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2008 DIGILAW 515 (RAJ)

Amar Chand v. Judge, Labour Court

2008-02-19

MAHESH CHANDRA SHARMA

body2008
JUDGMENT : 1. - By way of this writ petition the petitioner has prayed that the award dated January 6, 1997 passed by the learned Labour Court, Ajmer be quashed and set aside. He has also prayed for reinstatement of the petitioner in service with full back wages and also prayed, for other appropriate order or direction to this Court. 2. The petitioner has set up his case that he was employed in the Unit Cattle Feed Plant, Tabiji, Ajmer from April 8, 1985. Appointment letter was issued on April 13, 1985. From time to time various orders were passed assigning work in various departments. E.S.I. Provident Fund Contributions were deducted regularly. 3. The petitioner also filed a case before authority under the Payment of Wages Act.The matter of the petitioner was taken up by Conciliation Officer and ultimately failure report was sent by him. Thereafter the State Government referred a dispute for adjudication to Labour Court, Ajmer. 4. The petitioner set up his case before the Labour Court, Ajmer that he did work from April 8, 1985 to September 21, 1988 i.e. more than 240 days but the services were terminated without notice, pay or compensation and without following the provisions of Industrial Disputes Act, 1947. 5. On the other hand the respondents has set up his case before the Labour Court, Ajmer that the petitioner was appointed on December 9, 1985 to March 9, 1986. He was again appointed from April 9, 1986 to April 30, 1986, May 1, 1986 to July 15, 1986, July 18, 1987 to August 1, 1987 and August 10, 1987 to October 6, 1987. It was also stated that the petitioner did not work after October 6, 1987 and that the appointment was on daily wages, therefore covered by Section 2(oo)(bb) of the Industrial Disputes Act and not by Section 25-F. It was also stated that the petitioner did not work for 240 days.The petitioner filed a rejoinder and controverted all the facts of the respondents. 6. The learned Labour Court after recording the statements and on the basis of documents submitted by both the parties decided the matter vide his award dated January 6, 1997 and held that Section 2(oo)(bb) was attracted, therefore, the termination is neither illegal nor violative of Section 25(f) of the Industrial Disputes Act, 1947. 7. 6. The learned Labour Court after recording the statements and on the basis of documents submitted by both the parties decided the matter vide his award dated January 6, 1997 and held that Section 2(oo)(bb) was attracted, therefore, the termination is neither illegal nor violative of Section 25(f) of the Industrial Disputes Act, 1947. 7. The learned counsel for the petitioner has submitted the same arguments which he has submitted before the learned Labour Court, Ajmer. On the contrary, on behalf of respondents Mr. Reashem Bhargava has appeared and cited the judgment decided by the Division Bench of this Court in Vinod Kumar v. Director, Mahila Bal Vikas Rajasthan, Jaipur and Others, Western Law Cases (Raj.) UC 2006 Page 382 decided on September 6, 2005 which reads asunder : "As is apparent from reading the over-all statement of workman in which he has admitted in cross-examination that he was appointed on the establishment through contractor and the contractor's contract came to an end and his services also came to an end. The termination of services of the workman under contract clearly brings the case of the workman within the exception of the term retrenchment carried out in sub-clause (bb) of Clause (oo) of the Industrial Disputes Act, 1947. Since the termination did not fall within the purview of retrenchment, it cannot be said that the condition of valid retrenchment as envisaged under Chapter A of the Act of 1947 have been violated. 11. There being no dispute about the fact as apparent from reading the overall statement of workman in which he has admitted in cross-examination that he was appointed on the establishment through contractor and the contractor's contract came to an end and his services also came to an end. The termination of services of the workman under contract clearly brings the case of the workman within the exception of the term retrenchment carried out in sub- clause (bb) of Clause (oo) of the Industrial Disputes Act, 1947. Since the termination did not fall within the purview of retrenchment, it cannot be said that the condition of valid retrenchment as envisaged under Chapter A of the Act of 1947 have been violated." 8. Since the termination did not fall within the purview of retrenchment, it cannot be said that the condition of valid retrenchment as envisaged under Chapter A of the Act of 1947 have been violated." 