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SCA/1006/2004 18/ 18 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1006 of 2004
=========================================================
DEPUTY
EXECUTIVE ENGINEER - Petitioner(s)
Versus
VINOD
S. MAKWANA & 3 - Respondent(s)
=========================================================
Appearance
:
MR
RC JANI for
Petitioner(s) : 1,
RULE UNSERVED for Respondent(s) : 1 - 4.
MS
HINA DESAI for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 10/05/2010
ORAL
ORDER
Heard
learned Advocate Mr. RC Jani for petitioner Deputy Executive
Engineer, Tube well Sub Division, Taluka Panchayat, Mehsana and
learned Advocate Ms.Hina Desai for respondents workmen Shri Vinod S.
Makwana, Pasaji Kesaji Thakore, Kantiji Tejaji Thakore and Jaidev
Ambalal Garoda.
Petitioner
has challenged award passed by Labour Court, Kalol in Reference No.
205 of 1988 decided on 31st July, 2003, Exh.55 where
labour court has granted reinstatement on the same terms and
conditions on which workmen were in service and Rs.15000.00 lumpsum
amount has been granted to individual each workman in lieu of back
wages for interim period. Initially rule was issued by this court on
28th January, 2004 and ad interim relief has been granted
by this court and thereafter, this court has directed petitioner to
pay last drawn wages because reinstatement has been stayed by this
Court.
Learned
Advocate Mr. RC Jani for petitioner has raised contention before
this Court that workmen were working with petitioner for more than
four to five years as per case of respondents and on 31st
October, 1987, when they reached to working place without giving any
notice or notice pay and retrenchment compensation, service of each
workman was illegally terminated by petitioner. He further submitted
that one Nandubhai, whose name is mentioned by labour court in
impugned award was not authorized person to appoint any workman but
he was only employee of petitioner. He relied upon page 22 and
submitted that work was given on contract basis, therefore,
petitioner has not terminated service of workmen. He further
submitted that labour court has considered facts which are contrary
to record and, therefore, impugned award passed by labour court is
bad in law. He also submitted that the reply was filed by petitioner
at Exh. 18 wherein it was stated that such workers were never
appointed by taluka panchayat and they were engaged by concerned
mechanics on daily rate basis and on that basis muster roll
prepared by mechanic and payments were being made accordingly. He
further submitted that the respondents workmen themselves had
abandoned the work and this fact has not been considered by labour
court. He further submitted that labour court has relied upon
certificates produced below exh.26 and 27 issued by Additional
Assistant Engineer who is not an authority and having no power to
issue such certificate but labour court has not considered this
aspect and therefore award passed by labour court is bad. He also
submitted that respondents have never completed 240 days continuous
service within twelve months preceding date of termination and they
were not employees of petitioner taluka panchayat and, therefore,
question of compliance of section 25-F of ID Act does not arise. He
relied upon decision of apex court reported in 2002 (1) SCC 520 and
submitted that it is for employee to prove the case instead of
throwing burden on employer and, therefore, labour court has
committed an error in deciding reference. He also submitted that
labour court has also committed an error in not observing that at
present, activity of repairing of Patal Kuwa
are being done through contractor by Panchayat and therefore, no
such post can be filled up and without considering this, order of
reinstatement on original post is passed which is contrary to
provisions of law. As per his submission, labour court has committed
gross error in not considering that there is no work and, therefore,
there is no question of granting reinstatement and lumsum amount has
been wrongly and roughly estimated which cannot be granted to such
workmen, those who were working through contractor. He further
submitted that petitioner panchayat has no provision in budget
regarding payment of such amount to such workers are being engaged
through contractors and payment to contractor is made after passing
resolution by board and, therefore, it amounts to disturbing
provisions of budget of financial year and, therefore award is
required to be set aside. Except these submissions, no other
submission is made by learned Advocate Mr. RC Jani for petitioner
panchayat and except decision referred to above, no other decision
has been cited by him before this court in support of contentions
recorded herein above.
