C.W.P.No.10365 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.10365 of 2010 Date of Decision:- 28.05.2010 Punjab Financial Corporation and another ....Petitioner(s) vs. Sukhwinder Singh and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.G.S.Bal, Advocate for the petitioner. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to dispose of Civil Writ Petition Nos.10365 of 2010 titled as Punjab Financial Corporation etc. vs. Sukhwinder Singh and another, 10366 of 2010 titled as Punjab Financial Corporation etc. vs. Rashpal Singh and another, 10367 of 2010 titled as Punjab Financial Corporation etc. vs. Darshan Singh and another, 10372 of 2010 titled as Punjab Financial Corporation etc. vs. Ramesh Kumar and another, 10376 of 2010 titled as Punjab Financial Corporation etc. vs. Sukhdev Singh and another, 10382 of 2010 titled as Punjab Financial Corporation etc. vs. Jagsir Singh and another, 10384 of 2010 titled as Punjab Financial Corporation etc. vs. Sukhwinder Singh and another, 10386 of 2010 titled as Punjab Financial Corporation etc. vs. Balbir Singh and another, 10396 of 2010 titled as C.W.P.No.10365 of 2010 -2- Punjab Financial Corporation etc. vs. Hem Raj and another, 10397 of 2010 titled as Punjab Financial Corporation etc. vs. Natha Singh and another and 10398 of 2010 titled as Punjab Financial Corporation etc. vs. Ajaib Singh and another, as common question of facts and law are involved in these cases. In this bunch of writ petitions, challenge has been posed to the Award dated 26.11.2009 (Annexure P-3) passed by the Industrial Tribunal, Patiala, vide which the Labour Court has returned a finding holding the termination of the respondent-workman to be in violation of the provisions of Section 25-F of the Act but instead of granting them reinstatement in service, has granted them compensation depending upon the period of service put in by them with the petitioner- corporation. The workmen herein had raised an industrial dispute challenging their illegal termination by the petitioner-corporation on 25.7.2002 without serving them any notice or charge-sheet in violation of the provisions of the Industrial Disputes Act,1947 (hereinafter referred to as the Act) claiming reinstatement in service with all consequential benefits. Counsel for the petitioner has addressed his arguments in Civil Writ Petition No. 10365 of 2010 titled as Punjab Financial Corporation and another v. Sukhwinder Singh and another, and therefore, the facts are being taken from the said writ petition. As per the claim statement of the workman, he was appointed as Chowkidar by the petitioner-corporation and he continuously worked as such from 30.8.1984 to 24.7.2002 when on 25.7.2002, his services were illegally terminated by the petitioner-corporation without complying with C.W.P.No.10365 of 2010 -3- the provisions of the Act. The stand of the petitioner-corporation was that the Punjab Financial Corporation (petitioner) was established under the State Financial Corporations Act, 1959 with the purpose of establishing industry in the State of Punjab, it partly financed the industrial units against securities of their movable and immovable assets. In case of default on the part of the industry in repayment of the loan, the petitioner-corporation acquired the defaulting unit. The Chowkidars were deployed by the Corporation till repayment of the loan or till the auction of the said defaulting industry/unit. These Chowkidars were engaged temporarily on daily-wage basis to guard the defaulting units. Their arrangement was for a specified period i.e. from the date of taking over of the unit till repayment of the loan by the defaulting unit or auction of the said unit. It was further pleaded that as per the terms of appointment as mentioned in the appointment letter, the employment could be terminated without any prior notice or emoluments in lieu thereof and therefore, the termination of services of the respondent-workmen was as per the terms of the appointment and not governed by the provisions of the Act. The termination of services would not therefore fall within the definition of ‘retrenchment’ as the same would be covered by the Exception under Section 2(oo) (bb) of he Act. It was further pleaded that the Chowkidars of the Corporation filed Civil Writ Petition No. 6571 of 2000 praying for regularization of their services but the said writ petition was dismissed by the learned Single Judge of this Court on 18.4.2001. Letters Patent Appeal No. 1946 of 2001 preferred against the said order was also dismissed by a Division Bench of this Court vide order dated 30.11.2006 and accordingly, it was prayed that the services of the petitioners therein had been wrongly terminated. It was