* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL Nos.110, 638, 639, 640, 641, 642, 643 and 644 of 2011 % 23.09.2011 # Arrack Bottling Unit, rep. by its Chairman, IML Depot, Wyra, Khammam District, And another. ... Appellant VERSUS $ the Hon’ble Labour Court-cum-Industrial Tribunal, Warangal, rep. by its Presiding Officer, And another. ... Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri G.Ravi Mohan ^Counsel for Respondents: G.P. for Labour ? Cases referred 1. (1999) 6 SCC 82 : AIR 1999 SC 1351 : (1999) ILLJ 1260 SC 2. (2010) 3 SCC 192 : AIR 2010 SC 1116 3. AIR 1958 SC 923 4. (2001) 1 SCC 118 5. AIR 1964 SC 477 6. (1989) 2 SCC 31 : AIR 1989 SC 1045 7. (1992) 2 SCC Supp. 312 8. (2003) 6 SCC 675 : AIR 2003 SC 3044 9. (2004) 4 SCC 714 : AIR 2004 AIR SCW 3888 10. 1996 (1) ALT 32 (DB) 11. 2010 (125) FLR 736 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL Nos.110, 638, 639, 640, 641, 642, 643 and 644 of 2011 COMMON JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) These writ appeals by the Arrack Bottling Unit (hereafter called, ABU), IML Depot, are against the common judgment of the learned single Judge dated 02.12.2010 in W.P.No.24606 of 2000 and fourteen other writ petitions. W.A.No.638 of 2011, however, is filed against the order of the Hon’ble Chief Justice disposing of petitioners’ writ petition following the decision in W.P.No.24606 of 2000. As the issue is common in all the matters and they arise out of a common order passed by the Labour Court-cum-Industrial Tribunal, Warangal, it is necessary to dispose of the matters by a common order. The second respondent herein, who is a workman, and twenty other workmen raised industrial dispute under Section 2- A(2) of the Industrial Disputes Act, 1947. They prayed for a declaration that the action of the respondents therein in terminating their services is null and void and for a direction to reinstate the workmen on daily wages with continuance of service, but without backwages. The Tribunal declared that the termination of workmen on 29.11.1989 amounting to retrenchment is illegal, null and void. Aggrieved by those awards where reinstatement was ordered, the respondents therein filed the writ petitions, which were dismissed by the learned single Judge. The background facts in all the writ appeals are the same. We, therefore, hereafter summarise the facts as was done by the Industrial Tribunal. The second respondent in each of the cases, is a workman. In their claim statement, they pleaded that they were appointed as bottling workers in ABU – second petitioner herein, on 25.11.1986 after following the process of selection and subjecting them to interview; they continuously worked there from 25.12.1986 to 03.11.1989 and completed more than 240 days; while paying salaries monthly deductions were made towards provident fund; and that on 03.11.1989 the Manager of the ABU orally terminated the services in contravention of Section 25-F of the Industrial Disputes Act, 1947 (the Act, for brevity). They prayed for a direction to the Management to reinstatement them with all consequential benefits. The Manager of ABU filed counter on behalf of the management denying the allegation that the workmen were appointed in 1986 and that they continued till November, 1989. It was also alleged that the workmen never worked continuously for 240 days in a period of twelve months and that they were appointed only for a few days in the bottling unit. Further case of management was that a seniority list was prepared and there were 43 casual workers who were found to be seniors to those workmen who approached Industrial Tribunal and that the seniors were continued and others were not entrusted with any work from 30.11.1989. During the enquiry before the Industrial Tribunal all the workmen deposed as W.W.1 to W.W.22 and marked Exs.W.1 to W.9 which included the seniority list, attendance cards, provident fund slips and service certificate of W.W.18. The management examined Manager of ABU as M.W.1 and marked M.1 to M.30. On considering the evidence, the Industrial Tribunal recorded the following findings; the workmen were issued attendance cards by noting the attendance everyday and attendance cards were collected by the Supervisor at the end of every month; the Management suppressed the attendance cards and did not file before the Tribunal though they were in possession of the same, and therefore, adverse inference has to be drawn against the Management. The Tribunal also held that when the workmen have discharged initial burden of proving that they worked more than 240 days; the Management failed to rebut the same; it has to be held that most of the workers joined in the ABU on 25.12.1986 as admitted by M.W.1; all the workmen were employed in the shift system duly maintaining shiftwise attendance register; the workmen were provided facility of availing leave and in the attendance registers fro 1988-1989, the leave was not marked to any worker; there is sufficient evidence to hold that workmen continuously worked in the ABU from the date of their oral appointment till they were orally terminated on 29.11.1989 and that all the workmen have completed more than 240 days. Having thus come to the conclusion the Management did not follow the procedure under Section 25-F of the Act and