IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10425 of 2002 with SPECIAL CIVIL APPLICATION No 10427, 10429 & 10497 of 2002 with SPECIAL CIVIL APPLICATION NO. 10818 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 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? -------------------------------------------------------------- TELECOM DISTRICT MANAGER VALSAD DIST. Versus NAMLABHAI RANCHHODBHAI PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10425 of 2002 MR YASHWANT S BAROT for Petitioner No. 1 NOTICE SERVED for Petitioner No. 1 MR PK SHUKLA for Respondent No. 1 RULE UNSERVED for Respondent No. 1 2. Special Civil Application No. 10427 of 2002 MR YASHWANT S BAROT for Petitioner No. 1 MR PK SHUKLA for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 27/04/2005 CAV COMMON JUDGEMENT #. As all these petitions are based on common question of facts and law, they are disposed of by this common judgment. #. Special Civil Application No. 10425 of 2002 is filed under Article 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and award dated 20.07.2002 passed in Reference No. ITC/2/96 by the Industrial Tribunal, Surat, directing the petitioner to reinstate the respondent in his original post and to pay all consequential benefits available to him pursuant to the reinstatement and to pay salary at the rate of Rs.800/per month from the date of termination from 05.04.1992 till reinstatement and to pay Rs.1000/by way of cost. #. Special Civil Application No. 10497 of 2002 is filed under Article 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and award dated 20.07.2002 passed in Reference No. ITC/1/96 by the Industrial Tribunal, Surat, directing the petitioner to reinstate the respondent in his original post and to pay all consequential benefits available to him pursuant to the reinstatement and to pay salary at the rate of Rs.800/- per month from the date of termination from 05.04.1992 till reinstatement and to pay Rs.1000/by way of cost. #. Special Civil Application No. 10818 of 2002 is filed under Article 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and award dated 20.07.2002 passed in Reference No. ITC/3/96 by the Industrial Tribunal, Surat, directing the petitioner to reinstate the respondent in his original post and to pay all consequential benefits available to him pursuant to the reinstatement and to pay salary at the rate of Rs.800/- per month from the date of termination from 11.09.1992 till reinstatement and to pay Rs.1000/by way of cost. #. Special Civil Application No. 10429 of 2002 is filed under Article 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and award dated 20.07.2002 passed in Reference No. ITC/4/96 by the Industrial Tribunal, Surat, directing the petitioner to reinstate the respondent in his original post and to pay all consequential benefits available to him pursuant to the reinstatement and to pay salary at the rate of Rs.800/- per month from the date of termination from 05.04.1992 till reinstatement and to pay Rs.1000/by way of cost. #. Special Civil Application No. 10427 of 2002 is filed under Article 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and award dated 20.07.2002 passed in Reference No. ITC/5/96 by the Industrial Tribunal, Surat, directing the petitioner to reinstate the respondent in his original post and to pay all consequential benefits available to him pursuant to the reinstatement and to pay salary at the rate of Rs.800/- per month from the date of termination from 05.04.1992 till reinstatement and to pay Rs.1000/by way of cost. #. The brief facts of the petitioner's case are such that: The respondents were engaged on purely daily wages at Vapi for doing casual type of work as casual labourer on different dates. As no casual work was available, they were not called for duty for which they raised Industrial Dispute before the Asst. Labour Commissioner (Central) II at Ahmedabad and at the time of conciliation, conciliation agreement was entered into by the parties and it was agreed that the workman will be allowed to work casually in the same sites as casual labourer on the basis of the work available in the local unit at Vapi and that the management will inform in writing to the workman as and when required for doing casual nature of the work and in case of permanent vacancy in the department, workman can also apply as per the recruitment rules of the petitioner from time to time. Thereafter, in the year 1995 as some work of casual nature was available, the petitioner, as per the conciliation agreement, informed the respondents by communication dated 24.04.1995 to attend the office of the Sub-Judicial Officer, Vapi if they desire to work under SDO (Phones), Vapi. It seems that as they were not desirous to work, they did not attend the work and instead approached the Assistant Labour Commissioner for raising industrial dispute alleging that the conciliation was not explained to them and they did not opt for it. Thereafter, the respondents approached the Central Government for referring the dispute to the Industrial Tribunal challenging the action of the management of the Telecom District Manager, Valsad in denying the employment to him and the Ministry of Labour vide its order dated 30.05.1996 passed an order referring the dispute to the Industrial Tribunal, Surat to determine whether the action of the management of Telecom District Manager, Valsad in denying the employment to the petitioner is illegal and unjust and if not, what relief workmen are entitled to. Thereafter, the case was referred to as references and the respondents herein submitted their statement of demand, challenging the alleged termination contending that the conciliation agreement before the Asst.Labour Commissioner (C) dated 20.08.1993 is not correct agreement and it is contrary to law and they are not reinstated. It was contended on behalf of the respondents that they had worked for more than 240 days and their services have been terminated without following due procedure u/s 25F of the Industrial Disputes Act and therefore termination is illegal. After hearing the parties, the Industrial Tribunal passed the judgments and awards in respective references as stated above. It is against these judgments, the present petitions are filed. #. At the time of arguments, Mr. Barot, learned advocate for the petitioner in