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2016 DIGILAW 768 (ORI)

Conservator of Forests, Koraput v. P. O. , Labour Court, Jeypore, Koraput

2016-09-08

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT S.N. PRASAD, J. - The award dated 30.11.1996 passed in I.D. Case No. 87 of 1995 is under challenge in this writ petition. 2.Case of the opposite party-workman is that he was engaged as N.M.R. Watcher by the petitioner-management from 1.2.1989 to 30.09.1991 and attended the Office of the Conservator of Forest, Range Koraput to watch the plantation, thereafter he was engaged as night watcher on daily wage of Rs. 25/- from 1.10.1991 to 10.06.1993 to watch the office of the first party-management. When one Sri Rama Chandra Sagoro joined as Chief Conservator of Forests in the month of May, 1995, he has given engagement to one Abhimanyu Das in place of the workman on 11.06.1993 and thereafter the opposite party-workman has been disallowed to perform his duty. 3.The opposite party-workman being aggrieved has raised a dispute, the matter went before the Conciliating Officer but when not resolved a Failure Report was submitted before the appropriate Government and thereafter a reference was made which is being reproduced below:- “Whether the retrenchment of service of Sri Subah Chandra Mishra, Ex-Watcher by the Management of Conservation of Forest, Koraput Circle, Koraput with effect from 11.06.1993 is legal and/or justified? If not to what relief Sri Subah Chandra Mishra is entitled?” 4.Case of the management is that the workman was not engaged as N.M.R. Watcher from 1.2.1989 to 30.09.1991 in the forest Range Officer, Koraput rather he was engaged in B-Economic and Social Forestry Plantation taken up in Koraput Range of Rayagada Division and he has been paid daily wages for the month of June, 1990 to March, 1991 and from July 1991 to November, 1991. So the workman was not engaged continuously from 1.2.1989 to 30.09.1991. Further case of the management is that the workman was engaged for the garden work of the office of the management from 1.10.1991 to 30.03.1992, 1.5.1992 to 10.06.1993 with breaks. So the workman was not engaged continuously from 1.10.1991 to 10.06.1993. 5.The Labour Court has formulated five issues to answer the reference i.e., as follows; i. Whether the second party- workman voluntarily abandoned the job from 11.06.1993? ii. Whether the first party-management is required to comply Section -25-F of the I.D. Act, before retrenching the second party-workman? iii. Whether the retrenchment of services of Sri Subash Chandra Mishra, Ex-Watcher by the management of Conservation of Forest, Koraput Circle, Koraput w.e.f. 11.06.1993 is legal and/or justified? ii. Whether the first party-management is required to comply Section -25-F of the I.D. Act, before retrenching the second party-workman? iii. Whether the retrenchment of services of Sri Subash Chandra Mishra, Ex-Watcher by the management of Conservation of Forest, Koraput Circle, Koraput w.e.f. 11.06.1993 is legal and/or justified? iv. Whether the second party-workman is entitled to reinstatement with back wages? v. To what relief the workman is entitled? After going through the finding given by the Labour Court with respect to Issue No. 1 i.e., whether the second party workman voluntarily abandoned the Job from 11.06.1993; it has been found by the Labour Court on the basis of scrutiny of the evidence produced before it and after going through the definition of ‘abandonment’ and ‘relinquishment’ is always a question of fact but no such evidence has been produced before the management to substantiate the fact that the workman has abandoned or not resumed his duty rather the specific case of the workman was that he was not voluntarily remain absent in duty and he has not left the job but this evidence has not been challenged by the management in its rebuttal, hence the first issue has been answered in favour of the second party-workman. 6.The second issue which is whether the first party-management is required to comply Section 25-F- of the I.D. Act, before retrenching the workman, the Labour Court after appreciating the provision of Section 25-F has given a conscious finding that since there is no order of termination of service of the workman and it is admission on the part of the management that the workman was engaged for the garden work of the Office of the petitioner-management for the period from 2.10.1991 to 10.06.1993 with some breaks. But those breaks has been recorded as a artificial breaks as per Section 25-B(1) of the I.D. Act. No evidence has also been produced both oral and documentary that the workman has not been engaged in duty from 1.2.1989 to 10.06.1993 and taking into consideration this fact, the Labour Court has come to conscious finding that the workman has not voluntarily discontinued to work and as such provision of Section 25-F is very much applicable and since it has not been followed, it will be presumed to be retrenchment and not in consonance with the provisions as contained therein. 