BHUVNESH KUMAR DWIVEDI Vs M/S HINDALCO INDUSTRIES LTD.
Bench: GYAN SUDHA MISRA,V. GOPALA GOWDA
Case number: C.A. No.-004883-004884 / 2014
Diary number: 39659 / 2011
Advocates: BHARAT SANGAL Vs
SYED SHAHID HUSSAIN RIZVI
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C.A.@SLP(c)Nos.554-555 of 2012 - 1 -
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4883-4884 OF 2014 (ARISING OUT OF SLP(C) NOS.554-555 OF 2012)
BHUVNESH KUMAR DWIVEDI ………APPELLANT VS.
M/S HINDALCO INDUSTRIES LTD. ……RESPONDENT J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. These appeals are filed against the final judgment
and order dated 10.03.2011 passed by the High Court
of Judicature at Allahabad in Civil Misc. Writ
Petition No. 8784 of 2002 and also against judgment
and order dated 12.10.2011 passed by the High Court
of Allahabad in Civil Misc. Review/Recall Application
No. 118006 of 2011 by allowing the writ petition
filed by the respondent-employer and setting aside
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C.A.@SLP(c)Nos.554-555 of 2012 - 2 -
the award passed by the Labour Court which
substituted the same by issuing direction to the
respondent-employer (for short “the employer”) to pay
a sum of 1,00,000/- as damages to the appellant-
workman. The direction issued by the High Court in
its judgment further states that the amount shall
either be paid through draft to the workman or
deposited before the Labour Court within three months
for immediate payment to the workman. In case of
default, 12% interest per annum shall be payable on
1,00,000/- after three months till actual
payment/deposit/realisation.
3. However, the backdrop of industrial dispute
between the parties is briefly stated hereunder to
find out whether the appellant is entitled for the
relief as prayed in these appeals.
It is the case of the appellant-workman that
he was appointed as Labour Supervisor in the
employer’s factory on 30.12.1992 and he worked
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continuously in terms of Section 25B of the
Industrial Disputes Act, 1947 (for short “the
I.D. Act”) in the said post till 28.7.1998- the
day on which his services were terminated. It is
the case of the appellant-workman that he has
worked for six calendar years from the date of
his appointment till the termination of his
service and he has rendered more than 240 days of
continuous service in every calendar year before
his termination. The respondent-employer
terminated the services of appellant-workman on
27.7.1998 as per practice with the reason
‘sanction expired’. The respondent-employer
neither paid retrenchment compensation nor issued
any notice or paid wages in lieu of the same to
the appellant-workman as mandated under Section
6N of the U.P. Industrial Disputes Act (for short
“the U.P. I.D. Act”). The respondent-employer
engaged the appellant-workman for work against a
post which was permanent in nature but his
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appointment was made only for a temporary period
from 1992 to 1998 with oblique motive to deprive
his statutory rights. At the end of every working
year, the workman was handed over a receipt of
‘relieved from work’ and after 4-6 days, he was
again engaged for three or six months but without
proper procedure and in this manner, he was
continuously made to work for full one year and
each time the annual increase in wages was shown
in the fresh appointment letter. During the
entire period of service of the appellant-workman
with the respondent-employer, the management
followed the process of annually terminating him
from service and again reappointing him in the
same post by assigning the same Badge No., ID No.
in the same department of Construction Division
with the marginal increase of salary and dearness
allowance per month.
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4. It is the further case of the appellant-
workman that during the course of his employment
with the respondent- employer, he had noticed
that very few workmen were actually made
permanent by the management and rest of the work
force was deprived from the benefit of permanent
post by being kept on temporary basis or
emergency basis, on daily wage basis or on
contract basis. Even though the Construction
Division of the employer has been in existence
ever since the beginning of its establishment and
is necessary for continuous productions in
factory, thousands of workmen are employed in the
said division in the above mentioned manner and
very few of them are made permanent. It is the
further case of the appellant-workman that in
accordance with the regular orders passed in the
practice of the Company, the concerned workman
always fell in the category of workman but due to
the improper and unfair labour practice as
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C.A.@SLP(c)Nos.554-555 of 2012 - 6 -
mentioned in Schedule V under s. 2(ra) of the
I.D. Act it has kept the appellant as temporary
workman for the period of employment, which is
opposed to law.
