[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR (S.B. CIVIL WRIT PETITION NO.2607/1999) The Divisional Railway Manager, WR, Kota versus The Judge Central Industrial Tribunal, Kota & Anr. Date of Order:19/08/2008 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. G.C. Garg & Ms. Sonal Singh, for the petitioner(s). Mr. Arvind Bhardwaj, for the respondent(s). By the Court (Oral). This writ petition is directed against the award passed by the Central Industrial Tribunal, Kota on 28/01/1999 in case no. I.C. 08/1994. It has been prayed that the said award be quashed and set-aside and that Rakesh Thakur, respondent no.2 is not entitled to reinstatement with consequential benefits. 2. The respondent no.2 had raised a dispute, under the provisions of the Industrial Disputes Act, 1947, stating that he was engaged on 31/05/1983 as casual Khalasi in the Staff Canteen, in the office of Divisional Railway Manager, Kota, Further, it had been stated that when he reported for duty on 05/06/1985, he was not allowed. Therefore, the respondent stated that his services were terminated w.e.f. 05/06/1985 without following the provisions as laid down under Section 25F of the Act of 1947. The respondent has also stated that he has completed 240 days of service in preceding twelve months from the date of termination of his service. He also submitted that his services had been terminated without complying with the provisions of the I.D. Act and as such he is entitled to be [2] reinstated in service with all consequential benefits. 3. After raising of the aforesaid dispute by respondent no.2, conciliation proceedings were drawn and reply was filed by the petitioner. Ultimately, conciliation failed and the failure report was submitted to the Labour Commissioner (Central). Subsequently, a reference was notified for adjudication at Delhi which was later on transferred to the Court of the Central Industrial Tribunal, Kota, for adjudication. The terms of reference were as follows:- “Whether the action of the D.R.M., Western Railway, Kota, in terminating the services of Shri Rakesh Thakur with effect from 04/06/1985 is justified? If not, what relief the workman is entitled to?”. 4. Thereafter, the respondent-workman filed a claim petition before the learned Tribunal with the averments, mentioned hereinabove, as stated before the Conciliation Officer. The petitioner filed a reply to the statement of claim and objections were raised that services of respondents were engaged and terminated by the Secretary of the Non-Statutory Canteen in the office of D.R.M., Kota. For this reason, it was stated that the claim against Western Railway is not maintainable. Another objection raised by the petitioner was that the said canteen was managed by an elected management committee and is being run on 'No profit No Loss” basis. Further, it was stated that total workers on the roll of the canteen are five in number and as such it did not come within [3] the definition of an industry. Therefore, it was stated that a provisions of the I.D. Act are not applicable. The petitioner had also denied the claim of the respondent on merits. Thereafter, the evidence of the parties by way of affidavit was taken on record and procedure of cross- examination was followed by both the parties. 5. After considering the claim, reply and the evidence on record produced by both the parties, the learned Industrial Tribunal passed an award in favour of the workman-respondent. The learned Tribunal held that the termination of the services of respondent no.2 is illegal and invalid and therefore he be reinstated in service with the benefit of continuity and 30% of backwages were also awarded in favour of the workman. Being aggrieved of the award passed on 28/01/1999, the petitioner has filed the present writ petition. 6. The petitioner has submitted that the claim of the employee that there had been non compliance of Section 25F of the Industrial Disputes Act, is not maintainable. Further, it has been submitted that there are only five persons working in the canteen at the office of DRM, Kota and there was no evidence, that they were employed by the Railways. It has also been submitted that though the petitioner was gainfully employed, backwages to the extent of 30% awarded by the Tribunal is erroneous and illegal. 7. The learned counsel for the respondent-employee, replying to the petitioner, submitted that the instant claim [4] before the Tribunal on the ground of violation of the provisions of the Section 25F of the I.D. Act is very much maintainable. He has further submitted that dispute was raised by the respondent-workman under the provisions of the I.D. Act and on failure of conciliation proceedings, the Labour Commissioner, (Central) had made a reference which was adjudicated by the Industrial Tribunal (Central) Kota. It has also been submitted that the learned Labour Court has awarded only 30% backwages, after having considered the facts and circumstances of the case and the limited benefit given in respect of the backwages cannot be said to be illegal or erroneous. The learned counsel for the respondent has stated that the canteen in the office of D.R.M., Kota was being run by a Committee which was composed of Railway Officers only. 8. The learned counsel for the respondent has submitted that the award impugned, has been passed by the learned Industrial Tribunal after thoroughly considering the dispute between the parties, the evidence produced before it and on consideration of relevant provisions of the I.D. Act as well as the provisions of law laid down by the Hon'ble Supreme Court. 