7.The Issue No. 3 i.e., whether the retrenchment of services of Sri Subash Chandra Mishra, Ex-Watcher by the management of Conservation of Forest, Koraput Circle, Koraput w.e.f. 11.06.1993 is legal and/or justified ? The Labour Court after coming to finding that Section 25-F is applicable and there is violation of Section 25-F of the I.D. Act and as such Issue No. 4 has been answered in favour of the workman and accordingly the fifth issue regarding the relief, the same has been answered in favour of the workman. 8.We have examined the provision as contained in Section 25-F of the Industrial Disputes Act, 1947 which is being reproduced herein below for ready reference: “25 F. Conditions precedent to retrenchment of workmen. –No 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 (for every completed year of continuous service) of any part thereof in excess of six months; and (c) Notice in the prescribed manner is served on the appropriate Government” From perusal of the statutory provision, it is evident that Section 25-F contains the provision regarding conditions precedent to retrenchment of workmen and if the said condition is not followed the retrenchment will be said to be void. 9.There is no dispute about the fact that provision of Section 25-F has been made mandatory and as such it has to be followd strictly. The continuous service has been dealt with under the statute under Section 25-B(1) which speaks that a workman shall be said to be continuous service for the period in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman. 10.The Labour Court has given finding regarding applicability of Section 25-F and also applicability of Section 25-B(1) and according to the Labour Court, the opposite party-workman has been said to have performed continuous service of 240 days since no evidence contrary to this has been produced by the management and in the light of this situation, the Labour Court has passed an award answering the reference in favour of the workman. 11.This writ petition has been filed for issuance of writ of certiorari, the scope of interference of the High Court to issue writ of Certiorari sitting under Article 226 of the Constitution of India is limited which has been discussed by the Hon’ble Supreme Court in the catena of decisions, few of them are being discussed. Reference in this regard maybe made to the judgment rendered by Hon’ble Supreme Court by its Full Bench in the case of Syed Yakoob Vrs. K.S. Radhakrishnan and others reported in AIR 1964 SC 477 wherein at paragraph-7 their Lordships have been pleased to hold as follows: “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals; these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or in excess of it, or a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it,, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a findings of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the . Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence edduced before the Tribunal was’ insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.” We have also perused the judgment rendered by the Hon’ble Apex Court in the case of Swaran Singh and another vrs. State of Punjab and others reported in (1976) 2 SCC 868 , their Lordships discussing the power of writ Court under Article 226 for issuance of writ of Certiorari has been pleased to hold at para-12 and 13, that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior Courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from Appellate jurisdiction. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from Appellate jurisdiction. The writ jurisdiction can extends only to cases where orders are passed by inferior Courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evident which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such case the error amounts to an error of law, a pure error of fact, however grave, cannot be corrected by a writ. In another judgment rendered by the Hon’ble Apex Court in the case of Heinz India Private Limited and another vrs. State of Utter Pradesh and others reported in (2012) 5 SCC 443 , their Lordships has been pleased to hold at para-66 and 67, which is being quoted herein below:- “66. That the Court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the Court does not supplant “the feel of the expert” by its own review, is also fairly well settled by the decisions of this Court. in all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable on evidence and whether such findings are consistent with the laws of the land. 67.In Dharangadhar Chemicla Works Ltd. vrs. State of Saurashtra reported in AIR 1957 SC 264 , this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. 