5. It is the further case of the appellant-
workman that he falls within the definition of
workman under s. 2(s) of the I.D. Act and has
been rendering service since the day of his
appointment on 30.12.1992. Therefore, termination
of his contract is a clear case of retrenchment
as opposed to the provision in Section 6N of the
U.P. I.D. Act. The employer on the other hand,
did not comply with the mandatory provision of s.
6-N of the U.P. I.D. Act which sets the
conditions precedent to be fulfilled prior to
retrenchment of workmen which is in pari materia
with s. 25N of the I.D. Act. The respondent-
employer neither complied with the aforesaid
mandatory provisions nor did the respondent pay
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retrenchment compensation or issue three months
notice or notice pay in lieu of the same.
Therefore, as per the appellant-workman,
termination from his service is in contravention
of the provisions of the U.P. I.D. Act and the
legal principle laid down by this Court in catena
of cases in this regard which will be adverted
into the reasoning portion of the judgment.
Therefore, the appellant-workman had raised an
industrial dispute with a request to the state
government to make reference for adjudication of
existing industrial dispute regarding the
termination of service of the appellant workman
from his service by the employer. The Assistant
Labour Commissioner made Reference Order No. 1454
CP 15/98 dated 24.9.1999 to the Labour Court at
Varanasi. The reference was registered in Case
no. 59 of 1999 by the Labour Court, Varanasi,
U.P. The Labour Court, after conducting enquiry
has adjudicated the industrial dispute between
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the parties by answering the points of dispute
and passed an award in favour of the appellant-
workman holding that the termination of his
service is not justified since the respondent has
not produced any material evidence on record to
justify the order of termination. Further, the
Labour Court has held that the appellant is
entitled to reinstatement with back wages and
other consequential benefits as if his services
were never terminated.
6. Aggrieved by the said award, the respondent-
employer filed Civil Misc. Writ Petition No. 8784
of 2002 before the learned single Judge of the
High Court of Judicature at Allahabad questioning
the correctness, legality and validity of the
award passed by the Labour Court taking the
following pleas:
(i) It is pleaded by the respondent that the
appellant was employed purely on temporary basis
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in the project jobs in the Construction Division
of the Company for specific periods and finally
he was employed with effect from 23.1.1998 for
six months and his services automatically came to
an end as per terms of the contract of employment
in the appointment letter with effect from
28.7.1998 as a result of non renewal of his
contract of employment with the respondent.
(ii) It is further pleaded by the respondent
that in the Construction Division of the Company,
time bound specific project construction work was
being undertaken from time to time and thus no
regular work force could be maintained for such
project work. However, as a gesture of goodwill
and to maintain harmonious industrial relations,
the employees who worked in a project work were
given preference for employment in other project
work on their own request. In the instant case,
the service of the appellant came to an end as
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per terms of his employment in the specific
project job in the Construction Division and
after completion of the term of aforesaid
employment, the appellant has also taken
clearance of his dues.
(iii) It is further pleaded by the respondent
that temporary workmen working in such specific
projects are also given preference for employment
in the main plant project subject to availability
of vacancies and their suitability. After
completion of the terms of contract of
employment, the appellant was offered fresh
employment as Badli worker against vacancies in
Potroom Department of the Company. He applied for
the same on 22.10.1998 and after completion of
necessary formalities he was selected against the
said vacancy and was issued appointment letter
dated 23.10.1998. He joined his duties in Potroom
Plant-II Department as substitute workman but did
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not report to duty on his own and on the other
hand he raised baseless industrial dispute for
unlawful gain.
(iv) It is further pleaded by the respondent
that the service of the appellant has not been
terminated by the Company but because the
appellant did not report for duty on his own
after joining duty as mentioned above. Therefore,
there is no industrial dispute between the
parties and the reference made by the appropriate
authorities at the instance of the workman to the
Labour Court is bad in law. However, the
respondent craves leave of the Labour Court to
add, amend, alter and rescind its written
statement and to produce evidence oral or
documentary, if found expedient at the relevant
stages of the hearing. However, no plea was made
by the respondent in written form on the
provision of Section 2(oo)(bb) of the I.D. Act
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that the termination of the appellant from his
service falls within this provision. Nonetheless,
this legal ground without any factual foundation
was pressed into operation before the Labour
Court at the time of addressing its rights. The
same has been addressed by the Labour Court
rejecting the contention on the basis of
recording its reasons which will be dealt with in
the reasoning portion of this judgment.
