IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3234 of 1986 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD. Versus GUJARAT JAL SAMATTI VIKAS NIGAM KAMDAR MAHA SANGH, -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3234 of 1986 MR DG CHAUHAN for Petitioner MR GM AMIN for Respondent No. 1 MS SHRUTI TRIVEDI, AGP for Respondent No. 2 RULE SERVED BY DS for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 15/04/2005 C.A.V. JUDGEMENT 1. Gujarat Water Resources Development Corporation Limited (hereinafter referred to as "Corporation"), petitioner, have filed present petition under Article 227 of the Constitution of India, before this Court challenging the judgment and award dated 4th March, 1986, passed by the Industrial Tribunal ( "the tribunal" for short), Ahmedabad in Reference (I.T.) No.693 of 1980. 1.1 The tribunal by its impugned judgment and award has held that, as regards demand for fixation of working hours and overtime, it would be fair enough if the workmen of the Corporation are given these benefits on the same lines as in the Gujarat Minimum Wages Rules, 1961 (hereinafter referred to as "the said Rules"). The tribunal also held that the benefits of working hours of the workmen in the tube wells shall be on same limes as in the said Rules particularly Rule 24. The tribunal further held that the overtime shall be paid at double the rates of wages on the same lines as provided under the said Rules particularly under Rule 25. The said overtime shall be paid to all workmen with retrospective effect from 1.1.1981. The tribunal further held that the workmen in the tube wells should be given atleast four national and festival holidays with pay. The tribunal further held that the workmen is required to work on that day due to any reason, they shall be given a compensatory off for that day falling within the permissible limit of continuous work in addition to weekly off. 2. The facts giving rise to this petition are as under: 2.1 The petitioner Corporation is a Government company within meaning of Sec.617 of the provisions of the Companies Act, 1956. It was established to develop, to harness and energise tubewells in the State of Gujarat for agriculture purposes. The petitioner is engaged in the activities of drilling and operating tubewells and constructing lift irrigation schemes in the State of Gujarat. 2.2 It has been further stated that the concerned pump operators were originally government servants and then treated as the permanent employees of the District Panchayat. Thereafter, the State Government issued Notification dated 8.6.1978 issued by Secretary, Government of Gujarat, Public Works Department, and the workers of tubewells so far as it pertains to operation and maintenance was transferred to the respective District Panchayats was placed under the control of the Corporation with a view to improve the utility etc. was under consideration of Government. They were permanently transferred to the petitioner Corporation. They are regular/permanent employees of the corporation. Their service conditions are governed under the Rules and Regulations, Circulars, Resolutions and Notifications issued by the State Government from time to time which is applicable to the Corporation from time to time. BACKGROUND OF THE MATTER: 3. It may be noted that earlier one Chauhan Dadusinh Rupsinh and others, petitioners, have filed a petition before this Court being Special Civil Application No.3105 of 1980 against the respondent Corporation and others with a prayer that this Court may issue a writ of mandamus or any other appropriate writ, order or direction, calling upon the respondents to fix working hours of employees and call upon to grant Sundays and public holidays as holidays, and also to direct the respondent to pay the amount for the extra work done by the employees. The said petition was filed on 21st October, 1980. 3.1 It may be noted that in that matter ultimately heard by this Court and this Court (Coram: P.D.Desai, J. (as he was then)) was pleased to pass order on 24.12.1980 as under: "The dispute herein between the employees and the first respondent-Corporation as to conditions of service is of such a nature as could be appropriately resolved in the course of an industrial dispute. Under the circumstances, the Court suggested to the parties that they should agree to the reference of the dispute to the Industrial Tribunal. The parties having agreed to the suggestion, the Court suggested to the State Government to make a reference of the dispute to the Industrial Tribunal and the Government having considered the suggestion have agreed to refer the dispute to the Industrial Tribunal under Section 10(l) of the Industrial Disputes Act, 1947. A draft of the order proposed to be made by the State Government in that behalf has been produced and taken on record. In light of this development, Mr.Tripathi for Mr.Amin withdraws the petition. The petition stands dismissed as withdrawn." 3.2 Following the directions issued by this Court, the Government of Gujarat made a reference order dated 26th December, 1980, of the industrial dispute to industrial tribunal for adjudication of the industrial dispute as contained in the schedule appended with the order of reference to the following effect. (a) Hours of work and overtime: To fix up 8 hours of work for workmen working on tube-wells and to grant twice the rate for overtime work beyond the hours of work to the workmen. (b) Weekly holiday, national and festival holiday: The above workmen to be granted weekly holiday on Sunday and festival holidays. 