IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.07.2010
CORAM:
THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.2327 of 2003
A.Ravi ...Petitioner
Vs.
1.The Chairman,
Pondicherry Housing Board,
Anna Salai, Nellithope,
Pondicherry 5
2.The Executive Engineer,
Pondicherry Housing Board,
Anna Salai, Nellithope,
Pondicherry 5
3.The Presiding Officer,
Labour Court,
Pondicherry. ...Respondents
Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the concerned records relating to the impugned award dated 24.06.2002 in Industrial Disputes No.18 of 2000 passed by 3rd respondent and quash the same.
For Petitioner : Mr.M.Gnansekar
For Respondents : Mr.T.P.Manoharan for RR1-2
ORDER
The prayer in the writ petition is for issuance of writ of Certiorari to quash the award passed by the Labour Court, Pondicherry, dated 24.06.2002 in I.D.No.18 of 2000.
2. The petitioner raised an Industrial Dispute before the Labour Court, Pondicherry, contending that he was appointed by the second respondent as Gumastha (Clerical Work) on 31.03.1988, as a daily rated employee and he had put in more than 3= years of continuous service and his services was terminated on 19.07.1991, without any notice or enquiry. Therefore, on 16.11.1994, the petitioner raised conciliation proceedings before the Labour Officer and the second respondent also filed reply statement. The Labour Officer filed a failure report on 19.12.1996 and thereafter, further conciliation proceedings were done and since, the petitioner was not reinstated, he raised the present Industrial Dispute. It is contended that the respondent Board has not maintained seniority in matter of engagement, re-engagement of daily rated employees and the persons, who were employed after the petitioner’s appointment were allowed to continue, the petitioner also gave names of 21 such employees. On the above stated grounds, the petitioner contended that his termination is illegal and prayed for a direction to the respondent Board to reinstate the petitioner in service with arrears, continuity of service, backwages and attendant benefits.
3. The Board filed reply statement before the Labour Court inter-alia contending that the petitioner was a Gumastha in Division II of the Engineering wing of the Pondicherry Housing Board set up for the construction of 2000 Housing Scheme and the Scheme is already wound up and all the wages were paid to the workmen and hence, the Rule of last come first go does not arise. It is further submitted that the Division II of the Engineering Wing was exclusively set up for the construction of “2000 Housing Scheme” in Olandai Phase-I & II and Boomianpet and the same was wound up during 1991, after the completion of the work and therefore, the question of reinstatement of the petitioner does not arise. In the reply statement, it was admitted that the petitioner was engaged on daily rated basis as Gumastha from 31.03.1988 to 19.07.1991. Further, it was contended that the petitioner was not engaged beyond 19.07.1991.
4. Before, the Labour Court, the petitioner did not examine any witness, but marked 17 documents. The respondent Board did not examine any witness and did not mark any documents. The Labour Court on consideration of the facts and the documents produced by the petitioner framed two points for consideration:-
(i)Whether the petitioner as an N.M.R. who was ceased to be engaged by the respondent, Housing Board, is entitled for re-instatement on the ground alleged by him in the claim petition?
(ii)To what relief, the petitioner is entitled?
5. After discussing the evidence available, the Labour Court held that the prayer for re-instatement cannot be granted and accordingly, the second question was answered against the petitioner and the I.D was dismissed by award dated 24.05.2002, challenging the said award, the petitioner has filed this writ petition.
6. The learned counsel appearing for the petitioner would strenuously contend that the award of the Labour Court is not sustainable, as the Labour Court failed to see that the petitioner was employed in the clerical work for more than 3= years continuously on daily rated basis and the petitioner could not have been disengaged without following the requirements under Section 25 F of the Industrial Disputes Act. Further, it is contended that the Labour Court ought to have seen that the action of the respondent Board is discriminatory and violative of Article 14 of the Constitution of India, since persons who were engaged after the petitioner have been continued in service. Further, the petitioner having been sponsored by the employment exchange, the respondent Board was bound to provide employment to the petitioner. The learned counsel relied upon the documents filed before the Labour Court more particularly Exhibit A-2, which is the experience certificate and contend that the petitioner’s services ought to have been regularised. The learned counsel would further contend that the respondent Board ought to have granted temporary status under the causal Labourer (Grant of Temporary Status and Regularization) Scheme 1993, notified by the Government of India.