7. On the other hand, the appellant, by filing a
detailed counter statement before the High Court
has sought to justify the finding and reasons
recorded by the Labour Court contending that the
Labour Court, being a fact finding court, on
appreciation of all pleadings and undisputed
facts regarding the periodical years of service
rendered by the appellant with the respondent,
held that he had rendered continuous service of
240 days in 12 calendar months. Therefore, the
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Labour Court has held that the termination order
was issued by the respondent without complying
with the mandatory statutory provisions of
Section 6-N of U.P. I.D. Act. The appellant
pleaded that neither the compensation for
retrenchment was given to him nor was he issued
the three months notice nor notice pay in lieu of
the same as mandated under Section 6-N of the
U.P. I.D. Act. The appellant further sought to
justify the finding of the Labour Court that
periodical appointment of the appellant for the
very same post in the Construction Division of
the respondent’s Plant with the same Badge Number
and marginal increase of basic pay and D.A. is
unfair labour practice in terms of Section 25-T
of the I.D. which is punishable under section 25-
U of the I.D. Act. The High Court concurred with
the finding of the Labour Court wherein it has
held that the respondent’s action is in
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contravention of Section 6-N of the U.P. I.D.
Act.
8. The respondent, on the other hand, contends
that the finding on the question of retrenchment
is factual and legally not correct in view of
the fact that the termination of the service of
the appellant falls within the provision of
Section 2(oo) (bb) of the I.D. Act. The High Court has exercised its judicial review power under Articles 226 and 227 of the Constitution
of India and also referred to the facts that
after termination of the service of the
appellant from the post of Labour Supervisor, he
was offered with employment in the Potroom
department w.e.f. 23.10.1998, which he joined
and later resigned from that post. Therefore,
though the Labour Court came to the conclusion
on facts, evidence on record and law on this
aspect that keeping the workman as Badli worker
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was unfair labour practice, the High Court has
erroneously held that engagement of some
workers as Badli workers is a standard practice
in several establishments and is quiet
permissible under law. The High Court further
came to erroneous conclusion that the appellant
did resign and having stated so, the High Court
further made observation that the least which
was required from the respondent under such
circumstance, was to pay retrenchment
compensation to the appellant in terms of
Section 6-N of the U.P. I.D. Act which was
admittedly not done. It was further held by the
High Court that an employee engaged for a
particular project cannot be directed to be
retained after the completion of the project.
However, since it was not stated by the
respondent that for which particular project or
projects the appellant was employed, despite the
fact that he had been continuously working for
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six years on different projects, the appellant
was conferred with some rights since he had been
rendering permanent nature of work.
9. The High Court also referred to the
resignation of the appellant from the job of
Badli worker and held that the same mitigates
against his claim. If he wanted permanent job and
had been assured the same, he should not have
first applied to be selected as Badli worker and
then resigned just after selection. Having said
so, the High Court with reference to the facts
and circumstances of the case, opined that it was
not a case of reinstatement with full back wages.
However, by placing reliance upon the judgment of
this Court in the case of Harjinder Singh v.
Punjab State Warehousing Corporation1, the
correctness of the said substituted award by the
High Court is challenged in this appeal by the
1 (2010) 3 SCC 192
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C.A.@SLP(c)Nos.554-555 of 2012 - 17 -
appellant urging various facts and legal
contentions.
10. The learned counsel Mr. Abdhesh Chaudhary
appearing on behalf of the appellant-workman
submits that the finding and reasons recorded by
the High Court in reversing and setting aside the
award of reinstatement with back wages and other
consequential benefits and substituting its award
with award of 1,00,000/- as damages is erroneous
in law since the action of the respondent in
terminating the services of the appellant is in
contravention of Section 6-N of the U.P. I.D.
Act. While exercising judicial review power by
the High Court under Articles 226 and 227 of the
Constitution of India, though it has concluded on
the points of dispute in favour of the workman it
has erroneously interfered with the award of
reinstatement with back wages and consequential
benefits which by the Labour Court. This finding
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by High Court is in violation of the decision of
this Court in the case of Harjinder Singh (supra)
in which this Court after adverting to the
entire case law on the question of social justice
has examined the conferment of power upon the
High Court and held that the Labour Court in
exercise of its original jurisdiction is the
final court of facts and grants of relief and
the same cannot be interfered with in exercise
of its supervisory jurisdiction unless the award
is shown to be vitiated as erroneous in law.
Therefore, the impugned judgment and order is
vitiated in law and is liable to be set aside.
