Devinder Singh Vs Municipal
Council, Sanaur
J U D G M E N T
G.S. Singhvi, J.
1.
Leave
granted.
2.
This
appeal is directed against the order passed by the Division Bench of the Punjab
and Haryana High Court in the writ petition filed by the respondent whereby the
award passed by Labour Court, Patiala (for short, "the Labour Court")
for reinstatement of the appellant was set aside and it was declared that he
shall be entitled to wages in terms of Section 17-B of the Industrial Disputes
Act, 1947 (for short, "the Act").
3.
The
appellant was engaged by the respondent with effect from 1.8.1994 for doing the
work of clerical nature. He was paid consolidated 2salary of Rs.1,000/- per month.
He continued in the service of the respondent till 29.09.1996. His service was
discontinued with effect from 30.9.1996 without giving him notice and compensation
as per the requirement of Section 25-F of the Act.
4.
The
appellant challenged the termination of his service by raising an industrial
dispute, which was referred by the State Government to the Labour Court. In the
statement of claim filed by him, the appellant pleaded that he had continuously
worked in the employment of the respondent from 1.8.1994 to 29.9.1996; that his
service was terminated without holding any enquiry and without giving him notice
and compensation and that persons junior to him were retained in service. In the
written statement filed on behalf of the respondent, it was pleaded that the appellant
was engaged on contract basis and his service was terminated because the Director,
Local Self Government did not give approval to the resolution passed for his
employment. According to the respondent, the resolution passed for engaging the
appellant was sent to the Deputy Director for approval, but the same was returned
with the remark that the approval may be obtained from the Director, Local Self
Government. Thereafter, the resolution was sent to the Director, Local Self Government
but no response was received from the concerned authority and, therefore, it
became necessary to discontinue the service of the appellant.
5.
After
considering the pleadings of the parties and the evidence produced by them, the
Labour Court passed an award for reinstatement of the appellant without back wages.
The Labour Court held that the appellant had worked for more than 240 days in a
calendar year preceding the termination of his service and that his service was
terminated with effect from 30.9.1996 without complying with the mandatory
provisions contained in Section 25F of the Act. The Labour Court rejected the
plea that the termination of the appellant's service is covered by Section 2(oo)(bb)
of the Act by observing that no evidence was produced by the respondent to prove
that it was a case of termination of service in accordance with the terms of
the contract of employment.
6.
The
Division Bench of the High Court entertained and allowed the writ petition
filed by the respondent by relying upon the judgments of this Court in Secy., State
of Karnataka v. Umadevi (2006) 1 SCC 1; State of M.P. v. Lalit Kumar Verma (2007)
1 SCC 575; Uttranchal Forest Development Corporation v M.C. Joshi (2007(2) SCC (L&S)
813; M.P. Administration v. Tribhuban (2007) 9 SCC 748; Mahboob Deepak v. Nagar
Panchayat, Gajraula (2008) 1 SCC 575 and Ghaziabad Development Authority v. Ashok
Kumar (2008) 4 SCC 261. The Division Bench was of the view that the Labour
Court should not have ordered reinstatement of the appellant because his
appointment was contrary to the recruitment rules and Articles 14 and 16 of the
Constitution and it would not be in public interest to sustain the award of reinstatement
after long lapse of time. Simultaneously, the Division Bench declared that the
appellant shall be entitled to wages in terms of Section 17-B of the Act.
7.
Shri
R.L.Batta, learned senior counsel for the appellant argued that the impugned
order is liable to be set aside because while interfering with the award of the
Labour Court, the Division Bench of the High Court ignored the judicially recognised
parameters for the exercise of power under Article 226 of the Constitution. Learned
senior counsel further argued that the High Court was not justified in upsetting
the award of reinstatement simply because there was some time gap between
reference of the dispute by the State Government and adjudication thereof by
the Labour Court. Learned senior counsel then relied upon the judgments of this
Court in Harjinder Singh v. Punjab State Warehousing Corporation (2010) 3 SCC
192 and Anoop Sharma v. Public Health Division, Haryana (2010) 5 SCC 497 and
argued that the Labour Court 5did not commit any illegality by ordering
reinstatement of the appellant because his service was terminated in clear
violation of Sections 25-F and 25-G of the Act.
8.
