JUDGMENT
G.S. Singhvi, J.
1. The point of law that arises for adjudication in this appeal is whether the Labour Court and the learned Single Judge have erred in holding that the termination of the services of workman (respondent No. 2) amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (for short ‘the Act’).
2. The facts necessary for deciding the above mentioned questions are that the respondent No. 2 was initially employed in the service of the appellant as Clerk on February 3, 1981 for a period of one month against the leave vacancy of Smt. Savitri Sharma. After a gap of few months, she was re-employed on July 23, 1981. She continued in service in that capacity till the termination of service w.e.f. March 9, 1982. The respondent No. 2 raised an industrial dispute which was referred by the Government of Punjab under Section 10(1)(c) of the Act to the Labour Court, Patiala for adjudication. After considering the pleadings and evidence of the parties, the Labour Court held that the termination of the services of the workman amounts to retrenchment and as the mandatory provisions of Section 25-F of the Act were not complied with, she was entitled to be reinstated in service. It also held that the management has failed to prove that the workman remained gainfully employed during the period of idleness and, therefore, she is entitled to full back wages.
3. Having failed to convince the learned Single Judge that the award passed by the Labour Court suffers from an error of law, the employer has filed this appeal under Clause X of the Letters Patent. Shri I. P. S. Doabia argued that the award of the Labour Court and the judgment of the learned Single Judge are ex-facie erroneous because the provisions of ‘the Act’ are not attracted in the case of the respondent No. 2. Learned counsel submitted that the workman who was employed as a daily wage Clerk against the leave vacancy of Smt. Savitri Sharma cannot be treated as covered by definition of ‘workman’ under Section 2(s) of the Act. The alternative argument of Shri Doabia is that the termination of the services of the workman is covered by Section 2(oo)(bb) of the Act and, therefore, it was not necessary for the appellant to give her one month’s notice or pay in lieu thereof and compensation as required by Section 25-F(a) and (b) of the Act. In support of this contention, Shri Doabia relied on the decision of this Court in Ombir Singh v. The Management of M/s. Partap Steel Ltd. and another 1997(2) R.S.J. 208.
4. Before dealing with the contentions urged by Shri Doabia, we deem it appropriate to notice the scope of certiorari jurisdiction of the High Court under Article 226 of the Constitution. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals, i.e. whether the orders passed by the inferior Courts or the Tribunals are found to be without jurisdiction or in excess of it or where the Tribunals etc. fail to exercise jurisdiction vested in them. Similarly, a writ can be issued whether in exercise of jurisdiction conferred upon it, the inferior Court or the Tribunal acts illegally or improperly i.e. in violation of the principles of natural justice. However, it must always be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory Jurisdiction and the Court exercising it cannot act as an appellate Court. This jurisdiction is not synonymous with the appellate jurisdiction of the High Court in civil and criminal cases. This limitation necessarily means that the findings of fact reached by the inferior Court or the Tribunal after appreciating the evidence produced before it cannot be reopened or questioned in writ proceedings. A finding of fact recorded by the Tribunal can be upset only if it is shown that in recording the said findings, the Tribunal has erroneously refused to admit admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced the finding or where the finding is based on no evidence. However, sufficiency and adequacy of evidence cannot be gone into by the High Court in exercise of certiorari jurisdiction.
5. Having noticed the principles which should govern the exercise of certiorari jurisdiction, we shall now consider whether the order passed by the learned single Judge dismissing the writ petition is erroneous in law and whether the award of the Labour Court deserves to be declared illegal and without jurisdiction on the ground that the provisions of the Act are not applicable to the case of the respondent No. 2 and the termination of her service cannot be regarded as retrenchment within the meaning of Section 2(oo) of the Act. However, before we do that it is necessary to mention that before the Labour Court it was neither pleaded nor proved by the employer that the provisions of the Act were not required to be complied with because the respondent-workman was a daily wager. Before the learned Single Judge also such plea was not raised. In fact, the only point urged before the Labour Court and the learned Single Judge was that the termination of the services of the respondent-workman does not amount to retrenchment. Therefore, the Labour Court and the learned Single Judge did not have the opportunity to deal with this issue and record their finding/opinion and, in our view, the petitioner, cannot be allowed to raise a new plea for the first time in the Letters Patent Appeal.
6. Otherwise also, we do not find any substance in the argument of Shri Doabia that the action of the employer to terminate the service of the respondent No. 2 could not have been invalidated due to the violation of Section 25-F because she was employed as a daily wager. The argument of the learned counsel that the respondent-workman who was engaged against the leave vacancy of Smt. Savitri Sharma does not fall within the definition of ‘workman’ under Section 2(s) of the Act is clearly misconceived. A careful reading of the award, the order of the learned Single Judge and the record of the case show that the respondent-workman was initially engaged on February 3, 1981 for a period of one month against the leave vacancy of Smt. Savitri Sharma. After a gap of 4 months, she was re-employed on July 23, 1981. This time, she continued in service for one year and almost 8 months before she was shown the door on March 9, 1983. It is, therefore, clear that before the termination of her service, the workman had served the employer for a continuous period of 12 months and during this period she has worked for more than 240 days. The record also shows that she was paid salary on monthly basis and not on daily basis. In other words, she was not paid at the end of the day but at the end of the month. In the statement of claim filed by her, the respondent No. 2 made a categorical statement that she was paid Rs. 595/- per month. This was not controverted by the employer in the written statement filed before the Labour Court. In the writ petition and the memo of appeal also, the employer has not pleaded that the workman was paid everyday. Therefore, it must be held that the workman was not employed as a daily wager but a monthly wager and the contention urged by the learned counsel regarding non-applicability of the provisions of the Act, which appears to be based on observations made in recent judgments of the Apex Court, is founded on a factually non-existing premise.