11. Further, it is contended that the High Court
has further failed to take into consideration the
relevant aspect of the matter namely, that the
Labour Court on appreciation of pleadings and
evidence on record with reference to undisputed
fact of non-payment on retrenchment compensation
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C.A.@SLP(c)Nos.554-555 of 2012 - 19 -
recorded that the Company neither obtained
permission from the appropriate Government to
retrench the appellant from his services nor did
it issue any notice or wages in lieu of the same
to him. The action of termination of the service
of the appellant on the ground that it is an
automatic termination for non-renewal of contract
of the employment is in contravention to the
statutory provisions of the U.P. I.D. Act and the
law laid down by this Court in catena of cases,
the relevant paragraphs of which will be adverted
to in the reasoning portion of this judgment. On
this ground also the impugned judgment is liable
to be set aside and the impugned award of the
Labour Court is entitled to be restored.
12. It is further urged that the High Court has
further failed to take into consideration the
fact that the award of damages as against
reinstatement without consequential benefits to
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the appellant while having concurred with the
finding of fact recorded by Labour Court after
adjudication of the dispute and also the holding
by the Labour Cthat the order of termination is a
case of retrenchment and is done in non-
compliance of the mandatory requirements as
provided under the statute of U.P. I.D. Act is
erroneous in law. Therefore, the impugned
judgment of the High Court is liable to be set
aside.
13. Mr. Chander Udai Singh, the learned senior
Counsel for the respondent-employer sought to
justify the award of damages and setting aside the
order of reinstatement with consequential benefits
by the High Court by contending that the appellant
is not a permanent workman. He was engaged on a
temporary basis periodically and he had no
permanent status as worker and his services could
not be continued by the employer. His termination
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from service from the respondent Company was on
account of the condition of automatic termination
w.e.f. 28.7.1998, whereby the contract employment
has come to an end. Therefore, according to the
learned senior counsel for the respondent, no order
of termination was passed by the respondent. On the
other hand, the present case was a situation of
automatic termination due to non-renewal of
contract which is covered under Section 2(oo) (bb)
of the I.D. Act and the same is an exception to
retrenchment. This legal aspect, according to the
learned senior counsel has not been appropriately
appreciated by the Labour Court. The same has not
been accepted by the Division Bench of High Court
in exercise of its jurisdiction under Articles 226
and 227 of the Constitution of India. Therefore,
the award of damages could not have been awarded by
the Labour Court. However, the same has been paid
to the appellant and which is accepted by him.
Therefore, he would submit that the appellant is
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not entitled to the relief as prayed in this appeal
for the reason that if automatic termination of
services on account of the operation of the
contract of employment Clause is contained in the
appointment order, then the claim of the appellant
is not a case of retrenchment and compliance of the
requirement under Section 6-N of the U.P. Act does
not arise. The same aspect has not been taken into
proper perspective both by the Labour Court as well
as the High Court. Though the appellant has not
challenged separately by filing SLP the correctness
of the impugned judgment can be challenged by the
respondent as it has got the right under the
provisions of Order 41 Rule 33 CPC to question the
correctness of the finding recorded on the question
of the termination by the Labour Court and the High
Court which made concurrent finding holding that
it is a case of retrenchment and the same is in
contravention of Section 6-N of the U.P. I.D. Act.
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The High Court while passing the judgment and order
and substituting the award of the Labour Court has
already granted damages of 1,00,000/- as
retrenchment compensation. The appellant is not
entitled to the relief as prayed for in this appeal
for another reason namely, that he had accepted the
damages awarded in the impugned judgment by the
High Court. Therefore, this Court need not
interfere with the impugned judgment.
14. Another legal contention urged by the learned
senior counsel for the respondent is that the
appellant is not entitled to back wages since he is
not employed with the respondent-Company and has
not even filed application under Section 17B before
the High Court when the award passed by the Labour
Court was challenged by the respondent. Further,
the appellant admitted that he did not claim wages
under the Act which would clearly go on to show
that the appellant was not employed and therefore,
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he is not entitled to back wages as awarded by the
Labour Court. Hence, the award of the back wages by
the Labour Court is bad in law and the same has
been modified by the High Court having regard to
the facts of the case which need not be interfered
with by this Court in exercise of its power under
Article 136 of the Constitution of India.