9. Before considering the rival submissions of the parties it would be more appropriate to refer to the celebrated judgment passed by the Hon'ble Supreme Court in respect of the issue involved in the present case. In case of M.M.R. Khan & Ors vs. Union of India & Ors., while considering the status [5] and position of a staff canteen which was non-statutory, the Hon'ble Court held as under:- 2. “For our purpose, these canteens have to be classified into three categories, viz (i) Statutory Canteens- These are canteens required to be provided compulsorily in view of the provisions of Section 46 of the Factories Act, 1948 (hereinafter referred to as 'the Act') since the Act admittedly applies to the establishments concerned and the employees working in the said establishments exceed 250; (ii) Non- Statutory Recognized Canteens- These canteens are run in establishments which may or may not be governed by the Act but which admittedly employ 250 or less than 250 employees, and hence, it is not obligatory on the railways to maintain them. However, they have been set up as a staff welfare measure where the employees exceed 100 in number. These canteens are established with the prior approval and recognition of the Railway Board as per the procedure detailed in the Railway Establishment Manual; and (iii) Non- Statutory Non-Recognized Canteens- These canteens are run at establishments in category (ii) above but employ 100 or less than 100 employees, and are established without the prior approval or recognition of the Railway Board.” 31. “(ii) Non-Statutory Recognised Canteens: Paragraph 2830 of the Railway Establishment Manual enjoins upon the railway administration to take steps to develop their canteen organisation to the maximum possible extent as a measure of staff welfare preferably by encouraging the development of canteens for staff on co- operative basis. This injunction is for provision of canteens in addition to the canteens as required by the Factories Act for which provision is made in paragraph 2829 of the said Manual. Paragraph 2831 lays down the principles governing the setting up of the canteens which apply also to the non-statutory canteens provided for [6] under paragraph 2830. It says, among other things, that a regular canteen should be provided where the strength of the staff is 100 or more and a scheme for provision of a new canteen should be submitted to the Railway Board for approval indicating financial implications duly vetted by the FACO. Paragraph 2833 contains provisions for the management of such non-statutory canteens. Among other things, it states that such canteens can be run either by a committee of management to be formed for the purpose or by a consumer co-operative society. The committee of management should consist of the duly elected representatives of the staff and where it is run by a co-operative society, it should consist of the representatives of the shareholders of the society. However, in either of the cases, a representative of the railway administration is to be nominated either as a Chairman or a Secretary or as a member of the committee. This nominee of the railway administration is under an obligation to bring to the notice of the administration any decision of the managing committee which is likely to affect the interests of the railway administration in its capacity as an owner of the premises and of the furniture, equipment, etc; or if the decision is likely to be of considerable harm to the staff. In such cases, the managing committee cannot take action on the particular decision till the General Manger of the Railway has recorded his decision thereon. The paragraph further ordains that where the canteens are managed by a co- operative society, the society should make a suitable provision in its bye-laws for supervision of the canteen by the committee of management. The paragraph also makes provision for granting loans to such canteens as initial capital from the Staff Benefit Fund. Paragraph 2834 then details various facilities which are extended to such canteens which include the necessary accommodation, sanitary and electric installations, furniture and cooking utensils. The railway [7] administration is also required to bear rent on sanitary and electric installations, service taxes and charges for the electricity and water consumed. These canteens are also entitled to subsidies at present to the extent of 70 per cent of the wages of the employees engaged therein. 37. We are, therefore, of the view hat the case of these employees should be treated on par with that of the employees in the statutory canteens and they should also be treated for all purposes as railway servants.” 