Jagdeo Pandey v. Labour Court U. P. at Allahabad — 1987 DIGILAW 498 (ALL)

JUDGMENT A.N. Dikshita, J. - By means of this writ petition under Article 226 of the Constitution of India the petitioner has prayed for issuing a writ of certiorari to quash the award dated 31-5-82 given in Adjudication Case No. 67 of 1980 which was published by the State Government on 3-7-1982 and was enforced w. e. f. 2-8-1982. 2. Facts in brief are that the petitioner was in the service of Respondent No. 2 as a Publishing Assistant with effect from the year 1949 His services were terminated w. e. f. 15-4-1969. Representations were made by the petitioner against the said termination order dated 15-4-1969 but to no avail. An industrial dispute was raised and was referred to the adjudication of the Labour Court, Respondent No. 1 on 31-3-1980 by the State Government as to whether the employer (Respondent No. 2) had rightly and legally terminated the services of the petitioner w. e f. 15-4-1969. The Respondent No. 1 by its award found that at the time of making the reference there was no industrial dispute as regards the termination of the services of the petitioner and thus it cannot be found that the order terminating the services of the petitioner was improper or illegal. However, considering the principles of natural justice Respondent No. 1 awarded compensation to the extent of ten months pay and other allowances which the petitioner was drawing prior to 15-4-1969 and directed its payment by the Respondent No. 2 within 30 days of the publication of the award 3. The case of the petitioner is that the petitioner was employed, in the year 1949, by Respondent No 2. His services were terminated in the year 1954. He was again employed as a Publishing Assistant after some time and his services were again terminated on 15-4-1969 though the post on which the petitioner was working is still existing and further that the juniors in service to the petitioner were retained in the employment it by the Respondent No. 2. The provisions of Section 6-N of the U.P. Industrial Act as well as Section 25 (F) of the Industrial Disputes Act were not complied with and thus the order dated 15-4-1969 terminating the services of the petitioner by Respondent No. 2 were illegal and improper. 4. The provisions of Section 6-N of the U.P. Industrial Act as well as Section 25 (F) of the Industrial Disputes Act were not complied with and thus the order dated 15-4-1969 terminating the services of the petitioner by Respondent No. 2 were illegal and improper. 4. Respondent No. 2 filed a counter-Affidavit and contended that the award made by Respondent No. 1 is legal and is not liable to interference A rejoinder-Affidavit repudiating the allegations in the counter-Affidavit and reiterating the allegations as set out in the petition was filed. 5. Learned counsel for the parties have been heard at length. It has been submitted by the learned counsel for the petitioner that the Respondent No. learned in law in holding that no industrial dispute was existing when the reference for adjudication (as to whether the services of the petitioner were properly and legally terminated by the Respondent No 2) was made by the State Government on 31-3-1980 It has been submitted that it was incumbent on the Respondent No. 1 to have examined the propriety or the legality of the reference just the Respondent No. 1 has exceeded its jurisdiction in holding that in view of the non - existence of the dispute when the reference was made it cannot be examined whether the termination order dated 15-4-1969 is bad in law or improper. The Respondent No. 1 has in fact questioned the competence of the State Government to make the reference when no such issue was framed. Respondent No. 1 on the pleading of the parties framed the following additional issues besides the issue regarding the validity or legality of the termination order : (1) Whether the dispute in question is not an Industrial Dispute and the Labour Court has no jurisdiction to adjudicate upon it ? (2) Whether Hindustan Academy is not an industry or commercial establishment ? (3) Whether the amending Section 2-A of the U.P. Industrial Disputes Act is not applicable to the case of the workmen in question. 6 . The Respondent No. 1 gave its finding on Issue No. 2 and held that the Respondent No. 2 is an industry. The Respondent No. 2 has not challenged this finding made in the award and would be deemed to have acquiesced into such findings and is thus stopped from agitating against the same. 7. 