15. With reference to the above legal contentions
the following points would arise for our
consideration :-
(1) Whether the exercise of power by the
High Court under Articles 226 and 227
of the Constitution and setting aside
the award of reinstatement, back wages
and other consequential reliefs and
awarding 1,00,000/- towards damages
is legal and valid?
(2) Whether the concurrent finding
recorded by the Labour Court and High
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Court on the question of termination
of services of the workman holding
that the case of retrenchment falls
under Section 6-N of the U.P. I.D. Act
is void ab initio and not accepting
the legal plea that the case falls
under Section 2 (oo) (bb) of the Act
is correct, legal and valid?
(3) Whether the workman is entitled for
reinstatement with full back wages and
other consequential reliefs ?
(4) What Award?
Answer to point No. 1 16. The appellant has claimed that the High Court
has modified the award passed by the Labour Court
which has awarded reinstatement of the appellant
with full back wages and other consequential
benefits to simply awarding compensation to the
tune of 1,00,000/- by the High Court in lieu of
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reinstatement with back wages and consequential
benefits which order is bad in law in the light of
the legal principles laid down by this Court in the
catena of cases. In the case of Heinz India (P)
Ltd. v. Union of India2, this Court, on the issue of
the power of the High Court for judicial review
under Article 226, held as under:
“60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus: Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
2 (2012) 5 SCC 443
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By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system... ... I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”
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Further, in the case of Devinder Singh v. Municipal
Council, Sanaur3, it was held that :
“22. ……A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the Appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477, Swaran Singh v. State of Punjab (1976) 2 SCC 868 P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54, Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329.
23. In Syed Yakoob v. K.S. Radhakrishnan (supra), this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words:
3 (2011) 6 SCC 584
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The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 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 is in excess of it, or as a result of failure to exercise jurisdiction. 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 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 fact, however grave it may appear to be. In regard to a finding 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
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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 adduced 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 Article 226 to issue a writ of certiorari can be legitimately exercised.
In the second judgment - Swaran Singh v. State of Punjab (supra), this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan (supra) and observed: In regard to a 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 evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any
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evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction 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.”
17. The judgments mentioned above can be read with
the judgment of this court in Harjinder Singh’s
case (supra), the relevant paragraph of which reads
as under:
“21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that
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the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:
“10. … The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.”
(State of Mysore v. Workers of Gold Mines13, AIR p. 928, para 10.)
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. 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
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conferred upon it. Therefore, we accordingly answer
the point No. 1 in favour of the appellant.
Answer to point No. 2 19. No plea was made by the respondent in its
written statement filed before the Labour Court with
regard to the provision of Section 2(oo)(bb) of the
I.D. Act. Nonetheless, this legal ground without any
factual foundation was pressed into operation before
the Labour Court by the learned counsel for the
respondent. The same has been addressed by the
Labour Court by rejecting the said contention by
assigning its own reasons. Before we record our
finding on this contention, it is pertinent to
mention the provision of Section 2 (oo) (bb) of the
I.D. Act, which reads thus:
“2 (oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
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[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein; or]”
20. It is argued by the learned counsel for the
appellant that there is no provision in pari materia
to this provision in the U.P. I.D. Act. Therefore,
even if the service of the appellant is terminated
on expiry of the contract period of service, it
would fall within the definition of retrenchment
under the U.P. I.D. Act for non compliance of the
mandatory requirement under Section 6-N of the U.P.
I.D. Act. The order of termination against the
appellant is rendered void ab initio in law,
therefore, the appellant is entitled to be
reinstated with back wages and consequential
benefits. In support of this contention, the learned
counsel has aptly relied upon the decision of this
Court in U.P. State Sugar Corporation Ltd. v. Om
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Prakash Upadhyay4, with regard to the applicability
of the provision of Section 2(oo) (bb) of the I.D.
Act which was amended provision after the U.P. I.D.
