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SCA/5658/2010 27/ 57 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5658 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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OIL
& NATURAL GAS CORPORATION LTD - Petitioner(s)
Versus
PARMAR
PRAVINBHAI GIRDHARBHAI & 9 - Respondent(s)
=========================================================
Appearance
:
MR
AJAY R MEHTA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
10.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/05/2010
ORAL
JUDGMENT
Heard
learned advocate Mr. AR Mehta on behalf of petitioner.
The
petitioner ONGC has challenged award passed by Industrial Tribunal,
Baroda in ITC no. 17/2002 dated 22/10/2003, wherein Industrial
Tribunal, Baroda has allowed reference and directed petitioner ONGC,
Makarpura, Baroda to make permanent all seven employees from date of
joining in service as direct employees of ONGC and considering them
permanent from date of joining, whatever benefits and salary are
available to permanent employees, same is to be paid and termination
order dated 5/10/1999 has been set aside with a direction to
reinstate each workman with continuity of service with full back
wages of interim period with costs of Rs. 10,000/- to be paid to
Union and order passed in Review Application no. 2/2009 exh 9 dated
15/2/2010. This Review application filed by petitioner has been
rejected with costs of Rs. 5,000/- to each workman to be paid within
30 days.
Learned
advocate Mr. Mehta submitted that award passed by Industrial
Tribunal, Baroda on 22/10/2003. He has read before this Court
operating portion, which is at page 69/70. He submitted that relief
which has been granted by Industrial Tribunal, Baroda in favour of
seven workmen, those who were contractor workmen. It is made clear
by him that award is not so far implemented by petitioner till date
and these workmen are out of job since 5/10/1999. He submitted that
challenging aforesaid award dated 22/10/2003 one SCA no. 2193/2004
filed by petitioner where on 23/2/2004 (Coram: Honourable Mr.
Justice Jayant Patel) has passed following order as under:
Mr.Mehta for
the petitioner states that since before the Industrial Tribunal
the evidence could not be lead on behalf of the petitioner, the
petitioner seeks permission to withdraw the petition with a
view to initiate appropriate proceedings before the Industrial
Tribunal for permitting the petitioner to lead evidence and to
reconsider the matter. Mr.Mansoori appearing by caveat states
that he is not admitting the right of the petitioner to move such
application.
2.Considering the facts and circumstances of the case, permission is granted. Petition shall stand disposed of as withdrawn. Contentions of both sides are kept open.
Before
this Court, Mr. Mehta seek permission to withdraw petition with a
view to initiate appropriate proceeding before Industrial Tribunal
for permitting petitioner to lead evidence and to reconsider matter.
At that occasion, learned advocate Mr. Mansuri has filed caveat and
stated that he is not admitting right of petitioner to move such
application. However, permission is granted by this Court and
petition shall stand disposed of as withdrawn. Meaning thereby that
challenge to award 22/10/2003 has been withdrawn and accordingly
petition has been disposed of as withdrawn. This Court has granted
permission to withdraw present petition but this Court has not
granted any liberty to petitioner to file appropriate proceeding
before Industrial Tribunal by way of Review application. So,
liberty from this Court is atleast relevant and necessary for
keeping right open to challenge of award dated 22/10/2003. Once
petition is withdraw challenging award in question subsequent to
challenge same award by present petition and liberty was not given
by this Court, to challenge same award after order in Reviwe
application then according to my opinion, petitioner is not entitled
to challenge same award by another present petition after withdrawal
of petition which was disposed of as withdrawn.
Therefore,
in present petition petitioner can only challenge order passed in
Review application by Industrial Tribunal, Baroda but petitioner is
not entitled to challenge award passed by Industrial Tribunal,
Baroda dated 22/10/2003.
Learned
advocate Mr. Mehta fairly has not made any submission against order
passed by Industrial Tribunal in Review application because in
Industrial Dispute Act as well as Industrial Dispute Rules, 1966
there is no express provisions made by Statutory provision which
gives power to Industrial Tribunal to consider or to entertain
Review Application. In short, Industrial Tribunal has no power to
review its own order because there is no such express provision made
under Act as well as Rules.
