1. The petitioner, first party employer in Reference (LCA) No.185 of 1982 from the Labour Court, Ahmedabad, has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the award and order dated 07.09.2002, whereunder the reference was partly allowed and the petitioner was directed to reinstate the workmen-respondents hereinabove with 50% of back wages and continuity of service and cost of Rs.500/- to each of the workmen.
2. The facts in brief leading to filing this petition, as could be culled out from the award as well as petition deserve to be set out as under.
3. The respondents-workmen were constrained to raise Industrial Dispute, as they were discontinued by the employer without following any procedure of law and without complying with the provision of Industrial Disputes Act, 1947 (hereinabove referred to as 'the I.D. Act', for the sake of brevity).
4. The dispute was referred to the competent Court wherein it is numbered as Reference (LCA) No. 185 of 1982. The workmen filed exhibit-8 statement of claim inter alia contending that the workmen named Nasibbhai Chandabhai Vatta was working since last three years at fixed salary of Rs.150/- and Akbarbhai Merubhai was working since last 20 months and received Rs.5.00/- per day. In short both the workmen were daily wagers and were paid Rs.6.50/- per day. Without any rhyme or reason, at the order of administrative officer, on 05.04.1981, their services were come to an end. The services of the workmen were terminated without following due procedure of law and hence, they were claiming their rights to be reinstated and full wages for the period for which they were forced to remain out side the employment. The petitioner-employer filed written statement vide Exhibit-22 denying the contentions and putting facts that the workmen named Nasibbhai Chandabhai Vatta was engaged vide order dated 27.07.1979 for the purpose of taking care of trees at the center of petitioner at Nalsarovar at Rs. 150/- fixed pay per month. He worked for 13 months, as daily wager and thereafter, as his services were not required and as the center at Nalsarovar was closed down, he was relieved as per the order dated 03.06.1980. The workmen named Akbarbhai Merubhai was engaged as daily wager and as the center at Nalsarovar was closed his services was also not required to be continued. Both the workmen's deposition were exhibited at Exhibit-18 and Exhibit-25 respectively. Exhibit-41 is the recording of the evidence of Devendrasinh Mohansinh Jadeja, employer's witness and ultimately Court framed point for determination that whether the action of retrenchment of the workmen was illegal and if found so what order with regard to the written statement with continuity and wages. The first point is determined in favour of the workmen and second point is partly in favour of the workmen and workmen is entitled for reinstatement, however, granted of 50% back wages and Rs.500/- each to the workmen towards cost vide order dated 07.09.2002, which is impugned in this petition under Articles 226 and 227 of the Constitution of India.
5. Learned advocate for the petitioner Corporation contended that the Labour Court's finding cannot be supported in view of the fact that the workmen failed in proving that they worked for 240 days. The Labour Court went on presumption which were not warranted in light of the evidence adduced on record.
6. Learned advocate for the petitioner Corporation invited this Court's attention to the findings recorded in the award and submitted that the cross examination of the workmen conducted by the advocate of the employer would be sufficient to conclude unequivocally that the case of the workmen is demolished completely and there existed no evidence which would indicate that the workmen completed 240 days so as to invoke successfully Section 25(f) of the I.D. Act.
7. Learned advocate for the petitioner corporation further submitted that all along it was contention and stand of the employer before the Court that workmen were engaged for a limited work of taking care of trees planted by the Forest Department within the premises of the center which was run by the petitioner corporation and when that very center was closed down the workmen could not have been continued and, therefore, the non continuing of the workmen cannot be termed to be retrenchment so as to compel lead to conclusion that there was a breach of Section 25 (f) of the I.D. Act.
8. Learned advocate for the petitioner corporation relied upon the following decisions;
(i) in case of Allahabad Bank Vs. Prem Singh reported in (1996) 10 Supreme Court Cases 597;
(ii) in case of Himanshu Kumar Vidyarthi And Others Vs. State of Bihar And Others reported in (1997) 4 Supreme Court Cases 391;
(iii) in case of Purshottambhai R. Kachhadia Vs. State of Gujarat & Ors. reported in 2000 (2) GLR 1793;
contended that in light of the observation in ratio, if one looks at the findings, then it can be said that the findings are not supported, as there was no evidence at all supporting the findings and, therefore, the award is required to be quashed and set aside.