Act, the relevant paragraphs of which read as under:
“3. On the application of the State Act or the Central Act to the case on hand, the High Court followed the Division Bench ruling in Jai Kishun v. U.P. Coop. Bank Ltd. and made it plain that the provision of Section 2 (oo)(bb) of the Central Industrial Dispuutes Act would not apply in respect of proceedings arising under the U.P. Industrial Disputes Act. The High Court also noticed the contrary view in this regard in the case of Pushpa Agarwal v. Regional Inspectress of Girls Schools, Meerut but held that in Jai Kishun case the relevant provisions had been duly considered which are not taken note of in Pushpa Agarwal case and on that basis, it followed the decision in Jai Kishun case. It is this judgment that is brought in appeal before us in these proceedings. …….. 5. The law is settled that under the Central Act every case of retrenchment would not include a case of contractual termination which came to be introduced under the Central Act by amending Act 49 of 1984 which purports to exclude from the ambit of definition “retrenchment” inter alia: (i) termination of service of a workman as a result of the non- renewal of contract of employment between the
4 (2002) 10 SCC 89
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employer and the workman concerned on its expiry, or (ii) termination of the contract of employment in terms of a stipulation contained in the contract of employment in that behalf. Such a case is not available under the U.P. Industrial Disputes Act. If the U.P. Industrial Disputes Act covers the present case then termination of the services of the respondent would certainly result in retrenchment while it is not so under the Central Industrial Disputes Act in view of the exceptional clauses referred to above. While the former situation results in retrenchment, the latter situation does not amount to retrenchment if the same case would arise under the State Industrial Disputes Act. Thus operation of the two enactments would bring to the forefront the obvious repugnancy between them. In such a case as to how the question is to be resolved needs to be considered in the present case. 6. Inasmuch as the enactments, both by the State and the Centre, are under the Concurrent List, we are urged to look to Article 254(2) of the Constitution of India. If we view from that angle, the U.P. Industrial Disputes Act also covers the same field as the Central Industrial Disputes Act. However, Section 2 (oo) (bb) is obviously a special provision enacted under in order to understand the meaning of “retrenchment” and that is the law made by Parliament subsequent to State enactment and naturally falls within the proviso to Article 254(2). If that is so, the Central Industrial Disputes Act. Therefore, we would have taken that view
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but for the special provisions in the Central Act which we will advert to hereinafter. 7. Section 1(2) of the Central Act provides that the Act ‘extends to the whole of India’ and this sub-section was substituted for the original sub- section (2) by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956) with effect from 29-8-1956. Under that Act, Section 31 (which came into force from 7-10-1956) has been introduced which reads as follows:
’31.Act not to override State laws.- (1) If, immediately before the commencement of this Act, there is in force in any State any Provincial Act or State Act relating to the settlement or adjudication of disputes, the operation of such an Act in that State in relation to matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947 as amended by this Act’. Sub- section (1) of the said section makes it clear that the operation of the State Act will not be affected by the Central Act…”
21. The learned counsel for the appellant therefore,
rightly submitted that Section 2 (oo) (bb) of the
I.D. Act will not be attracted in the present case
and on the other hand, the provision of Section 6-N
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of the U.P. I.D. Act is required to be fulfilled
mandatorily by the respondent to retrench the
appellant from his service.
22. The learned senior counsel for the respondent
has not brought in his argument to counter the above
legal contention except contending that the
provision of Section 2(oo) (bb) of the I.D. Act
would be applicable to the fact situation of the
case as the appellant has been in contract
employment in the project. But, we are inclined to
hold that s. 2 (oo) (bb) of the I.D. Act is not
attracted in the present case on two grounds:
Firstly, in the light of the legal principle
laid down by this Court in the case of U.P. State
Sugar Corporation Ltd. (supra), the provisions of
the U.P. I.D. Act remain unaffected by the provision
of the I.D. Act because of the provision in s. 31 of
the Industrial Disputes (Amendment and Miscellaneous
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Provisions) Act, 1956. Hence, s. 2 (oo) (bb) is not
attracted in the present case.
Secondly, the claim of the respondent that the
appellant was a temporary worker is not acceptable
to us. On perusal of facts, it is revealed that his
service has been terminated several times and he was
subsequently employed again till his service was
finally terminated on 27.7.1998. His brief periods
of contracts with the respondent have been from
28.12.1992 to 28.12. 1993 for the first time, from
3.4.1994 to 29.12.1994 for the second time, from
10.1.1995 to 5.1.1996 for the third time, from
16.1.1996 to 11.1.1997 for the fourth time, from
20.1.1997 to 21.1.1998 for the fifth time and from
27.1.1998 to 27.7.1998 for a final time at the end
of which his service was terminated.
23. Very interestingly, the periods of service
extends to close to 6 years save the artificial
breaks made by the respondent with an oblique motive
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so as to retain the appellant as a temporary worker
and deprive the appellant of his statutory right of
permanent worker status. The aforesaid conduct of
the respondent perpetuates ‘unfair labour practice
as defined under Section 2(ra) of the I.D. Act,
which is not permissible in view of Sections 25T
and 25U of the I.D. Act read with entry at Serial
No. 10 in the Vth Schedule to the I.D. Act regarding
unfair labour practices.