He
fairly considered before this Court that in view of decision of Apex
Court in case of Kapra Majdur Ekta Union Vs. Management of Birla
Cotton Spinning and Weaving Mills Ltd and Ors reported in 2005 (II)
LLJ 271, Apex Court has held it that as and when any mistake in
procedure if it is committed by Industrial Tribunal being a quashi
judicial authority in absence of express provision, then such award
can not be reviewed by Industrial Tribunal. The Labour Court or
Industrial Tribunal has no power to review its own award/order.
There is no express provision made under provision of Industrial
Dispute Act, which give express Statutory powers to review in favour
of Labour Court or Industrial Tribunal.
The
Industrial Tribunal has considered another decision of Jharkhand
High Court reported in 2004 (1) LLN 1144, where also it has been
decided that under provision of Industrial Dispute Act, there is no
such power has been given to Industrial Tribunal to review its own
order/award and such powers can not be exercised by Industrial
Tribunal as inherent power of Court. The Industrial Tribunal can
correct only arithmetical mistake or accidental mistake but not
having jurisdiction to re-examine facts which goes against its
earlier award, for that, such powers are not with Industrial
Tribunal. The Industrial Tribunal has also considered decision of
Delhi High Court reported in 2002 (1) LLN 506 where also it has been
held that Industrial Tribunal has no jurisdiction to review its own
award unless specific provision or express provision is made for
it. The Industrial Tribunal has also considered decision of Madhya
Pradesh High Court reported in 1995 (2) LLN 1075 where it is held
that so long specific powers of review is not given such powers can
not be exercised by Industrial Tribunal as inherent power but only
typing or clerical mistake can be corrected. The Industrial
Tribunal has also considered another decision of Delhi High Court
reported in 1995 (1) LLN 111 which was delivered in case of Workmen
Compensation Act, 1923 and in that also Delhi High Court has held
that Industrial Tribunal and Labour Court has no jurisdiction or
power to review its own award or order. The Apex Court in in
the case of P. N. Thakershi Vs. Pradhyumansinghji reported in AIR
1970 SC 1273 also held it that power of review is not
inherent power but it must be given expressly by Statutory
provision. Therefore, in absence of that, Industrial Tribunal has no
jurisdiction to review its own award. The Industrial Tribunal has
considered Rule 31 of I. D. Rules, 1966 which relating to only
correction in clerical or typing or accidental mistake but not given
power of review under Rule 31 of Industrial Dispute Rules.
The
Industrial Tribunal has come to conclusion that such application,
which has been filed by petitioner to review its own award, was
earlier decided by Industrial Tribunal in reference ITC no. 17/2002
on merits. After closing right to lead evidence by Corporation,
detailed argument has been made, at that occasion, Corporation was
aware about facts that they have not led any oral evidence and right
to lead oral evidence has not been availed and left it voluntarily
then subsequently application which has been filed by petitioner
Corporation to give him an opportunity to fill up Lecuna or gape
that request can not consider to be legal and reasonable. If such
permission is granted by Court in Review application then workers
may not be able to get final adjudication in such matter and
remained continuous litigation by such kind of application. For
that, there is no such provision made in Industrial Disputes
Act/Rules. The Industrial Tribunal has rightly observed that award
is dated 22/10/2003, more than six years have passed but
unfortunately, workers are not able to get fruit of such award.
Whatever delay has been occurred was considered to be deliberated as
intentional and once matter has been decided on merits no review
application can be entertained, for that, industrial Tribunal has no
jurisdiction and power to entertain it.
