Tuesday, May 31, 2011

Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work.-S.C.In HARJINDER SINGH v. PUNJAB STATE WAREHOUSING CORPORATION (Civil Appeal No. 587 of 2010)


HARJINDER SINGH
v.
PUNJAB STATE WAREHOUSING CORPORATION
(Civil Appeal No. 587 of 2010)
JANUARY 05, 2010
[G.S. Singhvi and Asok Kumar Ganguly, JJ.]
2010 (1) SCR 591
The following Order of the Court was delivered
ORDER
1. Leave granted.
2. This appeal is directed against order dated 6.2.2009 passed by the
learned Single Judge of the Punjab and Haryana High Court in Writ Petition
No.372 of 2001 whereby he modified the award passed by the
Labour Court
,
Gurdaspur (for short, ‘the
Labour Court
’) in Reference No.43 of 1996 and
directed that in lieu of reinstatement with 50% back wages, the appellant
herein shall be paid Rs.87,582/- by way of compensation.
3. The appellant was employed in the services of the Punjab State
Warehousing Corporation (hereinafter described as ‘the corporation’) as work
charge Motor Mate with effect from 5.3.1986. After seven months, the
Executive Engineer of the corporation issued order dated 3.10.1986 whereby
he appointed the appellant as Work Munshi in the pay scale of Rs.350-525
for a period of three months. The same officer issued another order dated
5.2.1987 and appointed the appellant as Work Munshi in the pay scale of
Rs.400-600 for a period of three months. Though, the tenure specified in the
second order ended on 4.5.1987, the appellant was continued in service till
5.7.1988 i.e., the date on which the Managing Director of the corporation
issued one month’s notice seeking to terminate his service by way of
retrenchment. However, the implementation of that notice was stayed by the
Punjab and Haryana High Court in Writ Petition No.8723 of 1988 filed by the
appellant. The writ petition was finally dismissed as withdrawn with liberty tothe appellant to avail remedy under the Industrial Disputes Act, 1947 (for
short, ‘the Act’). After two months, the Managing Director of the corporation
issued notice dated 26.11.1992 for retrenchment of the appellant and 21
other workmen by giving them one month’s pay and allowances in lieu of
notice as per the requirement of Section 25F(a) of the Act.
4. As a sequel to withdrawal of the writ petition, the appellant raised an
industrial dispute which was referred by the Government of Punjab to the
Labour Court
. In the statement of claim filed by him, the appellant pleaded
that the action taken for termination of his service by way of retrenchment is
contrary to the mandate of Sections 25F and 25M of the Act and that there
has been violation of the rule of last-come-first go inasmuch as persons junior
to him were retained in service. In the reply filed on behalf of the corporation,
it was pleaded that the appellant’s service was terminated by way of
retrenchment because the projects on which he was employed had been
completed. It was also pleaded that the impugned action was taken after
complying with Section 25F of the Act. However, it was not denied that
persons junior to the appellant were retained in service.
5. The learned Presiding Officer of the
Labour Court
considered the
pleadings of the parties and evidence produced by them and passed award
dated 15.12.1999 for reinstatement of the appellant with 50% back wages.
The
Labour Court
held that even though the appellant was retrenched after
complying with Section 25-F of the Act, the principle of equality enshrined in
Section 25G of the Act was violated and persons junior to the appellant were
allowed to continue in service. This is evident from paragraph 12 of the
award, which reads as under:
“However, the contention of the AR of the workman about gross violation
of the principles of equality as enshrined in Section 25G of the Act is full
of substance. Ved Prakash, MW1, when cross-examined, admits that as
per the salary record, the workman had drawn his monthly wages from10.3.86 to 26.11.92 regularly in every month. He admits that the workman
namely Nirmal Singh, Anju Gupta, Harbans Singh mentioned in the
seniority list are juniors to the workman concerned and they are still
working with the respondent. He further admitted that the work is existing
with the respondent against which the workman was employed. He also
admits that persons who were retrenchment have been reinstated in job
through the different Courts and they are working with the respondent.
Therefore, the grievance of the WW workman get support from the
statement of MW1 that juniors to him namely Anju Gupta, Shubh Dhayan
and Joginder Singh are still working with the respondent and that his
statement has not been put to cross-examination and as such his version
must be assumed to be correct in the light of seniority list, Ex.X1. No
reason whatsoever was assigned by the respondent to dispute with the
services of the workman while retaining juniors. Even it is so mentioned in
the appointment orders Ex. WI to W3 that seniors of the workman can be
terminated on ten days notice, does not mean principle of “last come, first
go” as envisaged in sec. 25G of the Act are not required to be complied
with. Reliance is placed upon a Supreme Court case reported as 1999
(2). SCT. Page 284: Samishta Dube vs. City Board: Etaway: that wherein
it was held that “rule of`first come, last go’ could be deviated by the
employer in cases of lack of efficiency or loss of confidence-But burden is
on the employer to justify deviation. No such attempt made by the
respondent Employer High Court was not correct in stating that rule of
seniority is not applicable to daily wagers. There is clear violation of sec.
