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2016 DIGILAW 445 (RAJ)

Patel Roadways Ltd. , Bhiwari v. Surendra Kumar

2016-03-28

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerendr Singh Siradhana, J. Aggrieved of the award/order dated 14.5.2007 passed by Labour Court and Industrial Tribunal, Alwar while answering the reference in positive and in favour of the respondent-workman holding him to be a 'workman' and further declaring termination of his employment vide order dated 12.5.2001, as illegal and invalid; the petitioner-employer has approached this Court praying for the following reliefs:- "(1) By an appropriate writ, order or direction the entire record pertaining to this case may kindly be called for and examined. (2) By an appropriate writ, order or direction the impugned order dated 14.5.2007 given by the Labour Court and Industrial Tribunal, Alwar may kindly be quashed and set aside and consequently the impugned retrenchment order dated 12.5.2001 may kindly be upheld. (3) By an appropriate writ, order or direction any other appropriate relief to which the petitioner is found entitled to may also kindly be granted in his favour." 2. Shorn of unnecessary details, the essential skeletal material facts necessary for adjudication of the controversy are that the respondent-workman aggrieved of his retrenchment order dated 12.5.2001, raised an industrial dispute leading to reference by the appropriate Government. On an analysis of the pleadings of the parties, the evidence adduced and materials available on record, the Labour Court-cum-Industrial Tribunal, Alwar (for short 'the Tribunal') made the impugned award dated 14.5.2007. The Tribunal recorded a specific finding for violation of Section 25-F and 25-G of the Industrial Disputes Act (for short 'Act of 1947). 3. Learned counsel for the petitioner-employer, Mr. Rajeev Surana with Mr. Hemant Taylor, reiterating the pleaded facts and grounds of the writ application, has raised two fold submissions while assailing the legality, validity and correctness of the impugned award. Firstly, for the respondent-workman was appointed in a supervisory capacity, and therefore, he was not a 'workman' within the meaning of Section 2(s) of the Act of 1947. Secondly, since the petitioner employer was operating on all-India basis and had its centers throughout the country, therefore, the matter should have been raised before the Central Industrial Tribunal. 4. Per contra; Mr. Aatish Jain while supporting the impugned award vehemently argued that the findings arrived at by the Tribunal on the basis of pleadings of the parties and evidence adduced are not open for re appreciation by this Court in exercise of writ jurisdiction. 4. Per contra; Mr. Aatish Jain while supporting the impugned award vehemently argued that the findings arrived at by the Tribunal on the basis of pleadings of the parties and evidence adduced are not open for re appreciation by this Court in exercise of writ jurisdiction. Learned counsel would further submit that the Tribunal recorded a specific finding as to violation of mandate of Section 25-F so also 25-G of the Act of 1947 for the respondent-workman was in employment of the petitioner-employer for 4 years 7 months and 12 days. Therefore, he ought to have been paid an amount of Rs. 7614/- as retrenchment compensation which would be equivalent to 75 days average pay whereas amount of retrenchment compensation paid was admittedly Rs. 3506/- and thus violation of Section 25-F is apparent on the face of record. Further, the witness who appeared on behalf of petitioner-employer also admitted the fact, in his cross-examination, that junior workman to the respondent workman namely; Daud Ali Kureshi was retained while terminating the employment of respondent-workman. The fact that another junior person namely; Murgan Swami was also retained at Jhandewala Branch of the establishment is also not disputed as would be evident by the findings arrived at by the Tribunal on the basis of appreciation of evidence and the materials available on record. In support of his stand, the learned counsel has relied upon the opinion of the Hon'ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi v. M/s Hindalco Industries Ltd: 2015 (1) RLW 208 (SC); Mackinon Mackenzie & Company Ltd. v. Mackinnon Employees' Union: 2015 (145) FLR 184; and M.P. State Textile Corporation Ltd. v. Mahendra & ors.: (2005) 10 SCC 675 . 5. I have heard the learned counsel for the parties and with their assistance carefully perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 6. Indisputably, the engagement of the respondent workman as Clerk on 1.10.1996 is not in dispute. Further, the employment of respondent-workman was put to an end vide order dated 12.5.2001, is also not disputed. The Tribunal on an analysis of the pleadings of the parties, materials available on record and evidence adduced, recorded its finding as to violation of the mandate of Section 25-F and 25-G of the Act of 1947. 7. Further, the employment of respondent-workman was put to an end vide order dated 12.5.2001, is also not disputed. The Tribunal on an analysis of the pleadings of the parties, materials available on record and evidence adduced, recorded its finding as to violation of the mandate of Section 25-F and 25-G of the Act of 1947. 