitioner has contended that the case of

respondent/workman does not fall within the definition of

'Retrenchment' but falls under the 'Exception' as has been

defined under Section 2(oo)(bb) of the 'Act 1947'. He

submits that from the appointment order (Annexure-P-2) of

respondent, it is clear that he was appointed temporarily on

adhoc basis and his appointment was co-terminus with the

scheme/project. He submits that for bringing the case of

respondent within the ambit of Section 2(oo)(bb) of the 'Act

1947' the relevant clause of the appointment order i.e Clause

no.3 which is apposite to mention here:-

"3. The services being for the duration of the above scheme/project will stand terminated on the expiry of the scheme, and are liable to be terminated if the work is not found to be satisfactory of one month's clear notice is necessary before resigning or relinquishing the post from the project/scheme to facilitate employment of without hampering the project work."

He has further drawn attention of this Court towards the stand

taken by them before the tribunal saying that the performance

of respondent/workman was not satisfactory. He had not

been attending his duties often and as such explanation had

also been called from him. The workman was committing

default in attending his duties from 1988 itself. He did not

work devotedly in the project and as such he was not useful

to the scheme and that was the reason for terminating his

services as 'no longer required'. He has further drawn the

attention of this Court towards Clause 3 of the appointment

order, quoted above, saying that the said clause empowers the

employer to terminate the services of a workman under two

circumstances either scheme/project is over or work of the

workman is not found satisfactory. He submits that if the

order of termination is seen, it is clear that giving one

month's pay/notice, services of the workman were terminated

taking shelter of Clause -3 of the order of appointment.

19. Shri Shroti has further drawn attention of this Court

towards the affidavit filed by Dr.Neeru Singh stating therein

that the services of the respondent no.2 were terminated as

his work was not found satisfactory and several memos were

issued to him on different dates in that regard. It is further

clarified in the affidavit that the workman was given one

month's notice but he refused to accept it and then by money-

order, one month's salary was sent to him. According to

counsel for the petitioner, it is clear that the termination of

respondent was not a 'retrenchment', therefore, it was not

required to comply with the provisions of Section 25-F of

Act, 1947. Therefore, finding of the tribunal treating the

termination of respondent as retrenchment for not complying

to the mandatory requirement of Section 25-F of the Act,

1947 is completely erroneous. According to him, the tribunal

has not appreciated the relevant aspect of the matter and

erroneously decided the issue, treating the termination of

respondent as retrenchment and directed his reinstatement in

service.

20. Counsel for the petitioner as such has placed reliance on

a Writ Petition decided by this Court i.e W.P.No.2137/2010

(Suresh Chandra Ratre Vs. The Director, Malaria,

Research Center and another). The Writ Court vide order

dated 17/09/2012 dismissed the petition preferred by the

petitioner against the order of CJIT (Tribunal) whereby the

termination of the employee was held to be under Exception

of Section 2(oo)(bb) of the 'Act 1947' as the Court was of the

opinion that the appointment of the workman was co-

terminus and project was about to wind up and therefore

terminating the services as 'no longer required' does not fall

within the definition of 'retrenchment'. He further relied

upon a decision reported in 2002(1) SCC 520 (Pavendra

Narayan Verma Vs. Sanjay Gandhi PGI of Medical

Sciences and another), in which the Supreme Court has

observed that if termination is punitive then the same can be

treated to be a 'Retrenchment' as the same falls within the

Exception Clause. He has also relied upon the judgment

reported in 2002(5) SCC 654 (Haryana State F.C.C.W

Store Ltd and another Vs. Ramniwas and another) in

which the Supreme Court has observed that the appointment

of workman was for a specific purpose and a specific period,

therefore, termination mentioning therein that services are no

longer required without complying the provisions of Section

25-F of the 'Act 1947' cannot be treated to be a

"retrenchment" as the said termination falls under the

exception clause of definition of "retrenchment". He further

relied upon a decision reported in 2003(2) SCC 386

(Dhananjay Vs. Chief Executive Officer, Zilla Parishad

Jalna) in which the Supreme Court has observed that if order

of termination is not punitive and has been made in

consonance with the terms of the appointment, the workman

is not entitled to get any relief. He has also placed reliance

upon a judgment reported in 2006(3) SCC 81 (Municipal

Council Samrala Vs. Raj Kumar) in which the Supreme

Court has observed that if a termination in terms and

conditions contained in the offer of appointment, the same

would be covered with the second part of Section 2(oo)(bb)