9. Learned advocate for the petitioner corporation further relied upon the decisions of the Apex Court in case of Haryana State Cooperative Supply Marketing Federation Limited Vs. Sanjay, reported in (2009) 14 Supreme Court Cases 43 and Krishna Bhagya Jala Nigam Limited Vs. Mohammed Rafi, reported in (2009) 11 Supreme Court Cases 522, contended that the authorities which have been relied to indicate that mere deposition of the workmen that he had worked for 240 days, is not sufficient and duty is cast upon the workmen to lead cogent evidence against impugned action of his termination and, therefore, reliance is placed upon the first authority in paragraph no.8 and in second authority in paragraph no.9.
10. Learned advocate for the petitioner corporation with due vehement in his comment harped upon the ground that the workmen were under obligation to prove that they were worked for 240 days and as the evidence do not suggest that they have proved, the Labour Court is wholly unjust in coming to the conclusion that they have completed 240 days.
11. Learned advocate for the respondents contended that the workmen have established that they have worked for 240 days and Labour Court's conclusion cannot be disturbed by this Court under Articles 226 and 227 of the Constitution of India. The statement of claim and the written statement do not indicate anywhere that there was ever any question with regard to the workmen's non completion of 240 days, as the tenure of the services of the workmen was not disputed at all by the employer and when this tenure is not disputed in any manner, then petitioner cannot be permitted to raise this issue at this stage in the writ petition under Articles 226 and 227 of the Constitution of India.
12. Learned advocate for the respondents workmen relying upon the decision of the Apex Court in case of Devinder Singh Vs. Municipal Council, Sanaur, reported in AIR 2011 SC 2532 : 2011 (6) SCC 584, contended that the written statement is to follow, as a matter of course in case of the breach of Section 25(f) is established and the Court need not interfere with the order impugned in the present petition. The observation of the Apex Court in the said judgment in paragraph no.19 onwards were heavily relied upon to support the contention that in a writ petition under Article 227 or even under Article 226, the Court need not go into the exercise, as if, the Court is an Appellate Authority over the judgment impugned when writ of certiorari scope is defined clearly, then in that view of the matter this Court may not interfere with the finding of facts which are otherwise not required to be gone into in the present proceedings. Once the finding of facts are accepted or not disturbed, then the logical conclusion is that of reinstatement with appropriate wages and, therefore, as the Court has already passed such order, this Court may not interfere with the same.
13. The Court has perused the award and heard the learned counsel appearing for the parties at length. Before adverting to the rival contention of the learned counsel for the parties, it would be most expedient hereinbelow to set out indisputable aspects emerging there from namely;
(i) The factum of workmen's employment in the corporation at Nalsarovar center is undisputed fact and there was no controversy at all, as the petitioner corporation themselves have unequivocally come out in their written statement in respect of the orders of appointment and factum of engagement of the workmen and the orders of termination of the services. Therefore, so far as employment of the workmen in the corporation at Nalsarovar is concerned, that issue can be said to be non existing issue and it was, therefore, not required to be consuming time of the Court in any manner.
(ii) The statement of claim eloquently clear qua the workmen's contention that workmen were discharging their duties at Nalsarovar center of the corporation. The statement of claim contains the requisite ingredients to invoke the provision of Industrial Disputes Act namely Section 25(f), g and h also. Those averments were very much there on the statement of claim, then it was a duty cast upon the corporation to come out with its clear stand in the written statement which they have attempted to meet by saying that averments are denied and the factual aspect is narrated. While narrating the factual aspect, the corporation has in fact admitted the factum of employment of the present respondents- workmen at their Nalsarovar center.
(iii) The corporation in its written statement has not led any foundation of any plea that workmen never completed 240 days in the preceding year. Had such a argument or pleading was mentioned, then only there would have been question with regard to the workmen establishing the same by leading cogent evidence, but in the instant case the written statement produced at page no.24 in the compilation does not contain any such foundation, as learned counsel for the petitioner corporation could not point out any such foundation qua controverting the aspect of 240 days completion on the part of the workmen.
(iv) The testimony of the workmen and the suggestions put in the cross examination to the workmen remotely indicate that there was a suggestion to the effect that workmen did not complete 240 days. The facts remains to be noted that, that suggestion put to workmen was without laying any foundation in the pleadings namely the written statement.
(v) The Labour Court has recorded its unequivocal finding that there was a clear breach of Section 25(f) and there is also finding qua non compliance of 25 g and h. The Labour Court's finding qua admitted breach of Section 25(f) cannot be in any manner assailed without there being cogent evidence to indicate that the finding was absolutely perverse and contrary to law. The Labour Court has granted 50% of back wages and reinstatement.
(vi) The Labour Court has considered that closing down of center and non absorbing the present workmen to their other centers and in absence of any pleadings with regard to closing down of other centers cannot be over looked by any Court, much less, this Court under Articles 226 and 227 of the Constitution of India.