the termination amounts to void retrenchment, the Tribunal applied the ratio in Ajaib Singh v the Sirhind Cooperative Marketing cum Processing Service Society Limited[1] and ordered reinstatement on daily wage basis with continuity of service but without backwages. In the writ petitions filed against the Awards of the Industrial Tribunal, the petitioners/appellants herein contended that the employees having not worked for 240 days are not ‘workmen’ within the meaning of Section 2(s) of the Act, the industrial dispute cannot be entertained by the Tribunal; the workmen failed to discharge the burden that they worked for more than 240 days to attract the provisions of Section 25-F of the Act; the Tribunal did not appreciate evidence properly; the initial appointment of workmen was contrary to the provisions of the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (the Act No.2 of 1994), that the workmen are not entitled for any benefit. The learned single Judge dismissed the writ petitions holding that the petitioners can be relieved from the obligation to pay any difference of the wages under Section 17-B of the Act from the period anterior to the date of the order i.e., 02.12.2010. The learned single Judge observed as follows. The petitioners do not dispute that the respondents were engaged by them. The plea of the petitioners that the respondents were engaged on daily wage basis is belied, from the fact that the wages were paid once in a month, so much so, the provident fund and other similar amounts were deducted from the wages. It hardly needs any emphasis that the occasion to deduct provide fund contribution would arise, only when workmen is engaged on monthly basis. As regards the plea that the respondents did not work for more than 240 days also, the Labour Court recorded a specific finding that they did work for such time. These are pure questions of fact. It is well settled principle of law that the High Court, while exercising its jurisdiction under Article 226 of the Constitution of India, shall not interfere with the findings of fact. The petitioners are not able to demonstrate any legal or jurisdictional infirmity in the awards. This Court is not inclined to interfere with the same. The counsel for petitioners/Management submits that there is no evidence on record for coming to a conclusion that the workmen worked for more than 240 days and no interference can be drawn from the evidence available on record. The Management produced the attendance registers and wage registers for 1987- 1989, which would conclusively prove that bottling workers did not work for more than 240 days continuously and therefore, award is erroneous. There is no relationship of employee and employer and the learned single Judge did not consider the specific pleadings raised in the writ petition. He would also submit that the workmen approached the Industrial Tribunal with a delay of seven years, and therefore, the direction for reinstatement of workmen is unsustainable in law. The learned counsel for respondents/workmen in W.A.No.110 of 2011 would submit that the plea of delay was not raised in the counter filed before the Industrial Tribunal or in the writ affidavit accompanying the writ petition. Therefore, it cannot be allowed to be raised at this stage. He would urge that the Tribunal considered the oral and documentary evidence on record and arrived at a finding that all the workmen discharged their duties for a period more than 240 days and the same does not warrant any interference. Contravention of Section 25-F A workman who was continuously employed for more than 240 days in a year shall not be retrenched until such workman is given one month’s notice in writing indicating the reasons for retrenchment and/or the workman is paid wages in lieu of notice. It is the mandate of the legislation, intended to give effect to the Directive Principles in Articles 39(e), 41 and 43 of the Constitution of India. The High Court is therefore bound to keep in mind the fact that the Act is a social welfare legislation and is required to interpret keeping in view the goals set out in the Preamble and the Directive Principles of State Policy in Part IV of the Constitution (para 21, Harjinder Singh v Punjab State Warehousing Corporation[2]). While considering the issues whether a person is a workman within the meaning of Section 2(s) of the Act, whether he worked for 240 days to attract Section 25-F of the Act and in case of violation at the time of granting relief, a Court must be guided not only the ordinary principles of interpretation but also the constitutional vision of justice. The concept of social and economic justice is a living concept of revolutionary import and gives sustenance to rule of law. It gives meaning and significance to the ideal of welfare State (State of Mysore v Workers of Gold Mines[3]). The social justice is an integral part of justice in generic sense; justice is the genus, of which social justice is one of its species; intended to mitigate the sufferings of the poor, weak, Dalits, tribals and deprived sections of the society (para 23, Harjinder Singh). The concept of social justice gives meaning and significance to the democratic ways of life and making the life dynamic (Ramon Services (Private) Limited v Subhash Kapoor[4]) and