Food Corporation Of India v. Union Of India — 1996 DIGILAW 271 (PAT)

Judgment J. N. Dubey, J. 1. -this writ petition is directed against the award dated 6th April, 1992 of the respondent No.2, the Presiding Officer, Central Government Industrial Tribunal No. II, Dhanbad. 2. It appears that the respondent no.3, Amod Kumar, raised an industrial dispute which was referred by the Government of India under Sec.10 (1) (d) of the Industrial Disputes Act, 1947, to the respondent No.2 on 8th february 1990. The case of the respondent no.3 was that he was appointed as typist on casual basis by the management of petitioner No.1, the Food Corporation of India, on 26th December, 1981. On 9th November, 1982 the Unit manager took up the matter with the regional Office for his posting against the sanctioned post of Typist on the ground that he has already worked for more than 240 days in a calander year. While the services of most of the casual employees were regularised under the orders of the Zonal Manager, his services were not regularised. On the other hand on 12-9-1985 the Unit Manager stopped him from working. He approached the concerned authorities for his reinstatement and regularisation but without success and having no alternative he raised the labour dispute. 3. On the other hand, the case of the petitioner corporation was that the respondent No.3 was never appointed a typist by the management of corporation and that the Unit Manager has no power to appoint a Typist which was class III post. It was further contended that in rush of work casual workers were engaged to run the rice mill but the office work was being done by the permanent staff and, therefore, there was a occasion to appoint any casual Typist. The respondent No, 3 did not work for 240 days continuously in any calander year and, as such, he was not entitled for any relief. Respondent No.2 after considering the case of the parties came to the conclusion that the claim of respondent No.3, that he was legally appointed on the post of Typist, was not correct and that he was a mere casual labour and, therefore, the fact that he also did the typing work now and then was of no help to him. Respondent No.2 after considering the case of the parties came to the conclusion that the claim of respondent No.3, that he was legally appointed on the post of Typist, was not correct and that he was a mere casual labour and, therefore, the fact that he also did the typing work now and then was of no help to him. He further came to the conclusion that the respondent no.3 has worked for more than 240 days continuously in a calander year, therefore, he could not be legally stopped from working in this manner and declared that the management was not legally justified in terminating his services with effect from 12-9-1985. He accordingly, directed the management to reinstate the respondent No.3 and regularise him with effect from 12-9-1985 in class IV with 50% back wages. Feeling aggrieved the corporation has approached this court for relief under article 226 of the Constitution. 4. Heard the learned Counsel for the parties and perused the record. 5. Learned Counsel for the petitioners contended that the respondent no.2 was not legally justified in ordering reinstatement of the respondent no.3 in regular class IV scale after holding his appointment on the post of typist as illegal. According to him the finding of the respondent No.2 that the respondent No.3 had completed 240 days of continuous service in a calander year and, as such, his services could not be terminated without complying with the provisions of section 25-F of the act, is wholly wrong and erroneous. He further contended that in absence of any reference regarding the regularisation of the services of the respondent No.3, the respondent No.2 was not legally justified in directing regularisation of his services with effect from 12-9-85. According to the learned counsel the direction regarding regularisation of the service was beyond the scope of the reference and, therefore, this part of the award is wholly without jurisdiction. On the other hand, learned counsel for the respondent No.3 contended that there was sufficient materials on record to prove that the respondent No.3 had completed 240 days of continuous service in a calander year and, therefore, respondent No.2 was perfectly justified in declaring that his services were illegally terminated. On the other hand, learned counsel for the respondent No.3 contended that there was sufficient materials on record to prove that the respondent No.3 had completed 240 days of continuous service in a calander year and, therefore, respondent No.2 was perfectly justified in declaring that his services were illegally terminated. He further contended that the regularisation of the services of the respondent No.3 was the direct consequence of his reinstatement and, as such, it could not be legally claimed that this part of the award was beyond the scope of the reference. Learned counsel also contended that the substantial justice has been done between the parties and, as such, even assuming that the award is not very happily worded on some aspect of the case, it was not a fit case for interference by this court under Articles 226 of the Constitution. 