7. We are also of the opinion that the contention of Shri Doabia is legally unsound. Indeed, it has not been urged by him that the Municipal-Committee does not fall within the definition of ‘industry’. Any such argument would have been negatived in view of the judgment of a Seven-Judges-Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978-I-LLJ-349).
8. In order to decide whether the respondent No. 2 falls within the ambit of the definition of ‘workman’ under Section 2(s), it will be useful to analyse the same. Section 2(s) reads as under :
“2(s) ‘workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(1) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature”.
9. This definition can be divided in 3 parts. The first part gives meaning of the term ‘workman’. The second part is exclusive in nature and the third part excludes some persons from the purview of the definition of ‘workman’. In order to decide whether a person falls within the definition of ‘workman’, the Court has to bear in mind the following factors :
(i) Whether the person concerned is employed in an industry;
(ii) Whether he is employed to do manual, unskilled, skilled, technical, operational, clerical or supervisory work; and
(iii) whether such employment is for hire or reward.
10. If the above mentioned factors are found present in a given case, the employee concerned will fall within the definition of ‘workman’ even though he may have been dismissed, discharged or retrenched from service. However, a person who is subject to the Air Force Act, 1950, The Army Act, 1950 or the Navy Act, 1957 or who is employed in the police service or as an officer or employee of a prison or who is employed mainly in a managerial or administrative capacity or who is employed in a supervisory capacity and draws wages exceeding Rs. 1,600/- per mensem is excluded.
11. It can thus be said that the source of employment or entry in the service, the mode of payment of wages and the length of the period of employment do not have any significance for determining the issue whether or not a person falls within the definition of ‘workman’. The definition does not lay down that a person must be employed in a permanent capacity or he must be paid wages in a particular manner so as to fall within the definition of ‘workman’. In L. Robert D’Sonza v. Executive Engineer, Southern Railway (1982-I-LLJ-330) (SC), the Apex Court has held that a person engaged for doing casual work is also governed by the provisions of the Industrial Disputes Act. Thus, we do not find any substance in Shri Doabia’s argument that the provisions of Industrial Disputes Act are not attracted in the case of the respondent-workman even though she had served the, municipality for a period of one year and over 8 months and was in receipt of monthly wages at the rate of Rs. 525/-.
12. The contention of the learned counsel that the termination of the service of the respondent No. 2 does not fall within the meaning of Section 2(oo) has been negatived by the Labour Court as well as the learned Single Judge and, in our opinion, there is no error in the concurrent findings recorded by them. Definition of ‘retrenchment’ as it stood before August 18, 1984 i.e. the day on which Clause (bb) was inserted in it by Industrial Disputes Amendment Act (Act No. 49 of 1984) was very wide and comprehensive. The termination of service of a workman “for any reason whatsoever” was covered by the definition subject to some exceptions like the termination of service of the workman as a measure of disciplinary action, due to voluntary retirement, retirement on reaching the age of superannuation and termination of service on the ground of continued ill-health of the workman. Clause (bb) which has been inserted w.e.f. August 18, 1984 has taken out from the definition of term ‘retrenchment’ the termination of service of the workman as a result of non-renewal of contract of employment or in accordance with a stipulation in the contract of employment.
13. In Hari Prasad Shivshankar Shukla v. A. D. Divikar, AIR 1957 SC, 121, Their Lordships of the Supreme Court took the view that the word ‘retrenchment’ as defined in Section 2(oo) of the Act does not include termination of service of a workman on a bona fide closure of an industry and held as under :
“In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expression altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents …. It would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workman by the employer when the business itself ceases to exist.
14. In State Bank of India v. Shri N. Sundara Money (1976-I-LLJ-478) (SC), KRISHNA IYER, J., who spoke for the Court took a different view and observed as under :
“Termination …… for any reason whatsoever” are the key words. Whatsoever the reason, every termination spells retrenchment. So the sole question, has the employee’s service been terminated ? Verbal apparel apart the substance is decisive. A termination takes place where a term expires either by the active step of the master or the runing out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act or termination by the employer, but the fact of termination howsoever produced ….. True, the Section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of service by efflux of time cannot be sufficient …. Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision”.