Shri
Sanjay Jain, learned counsel for the respondent argued that the High Court did not
commit any error by setting aside the award of reinstatement because initial appointment
of the appellant was not sanctioned by law. Learned counsel submitted that the
action taken by the respondent was legally correct and justified because the Director,
Local Self Government did not approve the resolution passed by the respondent for
engaging the appellant. Shri Jain further submitted that service of the
appellant was terminated in accordance with the conditions stipulated in the
contract of employment and, as such, it cannot be termed as retrenchment within
the meaning of Section 2(oo) of the Act.
9.
We
have considered the respective submissions and carefully perused the record.
Sections 2(oo), 2(s) and 25F of the Act which have bearing on the decision of
this appeal read as under: "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 - (a) voluntary retirement of the workman; or 6(b) retirement of
the workman on reaching the age of superannuation if the contract of employment
between the employer and the workman concerned contains a stipulation in that
behalf; or(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 a stipulation in that
behalf contained therein; or(c) termination of the service of a workman on the
ground of continued ill-health; 2 (s)
"workman"
means any person (including an apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of employment be express or implied,
and for the purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged or retrenched
in connection with, or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does not include any
such person--(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or(ii) who is
employed in the police service or as an officer or other employee of a prison;
or(iii) who is employed mainly in a managerial or administrative capacity; or who,
being employed in a supervisory capacity, draws wages exceeding ten thousand rupees
per mensem or exercises, either by the nature of the duties attached to the
office or by reason of the powers vested in him, functions mainly of a
managerial nature.
Conditions precedent to
retrenchment of workmen.-No workman employed in any industry who has been in
continuous service for not less than one year under an employer shall be
retrenched by that employer until-(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment and the period of notice has
expired, or the workman has been paid in lieu of such notice, wages for the period
of the notice; (b) the workman has been paid, at the time of retrenchment, compensation
which shall be equivalent to fifteen days' average pay for every completed year
of continuous service or any part thereof in excess of six months; and (c) notice
in the prescribed manner is served on the appropriate Government or such authority
as may be specified by the appropriate Government by notification in the
Official Gazette."
10.
The
definition of the term "retrenchment" is quite comprehensive. It
covers every type of termination of the service of a workman by the employer for
any reason whatsoever, otherwise than as a punishment inflicted by way of
disciplinary action. The cases of voluntary retirement of the workman, retirement
on reaching the age of superannuation, termination of service as a result of non-renewal
of the contract of employment or of such contract being terminated under a stipulation
contained therein or termination of the service of a workman on the ground of continued
ill health also do not fall within the ambit of retrenchment.
11.
In
State Bank of India v. N. Sundara Money (1976) 1 SCC 822, a three Judge Bench
of this Court analysed Section 2(oo) and held: "......Termination ... for any
reason whatsoever' are the key words. Whatever the reason, every termination spells
retrenchment. So 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. Maybe, the present may be a hard case, but we can visualise abuses by
employers, by suitable verbal devices, circumventing the armour of Section 25-F
and Section 2(oo). Without speculating on possibilities, we may agree that
"retrenchment" is no longer terra incognita but area covered by an
expansive definition. It means "to end, conclude,
cease"...................." The ratio of the aforementioned judgement
was approved by the Constitution Bench in Punjab Land Development And Reclaimation
Corporation Ltd., Chandigarh v. Presiding Officer Labour Court, Chandigarh
(1990) 3 SCC 682.
12.
Section
2(s) contains an exhaustive definition of the term `workman'. The definition
takes within its ambit any person including an apprentice employed in any
industry to do any manual, unskilled, skilled, technical, operational, clerical
or supervisory work for hire or reward and it is immaterial that the terms of employment
are not reduced into writing. The definition also includes a person, who has
been dismissed, discharged or retrenched in connection with an industrial
dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment
has led to that dispute. The last segment of the definition 9 specifies certain
exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or
the Navy Act, 1957, is applicable or who is employed in the police service as
an officer or other employee of a prison or who is employed mainly in managerial
or administrative capacity or who is employed in a supervisory capacity and is drawing
specified wages per mensem or exercises mainly managerial functions does not
fall within the definition of the term `workman'.
13.
The
source of employment, the method of recruitment, the terms and conditions of employment/contract
of service, the quantum of wages/pay and the mode of payment are not at all
relevant for deciding whether or not a person is a workman within the meaning
of Section 2(s) of the Act.
14.
14.