Section 2 (ra) reads thus:
“unfair labour practice” means any of the practices mentioned in the Vth Schedule.
Further, Entry 10 of Vth Schedule reads as under:
“5. To discharge or dismiss workmen- …. (10). To employ workmen as ‘badlis’, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.”
24. The respondent, in order to mitigate its conduct
towards the appellant has claimed that the appellant
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was appointed solely on contract basis, and his
service has been terminated in the manner
permissible under Section 2 (oo) (bb) of the I.D.
Act. However, we shall not accept this contention of
the respondent for the following reasons:-
(i) Firstly, the respondent has not produced any
material evidence on record before the Labour
Court to prove that it meets all the required
criteria under the Contract Labour (Regulation
and Abolition) Act, 1970, to be eligible to
employ employees on contractual basis which
includes license number etc.
(ii) Secondly, the respondent could not produce
any material evidence on record before the
Labour Court to show that the appellant was
employed for any particular project(s) on the
completion of which his service has been
terminated through non-renewal of his contract
of employment.
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25. Therefore, we deem it fit to construe that the
appellant has rendered continuous service for six
continuous years (save the artificially imposed
break) as provided under Section 25B of the I.D. Act
and can therefore be subjected to retrenchment only
through the procedure mentioned in the I.D. Act or
the state Act in pari materia.
26. Therefore, we answer the point No. 2 in favour
of the appellant holding that the Labour Court was
correct in holding that the action of the
respondent/employer is a clear case of retrenchment
of the appellant, which action requires to comply
with the mandatory requirement of the provision of
Section 6-N of the U.P. I.D. Act. Undisputedly, the
same has not been complied with and therefore, the
order of retrenchment has rendered void ab initio
in law.
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Answer to Point No.3 27. Having answered point No. 2 in favour of the
appellant, we also answer the point No. 3 in his
favour since we construe that the appellant is a
worker of the respondent Company providing
continuous service for 6 years except for the
artificial breaks imposed upon him with an oblique
motive by the respondent Company. We hold that the
termination of service of the appellant amounts to
“retrenchment” in the light of the principle laid
down by three judge bench decision of this Court in
State Bank of India v. Shri N. Sundara Money5 and
attracts the provision of S. 6-N of the U.P. I.D.
Act. The case mentioned above illustrates the
elements which constitute retrenchment. The relevant
paragraphs read as under:
“9. A break-down of Section 2(oo) unmistakably expands the semantics of retrenchment. 'Termination...for any reason whatsoever' are the keywords. Whatever the reason, every termination spells retrenchment. So
5 AIR 1976 SC 1111
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the sole question is has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2(00). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita but area covered by an expansive definition. It meats 'to end, conclude, cease'. In the present case the employment ceased, concluded, ended on the expiration of nine days automatically maybe, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25F(b) is inferable from the proviso to Section 25F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R.V. Secretary of State (1973) 2 ALL E.R. 103; was relied on, where Lord Denning, MR observed:
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I think the word 'terminate' or 'termination' is by itself ambiguous. It can refer to either of two things-either to termination by notice or termination by effluxion of time It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this paragraph to show that it refers here only to termination by notice. Buckley L. J, concurred and said: In my judgment the words are not capable of bearing that meaning. As counsel for the Secretary of State has pointed out, the verb 'terminate' can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word 'terminated' is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order one giving employment and the other ending or limiting it. A separate, subsequent
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determination is not the sole magnetic pull of the provision. A preemptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.”
28. Section 6N of the U.P. I.D. Act which is in pari
materia to s. 25N of the I.D. Act reads thus:
“[6-N. Condition 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;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies the date of termination of service;
(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 service or any part thereof in excess of six months; and
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(c) notice in the prescribed manner is served on the State Government]”
Evidently, the above said mandatory procedure has
not been followed in the present case. Further, it
has been held by this Court in the case of Anoop
Sharma v. Executive Engineer, Public Health Division
No. 1 Panipat6 as under:
“13….. no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay
6 (2010) 5 SCC 497
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(1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s. Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated. (Emphasis laid by this Court)
Therefore, in the light of the law provided in
the I.D. Act and its state counterpart through the
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U.P. I.D. Act and also on the basis of the legal
principle laid down by this Court, we hold that the
termination of service of the appellant was illegal
and void ab initio.