3.2A The reference came to be registered as reference (I.T.) No. 693 of 1980. PRESENT CONTROVERSY: 4. After that the Union raised industrial disputes raising following claim of demands on 20.4.1981 before tribunal: (i) Hours of work and overtime: To fix up 8 hours of work for workmen working on tube wells and to grant double the rate of wages for the overtime hours beyond the normal working hours. (ii) Weekly holiday, National and Festival holiday: The above workmen to be granted weekly holiday on Sundays and Festival holidays. 4.1 Before the reference court, the petitioner Corporation filed reply at Exh.11 against the demand on 16th March, 1982. The Corporation has denied the said demand and stated that, when the pumps operators are required to work for more than eight hours a day, helpers are supplied, who work in place of operators as substitutes. It was stated that, neither the provisions of the Factories Act nor the provisions of the Bombay Shops and Establishment Act apply to the premises of a tube-well situated in the villages. 4.2 As regards demand No.2, it was stated that the operators working on tube-wells are given 12 days as casual leave, 30 days as privilege leave and 10 days as sick leave in a year and, therefore, no more festival holidays to be granted in this behalf. 4.3 As regards oral evidence, on behalf of workmen, one Rangatsinh Himmatsinh Chauhan, who was working in the tube-well operator was examined. He has tried to support the case of the workmen (Exh.12). He has also admitted that thereafter the work is done, the same has been mentioned in the register. Another witness Dadusinh Rupsinh Chauhan was examined at Exh.21 also workman in the Corporation. He has also stated that the water pump does not work for more than 12 hours a day. Next oral witness Ashokkumar Somchand Shah was examined at Exh.25. He is a General Secretary of the Union. He has admitted that the Corporation had given quarters to the pump operators who were working on the site and other benefits as per Government rules are also to be given to the employees of the Corporation. 4.4 On behalf of the Corporation, one Harivadan Rajnibhai Yagnik Exh.26 has been examined. He is an Executive Engineer in the Ahmedabad Division. He has also stated that the register is mentioned showing the particulars of distribution of work. 4.5 It may be noted that the Corporation has produced voluminous documentary evidence by the separate list where the rules regarding operators, letter given by Corporation to its employees. The Corporation has also produced register at Exh.22 showing the details of work by workmen from time to time. The Corporation has also produced register at Exh.23 and other correspondence ensue between the workmen and the Corporation. The Corporation has also filed documentary evidence to show that the workmen had to work in this behalf. The Corporation has also produced the details of workmen who have worked from time to time in tube wells and also the details of persons who have worked on wells namely operator, bit clerk, section officer (civil), section officer (Mechanical & Electrical). The extracts of the report of the Gujarat State Second Pay Commission, Volume - II, Part-1. 4.6 The Corporation led evidence to prove that the concerned pump operators are not working more than 8 hours. It was further proved that, some time they are working less than 8 hours and they are not entitled for any overtime wages as claimed for. Finding of the Tribunal: 4.7 The tribunal after appreciating the oral and documentary evidence on record held as under: (i) The working of the tube wells which depends on the power supply and the demand for water is not regular. The workmen who operate the tube-wells have some time to work more than 8 hours and some time less than 8 hours. On some days, the pump is not worked. (ii) Their working hours are not fixed and looking to the nature of work, it is difficult to fix actual timings. (iii) Though employment in drilling operation and mainteance of tubewells has been added to the schedule to the Act by Govt. Notification dated 26.5.77, however till date minimum rates of wages for workmen in this employment have not been fixed and as such, the provisions of the Minimum Wages Act, and the Rules do not currently apply. 