C.W.P.No.10365 of 2010 -4- further pleaded that from July 2002 onwards, the job of the watch and ward defaulting units had been entrusted to the private security agencies on contract basis. Keeping in view the fact that the respondent-workmen were working with the petitioner-corporation, they were given an option to join duty under the employment of the Security Agencies, to which the respondent-workmen refused. On this basis, it was pleaded that no relief could be granted to the respondent-workmen. On the basis of the evidence led by the parties, the Labour Court proceeded to hold that the termination of services of the respondent- workmen was in violation of the provisions of Section 25-F of the Act as it was admitted by the management that the workmen had completed more than 240 days of service in the last 12 preceding months immediately before the date of termination of their services and further admission by the management that neither any notice was served on the workmen nor any retrenchment compensation was paid to them before termination of their services. Respondent-workmen were not granted the relief of reinstatement in service in the light of the fact that their appointments were not on regular basis as per statutory rules governing the service and were purely on temporary basis, thereby disentitling them to the reinstatement in service on the basis of which they were employed. Further, it was admitted position on behalf of the respondent-workmen that from the year 2002 onwards, the job of watch and ward of the defaulting units had been entrusted to the private security agencies on contract basis and thereafter, no Chowkidar had been engaged by the petitioner-corporation directly. Thus, the Labour Court proceeded to grant compensation to the respondent- workmen depending upon the period of service put in by them with the C.W.P.No.10365 of 2010 -5- petitioner-corporation. In the case of the petitioner in Civil Writ Petition No. 6571 of 2000, as he had worked for a period of 15 years with the petitioner-management, compensation of Rs.75,000/- was awarded to the workman in lieu of reinstatement and back-wages. Counsel for the petitioner-corporation contends that as the appointment of the respondent-workmen was for a specified job and assignment, the termination of their services cannot be said to be a retrenchment and consequently, Section 2(oo) (bb) of the Act would be attracted, entitling them to no relief under the Act. He contends that the appointment of the respondent-workmen was on temporary daily wage basis and their duty was to guard the defaulting units till the repayment of the loan and/or till auction of the defaulting units. Even the salary was not paid by the petitioner-corporation to the respondent-workmen but the same was realized from the defaulting units and therefore, they cannot be termed to be the employees of the petitioner-corporation. As the appointment of the respondent-workmen was for a specified period, they could not have been granted compensation as has been awarded by the Labour Court. I have heard the counsel for the petitioner and have gone through the records of the case. It has come in evidence before the Labour Court and in the examination-in-chief and cross-examination of MW-1 Krishan Kumar, Assistant Manager, E.F.C. Sangrur, that earlier, the petitioner-corporation used to engage Chowkidars directly on temporary basis to guard the defaulting units. When the respondent- workmen were appointed, they were all directly appointed by the petitioner-corporation as is apparent from the appointment letter, Exhibit C.W.P.No.10365 of 2010 -6- W-2, which reads as follows:- “Subject:- Employment as Chowkidar on ad hoc basis in the service of the Punjab Financial Corporation. *** 1. With reference to your application, we are pleased to offer you the employment as Chowkidar (ad hoc) for guarding the premises and the properties acquired from time to time by the Corporation at various places in Punjab on the following terms and conditions:- i) Pay and Allowances: Pay at Rs.300/- per mensem in the pay scale of Rs.300-5- 325/5-350/10-430. ii) Compensatory Allowance: You will be paid dearness allowance, additional dearness allowance and house rent allowance as also reimbursement of cost of medical treatment as may be sanctioned by the Corporation to its employees from time to time. iii) Duration: You will be appointed on ad hoc basis and your appointment/employment can be terminated without any prior notice, or emoluments in lieu thereof. iv) You shall be liable to serve at any place in the State of Punjab to guard the premises and the properties acquired, either though courts or otherwise, by the Corporation, from time to