1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. SB CIVIL WRIT PETITION NO. 5142/2001 Manager, Seed Corporation, Matunda Agriculture Farm vs. Rugha & Ors. Date of order:- 29th June 2009. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE. Reportable:- Mr. J.K. Singhi, for the petitioner. Mr. Deepak Goyal, for the respondents. This writ petition has been directed against the order dated 28.04.2001 passed by the learned Labour Court, Kota in L.C. No. 172/92, whereby he had answered the reference, made by the State Government in favour of the respondent-workmen and held that the termination of their services were unjust and illegal. Therefore, it was ordered that the workmen were entitled for reinstatement with continuity in services and back wages to the extent of 25%. 2. The relevant facts of the present controversy are that the respondent no. 1 and 2 were working with the petitioner-Corporation on the posts of Chowkidar and Driver respectively. They are said to have joined their services 2 from 01.08.1987 and were removed from 01.09.1989. Thereafter, the respondent-workmen had raised industrial dispute and a claim petition came to be filed before respondent no. 3 with the averments that they were working on the aforesaid posts with the petitioner- Corporation and without any reason or prior notice, they had been removed from services w.e.f. 01.09.1989. It was also averred, in para 3 of the claim petition, that the respondents had been continuously working with the employer Corporation from 01.08.1987 to 31.08.1989 and, as such, they completed more than 240 days. Further, it was averred by the respondents that there had been non-compliance of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act of 1947'), as neither any notice of one month nor any salary in lieu thereof had been paid to them. It has also been averred that no compensation had been given to the respondent No. 1 and 2 by the petitioner-Corporation before retrenchment of their services. Therefore, the respondents are said to have been removed from services in an illegal manner. The petitioner-Corporation had contested the matter by way of filing reply to the claim petition. Primary stand taken by the petitioner-Corporation was that the 3 respondents had never been in their employment and therefore, there was no question of any notice to be given to them. It had also been stated that as the respondents had never been in services of the petitioner-Corporation, as such, the question of compliance of Section 25- F of the Act of 1947 does not arise. Accordingly, it was prayed that the claim petition be dismissed with the costs of Rs. 2,000/-. 3. The parties had adduced their evidence before the Labour Court by way of oral as well as documentary. The respondents had filed affidavits and they had been thoroughly cross- examined on behalf of the petitioner. Likewise, the petitioner-Corporation had produced documentary evidence by way of muster-role, etc. and one Mr. Rajendra Nainawat, the Manager had appeared in the witness-box, on its behalf. The learned Labour Court considered the matter in the light of the terms of reference made by the State Government and came to the conclusion that the termination of services of the respondent-workmen were unjust and illegal and answered the reference accordingly. The respondent-workmen were ordered to be reinstated and their services were ordered to 4 be continued with back wages to the extent of 25%. Hence, this writ petition has been filed by the petitioner-Corporation by invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 4. Learned counsel for the petitioner has sought to challenge the award passed by the learned Labour Court, as given in the pleadings of the writ petition, that the respondents did not complete 240 days of their employment and, as such, they had no claim under the Act of 1947. Further, he has submitted that the respondent-workmen did not adduce evidence except the affidavits with regard to the total number of days worked with the petitioner- Corporation, as such, they have failed to discharge their burden. Learned counsel for the petitioner-Corporation has also submitted that the respondents were not entitled for reinstatement and back wages as awarded by the learned Labour Court. Another submission made by the learned counsel for the petitioner- Corporation was that the respondent-workmen have failed to prove that they had worked for more than 240 days in the year preceding to the date of termination. The learned counsel for the petitioner has placed reliance on the cases 5 of Essen Deinki vs. Rajiv Kumar, (2002) 8 SCC 400; M.P. State Agro industries Development Corporation Ltd. & Anr. vs. S.C. Pandey, (2006) 2 SCC 716; State of Rajasthan vs. Sarjeet Singh & Anr., (2006) 8 SCC 508. 