7. The learned counsel appearing for the respondent Board by relying upon the counter affidavit would contend that this Court cannot re-appreciate the factual findings recorded by the Labour Court and cannot act as an appellate forum to the findings of the Labour Court. It is further contended that after the completion of the development and construction work in Division-II of “2000 Housing Scheme” in Olandai and Boomianpet, there was no requirements for engaging the services of the petitioner and other persons engaged on daily wages and the amount already allocated for the scheme had been spent and closed. It is further contended that the Board was not engaging the petitioner regularly and during one year period preceding 19.07.1991, he was engaged only for 226 days. As far as the temporary status scheme, it is contended that the Board had adopted the scheme on 20.03.1996 and regularised the services of 19 casual employees as on 01.09.1993 and the petitioner was neither a casual employee of the Board nor in its employment as on 01.09.1993, therefore, the scheme would not apply to the petitioner. The allegation of discrimination was denied and it was also contended that the claim before the Labour Court was grossly belated. The learned counsel appearing for the respondent Board relied on the decision of the Hon’ble Supreme Court in State of Maharashtra and another Vs. R.S. Bhonde and others (2005) 6 SCC 751 and the decision in State of Karnataka Vs. Uma Devi (3), 2006 4 SCC 1 in support of his contentions.
8. I have carefully considered the submissions made on either side and perused the materials available on record.
9. The claim of the petitioner before the Labour Court was to declare that the termination dated 19.07.1991, passed by the respondent Board is illegal and to direct the respondent Board to reinstate the petitioner with all benefits. The claim of the petitioner was denied by the Board by stating that the services of the petitioner was engaged for a particular scheme and after the scheme work was completed, his services were no longer required and the amount allocated for the scheme had also been spent and the scheme has been closed as completed.
10. The Conciliation proceedings initiated by the petitioner ended with a failure report dated 19.12.1996. Thereafter, the petitioner has been making representations and once again there was conciliation and a second failure report was submitted on 08.10.1999. Subsequently, the petitioner filed the claim petition before the Labour Court during August 2000. Before the Labour Court, the parties were free to produce their witnesses and mark documents. The petitioner did not choose to examine himself as the witness or examine any other witness, but marked 17 documents. The respondent Board did not mark any documents and did not examine any witness. The Labour Court, after considering the evidence available on record held that as, the petitioner was not in employment as on 01.09.1993, the benefit of the temporary status scheme cannot be extended to the petitioner. Further, the Labour Court recorded a finding that as per the narration of the petitioner, he worked only as daily rated worker in Division -II of Engineering Section and admittedly, the scheme was over and it is not the case of the petitioner that the scheme under which, he was engaged continuous to exist. The plea that 20 members were regularized, was not be established before the Labour Court and the Labour Court rejected the contention raised by the petitioner by holding that there is no proof to show that the N.M.R’s, junior to the petitioner were given re-employment by the Board. Further, the Labour Court held that there is no seniority maintained by the Board and the contention that the petitioner is senior to one Mr.Susairaju could not be proved. In fact in the list of documents marked by the petitioner except for Exhibit A-2, which is the experience certificate, signed by Assistant Engineer, all other documents related to the conciliation proceedings, which were initiated at the instance of the petitioner, after the petitioner was disengaged. Therefore, these documents cannot in any manner advance the case of the petitioner. In fact the Labour Court recorded a finding that the copy of the note file was produced and after being satisfied with the factual circumstances, the Labour Court held that there are no reasons for ordering reinstatement of the petitioner.