time. C.W.P.No.10365 of 2010 -7- v) Reference: You will furnish the names of two respectable persons to whom a reference may be made regarding your work and conduct, which will include the faithful discharge of your duties. They should certify that you will not do any act, which will be against the interest of the Corporation. vi) Indemnity: You shall be liable to indemnify the losses caused to the properties of the Corporation, placed under your guard from time to time, for which you shall furnish a surety bond in the sum of Rs.20,000/- (Rupees twenty thousand only) in the proforma, enclosed. vii) Travelling Expenses: You will be granted actual travelling expenses, when transferred from place of posting to another. However, you will not be entitled to the reimbursement of actual travelling expenses on your joining the service of the Corporation for the first time. 2. If you accept the employment as Chowkidar on the terms and conditions mentioned above, please report to us for duty immediately, but not later than a week from the date of receipt of this letter, failing which it will be presumed that you are not interested in the offer, which will be treated to have been withdrawn. Sd/- (N.S.Rattan) Managing Director.” C.W.P.No.10365 of 2010 -8- A perusal of the above-mentioned terms and conditions of appointment does not support the contention as has been raised by the counsel for the petitioner. There is no fixed term of appointment provided therein; however, a stipulation has been provided in clause (3) that the appointment was on ad-hoc basis and the appointment/employment can be terminated without any prior notice or emoluments in lieu thereof. This provision would not in any manner fall within the exception as provided in clause (bb) of Section 2(oo) of the Act, which would not amount to retrenchment. It has further come in evidence that the respondent- workmen had worked continuously with the petitioner-corporation from the date of their initial appointment till the date of their termination, without any break and during their service, they had been transferred from one place to another and so, it cannot be said that they (workmen) were engaged for a specified job. In the case of Executive Engineer, C.P.W.D., Indore v. Madhukar Purshottam Kolharkar, 2002 SCC (L&S) Page 1087, the Hon’ble Supreme Court has held that the workman who was engaged on purely temporary basis and in his terms of appointment it was mentioned that his services could be terminated at any time without giving notice to him, would not disentitle him to the protection of Section 2(oo) of the Act and would not fall in the exception under clause(bb) of the said section as there was no fixed term in the order of appointment. In this case, it stands admitted by the management witness before the Labour Court that no notice, pay in lieu of notice or retrenchment compensation was paid to the respondent-workmen before termination of their services. In view of these facts, it stands proved on record that the C.W.P.No.10365 of 2010 -9- services of the respondent-workmen were terminated in violation of the provisions of the Act. The judgments passed by this Court in CWP No. 6571 of 2000 and LPA No. 1946 of 2001 would not be applicable to the case in hand as what was claimed before the High Court in that litigation was the regularization of the services which is distinct from the claim which had been made by them before the Labour Court while challenging their termination orders. The jurisdiction of the High Court is restrictive as has been explained by the Hon’ble Supreme Court in para 7 of its judgment in the case of Syed Yakoob v. K.S.Radhakrishanan, AIR 1964 SC 477, which reads as follows:- “7. 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 C.W.P.No.10365 of 2010 -10- 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 C.W.P.No.10365 of 2010 -11- 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 (vide Hari Vishnu Kamath vs. Ahmad Ishaque, 1955-1 SCR 1104: (S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.” The conclusions drawn and the findings returned by the Labour Court being based upon the pleadings and correct appreciation of the evidence led by the parties before it,cannot be faulted with. While testing the impugned award on the touchstone of the para-meters as laid down by the Hon’ble Supreme Court in the case of Syed Yakub’s case (supra), no illegality or irregularity seems to have been committed by the Industrial Tribunal, Patiala, which would call for any interference by this Court in exercise of its writ jurisdiction. In view of the above, all the writ petitions fail and are accordingly dismissed. May 28, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters: Yes/No