25 G of the Act. Appellant is entitled for reappointment. There is also no
evidence that the workman was appointed for specific period and for
specific job and the further that the nature of job was casual one and as
such the workman is entitled to reinstatement. Therefore, I hold that the
termination of services of the workman is in contravention of sec.25G of
the I.D. Act.” 6. The corporation challenged the award of the
Labour Court
in Writ
Petition No.372/2001 mainly on the grounds that the dispute raised by the
appellant could not be treated as industrial dispute because the termination of
his service was covered by Section 2(oo)(bb) of the Act; that the appellant
was not a regular employee and he was not working against any sanctioned
post; that the appellant had not worked for a period of 240 days and that
there was no post against which he could be reinstated.
7. The learned Single Judge rejected the plea that the termination of the
appellant’s service is covered by Section 2(oo) (bb) by observing that from
the evidence produced before the
Labour Court
, it was clearly established
that the work against which the appellant was engaged was still continuing.
The learned Single Judge also agreed with the Labour Court that the action
taken by the corporation was contrary to Section 25-G of the Act. He
however, did not approve the award of reinstatement on the premise that
initial appointment of the appellant was not in consonance with the statutory
regulations and Articles 14 and 16 of the Constitution and, accordingly,
substituted the award of reinstatement with 50% back wages by directing that
the appellant shall be paid a sum of Rs.87,582/- by way of compensation.
8. Shri Dhruv Mehta, learned counsel for the appellant referred to the
averments contained in the reply filed on behalf of the corporation before the
Labour Court
and the writ petition filed before the High Court to show that in
the pleadings of the corporation there was not even a whisper that the
appellant’s initial engagement/appointment was illegal and argued that the
learned Single Judge had no jurisdiction to interfere with the award of
reinstatement by assuming that the appellant was appointed in violation of
Articles 14 and 16 of the Constitution and the regulations framed under
Section 42 read with Section 23 of the Warehousing Corporations Act, 1962
(for short, ‘the 1962 Act’). Shri Mehta further argued that the question whether
the appellant’s appointment was made in contravention of the regulations
framed under the 1962 Act or the doctrine of equality enshrined in theConstitution, is a pure question of fact which could be decided only on the
basis of pleadings and evidence produced before the
Labour Court
and as no
such evidence was produced before the
Labour Court
, the High Court was
not at all justified in entertaining the new plea raised for the first time during
the course of hearing of the writ petition.
9. Learned counsel for the corporation supported the impugned order and
vehemently argued that the learned Single Judge did not commit any error by
setting aside the award of reinstatement because the appellant’s appointment
was for a fixed period and his service was terminated after complying with
Section 25-F of the Act. Learned counsel repeatedly emphasised that the
initial appointment of the appellant was contrary to the Punjab State
Warehousing Corporation Staff Groups C and D Service Regulations, 2002
(for short ‘the Regulations’) and argued that the learned Single Judge rightly
set aside the award of reinstatement because the appellant was appointed in
violation of Articles 14 and 16 of the Constitution and the relevant regulations.
10. We have considered the respective submissions. In our opinion, the
impugned order is liable to be set aside only on the ground that while
interfering with the award of the
Labour Court
, the learned Single Judge did
not keep in view the parameters laid down by this Court for exercise of
jurisdiction by the High Court under Articles 226 and/or 227 of the
Constitution – Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC
477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In
Syed Yakoob’s case, this Court delineated the scope of the writ of certiorari in
the following words:
“The question about the limits of the jurisdiction of High Courts in issuing
a writ of certiorari under Article 226 has been frequently considered by
this Court and the true legal position in that behalf is no longer in doubt. A
writ of certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals: these are cases where ordersare passed by inferior courts or tribunals without jurisdiction, or is in
excess of it, or as a result of failure to exercise jurisdiction. A writ can
similarly be issued where in exercise of jurisdiction conferred on it, the
Court or Tribunal acts illegally or properly, as for instance, it decides a
question without giving an opportunity, be heard to the party affected by
the order, or where the procedure adopted in dealing with the dispute is
opposed to principles of natural justice. There is, however, no doubt that
the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and
the Court exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot be
reopened or questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ, but not an
error of fact, however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued if it is
shown that in recording the said finding, the Tribunal had erroneously
refused to admit admissible and material evidence, or had erroneously
admitted inadmissible evidence which has influenced the impugned
finding. Similarly, if a finding of fact is based on no evidence, that would
be regarded as an error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases, however, we must
always bear in mind that a finding of fact recorded by the Tribunal cannot
be challenged in proceedings for a writ of certiorari on the ground that the
relevant and material evidence adduced before the Tribunal was
insufficient or inadequate to sustain the impugned finding. The adequacy
or sufficiency of evidence led on a point and the inference of fact to be
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 (videHari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104,
Nagandra Nath Bora v. Commissioner of Hills Division and Appeals
Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960
SC 1168).
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. It may also be that in some cases, the impugned error of law
may not be obvious or patent on the face of the record as such and the
Court may need an argument to discover the said error; but there can be
no doubt that what can be corrected by a writ of certiorari is an error of
law and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face of the
record. If a statutory provision is reasonably capable of two constructions
and one construction has been adopted by the inferior Court or Tribunal,
its conclusion may not necessarily or always be open to correction by a
writ of certiorari. In our opinion, it is neither possible nor desirable to
attempt either to define or to describe adequately all cases of errors
which can be appropriately described as errors of law 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, mustalways 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.”