the law is a catalyst to reach the ladder of social justice (Harjinder Singh). The Act creates Industrial Tribunals and Labour Courts for adjudication of disputes about the status of person, the existence of relationship of master and servant and the tenure during which such person is employed to attend the status of workmen and giving of the benefits under the Act. These are all matters exclusively entrusted to these industrial law forums presided by experienced persons not below the rank of District Judges. This indicates that in exercise of writ jurisdiction especially certiorari jurisdiction, the findings of fact reached by the inferior Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. The adequacy or sufficiency of evidence led on a point and inference of fact to be drawn from the said findings are within the exclusive jurisdiction of the Tribunal. These cannot be agitated before a writ Court unless the finding of fact is ex facie perverse (Syed Yakoob v K.S.Radhakrishnan[5]). Unless there are extraordinary compulsions, the writ Court ordinarily shall not interfere with the findings recorded by the Industrial Tribunal. In Syed Yakoob, the Supreme Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals when such Tribunals passed orders without jurisdiction; in excess of jurisdiction; or failed to exercise such jurisdiction. In exercising certiorari jurisdiction, the Court is not entitled to act as an appellate Court, Certiorari cannot be issued unless the Tribunal acts illegally or improperly, as for instance, the Tribunal decides the question without giving opportunity of being heard to the party affected by the order or when the procedure adopted by the Tribunal is opposed to principles of natural justice. The principle that the findings of fact reached by the inferior Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings was reaffirmed. It was held that only when there is error of law apparent on the face of the record, the Court can interfere in such matters. The relevant passage is as under. 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. The Supreme Court also considered the question as to what is error of law apparent on the face of record. It was held: It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis- interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. … Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened. In C.I.T. v Karam Chand Thapar & Brothers[6], the issue was whether the finding of Income Tax Appellate Tribunal on a question of fact can be interfered with by the Court in exercise of judicial review. Answering the plea in negative, the Supreme Court observed. It is well settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on the appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person on the basis of facts before the Tribunal could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. In H.P.Gandhi v Gopi Nath[7], after referring to Syed Yakoob, it was held: Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, to a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.” In Surya Dev Rai v Ram Chander Rai[8], the scope of judicial review under Article 226 in relation to certiorari proceedings was considered. The relevant conclusions are as below. (3) Certiorari, under Article 226 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 or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions issought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. In State of U.P. v Johri Mal[9], the Supreme Court laid down that though reappreciation of facts is not permissible in a petition for judicial review, the Court to a limited extent can scrutinize the facts to see whether decision making process is in accordance with law. The following observations are apposite: It is well settled that while exercising the power of judicial review the court is more concerned with the decision-making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision- maker's opinion on facts is final. But while examining and scrutinising the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the court with special reference to a given case. This position is well settled in the Indian administrative law. Therefore, to a limited extent of scrutinising the decision-making process, it is always open to the court to review the evaluation of facts by the decision-maker. In the Depot Manager, APSRTC v P.Gangarajulu[10], challenge was to the award of the Labour Court, confirming the order of removal by APSRTC. The same was reversed by the learned single Judge. Before the Division Bench the plea was improper exercise of Certiorari jurisdiction. Countenancing the submission, the Division Bench held as under. If the materials are not taken into consideration and the evidence is not properly appreciated by the Labour Court, the same is liable to be corrected by this Court in exercise of its certiorari jurisdiction under Article 226 of the Constitution of India. But in the process, this Court cannot substitute its own opinion and arrive at a finding after going into the evidence. The only proper course would be to direct the Labour Court to consider all the materials available on record and appreciate the evidence properly and in accordance with law. This Court makes an enquiry whether there is any