6 . The Respondent No. 1 gave its finding on Issue No. 2 and held that the Respondent No. 2 is an industry. The Respondent No. 2 has not challenged this finding made in the award and would be deemed to have acquiesced into such findings and is thus stopped from agitating against the same. 7. Now the controversy is only to the extent whether the award as made by the Respondent No. 1 is bad in law or not. 8. Learned counsel for the petitioner has submitted that Respondent No. 1 fell in error in not appreciating the controversy in its real intent. Respondent No. 1 while deciding Issue No. 3 as regards the non-Applicability of Section 2-A of U.P. Industrial Disputes Act to the workmen has held that it has no jurisdiction to examine the legality or validity of the reference in question. T he application of Section 2-A to the workmen has not been considered in its real perspective. By U.P. Act No. 34 of 1978 the Act was amended incorporating Section 2-A which reads as under :- "2-A. Dismissal etc. of an individual workman to be deemed to be an industrial disputes : Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute." A bare reading of this provision would clearly reveal that in the eventuality of an employer discharging, dismissing, retrenching or otherwise terminating the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge dismissal, retrenchment or termination shall be deemed to be an industrial dispute. The petitioners services were terminated in 1969 prior to the enforcement and application of Section 2-A of the U.P. Industrial Disputes Act 1947 as amended. The relevant factor would thus be whether the petitioner can take advantage of these provisions in regard to his termination. It is clear that this amending provision was not to be enforced with retrospective effect. The petitioners services were terminated in 1969 prior to the enforcement and application of Section 2-A of the U.P. Industrial Disputes Act 1947 as amended. The relevant factor would thus be whether the petitioner can take advantage of these provisions in regard to his termination. It is clear that this amending provision was not to be enforced with retrospective effect. The intention of the Legislature appears to be clear that in case after the amending provision came into force any employer discharges, dismisses, retrenches or otherwise terminates the services of a workman such dispute or difference shall be deemed to be an industrial dispute. The services of the petitioner were terminated as early as in the year 1969 and it is borne out from the record that in the year 1972 all the amounts towards compensation, provident fund etc. were paid to the petitioner who accepted it It is also not disputed that after 1972 the petitioner never raised any controversy as regards his termination. It is also true that a dispute was raised after Section 2-A came into force. Learned counsel for the petitioner has submitted that it was open to the State Government to refer the dispute to the Labour Court for adjudication. It is necessary to examine the provisions of Section 4 - which are reproduced herewith empowering the State Government to make a reference "4 - K. Reference of disputes to Labour Court or Tribunal - Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule for adjudication : Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to effect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court.". 9. 9. It has been submitted by the learned counsel for the petitioner that the State Government while making the reference was of the opinion that an industrial dispute exists in the case of the petitioner and as such had made a reference under Section 4 of the Act. Reliance has been placed upon the case of Shambhu Nath Goyal v. Bank of Baroda, AIR 1978 SC 1088 , where it has been held that factual existence in any particular specific or prescribed manner is not contemplated in the Act and that for coming into existence of an industrial dispute a written demand is not a sine qua non. The term industrial dispute connotes a real and substantial difference having some element or persistency and continuity till resolved. The State Government under Section 4-K of the Act was conferred with the power to refer the dispute only when an industrial dispute exists. The Government on the basis of the material placed before it reaches an administrative decision whether there exists an industrial dispute or not. In case it is of the opinion that the dispute exists, it can exercise its power under Section 4-K. It is not left to the Labour Court to examine closely that whether any material was there or not as it cannot determine this aspect as if determining a judicial or quasi-judicial dispute. Once it is found that an industrial dispute as defined in the Act is there, then its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide. It is not competent for the Court to examine the material on which the reference has been made or to consider the validity or the legality of the reference. The Labour Court cannot sit in appeal over a decision of the State Government. The State Government being of the opinion that the industrial dispute exists it was within its competence to refer such dispute for the adjudication of the Labour Court. 