6. Having considered the argument of the learned Counsel for the parties I am of the view that while the opposite party No.2 was perfectly justified, on the facts and materials on record, to order reinstatement of the respondents no.3, he was not justified in ordering regularisation of his services. It is true that in paragraph 13 of the award, where the respondent No.2 has considered the case of respondent No.3 continuously working for 240 days in a calander year, he has not specifically held that the petitioner had worked for 240 days continuously in any particular calendar year, but if this paragraph is read along with paragraph 10 of the award the findings of the respondent no.2 in this regard cannot be considered to be erroneous. Reading the award as a whole and considering ext. I and ext.2 it cannot be reasonably claimed that the respondent No.3 had not worked continuously for 240 days in any calander year. Moreover, even assuming that the award is not very happily worded in this aspect of the case and two opinions are possible it will not justify interference by this court under article 226 of the Constituion. I and ext.2 it cannot be reasonably claimed that the respondent No.3 had not worked continuously for 240 days in any calander year. Moreover, even assuming that the award is not very happily worded in this aspect of the case and two opinions are possible it will not justify interference by this court under article 226 of the Constituion. It is now well settled that a finding of fact cannot ordinarily be interfered by this court in its writ jurisdiction and, therefore, this part of the award cannot be disturbed but the same does not hold good for the later part of the award in which he has directed for regularisation of the services of the respondent No.3 in class IV pay scale. In this connection it is relevant to have an idea of the reference made under Sec.10 (1) (d) of the Act. The dispute referred for decision was whether the action of the Management of Food Corporation of India, Patna in terminating the services of Sri Amod kumar, w. e. f.12-9-85 is justified If not, to what relief the workman concerned is entitled? A plain reading of the reference shows that respondent no.2 was directed to decide whether the Corporation was justified in terminating the services of the respondent no.3, w. e. f.12-9-85. Since in view of the fact that in the reference respondent no.2 was required only to decide the legality of the order of termination of the Respondent No.3, in my view, he was not legally justified in ordering regularisation of his services. The claim of the respondent No.3, that regularisation was a direct consequence the reinstatement of respondent No.3, is not correct. Neither the dispute regarding regularisation of the services of the respondent No.3 was referred by the government of Indian to the respondent No.2 for decision nor has it been considered by him seriously in the award. It is only in the operative portion of the award while ordering reinstatement of the respondent No.3 he has also directed for regularisation of his services. This part of the award is not only illegal but beyond the scope of the reference made under Sec.10 (1) (d) of the Act. 7. Learned counsel for the respondent No.3 has invited my attention to a division Bench decision of this Court in c. W. J. C. No.9141 of 1992, the Management of U. Co. This part of the award is not only illegal but beyond the scope of the reference made under Sec.10 (1) (d) of the Act. 7. Learned counsel for the respondent No.3 has invited my attention to a division Bench decision of this Court in c. W. J. C. No.9141 of 1992, the Management of U. Co. Bank and others V/s. The central Government Industrial Tribunal and others, in which it was held that the industrial Tribunal while ordering reinstatement can also order regularisation of the service. In my opinion this decision is of no help to the respondent no.3. In order to appreciate this aspect of the case the relevant portion of the order is quoted below: "before we deal with the contentions raised in support of the petitioners, we may point out that there is some impression in the minds of some persons that the writ court has unlimited power which is misconceived. It is well settled that the writ court is not an appellate Court. It cannot correct any error of fact but it can correct only errors of law. The writ court cannot appraise the evidence and writ court cannot function as a court of appeal in respect of any such award. After going through the award it is quite clear that the findings of the Tribunal on the merits were findings of fact, i. e. whether the respondent No.3 was employed and on what basis and whether he was paid in different names. These are matters of fact and the tribunal have proceeded accordingly. Even if there has been any error of fact that would have been beyond the jurisdiction of the writ court to examine or to interfere. However, there has been no such error of facts. On the question as to whether this relief regarding regularisation can be given or not, having regard to the terms of reference we are of the view that it was open to the Tribunal to give such relief. It is to be remembered that the second part of the order of reference deals with the question of reliefs. Further, his termination was in the year 1987 and the settlement was in the year 1989. It is to be remembered that the second part of the order of reference deals with the question of reliefs. Further, his termination was in the year 1987 and the settlement was in the year 1989. If the termination is illegal, as it has been held, the relief has to be given on the basis that no such termination of service ever took place and that the workman was all along in service. If that is so, it is in between 1987, that is, the date of