all the petitions submitted that it is not open for the respondents to raise industrial dispute when conciliation proceeding was already dropped in view of the conciliation agreement arrived at between the parties before the Assistant Labour Commissioner (Central) - II. He further submitted that in view of the conciliation agreement dated 30.06.1993, second reference itself is not maintainable and the respondents cannot have raised industrial dispute again and in view of the conciliation agreement, when the respondents were called to attend duty at Vapi and when he did not resume duty, the Industrial Tribunal ought not to have partly allowed the reference by directing the petitioner to reinstate the respondents to their original post. He further submits that the respondents were engaged on purely daily wages basis at Vapi for doing casual work of labour and he worked on different days in different months and was called for duty as and when the work was available and as there was no work in 1992, he was not called for duty. Therefore, there is no question of following the procedure u/s 25F of the Industrial Disputes Act. He also submitted that though it was specifically mentioned in the conciliation agreement that the respondents shall be called as and when work is available and also they were called for work on 24.04.1995, but they failed to attend their duty and therefore there is no question of following procedure u/s 25F of the Industrial Disputes Act. #. Against the aforesaid submissions, Mr. Shukla learned advocate for the respondents submitted that the petition under Article 227 of the Constitution of India seeking to quash and set aside the judgment and award passed by the Industrial Tribunal is not maintainable. He submitted that the respondents were working at Vapi as daily wage casual labourer from August 1990 till March 1992, when their services came to be terminated without following any procedure and that they worked with the petitioner for more than 240 days. The SDO (Telephones) Vapi, District Valsad has also admitted that the respondents had worked for more than 240 days in the preceding years. He further submitted that no retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947 was paid to the respondent and it is a settled principle of law that if retrenchment compensation is not paid under Section 25-F, the workman is entitled to reinstatement with full back wages. He submitted that in spite of repeated representations made by the respondents, the petitioner has not permitted the respondents to resume duty. With regard to the settlement dated 30.06.1993 arrived at between the parties, he submitted that the settlement is not exhibited before the Labour Court and it is produced before this court for the first time and therefore the same cannot be taken into consideration in any manner. He also submitted that the settlement is not recorded in accordance with the provisions of Section 18(1) of the Industrial Disputes Act read with Rule 58. In support of his submissions, the learned advocate for the respondents has relied on the following authorities : 1. Mohd. Yunus V.s Mohd. Mustaqim and others reported in AIR 1984 SC 38. 2. Daily Rated Casual Labour employed under P & T Department Through Bhartiya Dak Tar Mazdoor Manch V/s Union of India and others reported in (1988) 1 SCC 122. 3. Mohan Amba Prasad Agnihotri and others V/s Bhaskar Balwant Aher (D) Through Lrs. reported in (2000) 3 SCC 190. 4. State of Gujarat V/s Maniben Viraji reported in 2003(4) GLR 3322. 5. Chief Officer, Keshod Municipality V/s Chandrakant Harilal Rakholiya reported in 2003(2) GLR 1755. 6. Gujarat Water Supply & Sewerage Board, Amreli V/s S.K.Rayjada & Anr. reported in 2003(4) GLR 3381. 7. Executive Engineer V/s Vadansingh Madansinh Parmar reported in 2005(1) GLH 205. 8. Union of India V/s Bachu Badia reported in 2000(1) GLH 254. 9. State Trading Corporation of India V/s Sushila Premjibhai Majithiya & Anr. reported in 2000(4) GLR 3412. 10. Adamji M Badri and others V/s Labour Officer and another reported in 1981 LLJ 367 (Gujarat). 11. (M/s) Bharat Textile Works V/s Workmen of (M/s) Bharat Textile Works and another reported in 1994(2) GLH 38. 12. The Management, The Co-operative Store Ltd. V/s Ved Prakash Bhambri reported in 1989 Lab I.C. 289. 13. Workmen of M/s Delhi Cloth General Mills Ltd. V/s The Management of M/s Delhi Cloth and General Mills Ltd. reported in AIR 1970 SC 1851. 14. Keltron Controls V/s Workmen of Keltron Controls and others reported in 2004-II-LLJ page 167. ##. Heard the learned counsel for the parties and perused the authorities cited by the learned advocate for the respondents. ##. The learned advocate for the respondents has mainly raised three contentions : (1) that the respondents have completed 240 days in the preceding years, (2) the respondents are terminated without retrenchment compensation under Section 25-F of the Industrial Disputes Act and (3) the alleged settlement is not recorded in accordance with the provisions of Section 18(1) of the Industrial Disputes Act and Rule 58 of the Industrial Disputes (Central) Rules, 1957 and therefore the settlement is not binding to the workmen respondents herein. ##. As against this, the learned advocate for the petitioner submitted that the settlement was arrived at in the conciliation proceedings on 30.06.93 in Reference No. 1 of 1996 and the respondent workman has signed the same in presence of the advocate and also signed by the petitioner - Telecom District Manager, Valsad. Therefore, now it is not proper for the respondents to back out from the settlement arrived between the parties. So far as the contention regarding following the procedure of the Industrial Act is concerned, the learned advocate for the petitioner submitted that as per the settlement, the respondents were called to attend the office of the Sub-Judicial Officer, Vapi, if he desired to work so under SDO (Phones) Vapi by communication dated 24.04.1995. However, he did jot join duty and raised industrial dispute. Therefore, the question of following procedure under Section 25-F does not arise as the respondents himself have not attended the duty. In the case of Mohd. Yunus (supra), in para 7 stated as under : "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art.227. The supervisory jurisdiction conferred on the High Courts under