29. Therefore, the Labour Court was correct on
factual evidence on record and legal principles laid
down by this Court in catena of cases in holding
that the appellant is entitled to reinstatement with
all consequential benefits. Therefore, we set aside
the Order of the High Court and uphold the order of
the Labour Court by holding that the appellant is
entitled to reinstatement in the respondent-Company.
30. On the issue of back wages to be awarded in
favour of the appellant, it has been held by this
Court in the case of Shiv Nandan Mahto v. State of
Bihar & Ors.7 that if a workman is kept out of
service due to the fault or mistake of the
establishment/ company he was working in, then the
7 (2013) 11 SCC 626
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workman is entitled to full back wages for the
period he was illegally kept out of service. The
relevant paragraph of the judgment reads as under:
“5. …. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of backwages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full backwages for the period he was kept out of service.”
31. Further, in General Manager, Haryana Roadways v.
Rudhan Singh8, the three Judge Bench of this Court
considered the question whether back wages should be
awarded to the workman in each and every case of
illegal retrenchment. The relevant paragraph reads
as under:
8 (2005) 5 SCC 591
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“There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.”
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32. Subsequently, in the case of Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya9 it
was held by this Court as under:
“The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. ……..
9 (2013) 10 SCC 324
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vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).….”
(Emphasis laid by this Court)
33. In the present case, the respondent has made a
vague submission to the extent that:
“the conduct of the workman throughout the proceedings before the High Court during 2002 to 2011 shows that he is continuously gainfully employed
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somewhere. Admittedly even in the counter affidavit in the said Writ Petition, it has not been stated that the workman was not employed”
Therefore, on the basis of the legal principle laid
down by this Court in the Deepali Gundu Surwase case
(supra), the submission of the respondent that the
appellant did not aver in his plaint of not being
employed, does not hold since the burden of proof
that the appellant is gainfully employed post
termination of his service is on the respondent. The
claim of the respondent that the appellant is
gainfully employed somewhere is vague and cannot be
considered and accepted. Therefore, we hold that the
appellant is entitled to full back wages from the
date of termination of his service till the date of
his reinstatement.
Answer to point No.4 34. The present case is a clear case of violation
of the constitutional principles expressly
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mentioned in the text. Before we make our
concluding findings and reasons, we wish to revisit
the Harjinder Singh case (supra) which made some
pertinent points as under:
“22. In Y.A. Mamarde v. Authority under the Minimum Wages Act, this Court, while interpreting the provisions of the Minimum Wages Act, 1948, observed: (SCC pp. 109-10)
“The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-Constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This directive principle of State policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate
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social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.”
27. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treatise: Democracy, Equality and Freedom, Justice Mathew wrote:
“The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer’s directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee’s life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the
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actuating motive is a rule settled beyond doubt. But the rule became settled at a time when the words ‘master’ and ‘servant’ were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employer’s absolute right to discharge the employee. Such a philosophy of the employer’s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large-scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law
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of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer’s right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he
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takes the employment on the terms which are offered to him.” (emphasis added)
28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondent’s appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p. 486, para 25)
“25. … It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. ‘This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias.’ The overtones of this ancient doctrine are discernible in the Anglo- American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the
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employer’s absolute right to discharge the employee. ‘Such a philosophy’, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom, p. 326), ‘of the employer’s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers.’ To bring it in tune with vastly changed and changing socio- economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.”
29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words:
“12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions
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of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.”
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.
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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 1,00,000/- will do
justice to the appellant without assigning reasons
which is wholly unsustainable in law.
36. The learned counsel for the respondent had
mentioned before this Court about a settlement
between the parties in this matter after the
judgment was reserved. Therefore, we have not taken
into consideration such plea from the learned
counsel of the respondent since it was taken up
after the hearing was over. Also the documentary
evidence on record produced by the parties required
us to reject the subsequent plea made by the
respondent in this case. We therefore set aside
the finding of the High Court in the impugned
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judgment and hold that the appellant is entitled to
reinstatement with full back wages from the date of
the termination of his service till the date of his
reinstatement and other consequential benefits
which accrue to him by virtue of his employment
with the respondent company. The appeals are
allowed, with no order as to costs.
………………………………………………………………J. [GYAN SUDHA MISRA]
………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, April 25, 2014.