illegal termination, and the date of award there is any provision, which the workman would have been otherwise entitled if he had remained in service, there is no reason why if the wrongful termination is set aside he could not be given relief on the basis that he had all along been in service. We do not find any merit in the contention sought to be raised on behalf of the nationalised Bank in this regard. We are of the view that the order of the Tribunal on facts is not erroneous and the order passed and relief granted are not beyond the power of the Tribunal. " 8. From the above I find that the division Bench decision is in two parts : first part relates to the power of this court under Articles 226 of the constitution, while the other relates to the power of the Industrial Tribunal to order regularisation of services of a workman in a reference in which he was called upon to decide whether the action of the employer terminating the services of the workman was justified. I respectfully agree with the division Bench so far scope of writ jurisdiction is concerned but I am unable to agree with the view that the Industrial Tribunal was competent to direct regularisation of services of a workman in such cases. Firstly in my opinion the Division Bench has not recorded any considerate opinion on this aspect of the case and merely observed that the second part of the order of reference deals with the question of relief. I am unable to understand the exact impact of this observation. The reference in that case was whether the action of the management in terminaling the services of the workman was justified? If not, to what relief was the concerned workman entitled? I am unable to understand the exact impact of this observation. The reference in that case was whether the action of the management in terminaling the services of the workman was justified? If not, to what relief was the concerned workman entitled? Thus, the question of regularisation of service of the workman was not specifically covered either by the first or second part of the reference. In this view of the matter it could not be reasonably said that the relief of regularisation of service was covered by the second part of the reference. As a matter of fact the division Bench has also not said so in so many words. 9. The Division Bench has also not held that the question of regularisation was covered by the question of relief. As a matter of fact such interpretation was not possible. However, if such-considered opinion was expressed by the division Bench I would have been bound by it and would have referred this case to larger Bench in the event of my disagreement with it. But in view of the fact that the Division Bench instead of recording any such considered opinion had merely held that the Industrial tribunal was competent to grant the relief of regularisation. Such conclusion would be confined to the facts of that case and cannot be a precedence for other cases. Moreover this case is also distinguishable on facts. In that case services of the workman were terminated in 1987 and there was some settlement under which services of other similarly situated workman were regularised, and, therefore, the Division Bench had held that but for his illegal termination his services would have been also regularised under the settlement which is not possible in this case. 10. Reinstatement of the workman on the finding that his termination from the service was illegal and regularisation of his services are two different prepositions. One may be entitled for reinstatement on the ground that having worked continuously for 240 days in a calander year his services could not be terminated without notice under Sec.25-F of the act, yet may not be entitled for regularisation of his services. The services of a workman can be regularised by the management on his fulfilling certain conditions. Thus, in other words, it is the management who has to consider whether the workman fulfils the conditions required for regularisation of service. The services of a workman can be regularised by the management on his fulfilling certain conditions. Thus, in other words, it is the management who has to consider whether the workman fulfils the conditions required for regularisation of service. Admittedly, in this case the management had no occasions to consider the question of regularisation of services of respondent no.3 and, therefore, it could not be said that it committed any illegality in not regularising his services. Neither the Industrial Tribunal was legally competent to record finding that the respondent No.3 fulfilled all the conditions necessary for regularisation of his services nor has it done so. The Industrial Tribunal without considering the question of regularisation of services of the respondent No.3 in accordance with law has merely directed in the operative portion of the award for regularisation of his services, which is not legally permissible. Respondent no.3 could not be legally granted any relief other than one which was direct consequence of the finding that the action of the petitioner in terminating the services of respondent No.3 was not justified, which could not be extended beyond his reinstatement on the post he was working at the time of termination of his services. 11. In the result the writ-petition succeeds and is allowed in part. The award of the respondent No.2 so far it relates to the regularisation of services of respondent No.3 in class IV scale is quashed. No order as to costs. Petition Partly Allowed.