It is apposite to observe that the definition of workman also does not make any
distinction between full time and part time employee or a person appointed on contract
basis. There is nothing in the plain language of Section 2(s) from which it can
be 10inferred that only a person employed on regular basis or a person employed
for doing whole time job is a workman and the one employed on temporary, part time
or contract basis on fixed wages or as a casual employee or for doing duty for
fixed hours is not a workman.
15.
Whenever
an employer challenges the maintainability of industrial dispute on the ground that
the employee is not a workman within the meaning of Section 2(s) of the Act,
what the Labour Court/Industrial Tribunal is required to consider is whether
the person is employed in an industry for hire or reward for doing manual, unskilled,
skilled, operational, technical or clerical work in an industry. Once the test
of employment for hire or reward for doing the specified type of work is satisfied,
the employee would fall within the definition of `workman'.
16.
In
Birdhichand Sharma v. First Civil Judge,Nagpur 1961 (3) SCR 161 this Court considered
the question whether bidi rollers were workmen within the meaning of the term
used in the 11Factories Act, 1948. The factual matrix of the case reveals that
the workers who used to roll the bidis had to work at the factory and were not
at liberty to work at their houses. Their attendance was noted in the factory and
they had to work within the factory, though there was freedom of doing work for
particular hours. They could be removed from service on the ground of absence
for eight days. The wages were paid on piece-rate basis. After considering these
facts, the Court held that the bidi rollers were workmen. The Court observed
that when the operation was of a simple nature and did not require supervision,
the control could be exercised at the end of the day by the method of rejecting
bidis which did not meet the required standard and such supervision was
sufficient to establish the employer employee relationship.
17.
In
Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments 1974
(3) SCC 498 the three Judge Bench held that the tailors employed in a tailoring
shop, who were paid according to their skill and work and the quality of whose
work was regularly checked were employees covered by the Andhra Pradesh
(Tilengana Area) Shops and Establishments Act, 1951.
18.
In
L. Robert D'souza v. Executive Engineer (1982) 1 SCC 645 the Court held that even
a daily rated worker would be entitled to protection of Section 25-F of the Act
if he had continuously worked for a period of one year or more.
19.
Section
25 couched in negative form. It imposes a restriction on the employer's right to
retrench a workman and lays down that no workman employed in any industry who
has been in continuous service for not less then one year under an employer
shall be retrenched until he has been given one month's notice in writing
indicating the reasons for retrenchment and the period of notice has expired or
he has been paid wages for the period of notice and he has also been paid, 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 and notice in the prescribed manner has been served upon the appropriate
Government or the authority as may be specified by the appropriate Government
by notification in the Official Gazette.
20.
This
Court has repeatedly held that the provisions contained in Section 25F (a) and
(b) are mandatory and termination of the service of a workman, which amounts to
retrenchment within the meaning of Section 2(oo) without giving one month's notice
or pay in lieu thereof and retrenchment compensation is null and
void/illegal/inoperative--State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC
610, Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617, State Bank
of India v. N. Sundara Money (supra), Santosh Gupta v. State Bank of Patiala (1980)
3 SCC 340, Mohan Lal v. Bharat Electronics Ltd.(1981) 3 SCC 225, L. Robert D'Souza
v. Southern Railway (supra), Surendra Kumar Verma v. Central Government Industrial
Tribunal-cum-Labour Court (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass
(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. 21 In Anoop Sharma v. Executive Engineer,
Public Health Division, Haryana (supra), the Court considered the effect of
violation of Section 25F, referred to various precedents on the subject and
held the termination of service of a workman without complying with the mandatory
provisions contained in Section 25-F (a) and (b) should ordinarily result in
his reinstatement.
21.
We
may now advert to the impugned order. 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) 6SCC 675 and Shalini Shyam v. Rajendra Shankar Path
(2010) 8 SCC 329.
22.
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: "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 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."
23.
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 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." In Surya Dev Rai
v. Ram Chander Rai (supra), the two-Judge Bench noticed the distinction between
the scope of Articles 226 and 227 of the Constitution and culled out several propositions
including the following: "(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross errors of jurisdiction i.e. when a
subordinate court is found to have acted (i) without jurisdiction --by assuming
jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by
overstepping or crossing the limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of procedure or acting in violation of
principles of natural justice where there is no procedure specified, and thereby
occasioning failure of justice."
24.