5. On the other hand, the learned counsel for the respondent-workmen has submitted that the respondents had worked continuously for the requisite period. Further, he has submitted that there had been gross non-compliance of Section 25-F of the Act of 1947. He has also submitted that the evidence on record, including that of the representative of the Corporation, goes to show that the respondents had worked for more than 240 days, which entitle them for reinstatement. It has also been submitted by the learned counsel for the respondents that the award passed by the learned Labour Court was fully justified, in the facts and circumstances of the case, therefore, no interference is called for by this Court in exercise of its extra ordinary jurisdiction. In support of his submissions, he placed reliance on the case of R.M. Yellatti Vs. Asstt. Executive Engineer, (2006) SCC (L&S) 1. 6 6. A perusal of the impugned award goes to show that the learned Judge Labour Court has taken into account the terms of the reference, the claim raised by the respondent-workmen; the objections raised against the same by the petitioner-corporation and has given its findings on the basis of the material on record. The learned Labour Court has also taken into consideration the evidence adduced on behalf of the respondent-workmen and also the statement of Mr. Rajendra Nainawat, the manager of the petitioner-corporation. 7. As regards the question about the working of the respondent-workmen for more then 240 days in the year, immediately preceding on the date of retrenchment, it would suffice to say that there is documentary evidence on record by way of muster-role and this fact has been admitted by the representative of the petitioner-Corporation, namely Shri Rajendra Nainawat, the Manager of the Corporation, in his deposition, before the Court below. Therefore the learned Labour Court held as under:- "उल्लेखनीय है िक अूाथȸ िनयोजक ने ःटेटमेंट ऑफ क्लेम के जवाब में ूारंभ में तो यह कथन िकया है िक ूािथर्गन उसके िनयोजन में नहीं रह रहे है और ना 7 ही उन्होंने कोई कायर् िकया है, िकन्तु िवशेष आप्Ưीयो के पेरा 1 में एक बार तो यह ःवीकार िकया है िक ूािथर्गन ने उनके िनयोजन में कायर् तो िकया है, िकन्तु एक कैलेंडर वषर् में 240 िदन कायर् नहीं िकया है| िकन्तु पुनः िवशेष आप्Ưीयो के पेरा 2 में यह कथन िकया है िक ूािथर्गन ने अूाथȸ के िनयोजन में कोई कायर् नहीं िकया है| इन तथ्यों के सवर्था िवपरीत अूाथȸ के साक्षी राजेंि नैनावत ने शपथ-पऽ पर िदए गए बयानों में यह ःवीकार िकया है िक ौिमक छोटलाल ने ू ने िदस.88 से नव.89 तक कूल 258 िदन कायर् िकया है तथा ौिमक रुघा ने जनवरी, 88 से िदस.88 के मध्य 298 एवं िदस.88 से नव. 89 के मध्य 226 िदन कायर् िकया है| यिद हम इन 226 िदनों में 32 साƯािहक अवकाश भी जोड़ दे तो ौिमक रुघा Ʈारा िदस.88 से नव.89 के मध्य कूल 258 िदन कायर् करना सािबत है| अूाथȸ ने शपथ पऽ पर िदए गए बयानों की संपुिƴ में मःटररोल की फोटोूितया भी न्यायालय में ूःतुत की है िजनसे भी यह सािबत है िक ूािथर्गन ने एक कैलेंडर वषर् में 240 िदन से अिधक कायर् िकया है जो संदेह से परे सािबत है|” 8. In respect of the contentions raised by the learned counsel for the petitioner- Corporation that the respondent-workmen had not worked for more than 240 days in the year immediately preceding from the date of retrenchment and that they have failed to discharge the burden to prove the same, can also be looked into from another angle that the terms of the reference, in the instant case, were very clear and in accordance to it, the learned Labour Court has seen as to whether the termination of the services of the respondent- 8 workmen, without following the provisions of Section 25-F of the Act of 1947, was justified and legal. If not so, then what relief the respondent-workmen was entitled. Precisely speaking the terms of reference in the instant case was as under:- "क्या िनयोजक मैनेजर सीड कारपोरेशन माटन्दा एमीकलचर फामर् ू माटन्दा िजला बूंदी Ʈारा उनके ौिमक रुघा ू व ौिमक ौी छोटलाल िजन्होंने िनरंतर ू सेवा की दौरान 240 िदन से अिधक की सेवा पूणर् कर ली थी िजनका िक ूितिनिधत्व अध्यक्ष, राƶीय जलदाय कमर्चारी युिनयन बूंदी ने िकया है को धारा 25-एफ औधोिगक िववाद अिधिनयम, 1947 के ूावधानों की पालना िकये बगेर सेवा पृथक कर िदया जाना उिचत एवं वैध है ? यिद नहीं तो ौिमक्गण िकस राहत को पाने के अिधकारी है ?" 9. There is no dispute about the fact that neither one month notice, before termination of their services, was given to the respondent-workmen nor they had been paid one month salary in lieu thereof in accordance with the provisions of the Act of 1947. They had also not been given any compensation before being retrenched. Therefore, the termination of the respondent-workmen was wholly illegal and contrary to the provisions of the Act of 1947. 