Learned
Advocate Ms. Hina Desai for respondents workmen submitted that
labour court has rightly examined matter on the basis of evidence on
record and each workman has completed continuous service of 240 days
in year and certificates have been produced to establish these facts
by each workman and on that basis, labour court has rightly come to
conclusion that service of each workman has been terminated by
petitioner without following provisions of section 25-F of ID Act,
1947 and, therefore, such termination is rightly set aside by labour
court and relief of reinstatement is rightly granted in favour of
each workman, for that, according to her submission, no error is
committed by labour court which would require interference of this
court. She also submitted
that labour court has rightly granted Rs.15,000.00 being lumsum
amount because petitioner panchayat is a public body, dispute has
been raised in the year 1988 when termination is dated 31st
October, 1987and workmen were daily wager and, therefore, she
submitted that entire award passed on the basis of facts and labour
court has decided factual aspects and, therefore, such fact finding
given by labour court cannot be disturbed by this court in exercise
of powers under Article 227 of Constitution of India.
I
have considered submissions made by both learned advocates. I have
also perused impugned award made by labour court. Before labour
court, statement of claim was filed by each workman separately at
Exh. 7, 9. According to workmen, they were working with petitioner
panchayat as mechanical helper in repairing and pipe fitting of
pump, motor line and carrying out same work with petitioner
panchayat at Patal Kuwa. On 31.10.1987, at village Panchot on Patal
Kuwa, they were having duties and in said Patal kuwa, with column
pipe 26 that is with motor pump, level of said bore comes to 260 ft.
and looking to that, mechanical gangman would require at least six
persons and responsible mechanical person Nandubhai Jadav was
informed that said pump could not be opened through four persons
and, therefore, he had been excited and abused and said that more
persons will not be available now you are not required and saying
so, by way of an oral order, terminated their service. In connection
with said incident, workmen had approached the Deputy Executive
Engineer Shri HK Patel, Taluka Development Officer Shri Ninama
Saheb, Taluka President Shri Ishwarbhai and Executive Engineer Shri
Sompura Saheb, District President Shri Ishwarbhai Chavda etc. and
had requested to Supervisor Shri PM Patel to re-engage them but of
no avail. It was also alleged by workmen in their statement of claim
that one Rahimbhai Nabubhai whose service was terminated after
termination of their service was again engaged by petitioner
establishment and new workmen were also engaged and though they are
senior workmen, they have not been re-engaged for work and at the
time of terminating their service, legal procedure has not been
followed and retrenchment compensation has not been paid and,
therefore, termination is violative of section 25-F,G and H of ID
Act, 1947 and, therefore, workmen were praying for reinstatement
with back wages for interim period before labour court.
Before
labour court, reply was filed by petitioner panchayat at Exh. 18
denying averments made in statement of claim by workmen. According
to case of petitioner, these workmen were appointed by mechanic on
contract basis on daily wage and they were not employees of
petitioner panchayat and they have to carry out some repairing work
on Hangami Basis and, therefore, question of terminating their
service does not arise.
Before
labour Court, vide Exh. 19, one Shri Jaydevbhai Ambaram Garoda,
workman was examined and cross examined; vide Exh. 20, workman
Kantiji was examined; vide Exh. 24, one workman Pashaji was
examined; vide Exh. 29, Vinodbhai Makwana was examined; vide Exh.