14. In view of the aforesaid backdrop, question arises as to whether can this Court interfere with the award of the Court, which is based upon the findings qua breach of Section 25(f) and other provisions of Industrial Disputes Act, the answer would be emphatic 'no' qua the findings in respect of the breach of provision of Industrial Disputes Act and other findings qua workmen's entitlement to some relief. The Labour Court has elaborately discussed the evidences on record and come to the conclusion that there was a clear breach of provision of Section 25(f) and other provision and this become a finding of fact. This Court cannot interfere with the same under Article 226, much less, under Article 227 of the Constitution of India.
15. The Court is of the considered view that learned advocate for the petitioner corporation was not justified in submitting that the burden of proving that workmen had completed 240 days was not discharged successfully by the workmen, as the facts recorded hereinabove and the findings recorded by the Labour Court would go a long way to show that the workmen in fact were not questioned with regard to tenure of service. The cursory glance at the written statement would indicate the grounds taken by the employer petitioner for challenging the say of the workmen. Now, those averments made in the written statement do not contain any positive assertion or a challenge to the workmen's say about their service tenure and their completion of 240 days, then it would not have been possible for the workmen to envisage any further requirement to lead further evidences. Had there been a specific plea taken in the written statement qua workmen's claim of non compliance of Section 25(f), then in that eventuality the workmen were under obligation to lead evidence to establish that they did complete 240 days in the preceding year, but looking to the tenure of the written statement and the claim in the written statement, correct inference is available to the Court that there existed no dispute qua the period of service rendered by the workmen may be on the daily wager with the corporation. Therefore, at this stage, under Article 226 of the Constitution of India, learned counsel for the petitioner cannot justify an attempt to make out a new case even on the strength of the ratio laid down in the two decisions of the Apex Court in case of Haryana State Cooperative Supply Marketing Federation Limited Vs. Sanjay, (supra) and Krishna Bhagya Jala Nigam Limited Vs. Mohammed Rafi (supra). So far as, reliance placed upon the above mentioned three decisions in case of Allahabad Bank Vs. Prem Singh (supra), Himanshu Kumar Vidyarthi And Others Vs. State of Bihar And Others (supra) and Purshottambhai R. Kachhadia Vs. State of Gujarat & Ors. (supra), are concerned the Court is of the considered view that the decisions of the Court do not help the petitioner in any manner, as the facts of the present case and the aspect of pleadings would be sufficient to held that these facts are not to be governed by the ratio laid down in the said authorities.
16. This bring the Court to consider as to whether the Labour Court was justified in awarding reinstatement when the workmen themselves have admitted that they were daily wagers and the fact that the center was closed. The workmen did not submit that they were required to be absorbed in other centers, nor did they establish their right qua employment except the fact that they were appointed to tend the trees planted by Forest Department at the center at Nalsarovar. The tenure is also not so large as to justify the reinstatement. The decision of the Apex Court;
(i) in case of P.V.K. Distillery Limited Vs. Mahendra Ram reported in (2009) 5 SCC 705;
(ii) in case of General Manager, Haryana Roadways Vs. Rudhan Singh reported in (2005) 5 SCC 591;
(iii) in case of Kanpur Electricity Supply Company Limited Vs. Shamim Mirza reported in (2009) 1 SCC 20;
(iv) in case of A.P. SRTC and Another Vs. B.S. David Paul reported in (2006) 2 SCC 282;
would go to show that the relief qua reinstatement and back wages are not automatic and there has to be a special consideration and weighing all facts justifying the granting of such relief. As the relief of reinstatement would otherwise bring about inequitable position. Therefore, in these facts and circumstances, this Court is persuaded to hold that the Labour Court was not justified in straightway ordering reinstatement and granting 50% of back wages looking to the total tenure of employment which is less than two years in both the cases as per the finding of the Court and they were admittedly daily wages employed as local hands without following due procedure of law and when such admitted position is there on the record, the straightway order of reinstatement with 50% back wages would not be justified. Therefore, the Court is inclined to substitute the direction of back wages as well as reinstatement and the Court is of the considered view that in the peculiar fact and circumstances of this case, the award of compensation would be just and proper to the workmen and therefore, the award to that extent stand modified. The court is hereby order that each of the workmen shall be paid by way of compensation a sum of Rs.35,000/-.
The same shall be paid within 30 days from the date of receipt of this order. In case, if, the payment is not made within 30 days, then it shall carry interest at the rate of 10% per annum till the same is paid. Rule is made absolute to the aforesaid extent.
Pankaj (S.R.BRAHMBHATT, J.)