THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 13720 of 1996 Date 09.09.2005 Between: The Principal,S.S.R.Tutorial College,Devka Mahal,Bank Street,Hyderabad rep.by Sri K.Rama Krishna. ..... PETITIONER AND The Labour Court,Hyderabad Rep.by its Presiding Officer Chandara Vihar Building IInd Floor M.J.Road Hyderabad & others. .....RESPONDENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13720 of 1996 O R D E R: This writ petition is filed against the award of the Labour Court-I, Hyderabad in I.D.No.575 of 1993, dated 26.12.1995. The facts, to the extent necessary for this writ petition, are that the second respondent/workman joined the services of the petitioner-Institute in February, 1978 as Lab Assistant-cum- duplicating machine/Swift off set 150 machine operator. Before the Labour Court, the second respondent/workman contended that his services were orally terminated with effect from 18.01.1993. It was stated that the last drawn salary by the second respondent/workman was Rs.1,900/-, out of which, he contributed Rs.158/- per month towards provident fund, that the second respondent/workman was not permitted to avail any public, national and festival holidays, that he worked on those days also and whenever the workman was on leave, his salary was deducted from his total wages for the days he was absent from duty. It is stated that when the second respondent/workman availed two days leave for Sankranthi Festival, he was prevented from resuming his duties on 18.01.1990. No notice was given to him nor was he paid one month’s salary in lieu of notice. No charge sheet was issued nor was any domestic enquiry conducted before his services were terminated. A specific plea was taken by the workman before the Labour Court that the petitioner-tutorial college is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). In its counter affidavit filed before the Labour Court, the petitioner-Institute stated that the second respondent was not a workman within the meaning of Section 2(s) of the Act, that the allegation that he joined as Lab Assistant-cum- duplicating machine operator was false, that the second respondent joined the services of the petitioner-institute as a trainee attender as he was illiterate, that he was brought by one of the employees of the petitioner-Institute and was provided the job of trainee attender on humanitarian grounds and when he was appointed as a trainee, the petitioner-Institute did not have an off set machine and the said machine was purchased only in the year 1985. It was contended by the petitioner-Institute, that the second respondent was not having a good record of service, that he was warned several times for his irregular attendance but was continued only on humanitarian grounds. The contention of the second respondent/workman that he worked from 7 a.m. to 3 p.m. and 6 p.m. to 9 p.m., and that he worked overtime on holidays is denied. The contention that the petitioner- Institute had deducted wages from the salary of the second respondent/workman whenever he went on sick leave was also denied. It is stated that the second respondent/workman had absented from duties with effect from 12.01.1993 continuously and was marked continuously absent in the attendance register maintained by the petitioner-Institute till 20.02.1993, that on receipt of the representation dated 17.02.1993, petitioner-Institute had sent word to the second respondent/workman as to why he was continuously absent, to which, the workman informed that he was no longer interested as he had secured better employment. Since he had voluntarily left the petitioner- Institute, no action was taken against the second respondent/workman. It is stated that this I.D. was raised at the instigation of one Mr. Appa Rao and that false allegations had been made in the claim petition only for unlawful gain. It is contended that since the second respondent/workman had left the services of the petitioner-Institute on his own accord, the provisions of Section 25-F of the Act are not applicable. The petitioner-Institute contended that it had reliably learnt that the second respondent/workman was gainfully employed elsewhere. On behalf of the second respondent/workman, Exs.W.1 to W.9 were marked and he got examined himself as W.W.1. On behalf of the petitioner-Institute, the employer got himself examined as M.W.1. However, no documents were marked as exhibits. The second respondent/workman, in addition to stating that he joined the services of the petitioner-Institute in February 1978 as Lab Assistant-cum- duplicating machine operator and that he continued in service till he was orally terminated with effect from 18.01.1993, also marked copies of his representation to the petitioner-Institute, acknowledged under Ex.W.2 and Provident Fund Slips as Exs.W.3 to W.6 to show that he was an employee of the petitioner-Institute and that the petitioner-Institute was also contributing towards Provident Fund as an employer. Exs.W.7 and W.8 were marked as exhibits to show that the petitioner-Institute