4.8 After holding this, the tribunal has further held as under: (i) working hours of the workmen in the tube-well shall be on the same line as in the Gujarat Minimum Wages Rules, 1961 (Rule 24). (ii) Relievers should be appointed whenever the working hours exceeds the number prescribed. (iii) overtime shall be paid at double the rate of wages on the same lime as provided under the Gujarat Minimum Wages rules, 1961 (Rule 25). (iv) the overtime shall be paid with retrospective effect from i.e. 1.1.1981 to all employees. (v) directed to give weekly day of rest on the same line as is provided under the Minimum Wages Rules, 1961. (Rule 23). (vi) workmen shall be given at least 4 National and Festival holidays with pay. (vii) the workmen shall be given compensatory off for the day if they work on holiday; they shall be paid double the wages for that day. 4.9 Being aggrieved and dissatisfied with the aforesaid judgment and award of the tribunal, the petitioner has filed present petition on 17.6.86 under Article 227 of the Constitution of India. Preliminary contention of Mr.Gopinath Amin, learned advocate for the respondent before the main contention raised by Mr.Chauhan, learned advocate on behalf of the petitioner: 5. Before learned advocate Mr.Chauhan submitted his contention on merits of the matter, Mr.G.M.Amin, learned advocate for the respondent has raised a preliminary contention that, in this matter, this Court exercising the powers under Article 227 of the Constitution of India, and therefore this Court has very limited jurisdiction, and if there is an error of fact or some error of law which is not error apparent on the face of the record, this Court may not interfere with the discretionary jurisdiction of the tribunal and, therefore, the writ petition filed by the Corporation under Article 227 of the Constitution of India is not maintainable. 5.1 The learned counsel has relied upon the judgment of the Hon'ble Apex Court in the case of Ouseph Mathai and others Vs. M.Abdul Khadir reported in JT 2001(9) SC 517 particularly paras 4, 7 and 11 which reads as under: "It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact, power under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave justice to any party. "..... Exercise of such a power may be necessary if it is shown that grave injustice has been done to a party and the case was a fit case where the High Court should have exercised the extraordinary discretionary power in favour of the defaulting party." Submission of Mr.Chauhan, learned advocate for the petitioner on preliminary contention of Mr.Amin: 6. As against this preliminary contention raised by Mr.G.M.Amin, learned advocate for the respondent, Mr.Chauhan, learned advocate for the petitioner has made following submissions: 6.1 The award given by the tribunal is beyond the terms of reference. The tribunal has ignored the terms of reference. The tribunal has exceeded its jurisdiction and granted relief retrospectively with effect from 1.1.1981. Thus, the tribunal has travelled beyond the terms of reference and granted relief and therefore also the petition under Article 227 of the Constitution is maintainable at law. 6.1A (i) The Hon'ble Supreme Court in the case of Gujarat Mineral Development Corporation vs. P.H.Brahmbhatt reported in AIR 1974 SC 136, para 11 has held that an appellate court or a court having jurisdiction to entertain petitions challenging the verdict will not hesitate to interfere with findings of fact where there has been an illegality or an irregularity of procedure, or a violation of the principles of natural justice, resulting in the absence of fair trial or where there has been a gross miscarriage of justice, or where the tribunal has spoken in two voices and has given inconsistent and conflicting findings, or where the findings are vitiated by error of law or where the conclusions reached by the courts below are so patently opposed to the well-established principles as to amount to miscarriage of justice or where the finding is not supported by any legal evidence and is wholly inconsistent with the material produced on the record, or where the High Court or the tribunal below, committed a serious error in not examining evidence on a central issue with the care which it deserved. (ii) Similar view has been taken in the case of Savita Chemicals (P) Ltd. v. Dyes and Chemicals Union reported in (1999) 2 SCC 143, para 19; Estralla Rubber v. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 para 6. Finding of the Court on Preliminary Issue: 7.0 "Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of errorneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was errorneous but it will be open to the High Court in exercise of the powers under Article 227 of the Constitution to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence of upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. {Re: In the case of Achutananda Baidya vs. Prafullyakumar reported in (1997) 5 SCC 76, paras 10 and 11.} 7.1 I have considered the facts and circumstances of the case and also aforesaid decision of the Hon'ble Apex Court. In my view the tribunal has embarked upon its wrong view about the terms of reference and on wholly illegal and errorneous approach. The tribunal was under complete misconception of law and facts. The tribunal has wrongly applied the provisions of Minimum Wages Act, rules and notification issued therein. The tribunal has not properly appreciated the oral and documentary evidence on record. The tribunal ignored the well-settled principles about the limitations of the powers of the tribunal in adjudicating the dispute, ignoring the statutory law and the law laid down by the Hon'ble Supreme Court on the subject, made out altogether a new case and granted entirely different reliefs which were neither claimed for nor within the terms of reference and, therefore, this Court is of the view that it is entitled to exercise the powers under Article 227 of the Constitution of India and, therefore, the preliminary contention raised by Mr.Amin is rejected and the contention of Mr.Chauhan is required to be accepted. 