15. Although in Sundara Money’s case, the decision of the Constitution Bench in Hari Prasad’s case was not referred to, in Hindustan Steel Ltd. v. Presiding-Officer, Labour Court, Orissa and others, (1977-I-LLJ-1) (SC) Their Lordships made reference to both the decisions and followed the wider interpretation given to the definition of ‘retrenchment’ in Sundara Money’s case (supra). The same view was reiterated in Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji and others, (1978-I-LLJ-1)(SC) Santhosh Gupta v. State Bank of Patiala, Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and another, (1984-I-LLJ-110)(SC), Gammon India Limited v. Niranjan Das, (1984-I-LLJ-233)(SC).
16. In spite of these decisions a doubt continued to be raised about the so-called conflict between the decision of the Constitution Bench in Hari Parsad’s case (supra) and the judgment rendered following the dictum of Sundra Money’s decision. Therefore, the issue was referred to a Constitution Bench and in Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh, (1990-II-LLJ-70) (SC) their Lordships after a detailed review of the previous decisions held as under :
“Though there are apparent incongruities when the definition clause Sec. 2(oo) is considered in the context of the main provisions viz. Secs. 25-F, 25-G, 25-H but there is room for harmonious construction. The definitions contained in Sec. 2 are subject to their being anything repugnant in the subject or context. The principle of harmonious construction implies that in a case whether there is a genuine transfer of an undertaking as contemplated in the aforesaid Section, it would be inconsistent to read into the provisions as right given to workman “deemed to be retrenched” a right to claim re-employment as provided in Sec. 25-H. In such cases as specifically provided in the relevant Sections the workman concerned would only be entitled to service and compensation in accordance with Sec. 25-F.
As a result of construing retrenchment in its wider sense, the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workmen, whose services have been terminated, may have been reflected by introduction of Secs. 2(oo), 25-F and the other relevant Sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the affected workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes state pro retione volunt as populi; the will of the people stands in place of reason.
The express exclusion of volitional element in Clauses (a) and (b) of Sec. 2(oo), namely, voluntary retirement and retirement on reaching the stipulated age of retirement implies that those would otherwise have been included. If those cases were to be included, termination on abandonment of service, or on efflux of time and on failure to qualify although only consequential or resultant, would be included as those have not been excluded. Thus, there appears to be a gap between the first part and the exclusion part. However, when such a gap is disclosed, the remedy lies in an amending Act. The Court has to interpret a statute and apply to the facts.
The wider literal meaning has since been adopted by the Supreme Court in Sundara Money and Subsequent cases rejecting the narrow, natural and contextual meaning. The question of the subsequent decisions of the Supreme Court being per incuriam on ground of failure to apply the law earlier laid down by the Constitution Bench of the Court in Hari Prasad Shukla case could arise only if the ratio in Sundara Money and subsequent decisions in the line was in conflict with the ratio of Hari Prasad and Anakapalle. Analysing the complex syllogism of Hari Prasad case it appears that its major premise was that the retrenchment meant termination of surplus labour of an existing industry and the minor premise was, that the termination in that case was of all the workmen on closure of business on change of ownership. The decision was that there was no retrenchment. However Hari Prasad case is not an authority for the proposition that S. 2(oo) only covers cases of discharge of surplus labour and staff. The judgments in Sundara Money and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santosh Gupta cares, the Division Benches of the Supreme Court had referred to Hari Prasad, Sundara Money and subsequent cases rejecting the narrow, natural and contextual meaning. The question of the subsequent decision of the Supreme Court being per incuriam on ground of failure to apply the law earlier laid down by the Constitution Bench of the Court in Hari Prasad Shukla case could arise only if the ratio in Sundara Money and subsequent decisions in the line was in conflict with the ratio in Hari Prasad and Anakapalle. Analysing the complex syllogism of Hari Prasad case it appears that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premises was, that the termination in that case was of all the workmen on closure of business on change of ownership. The decision was that there was no retrenchment. However, Hari Prasad case is not an authority for the proposition that Sec. 2(oo) only covers cases of discharge of surplus labour and staff. The judgments in Sundara Money and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santosh Gupta cases, the Division Benches of the Supreme Court had referred to Hari Prasad case, and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent. In a fast developing branch of Industries and Labour Law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes.”
17. With the decision of the Constitution Bench in Punjab Land Development Reclamation and Corporation’s case, the controversy relating to the interpretation of the term ‘retrenchment’ must be deemed to have been set at rest and the wider literal meaning given in Sundara Money’s case will have to be followed.
18. In view of the above discussion, we hold that the Labour Court and the learned Single Judge have rightly held that the termination of services of the workman (respondent No. 2) amounts to retrenchment. We also uphold the finding recorded by the Labour Court that the termination of service of the workman is void ab initio due to the non-compliance of the mandatory provisions of Section 25-F.
19. The decision of Ombir Singh’s case (supra) relied upon by the learned counsel for appellant, does not have any bearing on the issue raised in this appeal. In that case, the learned Single Judge interpreted Section 2(oo)(bb) and held that the case of the workman was not covered by Clause (bb). In the present case, Clause (bb) of Section 2(oo) is not applicable because the termination of the service of the respondent No. 2 was brought about a year and 5 months prior to the insertion of that clause.
20. No other point has been argued.
21. For the reasons mentioned above, the appeal is held to be without merit and it is dismissed.