10. In so far as the submission made by the learned counsel for the petitioner- 9 Corporation that the respondent-workmen are not entitled for reinstatement and back wages is concerned, no specific reason has been given out to show that the order of reinstatement with back wages to the extent of 25% awarded by the learned Labour Court is illegal or unjustified. Having regard to the facts and circumstances of the case, the learned Labour Court has rightly exercised its discretion in awarding the relief to the respondent-workmen. It may be noted that in the case of M.P. State Agro industries Development Corporation Ltd. & Anr. vs. S.C. Pandey (Supra), relied upon by the learned counsel for the petitioner- corporation in support of his submission that the respondent-workmen are not entitled for reinstatement and back wages, is of no help to the petitioner-corporation for the reason that it was in peculiar fact of that case that the Hon'ble Apex Court held as under:- “24. However, it has not been contended that the services of the respondent were not governed by the provisions of the Industrial Disputes Act. He worked from 16.9.1985 to 19.5.1987. He must have, thus, completed 240 days of service. The termination of his services without complying with the provisions of Section 25F of the Industrial Disputes Act was, thus, illegal. He, however, had unjustly been directed to continue in service by reason of 10 an interim order. He has been continuing in service pursuant thereto.” “25. The appellant, in our opinion, cannot be made to suffer owing to a mistake on the part of the court. The respondent also cannot take advantage of a wrong order.” “26. In the peculiar facts and circumstances of the case, we, therefore, of the opinion that interest of justice would be sub-served if, in place of directing reinstatement of the services of the respondent, the appellant is directed to pay a sum of Rs. 10,000/- by way of compensation to him. It is directed accordingly. The orders under challenge are set aside. The appeal is allowed with the aforementioned directions and observations.” 11. Similarly, the Case of State of Rajasthan vs. Sarjeet Singh & Anr. (Supra) was a one, where the workmen were employed under a Special Scheme namely; ”Jal Pradyot Yojna”. It was in the fact situation of that case that the Hon'ble Supreme Court had held as under:- “15. In State of M..P. and Ors. v. Arjunlal Rajak [2006 (2) SCALE 610], this Court opined: "It is, however, true that while terminating the services of the respondent the appellants had not complied with the mandatory requirements of Section 25F of the Industrial Disputes 11 Act and, thus, ordinarily, the workman could have been directed to be reinstated with or without back wages, but it is also well settled that a project or a Scheme or an office itself is abolished, relief by way of reinstatement is not granted." “16. In terminating the services of Respondent No. 1, we would assume that violation of Sections 25-G or 25-H occurred (although there is no factual basis therefor), but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. We, however, although ordinarily would have set aside the impugned award and consequently the judgment of the High Court; in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct the State to pay a sum of Rs. 30,000/- to Respondent No. 1. Such payment should be made within eight weeks from date failing which the same shall carry interest at the rate of 9% per annum. The appeal is allowed with the aforesaid directions. The parties shall pay and bear their own costs.” 12. With regard to the submission made on behalf of the petitioner that except an affidavit there is no evidence to the effect that the respondent-workmen had worked for more than 240 days, it may be noted that the learned court below has given a finding on the basis of affidavits, documentary evidence by way of 12 musterroll and the deposition of the witness of the petitioner Corporation because in the instant case the evidence on record is not that of affidavit alone. A Larger Bench of the Hon'ble Apex Court, in the Case of R.M. Yellatti Vs. Asstt. Executive Engineer (Supra), has taken into consideration a similar objections and observed as follows:- “17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self- serving statements made by the claimant/workman will not suffice in the matter of discharge of the 13 burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.” Further, in para 18 of the said Judgment, the Hon'ble Supreme Court has observed that “This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit.” 13. Besides, the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is limited and it should be exercised