The
view taken by Apex Court in bench of three judges in case of Kapra
Majdur Akta Union Vs. Management of Birla Cotton Spinning and
vivaing Mills Ltd and Ors reported in 2005 (II) LLJ 271, where same
question has been examined by Apex Court in light of considering
various decision and also having almost identical facts of present
case. The facts of above referred decision is relevant and similar
so it can be compared with facts of present case, which are almost
in similar nature. The relevant discussion made in para 8 to 21 are
quoted as under:
8. In the
light of the order of this Court the Industrial Tribunal heard the
parties and passed an Award on June 12, 1987. The Award is a
detailed reasoned Award. The Tribunal took note of the background
in which the disputes had arisen and the reference made to it. It
rejected the argument of the appellant-Union that once a reference
is made, the Labour Department of the appropriate Government becomes
functus officio in the matter. After considering to the decisions of
this Court in State of Bihar vs. D.N. Ganguly & Ors. : 1959 1
SCR 1191 ; Sirsilk Limited vs. Government of Andhra Pradesh and
another : AIR 1964 SC 160 and Paraga Tools Ltd. vs. Mazdoor Sabha :
1975(I) LLJ 210 it concluded that merely because a dispute had been
referred to the Industrial Tribunal for adjudication, it did not
prevent the Conciliation Officer from playing his role when other
disputes arose between the parties and the industrial peace was
disturbed. It noticed the fact that in the instant case a notice
of strike was given on February 14, 1983 and a notice of closure of
a part of the undertaking on April 4, 1983. The workers were
disturbed and the atmosphere was surcharged. In this background if
the Conciliation Officer intervened in an attempt to bring about a
settlement, it cannot be contended that he had no jurisdiction to do
so. In fact the Labour Department was not only justified but
legally competent and compelled to set the conciliation proceedings
in motion so as to restore industrial peace.
9. Having found
that the settlement was brought about in the course of conciliation
proceedings, the Tribunal considered the terms of settlement and
recorded the following conclusion :-
“I have
carefully gone through the terms of the settlement. These are not
only well bargained but quite detailed and very sound in the
circumstances obtaining. It’s various items made provision for
meeting all the relevant problems of relief and rehabilitation of
the affected workers because of the closure of weaving section of
the mill and envisages an expert technical body for deciding on the
possibility and extent of the revival of weaving work in the Mill,
under the time bound schedule. I find the settlement fair and
just.”
10. The
Tribunal, therefore, concluded that the settlement of May 17, 1983
was a settlement reached between the Workmen and the Management in
the course of conciliation proceedings and hence binding on all the
workers of the respondent-Company. It proceeded to decide the
reference declaring that the disputes stood settled as between the
parties by a valid and binding settlement dated May 17, 1983 and
thus the reference had been rendered redundant. There was no
dispute surviving and no purpose was left in making the terms of a
valid and binding settlement of 1983 as a part of the award, as all
the agreed terms should stood executed and implemented. The order
of the Industrial Tribunal making the Award is of June 12, 1987.
The said Award was duly published by the appropriate Government in
the Gazette on August 10, 1987.
11. On September
7, 1987 the appellant-Union filed an application before the
Industrial Tribunal to the effect that the only question which had
been argued before the Tribunal was in relation to the power and
jurisdiction of the Conciliation Officer to record settlement
between the parties during the pendency of the disputes. The
question as to whether the settlement was fair and just, and should
be accepted by the Tribunal, was not argued since that required
evidence. It was, therefore, understood that the said question will
be decided later on in case the Tribunal held that the Conciliation
Officer had jurisdiction to record the settlement. Under some
misconception the Tribunal had determined the terms of the
settlement to be fair and just and had passed an Award on June 12,
1987. It was, therefore, prayed that the appellant-Union be given
an opportunity to establish that the settlement was neither just nor
fair. For this purpose the Award may be recalled and the
appellant-Union be given an opportunity to establish that the
settlement is unjust and unfair, adversely affecting a large number
of workmen. It was prayed that the Award may be recalled which was
in fact an ex-parte Award, and the question of fairness of the
settlement be decided after providing an opportunity to the parties
to produce evidence.