11. In Surya Dev Rai’s case, a two-Judge Bench, after threadbare
analysis of Articles 226 and 227 of the Constitution and considering large
number of judicial precedents, recorded the following conclusions:
“(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section
115 of the Code of Civil Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under Articles 226 and 227 of
the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High
Court, against which remedy of revision has been excluded by CPC
Amendment Act 46 of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory jurisdiction of the
High Court.
(3) Certiorari, under Article 226 of 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
of procedure or acting in violation of principles of natural justice where
there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds of their
jurisdiction. When a subordinate court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction which it does have or
the jurisdiction though available is being exercised by the court in a
manner not permitted by law and failure of justice or grave injustice hasoccasioned thereby, the High Court may step in to exercise its
supervisory jurisdiction.
(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 abovesaid two
jurisdictions is sought 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 thereagainst and
entertaining a petition invoking certiorari or supervisory jurisdiction of the
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 convert itself into a court of appeal and indulge in reappreciation or
evaluation of evidence or correct errors in drawing inferences or correct
errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of
certiorari and those calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised by the High Courts in
India unlike English courts has almost obliterated the distinction between
the two jurisdictions. While exercising jurisdiction to issue a writ of
certiorari, the High Court may annul or set aside the act, order or
proceedings of the subordinate courts but cannot substitute its own
decision in place thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to guide the subordinate
court as to the manner in which it would act or proceed thereafter or
afresh, the High Court may in appropriate cases itself make an order in
supersession or substitution of the order of the subordinate court as the
court should have made in the facts and circumstances of the case.”
A reading of the impugned order shows that the learned Single Judge did
not find any jurisdictional error in the award of the
Labour Court
. He also did
not find that the award was vitiated by any error of law apparent on the face
of the record or that there was violation of rules of natural justice. As a matter
of fact, the learned Single Judge rejected the argument of the corporation that
termination of the appellant’s service falls within the ambit of Section
2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour
Court that the action taken by the Managing Director of corporation was
contrary to Section 25G of the Act which embodies the rule of last come first
go. Notwithstanding this, the learned Single Judge substituted the award of
reinstatement of the appellant with compensation of Rs.87,582/- by assuming
that appellant was initially appointed without complying with the equality
clause enshrined in Articles 14 and 16 of the Constitution of India and therelevant regulations. While doing so, the learned Single Judge failed to notice
that in the reply filed on behalf of the corporation before the
Labour Court
, the
appellant’s claim for reinstatement with back wages was not resisted on the
ground that his initial appointment was illegal or unconstitutional and that
neither any evidence was produced nor any argument was advanced in that
regard. Therefore, the
Labour Court
did not get any opportunity to consider
the issue whether reinstatement should be denied to the appellant by
applying the new jurisprudence developed by the superior courts in recent
years that the court should not pass an award which may result in
perpetuation of illegality. This being the position, the learned Single Judge
was not at all justified in entertaining the new plea raised on behalf of the
corporation for the first time during the course of arguments and over turn an
otherwise well reasoned award passed by the
Labour Court
and deprive the
appellant of what may be the only source of his own sustenance and that of
his family.
12. Another serious error committed by the learned Single Judge is that
he decided the writ petition by erroneously assuming that the appellant was a
daily wage employee. This is ex facie contrary to the averments contained in
the statement of claim filed by the workman that he was appointed in the
scale of Rs.350-525 and the orders dated 3.10.1986 and 25.2.1987 issued by
the concerned Executive Engineer appointing the appellant as Work Munshi
in the pay scale of Rs.355-525 and then in the scale of Rs.400-600. This was
not even the case of the corporation that the appellant was employed on daily
wages. It seems that attention of the learned Single Judge was not drawn to
the relevant records, else he would not have passed the impugned order on a
wholly unfounded assumption that the appellant was a daily wager.
13. It is true that in the writ petition filed by it, the corporation did plead
that the dispute raised by the appellant was not an industrial dispute because
he had not worked continuously for a period of 240 days, the learned Single
Judge rightly refused to entertain the same because no such argument wasadvanced before him and also because that plea is falsified by the averments
contained in para 2 of the reply filed on behalf of the corporation to the
statement of claim wherein it was admitted that the appellant was engaged as
work charge Motor Mate for construction work on 5.3.1986 and he worked in
that capacity and also as Work Munshi from 3.10.1986 and, as mentioned
above, even after expiry of the period of three months’ specified in order
dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice
of retrenchment was issued by the Managing Director of the corporation.