of the Act, 1947. According to the counsel for the petitioner,

in view of the stand taken by the petitioner before the tribunal

and produced material to substantiate that the performance of

the workman was not satisfactory and therefore the same

culminated into the order of termination and as such the said

termination was under Exception Clause i.e 2(oo)(bb) of Act,

1947 and no relief treating the same to be a 'retrenchment',

can be granted to the respondent and as such the award

passed by the tribunal in regard to the issue no.2 is also liable

to be set aside.

21. Per contra, Shri S.K.Rao, senior Advocate submits that

every termination without following the provisions of Section

25-F of the 'Act 1947' comes under a "retrenchment" and

therefore tribunal has rightly held that the violation of

mandatory compliance of Section 25-F of the 'Act 1947'

makes the termination illegal and rightly directed

reinstatement of the respondent/workman. He has also filed

the written synopsis in which instead of meeting out the

submissions and stand of petitioner whether termination of

workman comes under retrenchment or not, relied upon

several judgments and tried to establish that non compliance

of Section 25-F of the 'Act 1947' is fatal and further judicial

review in a matter of supervisory jurisdiction re-appreciating

the evidence is not permissible under the law. Shri Rao

further relied upon a decision passed in W.P. No.9660/2014

decided by order dated 17/11/2016 (Union of India and

others Vs. Dr.S.K.Chand and others) in which the Division

Bench of the High Court dealing with the case of

regularization of the employee of Malaria Research Center,

Indian Council of Medical Research, New Delhi directed the

regularization on the ground that there were other employees

already regularized and as such affirmed the order passed by

the Central Administrative Tribunal directing regularization

of the employee. However, that case has no relevance with

the facts of the present case and the issue involved therein.

Here in this case, this Court is dealing with the issue whether

termination of workman is a retrenchment or comes under

exception clause of Section 2 (oo)(bb) of the 'Act 1947' or

not. Further he has placed reliance upon a decision reported

in 1983(4) SCC 293 (D.P.Maheshwari Vs. Delhi

Administration and Others), in which the Supreme Court

has dealt with the scope of judicial review. However, in the

said case, Court has refused to exercise the supervisory

jurisdiction by entertaining the judicial review on the ground

that the Court below has decided the preliminary issue which

was traveled upto the Supreme Court. The Supreme Court

has observed as under :-

"In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory

stages and on preliminary issues"

(emphasis supplied)

22. Thus, the said case has also no application in the present

case. He has also relied upon a decision reported in 1984(4)

S.C.C 635 (Rajinder Kumar Kindra Vs. Delhi

Administration Through Secretary (Labour) and others)

but here in this case it has no application because the said

case relates to reinstatement of workman with full back

wages and deals with the issue as to when back wages is

granted and what type of inquiry is required to determine the

said aspect but this Court is not going to that extent for the

reasons mentioned in on going paragraphs.

23. Counsel for the respondent has also contended that with

regard to the award passed by the Labour Court exercising

the extra-ordinary jurisdiction under Article 226/227 of the

Constitution of India by the High Court, the law is well

settled that the scope of judicial review is very limited. He

submits that the High Court cannot re-appreciate the evidence

and disturb the findings given by the Labour Court.

24. Shri Rao has also placed reliance upon a decision

reported in 1980(3) SCC 340 (Santosh Gupta Vs. State

Bank of Patiala) but that case has also no relevance for the

reason that Exception Clause of Section 2(oo)(bb) of the 'Act

1947' came into force w.e.f 18/08/1984 whereas case of

Santosh Gupta (supra) has been decided by the Supreme

Court vide order dated 29/04/1980. He has also relied upon a

case reported in 2011(6) SCC 584 (Devendra Singh Vs.

Municipal Council, Sanaur). The said case has also no

relevance in the facts and circumstances of the present case.