sparingly. Under the said jurisdiction, this Court is not to act as an Appellate Court. Ever since, the celebrated Judgment of the Constitution Bench of the Apex Court, in the Case of Wariyam Singh Vs. Amar Nath, 1954 AIR (SC) 215, the powers of the High Court under Articles 226 and 227 of the Constitution of India have been clearly laid- 14 down. In a later Judgment delivered by the Constitution Bench of the Apex Court in the case of Nagendra Nath Bora and another Vs. Commissioner of Hills Division and Appeals, Assam and others, 1958 AIR SC 398, it had been held as under:- “30. A Constitution Bench of this Court examined the scope of Art. 227 of the Constitution in the case of Waryam Singh vs. Amarnath, 1954 SCR 565: (AIR 1954 SC 215) (P). This Court, in the course of its judgment, made the following observations at p. 571 (of SCR); (at p. 217 of AIR): “This power of superintendence conferred by article 227 is , as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (Q), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.” It is, thus, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under art. 226 or 227 of the Constitution, was not justified.” 15 14. A Larger Bench of the Apex Court had followed the aforesaid principles in the Case of Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895, wherein it has been held as under:- “12. Before proceeding further it is necessary to notice that the matter was brought up before the High Court by Petition, under Article 227 of the Constitution. The jurisdiction conferred by that Article is not by any means the decisions of Subordinate Courts or Tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority, vide Nagendra Nath Bora v. Commissioner, Hills Division, Assam, 1958 SCR 1240: (AIR 1958) SC 398). It was the submission of the learned counsel for the respondent (Appellant in C.A. 106/60) that the High Court exceeded its jurisdiction in interfering what at the worst was a mere error in the appreciation of evidence and that in fact there was enough material for the finding which the Revenue Tribunals had reached, as regards the lease.” 15. In the case of Sadhu Ram Vs. Delhi Transport Corporation (1983) 4 SCC 156, the Apex Court, while dealing with the case of Industrial Disputes Act, 1947, has held as under:- “3. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but for that very reason, it has to be 16 exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate at the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court andhold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court.” “5. Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under Art. 226 on a mere chnicality. Article 226 is a device to secure and advance justice and not otherwise. In the result, we allow the appeal, set aside the judgment of the High Court andrestore the award of the Presiding Officer, Labour Court.” 17 16. The said principles have been reiterated and followed by the Apex Court in the Case of Savita Chemicals (P)Ltd. Vs. Dyes & Chemical Workers' Union and Another (1999) 2 SCC 143, wherein it was observed that “there cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set-aside any finding reached by the lower authorities where to views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering points 1 and 3, the findings reached by the Labour Court on the relevant terms were patently erroneous and dehors the factual and legal position on record. The said patently illegal findings could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise it s jurisdiction if it had not set- aside such patently illegal findings of the Labour Court.” 17. In a later Judgment of Essen Deinki vs. Rajiv Kumar (Supra), the Hon'ble Apex Court had reiterated the aforesaid principles of law 18 as under:- “2. Generally speaking, exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in the normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the Courts below. The finding of fact being within the domain of the inferior Tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the Article is not called for.” “5. Needless to record that there is total unanimity of judicial precedents on the score that error must be that of law and patently on record committed by the inferior Tribunal so as to warrant intervention it ought not to act as a Court of appeal and there is no dissention or even a contra note being sounded at any point of time till date. Incidentally, the illegality, if there be any, in an order of an inferior Tribunal, it would however be a plain exercise of jurisdiction under the Article to correct the same as otherwise the law Courts would fail to subserve the needs of the society since illegality cannot even