8. Contention of Mr.Chauhan on merits of the matter: 8.1 First Contention:- The Award given by the Tribunal is beyond the terms of reference: 8.1A The learned counsel submitted that, in any view of the matter, the award of the tribunal is beyond terms of reference in view of Sec.10(4) of the Industrial Disputes Act. The jurisdiction of the tribunal has been limited by the provisions of Section 10(4) of the Industrial Disputes Act, to the point specified in the order of reference. Sec.10(4) reads as under: "Where in an order referring an industrial dispute to (a Labour Court, Tribunal or National Tribunal) under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, (the Labour Court or the Tribunal or the National Tribunal, as the case may be), shall confine its adjudication to those points and matters incidental thereto". 8.1B The learned counsel has heavily relied upon the judgment of the Hon'ble Apex Court in the case of M/s.Firestone Tyre and Rubber Company India (P) Ltd. Vs. Workmen, reported in AIR 1981 SC 1626, particularly, para 9 on page 1628 and 1629 the Hon'ble Apex Court has observed like this: "In this case the points of dispute were specified in the schedule to the order of reference, and the Tribunal was therefore required to confine its adjudication to those points and matters that were incidental to them. From a reading of demands 1(A) & 1(B) as a whole it is clear that the demand for reinstatement in respect of both groups of workmen as made arises on the alleged invalidity of the action taken by the management in dismissing these workmen. The issue of unfair labour practice or discrimination by reason of subsequent reinstatement on a permanent basis of some and not all the 25 workmen was not a matter referred to the Tribunal for adjudication, nor it can be said to be in any way connected with or incidental to the right of reinstatement claimed by the 101 workmen from the date of their dismissal. The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice and discrimination." 8.1C In support of the same, the learned counsel has relied upon the following judgments: (i) Pottery Mazdoor Panchayat Vs. Perfect Pottery Company Ltd. (1979) 3 SCC 762, paras 11 and 16. (ii) Union of India Vs. Shantiram Ghosh, 1989 Suppl.(1) SCC 68, para 8. (iii) Gorden Woodroffe Agencies (P). Ltd. Vs. P.O., Principal Labour Court, (2004) 8 SCC 90 paras 12 and 13. (iv) Rhone Poulenc (India) Ltd. v. State of U.P. (2000) 7 SCC 675, para 7. 8.2 Second Contention:- The award of the tribunal awarding overtime from 1.1.1981 i.e. with retrospective effect is bad in law in any view of the matter: 8.2A The learned advocate further submitted that in any view of the matter when the tribunal has awarded overtime from 1.1.1981, the same is not only beyond the terms of reference, the tribunal has thus exceeded its jurisdiction and hence, the said directions is liable to be set aside in the interest of justice. It has been further submitted that the tribunal is the creature of the statute and therefore its jurisdiction is confined by the Act. 8.2B The same is also bad in law on the ground that there is no claim in the statement of claim, no pleading, no oral or documentary evidence led by the workmen, no argument at the time of hearing of reference application and no reasons have been recorded in support of its directions. 8.2C The learned counsel has relied upon the judgment of Calcutta High Court in the case of Workmen of Bengal Electric Lamp Works Ltd. Vs. Bengal Electric Lamp Works Ltd. and others reported in 1958(1) LLJ 571 Judgment of Calcutta High Court. After quoting Sec.10(4), the Hon'ble Calcutta High Court has held on page 572 as under: "It is, therefore, clear from the words used in the body of the Act that the tribunal has jurisdiction to adjudicate only on the points of dispute specified by the Government. The tribunal has no other jurisdiction. The language is clear by the use of the expression, "confine its adjudication to these points." "The expression "and matters incidental thereto" appearing in S.10(4) of the Act includes incidental matters. Retrospective matters are not incidental matters. These expressions in the section are to be read prospectively unless the actual terms of reference indicate either expressly or by the most compelling and necessary implication any other conclusion giving jurisdiction to the tribunal to pass orders retrospectively. Normally the ordinary principle of construction should be followed and that is that the prospective interpretation unless the retrospect is expressly or by necessary implication indicated." 8.3 Third Contention:- The award of the tribunal giving retrospective effect is also bad in law on the ground that the tribunal does not give any reasons in support of the same. 8.3A The learned advocate has further submitted that, in any view of the matter, the award of the tribunal is also bad in law on the ground that, while arriving at the said conclusion, the tribunal did not give any reasons and, therefore, the award is also liable to be quashed and set aside. 8.3B The learned advocate has relied upon the judgment of the Hon'ble Apex Court in the case of S.N.Mukherjee Vs. Union of India reported in (1990) 4 SCC 594, particularly paras 35, 36, 37 and