7. The argument which has been more asserted on behalf of the employer-petitioner is that the respondent-workman was a 'supervisor', and therefore, was not covered within the ambit of definition of 'workman' under Section 2(s) of the Act of 1947. The plea prima facie appears to be misconceived in the face of the finding arrived at by the Tribunal, but for the statement made as to his engagement as supervisor; there is neither any material nor any order was brought on record to substantiate the factum of appointment of the respondent-workman as ‘Supervisor’. Furthermore, Exhibit W-1 and W-3, proved the fact beyond any doubt that the respondent-workman was appointed as a Clerk. 8. The remedy ought to have been availed of by the respondent-workman before the Central Industrial Tribunal, is another argument raised while assailing the legality and validity of the impugned award. No such ground has been pleaded in the writ application. Be that as it may, the jurisdiction with reference to the appropriate Government has been specifically provided under the Act of 1947 as would be evident from the definition clause wherein under Section 2(a) of the Act of 1947, defines the 'appropriate Government' which means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government. The petitioner employer's establishment is not covered under the definition clause (a) of Section 2 of the Act of 1947. Thus, the argument raised is without any factual foundation and is hereby rejected. 9. In the case of Mackinon Mackenzie & Company Ltd. (supra) the Hon'ble Apex Court of the land reiterating the principles of "last come first go" observed that the provision has to be strictly construed. It will be relevant to consider the text of paragraph 40, 41 which reads thus: "40. 9. In the case of Mackinon Mackenzie & Company Ltd. (supra) the Hon'ble Apex Court of the land reiterating the principles of "last come first go" observed that the provision has to be strictly construed. It will be relevant to consider the text of paragraph 40, 41 which reads thus: "40. We are of the opinion that the High Court has rightly held that the ratio of the said case cannot be disputed, however, the facts of that case and facts of the case on hand are totally different. In Om Oil & Oil Seeds Exchange case (supra), it was established by the employer that the clerk working in a particular branch of the business had shown particular aptitude performance and considering the said performance and his expertise, the management felt in the interest of business to retain him though he is junior to other retrenched workmen, therefore, the same was held to be valid in law. The High Court has rightly held in the impugned judgment and order that in the instant case, the Appellant-Company had not adduced any such evidence or reasons of justification for retaining the junior workmen to the retrenched workmen. The reason assigned by the Appellant-Company is considered by the Industrial Court and held that there was a clear breach of Section 25G of I.D. Act read with Rule 81 of Bombay Rules in not following the principle of 'last come, first go'. The legal principle laid down in this aspect in the case of Workmen of Jorehaut Tea Co. (supra) does not apply to the fact situation of the case on hand, as the Appellant-Company has not published the seniority list at all on its notice board, which is the concurrent finding of fact of the High Court. The same cannot be termed erroneous as it is based on legal evidence on record. It is for the appellate-Company to establish as to whether there is a deviation of the above principle or not by producing justifiable and valid reasons but it has failed to do so by producing cogent evidence on record. Therefore, reliance placed upon the aforesaid judgments of this Court by the learned senior Counsel for the Appellant-Company are misplaced as they are not applicable to the fact situation on hand as the facts of those cases are distinguishable from the facts of this case on hand. 41. Therefore, reliance placed upon the aforesaid judgments of this Court by the learned senior Counsel for the Appellant-Company are misplaced as they are not applicable to the fact situation on hand as the facts of those cases are distinguishable from the facts of this case on hand. 41. Further, the contention urged by the learned senior Counsel on behalf of the Company that the allegation of contravention of Section 25G of the I.D. Act is not sufficient to hold that the 'last come first go' principle is not followed by the Company unless the necessary material particulars in this regard are pleaded and proved by the workmen. This contention in our view is wholly untenable in law and cannot be accepted by this Court. The Respondent-Union had laid factual foundation in this regard and proved the same by adducing evidence on record." 10. From the factual matrix and evidence available on record it is evident that persons who were junior to the respondent-workman were retained while terminating the employment of the respondent-workman. The retrenchment compensation was also found short of the amount to which the respondent-workman was entitled in view of mandate of Section 25-F of the Act of 1947 which reads thus: 25F. 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 month' s 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 the notice: (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. (a) the workman has been given one month' s 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 the notice: (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette]." 11. A glance of Section 25-F(b) would leave no room for any doubt that the workman is entitled to retrenchment compensation which shall be equivalent to 15 days average pay or every completed year of continuous service or any part thereof in excess of six months. Therefore, the finding arrived at by the Tribunal on that count cannot be faulted. 