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2018 DIGILAW 659 (ORI)

Md. Hussain v. State of Odisha

2018-07-16

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who is a workman of the Rourkela Steel Plant under Steel Authority of India Limited (SAIL), a Government of India Undertaking, has filed this writ petition challenging the award dated 30.06.2003 passed by the Presiding Officer, Labour Court, Sambalpur in I.D. Case No.3 of 2002 refusing continuity of his service, within the previous employment period, and consequential service benefits including seniority, by holding that the petitioner is not entitled to any relief. 2. The factual matrix of the case, in hand, is that the petitioner joined in the Rourkela Steel Plant on 16.01.1962 as a Coil Provider. On 15.01.1962, he met with an accident, while he was returning from his duty, and was admitted in Ispat General Hospital, Rourkela. In course of his treatment, he was served with a letter on 18.07.1968 directing him to resume his duty on expiry of extraordinary leave without pay granted to him for 87 days from 25.01.1968 to 20.07.1968, failing which his services would stand automatically terminated. The petitioner could not join in his duty and consequentially, he was terminated from his service. Thereafter, he submitted an application before the opposite party no.2-Management requesting to allow him to join as a fresh entrant. The opposite party no.2-Management, on consideration of his request, issued offer of appointment on sympathetic ground, after complying with necessary procedure and formalities. The petitioner accepted the terms and conditions of the offer of appointment dated 10.04.1969 by putting his signature, knowing fully well that his joining was a fresh one. After his joining, he made a representation for continuity of his service with previous employment with seniority and consequential service benefit. The representation of the petitioner was examined and after due consideration it was found that the said request of the petitioner could not be acceded to, and such fact was communicated to the petitioner vide letter dated 24/31.07.1970. 3. After completion of 25 years of service, the petitioner raised an Industrial Dispute before the Deputy Labour Commissioner-cum-Conciliation, Rourkela claiming seniority and service benefit for the period he was out of employment. The said dispute being admitted to the conciliation upon disagreement between the parties regarding the non-entitlement of claim advanced by the petitioner, the conciliation ended in failure and the District Labour Officer and Conciliation Officer, Rourkela sent the failure report to the appropriate government. The said dispute being admitted to the conciliation upon disagreement between the parties regarding the non-entitlement of claim advanced by the petitioner, the conciliation ended in failure and the District Labour Officer and Conciliation Officer, Rourkela sent the failure report to the appropriate government. As a consequence thereof, the Government in the Department of Labour and Employment made a reference under Sections 10 and 12 of the Industrial Disputes Act, 1947 to the Labour Court, Sambalpur for adjudication with following schedule of reference. “1. Whether the action of the management of SAIL, Rourkela Steel Plant, Rourkela in refusing continuity of service to Md. Hussian, Pl. No. 21636, Sr. Operative of Cold Rolling Mill (O) department with his previous employment period and consequential service benefits including seniority is legal and/or justified ? If not, to what relief Md. Hussain is entitled.” 4. On the basis of reference made by the State Government, the Labour Court, Sambalpur registered I.D. Case No.03 of 2002 for adjudication. On being noticed, the respective parties filed their written statement before the Presiding Officer, Labour Court. On perusal of the pleadings of the parties, the Presiding Officer, Labour Court, Samblpur framed as many as two issues reproduced hereunder: “(i) Whether the action of the management of SAIL, Rourkela Steel Plant, Rourkela in refusing continuity of service to Md. Hussain, Pl. No. 21636, Sr. Operative of Cold Rolling Mill (O) department with his previous employment period and consequential service benefits including seniority is legal and justified. (ii) If not to what relief he is entitled?” 5. Learned Presiding Officer, Labour Court, Sambalpur, while answering issue no.1, observed that since the petitioner had accepted the offer of appointment on the basis of his request made to opposite party no.2 for fresh employment, he was not entitled to any relief of continuity of service including the seniority and dismissed the reference, hence this application. 6. Mr. A.P. Bose, learned counsel for the petitioner strenuously urged before this Court that the termination of service of the petitioner is imaginary one. Therefore, the subsequent denial of fixation of scale of pay and continuity of service cannot sustain in the eye of law. Opposite party no.2 has exploited the petitioner, which amounts to unfair labour practice. Hence, the petitioner has approached this Court by filing this writ petition. 7. Per contra, Mr. A.K. Pattnaik, learned counsel appearing on behalf of Mr. Therefore, the subsequent denial of fixation of scale of pay and continuity of service cannot sustain in the eye of law. Opposite party no.2 has exploited the petitioner, which amounts to unfair labour practice. Hence, the petitioner has approached this Court by filing this writ petition. 7. Per contra, Mr. A.K. Pattnaik, learned counsel appearing on behalf of Mr. A.A. Das, learned counsel for opposite party no.2 justified the award passed by the Labour Court and contended that the petitioner made a representation, after his termination, for fresh appointment, which was considered on sympathetic ground and consequentially fresh appointment was given, pursuant to which he joined and discharged his duty. After a long lapse of 25 years of service, the petitioner cannot claim continuity of service with his previous employment with the scale of pay, for which the Presiding Officer has rightly passed the award refusing the prayer of the petitioner, which does not warrant interference of this Court at this stage. 8. We have heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. A.K. Pattnaik, learned counsel appearing on behalf of Mr. A.A. Das, learned counsel for opposite party no.2. Pleadings have been exchanged and with their consent the matter is being disposed of at the stage of admission. 9. Before proceeding to find out correctness of the impugned award passed by the learned Labour Court/Tribunal, at the outset it is necessary to examine the scope of this Court for interference with the same in exercise of power under Articles 226 and 227 of the Constitution of India. It is well settled law that before examining an award of present nature, the High Court has to see (i) whether the Tribunal has exceeded its jurisdiction or has failed to exercise its jurisdiction given under the I.D. Act?; (ii) whether the award is perverse?; (iii) whether the award suffers from any error of law or misconception of law?; (iv) whether the Tribunal has violated the statutory procedure resulting in denial of natural justice?; and (v) whether there is error of law apparent on the face of records?” 10. Keeping the above parameters in view, this Court carefully examined the impugned award in proper perspective and came to the considered opinion that in view of undisputed facts of the case, the Presiding Officer, Labour Court has not committed any illegality or irregularity so as to warrant interference of this court invoking jurisdiction in exercise of power under Articles 226 and 227 of the Constitution of India. 11. In Harbans Lal v. Jagmohan Saran, AIR 1986 SC 302 , the apex Court had held that the writ of certiorari can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. Such errors may include the giving of reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Such a writ can be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to act. While issuing the Writ of Certiorari, the order under challenge should not undergo scrutiny of an appellant court. It is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the Statutory Authorities. There must be the breach of principles of natural justice for resorting to such a course. While issuing the Writ of Certiorari, the order under challenge should not undergo scrutiny of an appellant court. It is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the Statutory Authorities. There must be the breach of principles of natural justice for resorting to such a course. Similar view has also been taken in Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173 , Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417 , Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Limited, (2008) 14 SCC 171 and Sant Lal Gupta v. Modern Cooperative Group Housing Society Ltd., (2010) 13 SCC 336 . 12. Applying the above principle to the facts of the present case, we do not find any illegality or irregularity committed by the Presiding Officer, Labour Court by passing the impugned award so as to warrant our interference invoking jurisdiction of writ of Certiorari and accordingly hold that the writ petition is devoid of merits. 13. The writ petition is accordingly dismissed. No order as to cost. Petition dismissed.