had appreciated the services of the second respondent/workman. The contents of the said document also reveal that the workman had worked as an operator of the duplicating machine since 1978, as an operator of the Swift off set 150 machine since 1984 and that he was a reliable and a hard working person. Ex.W.9 was the bona fide certificate showing that the workman studied 9th and 10th classes during 1976 to 1978 in V.V.Excelsior High School, Hyderabad. The second respondent/workman contended that his services were terminated without following the procedure contemplated under Section 25-F of the Act and that he was not paid salary for 18 days in the month of January 1993. Though in the counter affidavit, the petitioner-Institute had taken the plea that the second respondent was not a workman within the meaning of Section 2(s) of the Act, this point was not pressed during the course of arguments in the I.D. which fact was recorded in the award of the Labour Court. As such the question as to whether the second respondent was a workman within the meaning of Section 2(s) of the Act or not need not be gone into in this writ petition. The averments in the counter affidavit were reiterated by Mr. K.Rama Krishna, who examined himself as M.W.1, and except the self-serving statement made in the affidavit, no documents were marked as exhibits on his behalf. The Labour Court referred to Exs.W.7 and W.8. Ex.W.7 was issued by the former Principal of the petitioner-Institute and was a letter of appreciation wherein it was clearly mentioned by the then Principal of the petitioner-Institute namely, Mr. K.Sundara Ram, that the second respondent had been working since 1978 till the date of letter (dated 05.12.1984) as Laboratory Assistant- cum-duplicating machine operator. Ex.W.8 was a letter of appreciation dated 03.11.1987 given by none other than the Principal of the petitioner-Institute. It is stated that the second respondent had been working as operator of the duplicating machine operator since 1978 and as an operator of the swift off set 150 machine since 1984 and that he was adept with both the machines. M.W.1, in his cross-examination, admitted that Exs.W.7 and W.8 were issued by the petitioner-Institute. In view of the admission of M.W.1 and taking into consideration Exs.W.7 and W.8 that the second respondent/workman was working as Laboratory Assistant-cum-duplicating operator since 1978 till 03.11.1987 (by which date Exs.W.7 and W.8 were issued), the Labour Court came to the conclusion that the workman worked with the petitioner-Institute from February 1978 to 03.11.1987. The Labour Court took note of Ex.W.9 and held that the second respondent/workman had studied 9th and 10th classes. The contention of the petitioner-Institute that the workman was illiterate and that he worked as trainee was not accepted by the Labour Court. The Labour Court came to the conclusion that since the workman had worked regularly from February 1978 to 03.11.1987, it is deemed that he was a regular employee of the petitioner-Institute and in the absence of any notice or charge sheet being issued and without any domestic enquiry being conducted, termination of the workman was held to be illegal, unjust and against principles of natural justice. The Labour Court took note of Exs.W.4 to W.6, the annual statements of accounts for the years 1988-89, 1989-90 and 1987-88, and held that the workman was contributing amounts towards employees provident fund. Exs.W.4 to W.6 were issued by the Regional Provident Fund Commissioner, Hyderabad. It was admitted by M.W.1 in his cross-examination that he used to deduct provident fund relating to the workman as per rules, which was corroborated by the documentary evidence in Exs.W.4 to W.6. The Labour Court held that though M.W.1 had stated in his evidence that the attendance register showed that the second respondent was continuously absent from 12.01.1993 till 20.02.1993, they did not chose to place the said attendance register before the Labour Court nor did they choose to file any record maintained in their office to show the status of the workman. Since the workman had filed Exs.W.1 to W.9 to prove his educational qualifications and his status in the petitioner-Institute, the Labour Court held that the workman had proved beyond doubt that he had worked with the petitioner-Institute as Lab-Assistant-cum-duplicating machine operator from February 1978 till 11.01.1993 and that he had worked continuously without any break in service. The Labour Court declared the oral order of termination of the second respondent/workman, with effect from 18.01.1993, as illegal, invalid and in violation of principles of natural justice and directed the petitioner-Institute to reinstate the workman into service with continuity of service, 50% of back wages and other attendant benefits. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner would submit that the findings of the Labour Court are erroneous. He would submit that there was no dispute between the petitioner-Institute and the workman and that there was no order of termination. As such the Labour Court did not have jurisdiction to adjudicate the dispute. It is contended that the provisions of the Industrial Disputes Act are not applicable to Educational Institutions and that the second respondent is not a workman within the meaning of Section 2(s) of the Act. The petitioner-Institute denied the contention that they had not pressed the plea that the second respondent was not a workman before the Labour Court. It is further contended that the second respondent was gainfully employed and is working under the control of the third respondent and that despite his personal request, the third respondent refused to give a certificate of employment. It is submitted that during the course of the proceedings before the Labour Court, though an averment was made that the second respondent was gainfully employed, since the petitioner-Institute had no positive information, the same could not be mentioned in his evidence. It is further submitted that since the petitioner- Institute had not terminated the services of the workman, it was under no obligation to send an invitation to him to join duty. Insofar as the contention regarding the second respondent not being a workman under Section 2(s) of the Act is concerned, one has necessarily to go by what was recorded in the award of the Labour Court. The record of proceedings of Courts/Tribunals are conclusive and facts as recorded in the order, regarding what took place in Court, cannot be the subject matter of challenge before superior Courts or Tribunals. In State of Maharashtra Vs. Ramdas Shrinivas Nayak The Supreme Court held:- “…….We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation”. (Per Lord Atkinson in Somasundaran Vs. Subramanian, AIR 1926 PC 136). We are bound to accept, the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record, to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan Vs. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit, him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice, but, he may not call in question the very fact of making the concession as recorded in the judgment. In R. Vs. Mellore (1858) 7 Cox CC 454 Martin B was reported to have said: “We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which itself implies an absolute verity.” In King Emperor Vs. Barendra Kumar Ghose, (1924) 28 Cal WN 170 : (AIR 1924 Cal 257) (FB), Page, J. said. “….. these proceedings emphasise the importance of rigidly maintaining the rule that as statement by a learned Judge as to what took place during the course of a trial before him is final and decisive, it is not to be criticized or circumvented; much less is it to be exposed to animad version.” In Sarat Chandra Vs. Bibhabati Debi ( 34 Cal LJ 302: (AIR 1921) Cal 585), Sri Asutosh Mookherjee explained what had to be done: “It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the judge without delay and ask for rectification or review of the judgment”. So the Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, expect before the judge himself, but nowhere else.” Except for the self-serving statement, made in the affidavit filed in support of the writ petition, no evidence is placed on record to show that the fact recorded by the Labour Court, that the point was not pressed, was erroneous. As such, this contention is required to be rejected. Insofar as the other contention that the petitioner is not an industry is concerned, the question as to whether the petitioner is an industry or not under Section 2(j) of the Act is a mixed question of fact and law. No plea was taken before the Labour Court nor was any evidence adduced in this regard. It is therefore not open to the petitioner-Institute to raise this question for the first time in the writ petition. With regard to the contention that the Labour Court had come to erroneous conclusions on the evidence on record, it needs no reminder that this Court, while exercising Certiorari jurisdiction, does not sit as a Court of appeal nor does it re-appreciate the evidence on record to come to a different conclusion from that of the Labour Court, which a Court of appeal is entitled to. It is only when the findings are perverse or are based on no evidence, is any interference called for with regard to the findings of the Labour Court/Industrial Tribunal. From the evidence on record before the Labour Court, it cannot be said that the findings arrived at by the Labour Court are perverse or are based on no evidence. While holding termination of services of the second respondent as illegal, it is surprising to note that the Labour Court had denied 50% back wages to the workman. This Court is, however, not called upon to decide this question in the absence of any challenge thereto by the workman concerned. The award of the labour Court does not call for any interference at the instance of the petitioner-Institute. The writ petition fails and is accordingly dismissed. No costs. ______________ 09.09.2005 usd