10. Learned Industrial Tribunal after considering the facts of the present case and the material on record arrived to the finding that the respondent-workman had continuously worked in the staff canteen from 31/05/1983 to 04/06/1985. He was removed from service on 05/06/1985 without giving one month's notice or salary in lieu thereof. Thereafter, the workman namely Ashok Kumar was employed and this fact could not be controverted either by oral or documentary evidence. The learned Tribunal held that the respondent- workman by working continuously from 31/05/1983 to 04/06/1985, had completed 240 days in a calender year and as such he was removed from service on 05/06/1985 in violation of the provisions of Section 25F Act. Before the learned Tribunal, the only objection raised by the non-applicant employer was that a staff canteen was different from a canteen established under the statutory liability and the management of the canteen was done by elected representatives, had recruited the employees. The railway department had only paid 70% subsidy to such staff canteen. It has also been held by the Tribunal that there was no [8] documentary evidence placed on record by the non-applicant employer to show that the said staff canteen was non-statutory or recognised. However, the Tribunal held that the non- applicant employer has clearly accepted that staff canteen in question was non-statutory canteen of the employer and therein, the railway department had been giving 70% of a subsidy. After considering the Indian Railway Establishment Manual from Section F of para 2229 and 2230 in respect of the management of the statutory canteens and para 2231, 2232 and 2233, the learned Tribunal took into consideration the management of the canteens in respect of canteen other than the statutory one. Therefore, in the light of the judgment of the MMR Khan (supra), the learned Tribunal held that such like canteens, as in the present case, are held to be a non-statutory recognised railway canteens and the respondent-workman had been a employee of such canteen. In such view, the learned Tribunal held that the respondent-workman was employed with the non- applicants and there had been the relationship of a workman and employer, between the parties. It has also been held by the Tribunal that it has been an admitted position from the side of the non-applicant employer that before terminating of the service of the employer on 05/06/1985 the compliance of the provision of 25F Act had not been done. The services of the workman was done away from 05/06/1985 without complying of the provision of 25F Act. Therefore it was held by the Tribunal that the termination of the services of the workman were not in due manner and illegal and as such it was fully established that the workman is entitled for reinstatement with continuity in [9] service of the employer. 11. In view of the aforesaid categorical finding arrived at by the learned Industrial Tribunal, the question which arises for consideration is as to whether is there any error on the face of record in the judgment impugned by the petitioner which calls for exercise of supervisory powers of this Court under Article 227 of the Constitution of India and does the said order of the learned Tribunal warrants any interference by this Court. 12. It would not be out of place to mention here that a judgment of the Hon'ble Supreme Court, in a case of similar nature, where two questions for consideration were, whether the employees working in the Railway employees Cooperative Stores are to be treated as railway employees, Secondly, are they entitled to the salaries which are being paid to the employees under the Railway establishment. In the case of Union of India & Ors. vs. Southern Railway Employees Cooperative Store Worker Union (civil SLP No.2942) decided on 07/09/1994, it was held that the employees working in the Railway Cooperative Store which in fact are employees of the Railway Establishment and therefore they are entitled for salary which has been paid to the employees under the railway establishment. The judgment of the Apex Court reads thus:- “The question for our consideration is whether the employees working in the Railway Employees Co- operative Stores are to be treated as railway employees and are entitled to [10] the salaries which are being paid to the employees under the Railway Establishment. The question has been answered by the Central Administrative Tribunal, Madras Bench in the affirmative. The Tribunal has examined in detail chapter XXIX of the Indian Railway Establishment Manual and has referred to paras 2901 to 2909. Based on the provisions of the Railway Manual and taking into consideration the actual working of the stores, the Tribunal has come to the conclusion that the employees working in the Co-operative Stores are in fact and law employees of the Railway Establishment. We have been taken through the judgment of the Tribunal and other relevant material on the record. We see no ground to interfere with the reasoning and the conclusion reached by the Tribunal. The appeal is dismissed with no costs.” 13. Learned counsel for the petitioner has relied upon Section F of the Indian Railway Establishment Manual which provides for Rules regarding statutory or non-statutory (recognised) canteens on Indian Railways. It is to be noted that the said rules have been revised subsequent to the judgments of Hon'ble Supreme Court passed on 22/10/1980 and 27/02/1990 (MMR Khan's case) whereby canteen employees were treated as railway servants from 22/10/1980 (in respect of statutory and 11 Delhi based Non-Statutory recongised subsidised canteens) and w.e.f. 01/04/1990 (in respect of employees of remaining Non- Statutory recognised subsidised canteens). It was due to the said judgment that it necessitated the railways for thorough revision of the provisions continued in paras 2229 to 2237 on Indian Railway Establishment Manual. It is to be noted that in the instant case we are concerned with the respondent- employee who had joined service from 31/05/1983 and his [11] services were terminated from 04/06/1985. Moreover, the revision in respect of the some of the provisions of the Railway Establishment Manual was done by the Railway Board on 16/11/1999 whereas the learned Industrial Tribunal had passed the award on 28/01/1999. For this reason also it cannot be said that the learned Tribunal had committed any error of the nature which calls for interference by this Court. 