Therefore, it was not open for the corporation to contend that the appellant
had not completed 240 days service. Moreover, it is settled law that for
attracting the applicability of Section 25-G of the Act, the workman is not
required to prove that he had worked for a period of 240 days during twelve
calendar months preceding the termination of his service and it is sufficient
for him to plead and prove that while effecting retrenchment, the employer
violated the rule of ‘last come first go’ without any tangible reason. In Central
Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an
analogous issue in the context of Section 25-H of the Act, which casts a duty
upon the employer to give an opportunity to the retrenched workmen to offer
themselves for re-employment on a preferential basis. It was argued on
behalf of the bank that an offer of re-employment envisaged in Section 25-H
should be confined only to that category of retrenched workmen who are
covered by Section 25-F and a restricted meaning should be given to the
term ‘retrenchment’ as defined in Section 2(oo). While rejecting the argument,
this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial
Disputes (Central) Rules, 1957, referred to Section 25-G and held:
“Section 25-H then provides for re-employment of retrenched workmen. It
says that when the employer proposes to take into his employ any
persons, he shall, in such manner as may be prescribed, give an
opportunity to the retrenched workmen who are citizens of India to offer
themselves for re-employment, and such retrenched workmen who offerthemselves for re-employment shall have preference over other persons.
Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957
prescribe the mode of re-employment. Rule 77 requires maintenance of
seniority list of all workmen in a particular category from which
retrenchment is contemplated arranged according to seniority of their
service in that category and publication of that list. Rule 78 prescribes the
mode of re-employment of retrenched workmen. The requirement in Rule
78 is of notice in the manner prescribed to every one of all the retrenched
workmen eligible to be considered for re-employment. Shri Pai contends
that Rules 77 and 78 are unworkable unless the application of Section
25-H is confined to the category of retrenched workmen to whom Section
25-F applies. We are unable to accept this contention.
Rule 77 requires the employer to maintain a seniority list of workmen in
that particular category from which retrenchment is contemplated
arranged according to the seniority of their service. The category of
workmen to whom Section 25-F applies is distinct from those to whom it
is inapplicable. There is no practical difficulty in maintenance of seniority
list of workmen with reference to the particular category to which they
belong. Rule 77, therefore, does not present any difficulty. Rule 78
speaks of retrenched workmen eligible to be considered for filling the
vacancies and here also the distinction based on the category of
workmen can be maintained because those falling in the category of
Section 25-F are entitled to be placed higher than those who do not fall in
that category. It is no doubt true that persons who have been retrenched
after a longer period of service which places them higher in the seniority
list are entitled to be considered for re-employment earlier than those
placed lower because of a lesser period of service. In this manner a
workman falling in the lower category because of not being covered by
Section 25-F can claim consideration for re-employment only if an eligible
workman above him in the seniority list is not available. Application ofSection 25-H to the other retrenched workmen not covered by Section 25-
F does not, in any manner, prejudice those covered by Section 25-F
because the question of consideration of any retrenched workman not
covered by Section 25-F would arise only, if and when, no retrenched
workman covered by Section 25-F is available for re-employment. There
is, thus, no reason to curtail the ordinary meaning of “retrenched
workmen” in Section 25-H because of Rules 77 and 78, even assuming
the rules framed under the Act could have that effect.
The plain language of Section 25-H speaks only of re-employment of
“retrenched workmen”. The ordinary meaning of the expression
“retrenched workmen” must relate to the wide meaning of ‘retrenchment’
given in Section 2(oo). Section 25-F also uses the word ‘retrenchment’
but qualifies it by use of the further words “workman ... who has been in
continuous service for not less than one year”. Thus, Section 25-F does
not restrict the meaning of retrenchment but qualifies the category of
retrenched workmen covered therein by use of the further words
“workman ... who has been in continuous service for not less than one
year”. It is clear that Section 25-F applies to the retrenchment of a
workman who has been in continuous service for not less than one year
and not to any workman who has been in continuous service for less than
one year; and it does not restrict or curtail the meaning of retrenchment
merely because the provision therein is made only for the retrenchment of
a workman who has been in continuous service for not less than one
year. Chapter V-A deals with all retrenchments while Section 25-F is
confined only to the mode of retrenchment of workmen in continuous
service for not less than one year. Section 25-G prescribes the principle
for retrenchment and applies ordinarily the principle of “last come first go”
which is not confined only to workmen who have been in continuous
service for not less than one year, covered by Section 25-F.”
(emphasis supplied)14. The ratio of the above noted judgment was reiterated in Samishta
Dube v. City Board Etawah (1999) 3 SCC 14. In that case, the Court
interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari
materia to Section 25-G of the Act, and held:
Now this provision is not controlled by conditions as to length of service
contained in Section 6-N (which corresponds to Section 25-F of the
Industrial Disputes Act, 1947). Section 6-P does not require any particular
period of continuous service as required by Section 6-N. In Kamlesh
Singh v. Presiding Officer in a matter which arose under this very Section
6-P of the U.P. Act, it was so held. Hence the High Court was wrong in
relying on the fact that the appellant had put in only three and a half
months of service and in denying relief. See also in this connection
Central Bank of India v. S. Satyam.
Nor was the High Court correct in stating that no rule of seniority was
applicable to daily-wagers. There is no such restriction in Section 6-P of
the U.P. Act read with Section 2(z) of the U.P. Act which defines
“workman”.