25, certain documents have been produced by Respondents and vide
Exh. 30, closing purshis was filed by Respondents. Vide Exh. 32,
witness for establishment Shri Bababhai Ambaram was examined and
vide Exh. 35, witness Hariharbhai Chaudhari was examined and vide
Exh. 42, witness for establishment Shri Nandlal Gokaldas was
examined. Vide Exh. 44, witness Haribhai Karshanbhai was examined
and thereafter, arguments of both parties were heard.In para 6,
reasons have been recorded by labour court. Labour Court has framed
issue whether workman has completed continuous service as required
under section 25B of ID Act, 1947 or not. Labour Court has
considered oral evidence of each workman, what has happened on site
at bore at Panchot on 31st
October, 1987 was considered by labour court. According to workmen,
they were employed by one Nandubhai, even work was being entrusted
to them by said Nandubhai and for whatever days they were working,
they were receiving wages from petitioner panchayat and presence
register was also being prepared by Nandubhai and according to
instructions / directions given by Nandubhai, each workman was in
service of petitioner panchayat for about eight years. Accordingly,
each workman has given evidence. Witness Kantiji Tejaji examined at
Exh. 20 has deposed in his examination in chief that he was working
as mechanical helper. In his cross examination, it was deposed by
him that he was doing work of bore fitting and he was engaged by
Atmarambhai who was mechanic and his presence for 30 days was being
marked and it was denied by him that his presence was not being
marked after completion of work of repairing of one bore in-between
work of another bore is given to him. In his cross examination, it
was stated by him that certificate Exh.25/1 is his certificate. It
was given pakka Exh. 26 and it was issued by Additional Assistant
Engineer,Taluka Panchayat, Patal Kuva, Mehsana on 3.1.85 to Shri
Kantiji and he is working since four years on muster as daily wager
on mechanical side in mechanical gang. Similarly, in respect to
certificate mark 25/2 which was exhibited as Exh. 27, which was
issued by Additional Assistant Engineer in favour of Jaydevbhai
Ambaram on 3.1.85 and he is also working on mechanical side since
four years as per said certificate. Similarly, as per Exh. 29, in
case of Vinodbhai also, he was working for more than three years as
mechanical helper and doing work of repairing of bore. Similarly, at
Exh. 24, Pashaji has deposed that since three years, he was serving
in the first party establishment as helper and he was getting work
for 240 days meaning thereby for whole year and in his cross
examinatin, it was denied by him that he was receiving salary for
the days for which he was working. Vide Exh. 26 and Exh. 27,
certificate of working days and period of Kantiji Thakore and
Jaydevbhai Garoda are produced. Witness for establishment Shri
Bababhai Patel has deposed in his deposition at Exh. 32 that by
engaging rojamdar labourers, work of bore repairing was being done
and Patal Kuva of Mehsana Taluka were being maintained in that
manner and rojamdar labourers who are continuing were being engaged
and if labourers are not coming, then, persons having knowledge of
repairing were being engaged as per their availability and labourers
were being engaged on muster and mechanic was marking presence of
rojamdars and salary was being paid by Taluka Panchayat as per the
wages prescribed by Government. It was also deposed by him that he
is aware of office record of workmen and they were coming for
repairing and were being called as per requirement but in his cross
examination, it was stated by him that he has worked as Deputy
Executive Engineer in Mehsana from 16.10.1989 and prior to that, he
was in Chanasma Taluka Panchayat and he has no personal knowledge of
the work prior to October, 1989. He has also no knowledge as to
whether workmen were being called for work by writing letter in 1987
or not. He has no personal knowledge that the workmen were
performing work continuously since eight years, upto 1987. Another
witness for petitioner establishment Shri Harisinhbhai Chaubhari has
given deposition at Exh. 35 that he is working as Deputy Executive
Engineer Mehsana Taluka Panchayat Patal Kuva Branch and he is aware
of the record. He has also given same evidence that the workmen were
daily wagers employed by Panchayat but they were not permanent
employees. However, this witness is not aware about fact that on
which terms, these workmen were employed by petitioner. Muster Roll
of workmen are in custody of petitioner panchayat and said witness
Harisinh was ready and willing to produce on record before labour
court but ultimately muster roll were not produced by petitioner
before labour court. It is necessary to note one important admission
made by witness Harisinh in his evidence at Exh.35 that each workman
has completed 240 days continuous service within one year and
witness Nandlal at Exh. 42 has also admitted in his examination in
chief that workmen were being engaged by petitioner panchayat on
muster and each month, they were working for more than 10 to 15 days
and some time, they were being continued for entire month. He also
admitted that after termination of service of these workmen in 1987,
new daily wagers have been recruited/employed by petitioner
panchayat. It is also admitted by said witness that these workmen
were working with panchayat since last three to four years. However,
how many persons have been taken on daily wage basis for work at
Patal Kuva for repairing bore, for that, he was having no personal
knowledge. Labour Court, Kalol has considered this oral evidence of
workmen as well as evidence of each witness of petitioner and has
also considered certificates produced by workmen,admitted by witness
for petitioner panchayat and after considering all this evidence on
record, labour court has come to conclusion that each workman has
completed 240 days continuous service with petitioner panchayat and
after considering decision of this Court in
case of Moti Ceramics Ind. v. Jivuben Rupa and others [2000 (2) GLR
1558] = 2000 (1) CLR 126, labour court has come to conclusion that
petitioner being taluka panchayat, is a public body and workmen were
employed by petitioner on muster roll as daily wagers and workmen
worked since many years. That fact has been proved before labour
court by oral and documentary evidence led before labour court and
accordingly labour court has come to conclusion that workmen have
completed continuous service of 240 days as per admission made by
witness for petitioner and relevant record was not produced by
petitioner panchayat before labour court. In all, four witnesses
were examined by petitioner panchayat before labour court and one
witness has shown willingness in his cross examination that he will
produce muster roll and yet, that muster roll has not been produced
before labour court by petitioner and, therefore, labour court has
considered two aspects, one is entire oral evidence of each workmen
and certificates as referred to above and non production of relevant
record in respect of workmen namely muster roll pay register etc.
