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1998 DIGILAW 137 (RAJ)

Executive Engineer, Garhi v. Kalia

1998-01-29

B.S.CHAUHAN

body1998
JUDGMENT : 1. The instant petition has been filed against the award of the Labour Court, Udaipur dated 21.1.92 contained in Annexure 7 to this writ petition, by which the oral termination/retrenchment of the respondent No. 1 dated 1.7.87 had been declared illegal, as there had been non-compliance of the provisions of the Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred as "the Act"). 2. The facts of the case, as revealed by the record of the writ petition, are that respondent No. 1 Kalia had claimed to have worked on the post of Beldar from 1.2.85 to 30.6.87 with the petitioner and his services were terminated on 1.7.87 without complying with the provisions of Section 25-F of the Act. Reference was made to the Labour Court under Section 10 of the State and the Labour Court recorded the following findings of facts after examining the service record of the respondent No. 1 and considering the depositions made by the officers of the petitioner:- (i) That the respondent No. 1 was employed as Beldar on 1.2.85 and worked till 30.6.87; (ii) His services has been terminated without adherence to the provisions of Section 25-F of the Act, 1947; and (iii) The respondent No. 1 had been transferred from one branch to another during the said period but being different branches of the same department, it cannot be termed as service in different establishments and, thus, while considering the period of service rendered by the workman for the purpose of Section 25-F of the Act, the whole period served by the workman in different branches has to be clubbed. The said findings have been recorded giving all the details as per the service record of respondent No. 1 as is evident from the impugned Award itself. 3. After recording the said finding, the Labour Court declared the termination illegal and directed to re-instate the workman with 50% of the back wages and, also, awarded a sum of Rs. 500/- as the costs. Being aggrieved, the petitioners have preferred this petition. 4. Mr. Tatia, learned counsel for the petitioner, has submitted that the workman had not completed 240 days in a calendar year in any one establishment and, thus, the provisions of Section 25-F of the Act are not at all attracted. 500/- as the costs. Being aggrieved, the petitioners have preferred this petition. 4. Mr. Tatia, learned counsel for the petitioner, has submitted that the workman had not completed 240 days in a calendar year in any one establishment and, thus, the provisions of Section 25-F of the Act are not at all attracted. In view of the findings of facts recorded by the Tribunal that the workman had worked for 240 days in a calendar year in different branches of the same establishment the argument is not tenable. If the petitioners are permitted to agitate the issue that the workman has to complete 240 days in one calendar year in one particular branch of the same establishment then it will give an arbitrary power to the employer to transfer the workman from one branch to another and defeat the provisions of the statute. Such an interpretation is not permissible. 5. In State Bank of India v. N. Sundramani, AIR 1976 SC 1111 the Hon'ble Apex Court has observed that statutory construction particularly in a case of "welfare legislation that an economic justice bias cannot turn on cold printed glorified as grammatical construction but on termininological purpose and protective intendment..... while a Court considers a case under the provisions of Section 25-F of the Act, Section 25-B and Section 2(oo), the Courts cannot go haywire in interpreting the provisions, ignoring the text and the context." 6. The same view had earlier been taken subsequently by the Supreme Court in State of Bombay v. The Hospital Mazdoor Sabha, AIR 1960 SC 610 . 7. It is next submitted by Mr. Tatia that in order to give benefit of the provisions of Section 25-F, the Court has to be satisfied that the workman had completed 240 days in a calendar year and the workman had not completed the said period in this case. The submission is preposterous as the period of 240 days is to be seen within one year backwards from the date of retrenchment. In the instant case, the termination order was passed on 1.7.87. Thus, the only relevant issue is whether workman had worked for 240 days between 1.7.1986 and 30.6.1987. The submission is preposterous as the period of 240 days is to be seen within one year backwards from the date of retrenchment. In the instant case, the termination order was passed on 1.7.87. Thus, the only relevant issue is whether workman had worked for 240 days between 1.7.1986 and 30.6.1987. This period will also include the period of service if interrupted on account of sickness or authorised leave or strike which is not illegal or a cessation of work which is not due to any fault on the part of workman. Even if a workman has worked only for a total period of ten months but completed 240 days, on work, he would be deemed to complete the requirement of working for 240 days in a calendar year. Sundays and paid holidays to be taken into account. (Vide Surender Kumar Verma v. Central Govt. Industrial-cum-Labour Court, AIR 1981 SC 422 ; Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., AIR 1981 SC 1253 ; L. Robert D'Souza v. Executive Engineer, AIR 1982 SC 854 ; H. Mohan Rastogi v. Labour Court, AIR 1984 SC 502 ; Workman of American Express International Bank Corporation v. Management of American Express International Bank Corporation, AIR 1986 SC 458 . 8. Section 25-F is meant to safeguard the interest of the employees. The statutory requirement of payment of compensation is a condition precedent for the retrenchment of workman and any termination without payment would render the retrenchment order invalid and inoperative. (Vide Management K.S.R.T.C. v. M. Baraith, AIR 1983 SC 1320 ) . 9. Shri Tatia could not point out as to in what manner and by what calculation the workman-respondent could not complete the requisite period of 240 days in a calendar year. Thus, there is no substance in this argument. 10. Moreover, this petition has been filed under Articles 226 and 227 of the Constitution of India. This Court has a very limited scope of interference in exercise of its powers under Articles 226 and 227 of the Constitution of India as per the law laid down in Mohammand Yanus v. Mohammed Mustaqim, AIR 1984 SC 38 , wherein it has been held that even the errors of law cannot be corrected in exercise of revisional jurisdiction under Article 227 of the Constitution. This Court must exercise its powers under Article 226 or 227 of the Constitution sparingly when it comes to the conclusion that the Court below has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For intervention, there must be a case of flagrant abuse of fundamental principle of law or justice or where order of the Court below has resulted in grave injustice. (Vide D.N. Banerji v. P.R. Mukherjee, AIR 1953 SC 58 ; Nagendra Nath Bora v. Commissioner Hills Division, AIR 1958 SC 398 ; Bibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya v. The State of Bihar, AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 ; Laxmikant R. Bhojwani v. Pratap Singh Mohan Singh Pardeshi, 1995 (6) SCC 576 ; Reliance Industries Ltd. v. Pravinbhai Jasbhai, 1997 (7) JT 618 and M/s Pepsi Food Ltd. v. S.J. Magistrate, 1997 (8) JT 705 . 11. Thus, in view of the above, I find no force in the petition and the same is dismissed with costs, which is quantified at Rs. 1,000/- (Rupees one thousand). The interim orders, if any, stand discharged.Petition dismissed.