It is true that the rule of “first come, last go” in Section 6-P could be
deviated from by an employer because the section uses the word
“ordinarily”. It is, therefore, permissible for the employer to deviate from
the rule in cases of lack of efficiency or loss of confidence, etc., as held in
Swadesamitran Ltd. v. Workmen. But the burden will then be on the
employer to justify the deviation. No such attempt has been made in the
present case. Hence, it is clear that there is clear violation of Section 6-P
of the U.P. Act.
15. The distinction between Sections 25-F and 25-G of the Act was
recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar
(2006) 13 SCC 28, in the following words:“We are not oblivious of the distinction in regard to the legality of the
order of termination in a case where Section 25-F of the Act applies on
the one hand, and a situation where Section 25-G thereof applies on the
other. Whereas in a case where Section 25-F of the Act applies the
workman is bound to prove that he had been in continuous service of 240
days during twelve months preceding the order of termination; in a case
where he invokes the provisions of Sections 25-G and 25-H thereof he
may not have to establish the said fact. See: Central Bank of India v. S.
Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar
Tewari and Jaipur Development Authority v. Ram Sahai.”
16. In view of the above discussion, we hold that the learned Single
Judge of the High Court committed serious jurisdictional error and
unjustifiably interfered with the award of reinstatement passed by the Labour
Court with compensation of Rs.87,582/- by entertaining a wholly unfounded
plea that the appellant was appointed in violation of Articles 14 and 16 of the
Constitution and the regulations.
17. Before concluding, we consider it necessary to observe that while
exercising jurisdiction under Articles 226 and/or 227 of the Constitution in
matters like the present one, the High Courts are duty bound to keep in mind
that the Industrial Disputes Act and other similar legislative instruments are
social welfare legislations and the same are required to be interpreted
keeping in view the goals set out in the preamble of the Constitution and the
provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e),
43 and 43A in particular, which mandate that the State should secure a social
order for the promotion of welfare of the people, ensure equality between
men and women and equitable distribution of material resources of the
community to sub-serve the common good and also ensure that the workers
get their dues. More than 41 years ago, Gajendragadkar, J, opined that “the
concept of social and economic justice is a living concept of revolutionary
import; it gives sustenance to the rule of law and meaning and significance tothe ideal of welfare State” – State of Mysore v. Workers of Gold Mines AIR
1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2
SCC 108, this Court, while interpreting the provisions of Minimum Wages Act,
1948, observed:
“The anxiety on the part of the society for improving the general economic
condition of some of its less favoured members appears to be in
supersession of the old principle of absolute freedom of contract and the
doctrine of laissez faire and in recognition of the new principles of social
welfare and common good. Prior to our Constitution this principle was
advocated by the movement for liberal employment in civilised countries
and the Act which is a pre-constitution measure was the offspring of that
movement. Under our present Constitution the State is now expressly
directed to endeavour to secure to all workers (whether agricultural,
industrial or otherwise) not only bare physical subsistence but a living
wage and conditions of work ensuring a decent standard of life and full
enjoyment of leisure. This Directive Principle of State Policy being
conducive to the general interest of the nation as a whole, merely lays
down the foundation for appropriate social structure in which the labour
will find its place of dignity, legitimately due to it in lieu of its contribution
to the progress of national economic prosperity.”
19. The preamble and various Articles contained in Part IV of the
Constitution promote social justice so that life of every individual becomes
meaningful and he is able to live with human dignity. The concept of social
justice engrafted in the Constitution consists of diverse principles essentially
for the orderly growth and development of personality of every citizen. Social
justice is thus an integral part of justice in the generic sense. Justice is the
genus, of which social justice is one of its species. Social justice is a dynamic
devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprivedsections of the society and to elevate them to the level of equality to live a life
with dignity of person. In other words, the aim of social justice is to attain
substantial degree of social, economic and political equality, which is the
legitimate expectation of every section of the society. In a developing society
like ours which is full of unbridgeable and ever widening gaps of inequality in
status and of opportunity, law is a catalyst to reach the ladder of justice. The
philosophy of welfare State and social justice is amply reflected in large
number of judgments of this Court, various High Courts, National and State
Industrial Tribunals involving interpretation of the provisions of the Industrial
Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages
Act, Payment of Bonus Act, Workmen’s Compensation Act, the Employees
Insurance Act, the Employees Provident Fund and Miscellaneous Provisions
Act and the Shops and Commercial Establishments Act enacted by different
States.
20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118,
R.P. Sethi, J. observed: “that after independence the concept of social justice
has become a part of our legal system. This concept gives meaning and
significance to the democratic ways of life and of making the life dynamic.
The concept of welfare State would remain in oblivion unless social justice is
dispensed. Dispensation of social justice and achieving the goals set forth in
the Constitution are not possible without the active, concerted and dynamic
efforts made by the persons concerned with the justice dispensation system.