12. In the case of Bhuvnesh Kumar Dwivedi (supra), explaining the scope of writ jurisdiction under Article 226 and 227 of the Constitution of India while examining the legality and validity of an award made by the Labour Court the Hon'ble Supreme Court observed that award made by the Labour Court/Tribunal can be interfered with only on procedural level and in cases where the decision of the lower Court has been arrived at in gross violation of legal principles. 13. The learned counsel for the petitioner could not point out any legal or factual error in the impugned award which may call for any interference by this Court for any illegality in decision making process warranting exercise of powers under writ jurisdiction. The text of paragraph 18 and 35 of the opinion in the case aforesaid is relevant which reads thus: "18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief Under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the Appellant. 35. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the Appellant along with full back wages after setting aside the order of termination. The High Court on the other hand, has erred by exceeding its jurisdiction Under Article 227 of the Constitution of India in holding that the Appellant has in fact, resigned by not joining his duty as a Badly worker and also awarding that retrenchment compensation to the tune of Rs. 1,00,000/- will do justice to the Appellant without assigning reasons which is wholly unsustainable in law." 14. In the case of M.P. State Textile Corporation Ltd. (supra), it has been observed that termination of services on closure of one unit of several units managed by the appellant-Corporation while the respondent-workmen having been employed by the Corporation and the Management had right to transfer their services in such circumstances, the management of closed unit could not terminate the employment. The relevant para 4 of the judgment reads thus: "4. We have heard learned counsel for the parties and perused the records. The respondent-workmen were appointed by the appellant-Corporation and their appointment letters are on record. One such appointment letter of respondent No. 1 shows that the appellant-Corporation entertaining an application from him and after interviewing him appointed him as a Shift Assistant (Spinning) and posted him at Indore Textile, Ujjain on the terms and conditions mentioned in the said letter. The first of the terms stated that the said respondent will be paid a basic pay of Rs. The first of the terms stated that the said respondent will be paid a basic pay of Rs. 850/- p.m. plus Industrial Dearness Allowance and other allowances as per the rules in the pay-scale of Rs. 680-1050 plus House Rent Allowance @ 15% of the basic pay. Clause 3 of the terms of appointment says that the respondent-workmen were liable to be transferred in terms of the said letter of appointment to any unit managed by the Corporation directly or indirectly. A reading of the said letter of appointment along with the evidence led by the parties before the Labour Court clearly shows that the respondent-workmen applied for employment in the appellant-Corporation and it was the appellant-Corporation which entertained their applications, interviewed the said workmen and appointed them on the pay-scale mentioned in their letter of appointment. Under the said appointment letter, the appellant had retained its right to transfer the workmen to any unit managed by the appellant, directly or indirectly. From this material on record, it is clear that the workmen were appointed by the Corporation as its employees and were transferred or deputed to various Textile Mills under it, in the instant case, to Indore Textile, Ujjain, therefore, if Indore Textile, Ujjain, suffered a closure, the services of the respondent-workmen could not have been terminated by the management of Indore Textile, Ujjain, because the respondent-workmen were not its employees. Therefore, the Labour Court as well as the High Court were justified in coming to the conclusion that the respondent-workmen were the employees of the appellant-Corporation and their retrenchment by Indore Textile, Ujjain is without authority of law since they were not the employees or workmen of Indore Textile, Ujjain." 15. From the findings arrived at by the Tribunal, the violation of mandate of Section 25-F and 25-G of the Act of 1947, is apparent on the face of record in view of the evidence and materials available on record. 16. Having considered the singular facts of the case at hand, the findings arrived at by the Tribunal do not suffer with any illegality or perversity so as to call for any interference in exercise of powers under Article 226 and/or 227 of the Constitution of India. 17. For the reasons and discussions herein above, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. 18. Ordered accordingly. 19. 17. For the reasons and discussions herein above, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. 18. Ordered accordingly. 19. However, in the facts and circumstances of the case, there shall be no order as to costs. 20. Before parting with the judgment, it is observed that the petitioner-employer has not complied with the impugned award and also did not comply with the order made by this Court on an application under Section 17-B of the Act of 1947, made on 12.8.2014 with a direction to pay last wages drawn to the respondent-workman. 21. In view of the above, four weeks time is granted to the petitioner-employer to ensure compliance of the order of this Court from the date a certified copy of the judgment is made available. 22. No costs.