10. As has been held in the case of Sambhoo Nath Goyal v. Bank of Baroda (supra), it is clear that the Respondent No. 1 cannot exercise powers to examine the existence of an industrial dispute. But it has to be seen whether Section 2-A of the Act is attracted in the instant case. 10. As has been held in the case of Sambhoo Nath Goyal v. Bank of Baroda (supra), it is clear that the Respondent No. 1 cannot exercise powers to examine the existence of an industrial dispute. But it has to be seen whether Section 2-A of the Act is attracted in the instant case. It has been shown above that the Act was not enforced with retrospective effect. The services of the petitioner were terminated as early as in the year 1969 and entire dues accruing to him were paid by 1972 which he accepted. After a lapse of about years seeking aid of Section 2-A of the Act the petitioner has raised a dispute that the termination of his services had been illegal. It will not be open to the petitioner to seek the aid of Section 2-A of the Act and raise a dispute. Section 2-A would not in any case come to the aid of the petitioner so as to permit him to raise the dispute in regard to the termination of his services which was achieved in the year 1969. 11. Another aspect of the matter which deserves consideration is whether it would be an industrial dispute or not. To examine the existence of an industrial dispute may no doubt be beyond the jurisdiction of the Labour Court but it would be wholly within its competence to determine whether it would be an industrial dispute and can be raised by the petitioner alone. 12. An industrial dispute would connote real and substantial difference having some element of persistent and continuity till resolved. Respondent No. 1 has found as a fact that the services of the petitioner were terminated in the year 1969 and whatever dues or benefits accrued to him were paid to him in the year 1972. It is thus clear that after a lapse of years the dispute would neither be deemed to be persisting nor continuing and it was as such not an industrial dispute. 13. It is thus clear that after a lapse of years the dispute would neither be deemed to be persisting nor continuing and it was as such not an industrial dispute. 13. Learned Counsel for the petitioner has submitted that the award given by Respondent No 1 is illegal and is liable to be set aside in view of the fact that the termination of the services of the petitioner is by way of retrenchment and as conditions for a valid retrenchment have not been complied with, the retrenchment bringing about termination of services of the petitioner would be abinitio void, in view of the provisions of Section 6-N of the Act which is reproduced below : "6-N Conditions precedent to retrenchment of workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until; (a) The workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of notice : Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies the date for the termination of service ; (b) the workman has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months ; and (c) notice in the prescribed manner is served on the State Government." Admittedly one months pay in lieu of notice and provident fund was paid to the petitioner who accepted it The retrenchment compensation as provided under Section 6-N (b) has not been paid by the Respondent No 2 to the petitioner at the time when the termination of the services of the petitioner was achieved. In the case of Gammon India Ltd v. Niranjan Dass, AIR 1984 SC 500 , it has been held that where a pre-requisite for a valid retrenchment as laid down in Section 25 - F of the Industrial Disputes Act was not complied with, the retrenchment bringing about termination of service of an employee would be ab initio void. In the case of Gammon India Ltd v. Niranjan Dass, AIR 1984 SC 500 , it has been held that where a pre-requisite for a valid retrenchment as laid down in Section 25 - F of the Industrial Disputes Act was not complied with, the retrenchment bringing about termination of service of an employee would be ab initio void. In the instant case it is clear that the retrenchment of the petitioner was neither valid nor legal and in accordance with law as the petitioner was not paid compensation as provided. The provisions of the Act provide for the raising of an industrial dispute in regard to the discharge, dismissal or termination of the services of a workman but as has been shown above no industrial dispute was raised and it was only after 6 years that seeking the aid of Section 2-A of the Act an industrial dispute was raised by the petitioner. Respondent No. 1 has found that there was no industrial dispute in the year 1979 as such dispute had ended in the year 1972. However, compensation (Sic) was awarded by Respondent No. 1. 