In L.I.C. of India v. Consumer Education and Research Centre and Others
(1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a
device to ensure life to be meaningful and liveable with human dignity. The
State is obliged to provide to workmen facilities to reach minimum standard of
health, economic security and civilized living. The principle laid down by this
law requires courts to ensure that a workman who has not been found guilty
can not be deprived of what he is entitled to get. Obviously when a workman
has been illegally deprived of his device then that is misconduct on the part ofthe employer and employer can not possibly be permitted to deprive a person
of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine
of laissez faire and the theory of hire and fire. In his treaties: Democracy,
Equality and Freedom, Justice Mathew wrote:
“The original concept of employment was that of master and servant. It
was therefore held that a court will not specifically enforce a contract of
employment. The law has adhered to the age-old rule that an employer
may dismiss the employee at will. Certainly, an employee can never
expect to be completely free to do what he likes to do. He must face the
prospect of discharge for failing or refusing to do his work in accordance
with his employer’s directions. Such control by the employer over the
employee is fundamental to the employment relationship. But there are
innumerable facets of the employee’s life that have little or no relevance
to the employment relationship and over which the employer should not
be allowed to exercise control. It is no doubt difficult to draw a line
between reasonable demands of an employer and those which are
unreasonable as having no relation to the employment itself. The rule that
an employer can arbitrarily discharge an employee with or without regard
to the actuating motive is a rule settled beyond doubt. But the rule
became settled at a time when the words `master’ and `servant’ were
taken more literally than they are now and when, as in early Roman Law,
the rights of the servant, like the rights of any other member of the
household, were not his own, but those of his pater familias. The
overtones of this ancient doctrine are discernible in the judicial opinion
which rationalised the employer’s absolute right to discharge the
employee. Such a philosophy of the employer’s dominion over his
employee may have been in tune with the rustic simplicity of bygone
days. But that philosophy is incompatible with these days of large,
impersonal, corporate employers. The conditions have now vastlychanged and it is difficult to regard the contract of employment with large
scale industries and government enterprises conducted by bodies which
are created under special statutes as mere contract of personal service.
Where large number of people are unemployed and it is extremely
difficult to find employment, an employee who is discharged from service
might have to remain without means of subsistence for a considerably
long time and damages in the shape of wages for a certain period may
not be an adequate compensation to the employee for non-employment.
In other words, damages would be a poor substitute for reinstatement.
The traditional rule has survived because of the sustenance it received
from the law of contracts. From the contractual principle of mutuality of
obligation, it was reasoned that if the employee can quit his job at will,
then so too must the employer have the right to terminate the relationship
for any or no reason. And there are a number of cases in which even
contracts for permanent employment, i.e. for indefinite terms, have been
held unenforceable on the ground that they lack mutuality of obligation.
But these case demonstrate that mutuality is a high-sounding phrase of
little use as an analytical tool and it would seem clear that mutuality of
obligation is not an inexorable requirement and that lack of mutuality is
simply, as many courts have come to recognize, an imperfect way of
referring to the real obstacle to enforcing any kind of contractual limitation
on the employer’s right of discharge, i.e. lack of consideration. If there is
anything in contract law which seems likely to advance the present
inquiry, it is the growing tendency to protect individuals from contracts of
adhesion from over-reaching terms often found in standard forms of
contract used by large commercial establishments. Judicial disfavour of
contracts of adhesion has been said to reflect the assumed need to
protect the weaker contracting part against the harshness of the common
law and the abuses of freedom of contract. The same philosophy seems
to provide an appropriate answer to the argument, which still seems tohave some vitality, that “the servant cannot complain, as he takes the
employment on the terms which are offered to him.”
(emphasis added)
22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477, the
employer invoked the theory of hire and fire by contending that the
respondent’s appointment was purely temporary and his service could be
terminated at any time in accordance with the terms and conditions of
appointment which he had voluntarily accepted. While rejecting this plea as
wholly misconceived, the Court observed:
“It is borrowed from the archaic common law concept that employment
was a matter between the master and servant only. In the first place, this
rule in its original absolute form is not applicable to government servants.
Secondly, even with regard to private employment, much of it has passed
into the fossils of time. “This rule held the field at the time when the
master and servant were taken more literally than they are now and
when, as in early Roman Law, the rights of the servant, like the rights of
any other member of the household, were not his own, but those of his
pater familias”. The overtones of this ancient doctrine are discernible in
the Anglo-American jurisprudence of the 18th century and the first half of
the 20th century, which rationalised the employer’s absolute right to
discharge the employee. “Such a philosophy”, as pointed out by K.K.
Mathew, J. (vide his treatise: “Democracy, Equality and Freedom”, p.
326), “of the employer’s dominion over his employee may have been in
tune with the rustic simplicity of bygone days. But that philosophy is
incompatible with these days of large, impersonal, corporate employers”.
To bring it in tune with vastly changed and changing socio-economic
conditions and mores of the day, much of this old, antiquated and unjust
doctrine has been eroded by judicial decisions and legislation, particularly
in its application to persons in public employment, to whom theConstitutional protection of Articles 14, 15, 16 and 311 is available. The
argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Labotratories
(India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:
“In the days of laissez-faire when industrial relation was governed by the
harsh weighted law of hire and fire the management was the supreme
master, the relationship being referable to contract between unequals and
the action of the management treated almost sacrosanct. The developing
notions of social justice and the expanding horizon of socio-economic
justice necessitated statutory protection to the unequal partner in the
industry namely, those who invest blood and flesh against those who
bring in capital. Moving from the days when whim of the employer was
suprema lex, the Act took a modest step to compel by statute the
employer to prescribe minimum conditions of service subject to which
employment is given. The Act was enacted as its long title shows to
require employers in industrial establishments to define with sufficient
precision the conditions of employment under them and to make the said
conditions known to workmen employed by them. The movement was
from status to contract, the contract being not left to be negotiated by two
unequal persons but statutorily imposed. If this socially beneficial Act was
enacted for ameliorating the conditions of the weaker partner, conditions
of service prescribed thereunder must receive such interpretation as to
advance the intendment underlying the Act and defeat the mischief.”