8. The learned counsel for the respondents has also relied upon the judgment of Hon'ble Supreme Court passed in U.P. State Co-operative Land Development Bank Ltd. v. Taz Mulk Ansari and Others, 1994 Supp (2) SCC 745 : 1998-III-LLJ-666 decided on October 11, 1993 which reads as under : "Labour Law - Termination - Ground for - Expiry of term of employment - Termination, thereafter held on facts, valid - No notice required in such case - Mere service of 240 days in a year does not entitle a daily-rated workman to regularisation - Respondent-workmen employed every time for a spell of three months and their last employment was for 17 days only - Held, no notice of termination was necessary - U.P. Industrial Disputes Act, 1947, Section 6-N, Clause (a) - Industrial Disputes Act, 1947, Section 2 (oo), Clauses (bb) and 25-F (Paras 2 and 3). 2. In view of the fact that workmen were engaged under an agreement for a specified period, their case is covered by the proviso to Clause (a) of Section 6-N of the U.P. Industrial Disputes Act, 1947. In view of this, it is unnecessary to go into the question as to whether the provisions of the Central Act or of the State Act would apply in the present. The High Court by the impugned order has granted regularisation of the workmen on the ground that the workmen had put in more than 240 days as daily-rated employees in a year. There have since been decisions of this Court which have taken the view that mere service of 240 days in a year does not entitle a workman to regularisation of his employment. 3. It is an admitted fact that the respondent-workmen had earlier appeared before the Selection Board and had failed in the selection. Thereafter, they approached the High Court by the present writ petition, and the High Court granted them regularizations in service on the only ground that they had put in more than 240 days of service in a year. The undisputed record shows that the respondent-workmen were every time employed at a time for only three months and their last employment was only for 17 days. The undisputed record shows that the respondent-workmen were every time employed at a time for only three months and their last employment was only for 17 days. Their service was to come to an end on the expiry of the said 17 days. In view of the proviso to Clause (a) of Section 6-N no notice for terminating their service was necessary. The termination of their services is, therefore, valid. In this view of the matter, the appeal is allowed, and the decision of the High Court is set aside. In the circumstances of the case there will be no order as to costs." 9. This Court on February 13, 2008 in the matter of Kishan Gopal Sharma v. Jaipur Central Co-operative Bank Ltd and Others had decided the matter after considering the case decided by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) No. 423/1997, Management, Bharatpur Nutritional Products Ltd. v. Ishwar Chand and in D.B. Civil Special Appeal (Writ) No. 422/1997 Management, Bharatpur Nutritional Products Ltd. v. State of Rajasthan, has considered the case decided by the Hon'ble Supreme Court. 10. Having carefully scanned the impugned order, I notice that all the contentions raised before me were analyzed and considered in great details by the Labour Court. The scope of supervisory jurisdiction was explained by the Supreme Court in Sadhana Lodh v. National Insurance Company Limited, AIR 2003 SC 1516 : (2003)3 SCC 524 which runs in (para-7) : "The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision." 11. I have heard learned counsel for the parties. The wide jurisdiction conferred under Article 226 has to be exercised with great circumspection. I have heard learned counsel for the parties. The wide jurisdiction conferred under Article 226 has to be exercised with great circumspection. The High Court cannot constitute itself into an appellate Court over Tribunals. Article 226/227 is a device to secure and advance justice and not otherwise. In a case of this nature, it is true, the High Court exercising the power of judicial review, would not interfere with the discretion of a Tribunal unless the same is found to be illegal or irrational. In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is very limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of record or when the finding of facts of the Tribunal is wholly perverse. It is also a settled law that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate Tribunal. It does not review the evidence upon which the inferior Tribunal proposed to base its conclusion, it simply demolished the order which it considers, to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior Tribunal. 12. In the present matter, I do not find any jurisdictional error, perversity and illegality in the award passed by the Labour Court. The finding of the Labour Court is based on the basis of material placed before him. There is no error apparent in the face on record. I, therefore, do not find any justification to interfere with the award. In my view the writ petition does not call for any interference. The same is, therefore, dismissed with no order as to costs.Appeal dismissed *******