and, therefore, in absence of such documents, labour court has
rightly drawn adverse inference against petitioner and has rightly
come to conclusion that workmen have completed 240 days continuous
service within preceding 12 months from date of termination in light
of certificates admitted by witness for petitioner and workmen have
performed continuous duties as per section 25B of ID Act, 1947.
Considering deposition of workmen on oath before labour court
wherein it was deposed by workmen that before terminating their
service, petitioner has not given any notice, notice pay in lieu
thereof and retrenchment compensation as well as deposition of
witness for petitioner Shri Nandlal at Exh. 42 wherein it was
deposed by him that it is correct that after terminating service of
workmen, on their place, other persons were working and that while
terminating service of present workmen, petitioner has not given
notice or notice pay in lieu of notice and retrenchment compensation
has also not been paid to them, labour court has come to conclusion
in light of evidence on record that in terminating service of
respondents workmen, petitioner has committed breach of section
25-F, G and H of ID Act, 1947. Labour Court has also observed that
the nature of work which was being performed by workmen remained
continue and such work has been given by petitioner at present on
contract basis and, therefore, labour court has come to conclusion
that such termination is contrary to section 25F, G and H of ID Act,
1947. Therefore, labour court has set aside termination order of
workmen dated 31st
October, 1987.
While
considering question of back wages, labour court has considered
question of gainful employment. Dispute has been raised in the year
1988. Labour Court has considered long delay in deciding reference
of about fifteen years and considering all such aspects, labour
court thought it fit to grant lumsum amount in lieu of back wages
because petitioner panchayat is a statutory body. Accordingly,
labour court granted relief of reinstatement
with continuity of service to each workman on original post on same
terms and conditions with lumsum amount of Rs.15000.00 in lieu of
back wages, by way of compensation, for interim period of about
fifteen years.
I
have considered reasoning given by labour court. I have also
considered submissions made by both learned advocates. I have also
examined matter in detail. I have also considered evidence of four
witnesses for petitioner as well as certificates at Exh. 26 and 27
produced on record and admitted by witness for petitioner. I have
also considered one admission made by witness for petitioner Shri
Harisinh Chaudhari who was examined at Exh. 35 and has admitted that
each workman has completed continuous service of 240 days.
Therefore, considering such fact finding given by labour court for
deciding factual aspect, normally this court cannot disturb such
fact finding unless it is successfully established before this court
that such fact finding given by labour court is contrary to evidence
on record and/or perverse. In case before hand, learned Advocate Mr.
RC Jani for petitioner has not been able to establish that these
findings of fact recorded by labour court are perverse and contrary
to evidence on record. Completion of 240 days continuous service was
established before labour court on the basis of evidence of workmen
as well as certificates at Exh. 26 and 27 and evidence of four
witnesses for petitioner as discussed above. Adverse inference was
drawn by labour court against petitioner because witness for
petitioner admitted before labour court that relevant documents are
in possession of petitioner and same will be produced before labour
court but subsequently, such documents were not produced by
petitioner before labour court. Therefore, considering such finding
of fact recorded by labour court after appreciating oral and
documentary evidence on record, according to my opinion, labour
court has not committed any error which would require interference
of this court in exercise of powers under Article 227 of the
Constitution of India. Labour court has rightly granted lumsum
amount of Rs.15000.00 to each workman in lieu of back wages for
interim period of about fifteen years while keeping in mind relevant
factors and, for that, labour court has not committed any error
which would require interference of this court in exercise of powers
under Article 227 of Constitution of India. Normally this court
cannot disturb such finding of fact decided by labour court in
exercise of powers under Article 227 of Constitution of India.