12.This
application filed by the appellant-Union was strongly opposed by the
respondent-Management, but the successor Presiding Officer of
Industrial Tribunal No.II, Delhi allowed the application. It
observed that a perusal of the order dated June 12, 1987 showed that
the then Tribunal did not make a single observation as to whether
the settlement dated May 17, 1983 was just and fair. No issue was
framed nor any evidence was recorded on that point. No argument was
advanced and no finding was given by his learned predecessor on this
point. Relying upon the judgment of this Court in Satnam Verma vs.
Union of India : 1984 (supp) SCC 712 and Grindlays Bank Ltd. vs.
Central Government Industrial Tribunal and others : 1980 (Supp) SCC
420 it was held that where the Tribunal proceeds to make an Award
without notice to a party, the Award is a nullity and, therefore,
the Tribunal has not only the power but also the duty to set aside
such an ex-parte Award. It was held that in the instant case no
arguments were advanced and no finding was given as to whether the
settlement was just and fair. In view of its finding that the
Tribunal has power to review its Award even if the same is published
in the Gazette, the Tribunal proceeded to exercise its power to
review its earlier order dated June 12, 1987. It further framed an
additional issue which is as follows:- “Whether the settlement
dated 17.5.1983 is just and fair and if so, is it not binding on the
parties?”
13. It further
directed that only arguments shall be heard since there was no need
to record evidence on this point. Accordingly by its order of
February 19, 1990 the Industrial Tribunal decided to review its
earlier order and framed an additional issue as to whether the
settlement was just and fair.
14. The
Management – respondent herein preferred a writ petition before the
High Court of Delhi at New Delhi and sought quashing of the order
dated February 19, 1990 passed by Industrial Tribunal No. II, Delhi,
and for declaration that the Award dated June 12, 1987 earlier made
by the Tribunal effectively terminated the reference pending before
it. The High Court by its impugned judgment and order allowed the
writ petition and granted the reliefs prayed for. The judgment and
order of the High Court has been impugned before us in this appeal.
15. The core
question which arises for consideration is whether the Industrial
Tribunal was justified in recalling the earlier Award made on June
12, 1987 and in framing an additional issue for adjudication by the
Tribunal. According to the appellant the recall of the order was
fully justified in the facts of the case, while the respondents
contend to the contrary. Two issues arise for our consideration
while considering the legality and propriety of the Tribunal in
recalling its earlier Award. Firstly – whether the Tribunal had
jurisdiction to recall its earlier order which amounted virtually to
a review of its earlier order; and secondly – whether the Tribunal
had no jurisdiction to entertain the application for recall as it
had become functus offico. The High Court answered the first
question in favour of the respondent-Management and the second in
favour of the appellant.
16. We shall
first take up the second question namely # whether the Tribunal was
functus offico having earlier made an Award which was published by
the appropriate Government. It is not in dispute that the Award
was made on June 12, 1987 and was published in the Gazette on August
10, 1987. The application for recall was made on September 7, 1987.
Under sub-section (1) of Section 17A of the Act an Award becomes
enforceable on the expiry of 30 days from the date of its
publication under Section 17 of the Act. Thus the Award would have
become enforceable with effect from September 9, 1987. However, the
application for recalling the Award was made on September 7, 1987
i.e. 2 days before the Award would have become enforceable in terms
of sub-section (1) of Section 17A of the Act. The High Court
rightly took the view that since the application for recall of the
order was made before the Award had become enforceable, the Tribunal
had not become fuctus offico and had jurisdiction to entertain the
application for recall. This view also find supports from the
judgment of this Court in Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others (supra). This Court after
noticing the provisions of sub-section (3) of Section 20 of the Act
which provides that the proceedings before the Tribunal would be
deemed to continue till the date on which the Award become
enforceable under Section 17A, held that till the Award becomes
enforceable the Tribunal retains jurisdiction over the dispute
referred to it for adjudication, and up to that date it has the
power to entertain the application in connection with such dispute.