The Supreme Court in the said case although considered the

termination order within the scope of Section 2(oo)(bb) of the

'Act 1947' but in the aforesaid case there was no material

produced by the employer to show that engagement of the

workman was discontinued by relying upon terms and

conditions of employment. However, here in this case the

petitioner/employer is relying upon the terms and conditions

of the order of appointment to substantiate that the

termination of respondent is falling under Exception Clause

of Section 2(oo)(bb) of the 'Act 1947'.

25. Considering the rival submissions of the parties in

regard to the issue no.2 decided by the tribunal, I have also

perused the order passed by the tribunal especially the finding

in regard to issue no.2 in which tribunal has even not

considered this aspect as to whether the termination of

workman comes under 'retrenchment' or not but proceeded in

the manner as the allegation regarding nonperforming the

duties in proper manner and also irregular in attending the

duties amounts to misconduct but for which no inquiry was

conducted whereas the regular departmental inquiry was

required to be conducted before removing the workman. It is

also observed by the tribunal that the workman should have

been given the proper opportunity to explain his conduct as

alleged in the statement of claim filed by the management but

not doing so makes the order of termination as illegal and that

is treated to be "retrenchment".

26. Surprisingly, the tribunal failed to appreciate the nature

of appointment of the workman and the conditions stipulated

in the order of appointment. The Supreme Court in the cases

in which the petitioner has placed reliance has categorically

laid down that the conditions of appointment i.e condition

No.3 as quoted in preceding paragraph clearly empowers the

employer to remove the workman from service if

performance is not found satisfactory and no departmental

inquiry is required especially under the circumstances when

appointment of workman was purely temporary on adhoc

nature.

27. I am fortified in my view after considering the

judgments on which counsel for the petitioner has placed

reliance and submissions made by him that if an employee

appointed purely on temporary basis and the nature of

appointment was contractual/co-terminus then termination of

such service in terms of stipulation contained in the order of

appointment no departmental inquiry was required especially

under the circumstances as existing in the present case that

several memos were issued to the respondent asking his

explanation. As such I am of the opinion that the order of

termination of services of the workman does not come within

the purview of 'retrenchment' as has been defined under

Section 2(oo) of the 'Act 1947' but falls under the Exception

Clause of Section 2(oo)(bb) of the 'Act, 1947' and as such the

order passed by the tribunal and the finding given on the

issue no.2 is not only illegal but also perverse and therefore

the same is not sustainable and is hereby set aside.

28. So far as exercising the supervisory jurisdiction under

Article 227 of the Constitution of India is concerned and

considering the submissions made by learned counsel for the

respondent relying upon a decision of Ishwarlal Mohanlal

Thakkar Vs. Paschim Gujrat Vij Company Limited and

another, (2014) 6 SCC 434 is concerned, the Supreme Court

while dealing with the award passed by the Labour Court has

observed that the same was based on facts and evidence on

record and therefore exercising jurisdiction by the High Court

under Article 227 of the Constitution of India disturbing the

findings of the Labour Court as if it is done by the appellate

Court while re-appreciating the evidence and record its own

finding is not proper. However, the Supreme Court has

observed that the High Court while exercising the supervisory

power under Article 227of the Constitution of India can do so

if there is a serious error of law and the findings recorded

suffers from errors apparent on the face of record. The

Supreme Court in the case of Shalini Shyam Shetty and

another Vs. Rajendra Shankar Pail, (2010) 8 SCC 329 has

very elaborately discussed the power of the High Court under

Articles 226 and 227 of the Constitution of India. and

observed as under:-

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(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 of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article

227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the 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.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

29. The view taken by the Supreme Court makes it clear

that the High Court is not helpless in disturbing the award

passed by the Labour Court while exercising the jurisdiction

under Articles 226 or 227 of the Constitution of India but on

the contrary, it has ample power to pass an appropriate order

to keep strict administrative and judicial control on the

administration of justice within its territory. The case in hand

is an appropriate case in which this court finds it fit to

interfere in the award passed by the Labour Court mainly on

the ground that the defence taken by the employer has not

been properly answered, ignoring the relevant provisions of

the statute.