14. Learned counsel for the petitioner relied upon the cases of :- (1). Director, Food & Supplies, Punjab & Anr. Versus Gurmit Singh (2007) 5 SCC 727. (2). Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. (3). Canteen Mazdoor Sabha versus Metallurgical & Engineering Consultants (India) Ltd. and Ors. (2007) 7 SCC 710. (4). Hari Shankar Sharma & Ors. versus Artificial Limbs Manufacturing Corpn. & Ors. (2002) 1 SCC 337. (5). SBI & Ors. versus SBI Canteen Employees Union, (Bengal Circle) & Ors. (2000) 5 SCC 531. (6). Parimal Chandra Raha versus LIC of India, AIR 1995 Supreme Court 1666, (7). State of UP versus Jai Bir Singh (2005) 5 SCC 1. (8). Kamla Nehru Memorial Hospital versus Vinod Kumar, (2006) 1 SCC 498. (9). Uttaranchal Forest Development Corpn. & Anr. Versus K.B. Singh & Ors. (2005) 11 SCC 449. (10). Employers, Management of R.B.I. Versus Their Workmen AIR 1996 Supreme Court 1241. 15. In view of reasons given herein above, so far as the principles of law laid down in the aforesaid judgments, in reference to the fact situations of those cases, does not give [12] any help to the petitioner employer in context to the present case. As submitted above, the instant case relates to an employee of the railway canteen who was granted services on 31/05/1983 and was terminated on 05/07/1985. It is not in dispute that the Indian Railway Establishment Manual, from para 2229 to 2237, as it then existed, were applicable to the instant case. Many of the aforesaid judgments relied upon by the learned counsel for the petitioner do not relate to the employees of railway staff canteens nor the Railway Establishment Manual was applicable to them. 16. As mentioned above, in view that the judgment impugned has been passed after thoroughly considering the facts and circumstances of the case, the material on record, the relevant rules of the Railway Establishment Manual and the law laid down by the Apex Court in the case of M.M.R. Khan (supra), in my view no error of the nature which calls for interference by this Court in exercise of supervisory jurisdiction under Article 227 of Constitution of India. It would not be out of place to mention here that this Court in exercising of powers of the Article 227 of the Constitution has a limited scope. In a writ of certiorari, this Court has not to consider the judgment passed by the court/Tribunal below as if sitting in a court of appeal. A Division Bench of this Court has aptly reiterated the law in respect of the powers by this Court in extra jurisdiction under Article 226 & 227 of the Constitution of India in the case of Mahipat Singh versus Board of Revenue, 1989 (1) RLW 506, held thus:- [13] 2. “Mere formal or technical error, even though of law, will not however be sufficient to attract extra ordinary jurisdiction under Arts. 226 & 227 of the Constitution of India. Where the errors cannot be said to be errors of law, apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or commission to draw inference or in other words, errors which a court sitting as a court of appeal only could have examined, there is no case for the exercise of such jurisdiction. 3. It is a well established principle that a finding of fact cannot be challenged under Article 226 & 227 of the Constitution of India on the ground that the evidence before the inferior court was insufficient or inadequate to sustain the finding, as a writ court is not a court of appeal. The interference is possible only when it is shown that in recording the said finding the inferior court had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which had influenced the impugned finding. The same can not be assailed in writ jurisdiction. 4. In one like sentence, it can be said that the jurisdiction of High Court to issue a writ of certiorari is a supervisory and the Court exercising it is not entitled to act as an appellate Court, and this limitation necessarily means that findings of fact reached by the inferior court as a result of the appreciation of evidence cannot be reopened or question in writ proceedings. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the inferior court, the points cannot be agitated before a writ court.” 17. In a recent judgment passed by the Hon'ble Supreme Court in the case of Sadhana Lodh versus National [14] Insurance Company Ltd. & Anr. 2003 (3) SCC 524, a provision of law in respect of power of jurisdiction and scope of this Court under Article 226 & 227 of the Constitution had been reiterated. It has been held as under by the Apex Court:- “The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” 18. In view of the above, this Court is of the considered view that the learned Industrial Tribunal has thoroughly taken into consideration the facts and circumstances of the present case, the relevant rules, the nature of the employment and the principles of law has laid down by the Apex Court. Therefore the order passed by the Industrial Tribunal does not call for any interference by this Court in exercise of its extra ordinary powers of the Constitution of India. 19. Consequently, this writ petition fails and it is hereby dismissed. In the facts and circumstances of the case there shall be no order as to cost. (RAGHUVENDRA S. RATHORE),J. RameshJr.P.A. Item no.S-1. [15] [16]