The jurisdiction of the Tribunal had to be seen on the date of the
application made to it and not the date on which it passed the
impugned order. The judgment in Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others (supra) has been
reiterated by this Court in Satnam Verma vs. Union of India
(supra), J.K. Synthetics Ltd. vs. Collector of Central Excise :
(1996) 6 SCC 92 and M.P. Electricity Board vs. Hariram air 2004 SC
Suppl 4791 : 2004 (8) SCC 246 : 2004 III LLJ 1144.
17. In the
instant case as well we find that as on September 7, 1987 the Award
had not become enforceable and, therefore, on that date the Tribunal
had jurisdiction over the disputes referred to it for adjudication.
Consequently it had the power to entertain an application in
connection with such dispute. The order of recall passed by the
Tribunal on February 19, 1990, therefore, cannot be assailed on the
ground that the Tribunal had become fuctus offico.
18. The question
still remains whether the Tribunal had jurisdiction to recall its
earlier Award dated June 12, 1987. The High Court was of the view
that in the absence of an express provision in the Act conferring
upon the Tribunal the power of review the Tribunal could not review
its earlier Award. The High Court has relied upon the judgments of
this Court in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya
Maha Vidyalaya, Sitapur (U.P.) and others : (1987) 4 SCC 525 and
Patel Narshi Thakershi and others vs. Pradyumansinghji Arjunsingji :
AIR 1970 SC 1273 wherein this Court has clearly held that the power
of review is not an inherent power and must be conferred by law
either expressly or by necessary implication. The appellant sought
to get over this legal hurdle by relying upon the judgment of this
Court in Grindlays Bank Ltd. vs. Central Government Industrial
Tribunal and others (supra). In that case the Tribunal made an
ex-parte Award. Respondents applied for setting aside the ex-parte
Award on the ground that they were prevented by sufficient cause
from appearing when the reference was called on for hearing. The
Tribunal set aside the ex-parte Award on being satisfied that there
was sufficient cause within the meaning of Order 9 Rule 13 of the
Code of Civil Procedure and accordingly set aside the ex-parte
Award. That order was upheld by the High Court and thereafter in
appeal by this Court.
19. It was,
therefore, submitted before us relying upon Grindlays Bank Ltd. vs.
Central Government Industrial Tibunal and others (supra) that even
in the absence of an express power of review, the Tribunal had the
power to review its order if some illegality was pointed out. The
submission must be rejected as misconceived. The submission does
not take notice of the difference between a procedural review and a
review on merits. This Court in Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others (supra) clearly
highlighted this distinction when it observed :-
“Furthermore,
different considerations arise on review. The expression ‘review’
is used in the two distinct senses, namely (1) a procedural review
which is either inherent or implied in a court or Tribunal to set
aside a palpably erroneous order passed under a mis-apprehension by
it, and (2) a review on merits when the error sought to be corrected
is one of law and is apparent on the face of the record. It is in
the latter sense that the court in Patel Narshi Thakershi case held
that no review lies on merits unless a statute specifically provides
for it. Obviously when a review is sought due to a procedural
defect, the inadvertent error committed by the Tribunal must be
corrected ex debita justitiae to prevent the abuse of its process,
and such power inheres in every court or Tribunal”.