67.In Dharangadhar Chemicla Works Ltd. vrs. State of Saurashtra reported in AIR 1957 SC 264 , this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. In the case of Thansingh Nathmal reported in AIR 1964 SC 1419 , the Hon’ble Supreme Court has been pleased to hold that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. “ Yet in another judgment rendered by the Hon’ble Apex Court in the case of M/s. Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447 as follows: “17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows : (SSC p. 864, para 7)” “The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case:” It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Thus, it is evident that the proposition laid down in the case of Syed Yakoob (supra) still holds good. 12.Thus, it is settled that if there is any perversity or error apparent on the face of record or the order is without jurisdiction, the High Court may interfere with in exercising of power conferred under Article 226 of the Constitution of India, but according to our considered view, no such ground is available in this writ petition, hence this Court cannot be said as an appellate Court to reverse the fact finding given by the Labour Court, which is based upon cogent evidence and also the Award is under limits of authority. 13.Hence, we decline to exercise the power conferred under Article 226 and 227 of the Constitution of India to reverse the fact finding given in Award on the basis of the reasons discussed above. 13.Hence, we decline to exercise the power conferred under Article 226 and 227 of the Constitution of India to reverse the fact finding given in Award on the basis of the reasons discussed above. 14.However, we decline to interfere with the award but we are also conscious of the fact that the Labour Court has directed the Conservator of Forests, Koraput Circle, Koraput, the petitioner herein to reinstate the workman but before giving the finding the Labour Court ought to have taken into consideration regarding the availability of the vacancies and also regarding the fact as to whether his service is required at all under the petitioner or not and without giving any finding in this regard, it has been directed to reinstate the petitioner taking into consideration the violation of Section 25-F of the Industrial Disputes Act, 1947. 15.There is no dispute about fact that Section 25-F is mandatorily to be followed. it is also not in dispute that regarding legal proposition as contained in Section 25-F that before dispensing of a service of a workman, a retrenchment compensation is to be given to him and as such it has been decided by the Hon’ble Apex Court in catena of decisios that in case of violation of Section 25-F of the Industrial Act, 1947, compensation may be awarded in place of reinstatement, few of them are being referred in below:- In the cases of State of Madhya Pradesh & Ors. Vrs. Lalit Kumar Verma reported in (2007) 1 SCC 575, Uttaranchal Forest Development Corporation Vrs. M.C. Joshi reported in (2007) 9 SCC 353 , Madhya Pradesh Administration vrs. Tribhuban reported in (2007) 9 SCC 748 , Mahboob Deepak vrs. Nagar Panchayat, Gajraula & Anr. Reported in (2008) 1 SCC 575 , Ghaziabad Development Authority & Anr. Vrs. Ashok Kumar and Anr. Reported in (2008) 4 SCC 261 , Sita Ram & Ors. Vrs. Motilal Nehru Farmers Training Institute reported in (2008) 5 SCC 75 , Jagbir Singh Vrs. Haryana State Agriculture Marketing Board and another reported in (2009) 15 SCC 327 . Reported in (2008) 1 SCC 575 , Ghaziabad Development Authority & Anr. Vrs. Ashok Kumar and Anr. Reported in (2008) 4 SCC 261 , Sita Ram & Ors. Vrs. Motilal Nehru Farmers Training Institute reported in (2008) 5 SCC 75 , Jagbir Singh Vrs. Haryana State Agriculture Marketing Board and another reported in (2009) 15 SCC 327 . 16.In all the above cases, the Hon’ble Court after taking into consideration the fact that there may not be availability of vacancies for reinstatement of the concerned workman and as such it has been held therein that in case of violation of Section 25-F of the Industrial Disputes Act, 1947, compensation may be awarded in place of reinstatement and we after following the said proposition and taking into consideration the fact that nothing has come in the impugned award that as to whether any post is available with the petitioner-management or the service of the workman is required or not, hence we are of the considered view that the award needs modification and accordingly we modify the award to the extent that in place of reinstatement, the petitioner would be paid a lump sum amount of Rs. 50,000/-. This amount shall be paid by the concerned competent authority within two months from the date of communication of this order. Accordingly, the writ petition is disposed of. Petition disposed of.