11. The Hon’ble Supreme Court in a recent decision in Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) 2010 3 LLJ 1 (SC) dealt with the limitations of the High Court’s power to issue a writ of certiorari under Article 226 of the Constitution against an award of the Labour Court and held thus:-
10…… In our view, the approach adopted by the Division Bench is contrary to the judically recognised limitations of the High Court’s power to issue writ of Certiorari under Article 226 of the Constitution- Syed Yakoob V. K.S.Radhakrishnan AIR 1964 SC 477, Municipal Board, Saharanpur V.Imperial Tobacco of India Ltd. AIR 1999 SC 264: (1999) 1 SCC 566, Lakhsmi Precision Screws Ltd. V. Ram Bhagat AIR 2002 SC 2914:(2002) 6 SCC 552: 2002-III-LLJ-516, Mohd. Shahnawaz Akhtar V. 1st ADJ Varanasi JT 2002 (8) SC 69, Mukand Ltd. V. Mukand Staff and Officers’ Association AIR 2004 SC 3905: (2004) 10 SCC 460 : 2004-II-LLJ-327, Dharamraj and Others V. Chhitan and Others (2006) 12 SCC 349 and Assistant Commissioner, Income Tax, Rajkot V. Saurashtra Kutch Stock Exchange Ltd (2008) 14 SCC 171.
11. In Syed Yakoob v. K.S. Radhakrishnan (supra), the Constitution Bench of this Court considered the scope of the High Court’s jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi judicial functions under the Motor Vehicles Act, 1939. Speaking for majority of the Constitution Bench, GAJENDRAGADKAR, J. observed as under:
“…………………. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to 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 a 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 ini 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.”
12. Thus from the law laid down by the Hon’ble Supreme Court in the decision of Anoop Sharma, referred supra, it is clear that this Court is not entitled to act as an appellate Court on the finding of fact reached by the Labour Court, as a result of the appreciation of evidence and the same cannot be reopened. The Hon’ble Supreme Court has held that an error of law, which is apparent on the face of the record can be corrected in a writ, but not an error of fact, however, grave it may appear. Perusal of the order passed by the Labour Court reveals that the Court appreciated the evidence on record and came to a conclusion on facts that the petitioner is not entitled for any relief. This Court finds that there is no perversity in the approach of the Labour Court nor there is any error of law, which is apparent on the face of the record warranting interference under Article 226 of the Constitution of India.
13. The learned counsel appearing for the respondents had placed reliance on the decision in the case of Uma Devi (3) in support of his contention. As rightly pointed out by the learned counsel appearing for the petitioner, the Hon’ble Supreme Court in the case of Maharashtra State Road Transport Corp. and another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556 has held that Uma Devi (3), case does not denude the Industrial and Labour Courts of their statutory power and cannot be held to have overridden powers of Industrial and Labour Courts in passing appropriate orders under the relevant Labour welfare statues. Therefore, the case of Uma Devi (3), cannot be applied to the facts and circumstances of the present case.
14. The learned counsel appearing for the respondents had also relied on the decision in the case of State of Maharashtra, referred supra, wherein the Hon’ble Supreme Court held that the status of permanency cannot be granted, when there was no post. In the instant case, the Labour Court was satisfied by appreciating the evidence on record that the scheme itself had come to an end, after completion of the work, and therefore, question of regularization does not arise. I find that there are no good grounds to upset such factual finding arrived at by the Labour Court.
15. In the result, the writ petition fails and it is dismissed. However, there shall be no order as to costs.
pbn
To
1.The Chairman,
Pondicherry Housing Board,
Anna Salai, Nellithope,
Pondicherry 5
2.The Executive Engineer,
Pondicherry Housing Board,
Anna Salai, Nellithope,
Pondicherry 5
3.The Presiding Officer,
Labour Court,
Pondicherry