20. Applying
these principles it is apparent that where a Court or quasi judicial
authority having jurisdiction to adjudicate on merit proceeds to do
so, its judgment or order can be reviewed on merit only if the Court
or the quasi judicial authority is vested with power of review by
express provision or by necessary implication. The procedural
review belongs to a different category. In such a review, the Court
or quasi judicial authority having jurisdiction to adjudicate
proceeds to do so, but in doing so commits a procedural illegality
which goes to the root of the matter and invalidates the proceeding
itself, and consequently the order passed therein. Cases where a
decision is rendered by the Court or quasi judicial authority
without notice to the opposite party or under a mistaken impression
that the notice had been served upon the opposite party, or where a
matter is taken up for hearing and decision on a date other than the
date fixed for its hearing, are some illustrative cases in which the
power of procedural review may be invoked. In such a case the party
seeking review or recall of the order does not have to substantiate
the ground that the order passed suffers from an error apparent on
the face of the record or any other ground which may justify a
review. He has to establish that the procedure followed by the
Court or the quasi judicial authority suffered from such illegality
that it vitiated the proceeding and invalidated the order made
therein, inasmuch the opposite party concerned was not heard for no
fault of his, or that the matter was heard and decided on a date
other than the one fixed for hearing of the matter which he could
not attend for no fault of his. In such cases, therefore, the
matter has to be re-heard in accordance with law without going into
the erit of the order passed. The order passed is liable to be
recalled and reviewed not because it is found to be erroneous, but
because it was passed in a proceeding which was itself vitiated by
an error of procedure or mistake which went to the root of the
matter and invalidated the entire proceeding. In Grindlays Bank
Ltd. vs. Central Government Industrial Tribunal and others (supra),
it was held that once it is established that the respondents were
prevented from appearing at the hearing due to sufficient cause, it
followed that the matter must be re-heard and decided again.
21. The facts of
the instant case are quite different. The recall of the Award of
the Tribunal was sought not on the ground that in passing the Award
the Tribunal had committed any procedural illegality or mistake of
the nature which vitiated the proceeding itself and consequently the
Award, but on the ground that some mattes which ought to have been
considered by the Tribunal were not duly considered. Apparently the
recall or review sought was not a procedural review, but a review on
merits. Such a review was not permissible in the absence of a
provision in the Act conferring the power of review on the Tribunal
either expressly or by necessary implication.
In
view of aforesaid observations made by Apex Court, learned advocate
Mr. Mehta, has not argued or raised any contention before this Court
against order of Industrial Tribunal passed in Review Application
dated 15/2/2010 in review ITC no. 2/2009. Therefore, challenged in
present petition against order passed by Industrial Tribunal in
Review application is apparently failed as no contention has been
raised by learned advocate Mr. Mehta fairly and rightly because that
issue has been covered by Apex Court in case of Kapra as referred
above.
Initially,
petition was filed being SCA no. 2193/2004 challenging award passed
by Industrial Tribunal dated 22/10/2003, where it has been
withdrawn. At that occasion no liberty has been given by this Court
to challenge very same award by petitioner Corporation subsequent to
order of Industrial Tribunal, which will be passed in review
application. Apart from that, learned advocate Mr. Mehta has argued
on merits and raised contention about question of regularization as
direct employees those who were appointed without following
recruitment procedure. He raised contention that they were
undisputedly contractor workmen with respondent no. 9 and 10 and
Industrial Tribunal has come to conclusion that said contract is
sham and bogus as no document has been produced by petitioner. In
such circumstances, it is a duty of Union to move machinery under
Labour Contract (Regulation and Abolition) Act, 1970.
He
submitted that respondent has raised industrial dispute on the
ground that they were terminated on 5/10/1999 which was referred for
adjudication before Industrial Tribunal, Baroda in reference ITC no.
17/2002. The respondent Union has filed their statement of claim
vide exh 3 before Industrial Tribunal alleged that ONGC was their
Principal Employer and they were working in prohibited category as
per notification dated 8/9/1994, they to be treated as direct
employees of ONGC. The reply was filed by petitioner Corporation
and denying averment made in statement of claim and contention was
raised in written statement that respondents were employees of
contractor. They had no right to seek regularization in ONGC and
further that even if it was assumed that they were working in
prohibited category, they had no right of claiming regularization
since they were not recruited by following any procedure.
He
submitted that Tribunal has not followed decision of Apex Court in
case of Steel Authority reported in 2001 (7) SCC 1. He also
submitted that Tribunal had not followed scheme dated 16/7/1991 of
regularization of contingent workers. He also submitted that no
procedure has been followed by Union under provisions of Labour
Contract (Regulation and Abolition) Act, 1970 for abolition of such
contract and in absence of challenge by Union for abolishing
contract system, direction given by Tribunal to regularize service
of workmen can not be given.