Findings given by labour court that the termination of service of
workmen is violative of section 25F, G and H are also based upon
appreciation of facts and, therefore, labour court has rightly
decided such aspects.
[See :
Rameshkumar
versus State of Haryana,
2010 (1) SCALE 432; Harjinder
Singh versus Punjab State Warehousing Corporation,
2010 (1) SCALE page 613;
Krishnan, 2010 (2) SCALE page 848].
Recently
apex court has considered scope of Article 227 of Constitution of
India in case of State
of Haryana v. Manoj Kumar
reported in 2010
AIR SCW 1990
decided on 9th
March
2010.
The relevant Para
22 to 29
are quoted as under:
22.
The appellants urged that the jurisdiction of the High Court under
Article 227 is very limited and the High Court, while exercising
the jurisdiction under Article 227, has to ensure that the courts
below work within the bounds of their authority.
23.
More than half a century ago, the Constitution Bench of this court
in Nagendra Nath Bora and Another v. Commissioner of Hills Division
and Appeals, Assam & Others AIR 1958 SC 398 settled that power
under Article 227 is limited to seeing that the courts below
function within the limit of its authority or jurisdiction.
24.
This court placed reliance on Nagendra Nath’s case in a subsequent
judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC
1895. The court observed that jurisdiction conferred under Article
227 is not by any means appellate in its nature for correcting
errors in the decisions of subordinate courts or tribunals but is
merely a power of superintendence to be used to keep them within
the bounds of their authority.
25.
This court had an occasion to examine this aspect of the matter in
the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC
566 . The court observed as under:-
“The
supervisory jurisdiction conferred on the High Courts under Article
227 of the Constitution is limited “to seeing that an inferior
Court or Tribunal functions within the limits of its authority,”
and not to correct an error apparent on the face of the record, much
less an error of law. for this case there was, in our opinion, no
error of law much less an error apparent on the face of the record.
There was no failure on the part of the learned Subordinate Judge to
exercise jurisdiction nor did he act in disregard of principles of
natural justice. Nor was the procedure adopted by him not in
consonance with the procedure established by law. In exercising the
supervisory power under Article 227, the High Court does not act as
an Appellate Court or Tribunal. It will not review or reweigh the
evidence upon which the determination of the inferior court or
tribunal purports to be based or to correct errors of law in the
decision.”
This
court again clearly reiterated the legal position in Laxmikant
Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi
(1995) 6 SCC 576. The court again cautioned that the High Court
under Article 227 of the Constitution cannot assume unlimited
prerogative to correct all species of hardship or wrong decisions.
It must be restricted to cases of grave dereliction of duty and
flagrant abuse of fundamental principles of law or justice, where
grave injustice would be done unless the High Court interferes.
27.
A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand
Soni & Others (1998) 3 SCC 341 again abundantly made it clear
that the High Court cannot interfere with the findings of fact
recorded by the subordinate court or the tribunal while exercising
its jurisdiction under Article 227. Its function is limited to
seeing that the subordinate court or the tribunal functions within
the limits of its authority. It cannot correct mere errors of fact
by examining the evidence and re-appreciating it.
28.In
Virendra Kashinath Ravat & Another v. Vinayak N. Joshi &
Others (1999) 1 SCC 47 this court held that the limited power under
Article 227 cannot be invoked except for ensuring that the
subordinate courts function within its limits.
29.
This court over 50 years has been consistently observing that
limited jurisdiction of the High Court under Article 227 cannot be
exercised by interfering with the findings of fact and set aside the
judgments of the courts below on merit.
In
view of above observations made by this court while discussing
evidence on record and reasoning given by labour court, according to
my opinion, no interference of this court is required under Article
227 of Constitution of India. Hence, there is no substance in this
petition and, therefore, this petition is dismissed with no order as
to costs. Rule is discharged. Interim relief, if any, shall stand
vacated
forthwith.
It
is directed to petitioner panchayat to implement award passed by
Labour Court Kalol in Reference (LCK) NO. 205 of 1988 dated 31st
July, 2003 published on 4th
August, 2003 within one month from date of receipt of copy of this
order.
(H.K.Rathod,J.)
Vyas
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