We
are also convinced that the reasons assigned by the High Court for setting
aside the award of reinstatement are legally untenable. In the first, it deserves
to be noticed that the respondent had engaged the appellant in the back drop of
the ban imposed by the State Government on the filling up of the vacant posts. The
respondent had started a water supply scheme and for ensuring timely issue of
the bills and collection of water charges, it needed the service of a clerk. However,
on account of the restriction imposed by the State Government, regular
recruitment was not possible. Therefore, resolution dated 27.04.1995 was passed
for engaging the appellant on contract basis. The relevant portions of the resolution
are extracted below: "MUNICIPAL COUNCIL,SANAUR,(PATIALA). COPY OF
RESOLUTION NO.30 DATED 27.04.1995 It has been informed by the office to the house
that one vacancy of Clerk in the office of Municipal Council, Sanaur is being vacant
to the water supply branch.
Due to ban imposed by
the Punjab Government vacancy cannot be filed in at present. Municipal Council is
operating two tubewells and is directly supplying water to the- general public.
At present Municipal Council is operating two tubewells and is directly supplying
water to the general public. Municipal Council has given about 1500 water
connections. In respect of issuance of water bills and their respective deposit
there is need of one Clerk. This vacancy can be filled in after receiving sanction
from the government. Therefore at present for the working of the office business
as per the instruction of the Government, sanction may kindly be accorded for employing
a person as Clerk on contract basis on the consolidated salary of Rs. One thousand
18 per month. This matter was discussed seriously by the house because to provide
water to the general public in the summer season is very essential.
Therefore, to run
smoothly - the work of water supplying Shri Devinder Singh son of .Shjri Hazura
Singh of Mohalla kanian, Sanaur is hereby engaged for a period of six months on
contract basis on a consolidated salary of Rs. One thousand with effect from 02.05.1995.
Resolution was unanimously passed. Sd/- President Minicipal Council, Sanaur Patiala
25.
In
furtherance of the aforesaid resolution, the respondent engaged the appellant,
who was already in its employment, as a Clerk for a period of six months on
contract basis on consolidated salary of Rs. 1,000/- per month. At the end of six
months, the respondent passed another resolution dated 30.11.1995 and again employed
the appellant for a period of six months from 1.11.1995 to 20.4.1996. This exercise
was repeated in 1996 and the appellant's term was extended for six months from 1.5.1996.
However, his engagement
was discontinued w.e.f. 30.9.1996 without giving any notice or pay in lieu thereof
and compensation as per the requirement of clauses (a) and (b) of Section 25- F
of the Act. It is true that the engagement of the appellant was not preceded by
an advertisement and consideration of the competing claims of other eligible
persons but that exercise could not be undertaken by the respondent because of
the ban imposed by the State Government. It is surprising that the Division
Bench of the High Court did not notice this important facet of the employment
of the appellant and decided the writ petition by assuming that his appointment/engagement
was contrary to the recruitment rules and Articles 14 and 16 of the
Constitution. We may also add that failure of the Director, Local Self
Government, Punjab to convey his approval to the resolution of the respondent could
not be made a ground for bringing an end to the engagement of the appellant and
that too without complying with the mandate of Section 25-F(a) and (b).
26.
The
other reason given by the High Court is equally untenable. The appellant could hardly
be blamed for the delay, if any, in the adjudication of the dispute by the
Labour Court or the writ petition filed by the respondent. The delay of four to
five years in the adjudication of disputes by the Labour Court/Industrial
Tribunal is a normal phenomena. If what the High Court has done is held to be
justified, gross illegalities committed by the employer in terminating the
services of workman will acquire legitimacy in majority of cases. Therefore, we
have no hesitation to disapprove the approach adopted by the High Court in
dealing with the appellant's case.
27.
The
plea of the respondent that the action taken by it is covered by Section 2(oo)(bb)
was clearly misconceived and was rightly not entertained by the Labour Court
because no material was produced by the respondent to show that the engagement of
the appellant was discontinued by relying upon the terms and conditions of the employment.
28.
In
the result, the appeal is allowed. The impugned order is set aside and the
award passed by the Labour Court for reinstatement of the appellant is restored.
If the respondent shall reinstate the appellant within a period of four weeks from
today, the appellant shall also be entitled to wages for the period between the
date of award and the date of actual reinstatement. The respondent shall pay the
arrears to the appellant within a period of three months from the date of receipt/production
of the copy of this order.
...............................J.
(G.S. Singhvi)
...............................J.
(Asok Kumar Ganguly)
New
Delhi,
April
11, 2011.
Back
Pages: 1 2