Art.227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority." and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision." In the case of Daily Rated Casual Labour (supra), in para 9 as stated as under : "Unless a sense of belonging to the organization engaged in production arises in a workman, he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment at the whim of the management. It is for that reason that as far as possible security of work should be assured to the employees so that they may contribute to the maximization of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time. The employees belonging to skilled, semi-skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place. Our wage structure is such that a worker is always paid less than what he produces, and if any worker remains idle on any day, the country loses the wealth that he would have produced during that day. It is against this background that non-regularisation of temporary employees or casual labour for a long period can be said to be not a wise policy. The respondents are, therefore, directed to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department. In case of Mohan Amba Prasad Agnihotri (supra), it is held in para 5 as under : "The jurisdiction of the High Court under Article 227 is not appellate but supervisory. It cannot interfere with a finding of fact recorded by a lower court / tribunal unless there is no evidence to support the finding or the finding is perverse." In case of Maniben Viraji (supra), in paras 66 to 69, it is held as under : "The view taken by the Apex Court in Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union & Anr., reported in 2000 SCC (L&S) 471, the Apex Court has held that while exercising the powers under Arts.226 and 227 of the Constitution, interference with pure finding of fact and re-appreciation of the evidence is held to be impermissible. The High Court does not exercise appellate jurisdiction under Art.226. Even insufficiency of evidence or that another view is possible, it is held that no ground to interfere with the findings of the Industrial Tribunal. Recently also, the Apex Court has considered this aspect in case of Sugarbai M.Siddiq & Ors. v. Ramesh S.Hankare, reported in 2001 (8) SCC 477, the Apex Court has held that scope of powers of High Court is concerned not with the decision of the lower Court / Tribunal but with its decision-making process. High Court must ascertain whether such Court or Tribunal had jurisdiction to deal with a particular matter and whether the order in question is vitiated by procedural irregularity, then only High Court can interfere with, otherwise not. 67. Recently also, the Apex Court has considered the scope of Art.226 and 227 of the Constitution of India in case of Ouseph Mathai & Ors. v. M.Abdul Khadir, reported in 2002(1) SCC 319. The relevant observations in paras 4 & 5 are quoted as under : "4. It is not denied that the powers conferred upon the High Court under Arts. 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Art.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 casts a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of their authority and 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 injustice to any party. 5. In Warayam Singh v. Amarnath this Court held that power of superintendence conferred by Art.227 is to be exercised more 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. This position of law was reiterated in Nagendra Nath Bora v. Commr. of Hills Division & Appeals. In Babhutmal Raichand Oswal v. Laxmibai Tarte this Court held the High Court could not, in the guise of exercising its jurisdiction under Art.227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal. After referring to the judgment of Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw (All ER at 128), this Court in Chadavarkar Sita Ratna Rao v. Ashalata S.Guram held (SCC page 460 para 20): "20. It is true that in exercise of jurisdiction under Art.227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of the fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Arts.226 and 227 of the Constitution look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a findings are perverse and not based on any material evidence or it resulted in manifest injustice (See : Trimbak Gangadhar Telang). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion, therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limit of jurisdiction under Art.227 of the Constitution. On the first point, therefore, the High Court was in error." 68. Recently also, the Apex Court has considered the scope of Art.226 and 227 of the Constitution in case of Roshan Deen v. Preetilal, reported in 2002 (1) SCC 100. Relevant observations in para 12 are quoted as under: "12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilise all possible legal measure to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Art.227 of the Constitution. Time and again, this Court has reminded that the power conferred on the High Court under Art.226 and 227 of the Constitution is to advance justice and not to thwart it (vide State of U.P. v. District Judge, Unnao). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court, is therefore, not merely to pick out any error of law through an academic angle, but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law." 69. Recently also, the Apex Court has examined this question in reported decision in the case of Essen Deinki v. Rajiv Kumar, 2003 SCC (L&S) 13. Relevant paragraphs are as under : "2. Generally speaking, exercise of jurisdiction under Art.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. 3. The observations above, however, find affirmance in the decision of this Court in Nibaran Chandra Bag v. Mahendra Nath Ghughu. In Nibaran this court has been rather categorical in recording that the jurisdiction so conferred is by no means appellate in nature for correcting errors in the decision of the subordinate Courts or Tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority. More recently, in Mani Nariman Daruwala v. Phiroz N.Bhatena this Court in a similar vein stated : "In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior Court or Tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or Tribunal who (sic.) has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to