23. Of late, there has been a visible shift in the courts approach in dealing
with the cases involving the interpretation of social welfare legislations. The
attractive mantras of globalization and liberalisation are fast becoming the
raison d’etre of the judicial process and an impression has been created that
the constitutional courts are no longer sympathetic towards the plight of
industrial and unorganized workers. In large number of cases like the presentone, relief has been denied to the employees falling in the category of
workmen, who are illegally retrenched from service by creating by-lanes and
side-lanes in the jurisprudence developed by this Court in three decades. The
stock plea raised by the public employer in such cases is that the initial
employment/engagement of the workman-employee was contrary to some or
the other statute or that reinstatement of the workman will put unbearable
burden on the financial health of the establishment. The courts have readily
accepted such plea unmindful of the accountability of the wrong doer and
indirectly punished the tiny beneficiary of the wrong ignoring the fact that he
may have continued in the employment for years together and that micro
wages earned by him may be the only source of his livelihood. It need no
emphasis that if a man is deprived of his livelihood, he is deprived of all his
fundamental and constitutional rights and for him the goal of social and
economic justice, equality of status and of opportunity, the freedoms
enshrined in the Constitution remain illusory. Therefore, the approach of the
courts must be compatible with the constitutional philosophy of which the
Directive Principles of State Policy constitute an integral part and justice due
to the workman should not be denied by entertaining the specious and
untenable grounds put forward by the employer – public or private.
24. In the result, the appeal is allowed. The impugned order of the High
Court is set aside and the award passed by the
Labour Court
is restored. The
appellant shall get cost of Rs.25,000/- from the corporation.
O R D E R
BY ASOK KUMAR GANGULI, J.
1. I entirely agree with the views expressed by my learned Brother Justice
G.S. Singhvi. Having regard to the changing judicial approach noticed by His
Lordship and if I, may say so, rightly, I may add a few words. I consider it a
very important aspect in decision making by this Court. 2. Judges of the
last Court
in the largest democracy of the world have a
duty and the basic duty is to articulate the Constitutional goal which has found
such an eloquent utterance in the Preamble. If we look at our Preamble,
which has been recognised, a part of the Constitution in His Holiness
Kesavananda Bharati Sripadagalvaru and others vs. State of Kerela and
another - [1973 SC 1461], we can discern that as divided in three parts. The
first part is a declaration whereby people of India adopted and gave to
themselves the Constitution. The second part is a resolution whereby people
of India solemnly resolved to constitute India into a sovereign, socialist,
secular, democratic republic. However, the most vital part is the promise and
the promise is to secure to all its citizens:
“JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation;”
[See Justice R.C. Lahoti, Preamble- The Spirit and backbone of the
Constitution of India, Anundoram Barooah law Lectures, Seventh Series,
Eastern Book Company, 2004, at p. 3]
3. Judges and specially the judges of the highest Court have a vital role to
ensure that the promise is fulfilled. If the judges fail to discharge their duty in
making an effort to make the Preambular promise a reality, they fail to uphold
and abide by the Constitution which is their oath of office. In my humble
opinion, this has to be put as high as that and should be equated with the
conscience of this Court.4. As early as in 1956, in a Constitution Bench judgment dealing with an
Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the
Constitution, posed the following question:
“After all, for whose benefit was the Constitution enacted?”
[Bidi Supply Co. vs. Union of India and others - AIR 1956 SC
479 at Para 23, pg. 487]
5. Having posed the question, the Learned Judge answered the same in
his inimitable words and which I may quote:
“I am clear that the Constitution is not for the exclusive benefit of
Governments and States; it is not only for lawyers and politicians and
officials and those highly placed. It also exists for the common man, for
the poor and the humble, for those who have businesses at stake, for the
“butcher, the baker and the candlestick maker”. It lays down for this land
a “rule lof law” as understood in the free democracies of the world. It
constitutes India into a Sovereign Democratic Republic and guarantees in
every page rights and freedom to the individual side by side and
consistent with the overriding power of the State to act for the common
good of all.”
[Ibid, Emphasis supplied)
6. The essence of our Constitution was also explained by the eminent
jurist Palkhivala in the following words:
“Our Constitution is primarily shaped and moulded for the common man.
It takes no account of “the portly presence of the potentates, goodly in
girth”. It is a Constitution not meant for the ruler
“but the ranker, the tramp of the road,
The slave with the sack on his shoulders pricked on with the goad,
The man with too weighty a burden, too weary a load.””[N. A. Palkhivala, Our Constitution Defaced and Defiled,
MacMillan, 1974, p. 29]
7. I am in entire agreement with the aforesaid interpretation of the
Constitution given by this Court and also by the eminent jurist.