14. Learned counsel for the petitioner has submitted that this Court is competent to examine the validity and propriety of the award. It is very difficult to agree to such submission. In the case of Gujarat Steel Tubes Ltd. v. Gujarat Tubes Mazdoor Sabha ( 1980 40 FLR 152 ). It has been held by the Supreme Court that an error or a wrong order cannot be righted merely because it is wrong while exercising jurisdiction under Article 226 of the Constitution of India The order sought to be challenged can be quashed if it is vitiated by an error of law on the face of the order, jurisdictional incompetence, perverse misreading of facts or absence of legal evidence. The learned counsel for the petitioner has failed to satisfy that the findings recorded by Respondent No. 1 are perverse or that they are contrary to the provisions of law resulting in miscarriage of justice. The learned counsel for the petitioner has failed to satisfy that the findings recorded by Respondent No. 1 are perverse or that they are contrary to the provisions of law resulting in miscarriage of justice. Respondent No 1 on the basis of the material produced as well as taking into account the evidence which was adduced before him found that it is difficult to hold that the termination of the services of the petitioner was illegal or without any jurisdiction Such conclusions arrived at by Respondent No. 1 do not smack of any illegality and in fact have been arrived at reasonably. Further the procedure adopted by Respondent No 1 was neither unfair nor contrary to the requirements of law nor any procedural irregularities have been committed by Respondent No. 1. The respondent No. 1 was seized with the matter and is the sole judge of the fact and if there had been some legal evidence on which such findings can be based the adequacy or reliability of that evidence cannot be permitted to be canvassed before this Court in the proceedings for issuing a writ under Article 226 of the Constitution. Undoubtedly the jurisdiction under Article 226 is too wide in examining the order passed by Respondent No. 1 but at the same time such jurisdiction has to be exercised with great circumspection. The Court cannot constitute itself into an appellate court while exercising jurisdiction under Article 226 of the Constitution, to examine the order passed by Respondent No - 1 and re adjudicate the issue or the questions of fact decided by the Labour Court. In the matter of dispute between Sadhu Ram and Delhi Transport Corporation, 1962 5 FLR 2 to 3 SC, it has been held that the jurisdiction under Article 226 of the Constitution has to be exercised with caution and not as an appellate forum. It has further been held that it will not entitle the High Court to interfere with the findings on the jurisdictional fact which the Tribunal is well competent to decide. It has further been held that it will not entitle the High Court to interfere with the findings on the jurisdictional fact which the Tribunal is well competent to decide. The Supreme Court in the case of Mahendra Singh Dantwal v. Hindustan Motors Ltd. and others, (1976) 33 FLR 67 SC, held that it may not always be open while exercising to pierce the veil of the order passed by the Labour Court/Tribunal and have a close look at all the circumstances and come to a decision as regards the fact that the order was passed on sketchy evidence. This is a finding of fact which cannot be interfered with under Article 226 of the Constitution unless the conclusion is perverse. It is thus settled that the scope of interference with the findings of the Labour Court is much more restricted and so when such findings of fact have been recorded by the appropriate forum (Labour Court). In the case of M/s. Khushi Ram Bihari Lal and Co. v. Assessing Authority Sanoru and others, AIR 1979 SC 2372. It has been held that the findings arrived at by the respondent can be interfered with only if they are based upon no evidence or based upon extraneous or other perverse finding Nothing has been shown which may prompt me to arrive at a different conclusion. It is not possible in view of the circumstances of the case where the petitioner has been negligent to pursue his remedy for 61 years to grant reliefs claimed. But it is a fit case where some additional amount may be in the form of extra compensation besides the retrenchment compensation is awarded to the petitioner. Respondent No. 2 failed to pay the retrenchment compensation as enjoined in Section 6-N (b) of the Act to the petitioner in 1969. It was only in the year 1982 when Respondent No 1 awarded retrenchment compensation. Considering that interest on the retrenchment compensation, had it been paid in 1969, would have yielded an amount of Rs. 5000/- the petitioner deserves to be paid suitable extra-Compensation which is quantified at Rs. 5000/- . 15. In view of the above discussion I find that Respondent No. 1 has not committed any illegality or procedural irregularity warranting interference by this Court and the petition thus deserves to be dismissed 16. 5000/- the petitioner deserves to be paid suitable extra-Compensation which is quantified at Rs. 5000/- . 15. In view of the above discussion I find that Respondent No. 1 has not committed any illegality or procedural irregularity warranting interference by this Court and the petition thus deserves to be dismissed 16. In the result the petition fails and is hereby dismissed No order as to costs. However, Respondent No. 2 is hereby directed to pay Rs. 5000/- As extra compensation to the petitioner in addition to the compensation awarded by Respondent No. 1 within a month from today. On the failure of Respondent No. 2 to pay the amount of Rs. 5000/- to the petitioner, the amount shall be recovered as fine and paid to the petitioner.