8. In this context another aspect is of some relevance and it was pointed
out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar
Mirajkar and others vs. State of Maharastra and Anr. - [AIR 1967 SC 1]. In a
minority judgment, His Lordship held that the judiciary is a State within the
meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the report]. This
minority view of His Lordship was endorsed by Justice Mathew in
Kesavananda Bharati (supra) [at page 1949, para 1717 of the report] and it
was held that the State under Article 12 would include the judiciary.
9. This was again reiterated by Justice Mathew in the Constitution bench
judgement in the case of State of Kerela and another vs. N. M. Thomas and
others [AIR 1976 SC 490] where Justice Mathew’s view was the majority
view, though given separately. At para 89, page 515 of the report, his
Lordship held that under Article 12, ‘State’ would include ‘Court’.
10. In view of such an authoritative pronouncement the definition of State
under Article 12 encompass the judiciary and in Kesavananda (supra) it was
held that “judicial process” is also “state action” [Para 1717, pg. 1949]
11. That being the legal position, under Article 38 of the Constitution, a
duty is cast on the State, which includes the judiciary, to secure a social order
for the promotion of the welfare of the people. Article 38(1) runs as follows:
“The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the
national life.”
This is echoing the preambular promise12. Therefore, it is clearly the duty of the judiciary to promote a social
order in which justice, economic and political informs all the institution of the
national life. This was also made clear in Kesavananda Bharati (supra) by
Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive
Principles nevertheless are:
“…fundamental in the governance of the country and all the organs of the
State, including the judiciary are bound to enforce those directives. The
Fundamental Rights themselves have no fixed content; most of them are
mere empty vessels into which each generation must pour its content in
the light of its experience.”
13. In view of such clear enunciation of the legal principles, I am in clear
agreement with Brother J. Singhvi that this Court has a duty to interpret
statutes with social welfare benefits in such a way as to further the statutory
goal and not to frustrate it. In doing so this Court should make an effort to
protect the rights of the weaker sections of the society in view of the clear
constitutional mandate discussed above.
14. Thus, social justice, the very signature tune of our Constitution and
being deeply embedded in our Constitutional ethos in a way is the arch of the
Constitution which ensures rights of the common man to be interpreted in a
meaningful way so that life can be lived with human dignity.
15. Commenting on the importance of Article 38 in the Constitutional
scheme, this court in Sri Srinivasa Theatre and Others vs. Government of
Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a
dynamic concept having many facets. One facet- the most commonly
acknowledged- is that there shall be not be any privileged person or class
and that none shall be above the law. This Court held that Art 38
contemplates an equal society [Para 10, pg. 651].
16. In Indra Sawhney and Others vs. Union of India and Others [1992
Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:“The content of the expression “equality before law” is illustrated not only
by Articles 15 to 18 but also by the several articles in Part IV, in particular,
Articles 38, 39, 39-A, 41 and 46.”
[at Paras 643, pg. 633]
17. Therefore, the Judges of this Court are not mere phonographic
recorders but are empirical social scientists and the interpreters of the social
context in which they work. That is why it was said in Authorised Officer,
Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC
466], while interpreting the land reforms Act, that beneficial construction has
to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court,
made it very clear that even though the judges are “constitutional invigilators
and statutory interpreters” they should “also be responsive to part IV of the
Constitution being “one of the trinity of the nation’s appointed instrumentalities
in the transformation of the socio-economic order”. The Learned Judge made
it very clear that when the Judges “decode social legislation, they must be
animated by a goal oriented approach” and the Learned Judge opined, and if
I may say so, unerringly, that in this country “the judiciary is not a mere
umpire, as some assume, but an activist catalyst in the constitutional
scheme.” [Para 1, p. 468]
18. I am in entire agreement with the aforesaid view and I share the
anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend
which is discernible in recent times and which is sought to be justified in the
name of globalisation and liberalisation of economy.
19. I am of the view that any attempt to dilute the constitutional
imperatives in order to promote the so called trends of “Globalisation”, may
result in precarious consequences. Reports of suicidal deaths of farmers in
thousands from all over the country along with escalation of terrorism throw
dangerous signal. Here if we may remember Tagore who several decades
ago, in a slightly different context, spoke of eventualities which may visit us inour mad rush to ape western ways of life. Here if I may quote the immortal
words of Tagore:
“We have for over a century been dragged by the prosperous West
behind its chariot, choked by the dust, deafened by the noise, humbled by
our own helplessness and overwhelmed by the speed. We agreed to
acknowledge that this chariot-drive was progress, and the progress was
civilization. If we ever ventured to ask “progress toward what, and
progress for whom”, it was considered to be peculiarly and ridiculously
oriental to entertain such ideas about the absoluteness of progress. Of
late, a voice has come to us to take count not only of the scientific
perfection of the chariot but of the depth of the ditches lying in its path.”
20. How stunningly relevant are these words and how deep are the
ditches created in our society by the so called advance of globalization.
21. At this critical juncture the judges’ duty, to my mind, is to uphold the
constitutional focus on social justice without being in any way misled by the glitz and
glare of globalization.
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