He
submitted that in all, seven workmen were concerned in dispute, out
of that one workman has given deposition and another six have not
given any deposition. On their behalf, there was no evidence on
record. Therefore, in favour of rest of workmen, Industrial
Tribunal should not have to pass any award in their favour, i.e. how
award is bad.
He
relied upon decision of Larger bench of Apex Court in case of State
of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1. Except that
learned advocate Mr. Mehta has not made any submission before this
Court.
I
have considered his submission and I have also perused award passed
by Industrial Tribunal, Baroda. The dispute has been raised by Union
which referred for adjudication on 20/3/2002 by appropriate
Government under section 10 subsection 1 of Industrial Dispute Act,
1947. The first party before Industrial Tribunal in reference is
ONGC and party no. 2 and 3 are Contractor. In reference, both
contractors are join as party challenging termination order of seven
employees. The reference was filed with a prayer to grant
reinstatement with continuity of service with full back wages of
interim period. This employees were working with Contractors in
prohibited category. Therefore, they are to be considered as
permanent employees of Corporation and entitled all benefits as
permanent employees of Corporation.
The
statement of claim was filed by workmen and also contention raised
that contract which was given, was not genuine contract but it was
sham and bogus contract. Exh 7, reply was filed by Corporation
denying averment made in statement of claim raising almost same
contention before Industrial Tribunal by Corporation. Thereafter,
matter was heard by Industrial Tribunal. It is necessary to note
that in conciliation proceeding and even before Industrial Tribunal,
none remained present on behalf of petitioner Corporation. The
petitioner Corporation has not produced any documents. Even
petitioner Corporation has not produced contract if it is genuine
according to Corporation. According to case of Corporation, these
seven workmen were if employees of contractor then it is a duty of
Corporation to produce relevant record to establish facts before
Industrial Tribunal that they were employees of Contractor. There
was no license obtained by Contractor and these workmen were working
in prohibited category where contract labour system has been
abolished by Appropriate Government. The evidence of one workman
has not been challenged in cross examination in respect to aforesaid
facts and petitioner Corporation has not produced any oral evidence
to establish or prove contention which are raised in written
statement before Industrial Tribunal, Baroda.
On
the contrary, respondent workmen has produced relevant record exh
13/6 that they are employees of category IV. On behalf of
petitioner Corporation no officer was examined before Industrial
Tribunal. According to Corporation, certain facts have been admitted
by one workman in cross examination, therefore, there was no need to
examined any officer. The workmen has not completed continuous
service of 240 days and their services was not illegally terminated
and they were not employed by Corporation on the basis of
Recruitment Rules. The Industrial Tribunal has considered terms of
reference as discussed in para 7 of award. Thereafter, Industrial
Tribunal has considered that both contractors have not filed any
reply before Industrial Tribunal against statement of claim not only
that but either of contractor has not remained present before
Industrial Tribunal, Baroda.
The
Industrial Tribunal, Baroda has come prima facie opinion that expect
reply exh 7 petitioner Corporation has not produced any material
before Industrial Tribunal either by documents or by oral evidence.
Therefore, contract which was alleged to be sham and bogus has been
established by workmen by leading proper evidence as well as
producing relevant documents before Industrial Tribunal.
On
behalf of workman, one Pravinbhai Girdharbhai Parmar was examined
exh 16, whose evidence has been remained as it is being
unchallenged. He has given evidence on behalf of all workmen as per
para 6 of his evidence at page 43. The evidence of Pravinbhai
Girdharbhai Parmar vide exh 16 started from page 41. According to
his evidence, he has supported facts which are stated in statement
of claim. Initially, he was join on 3/4/1993 in ONGC establishment
TBG. Thereafter, he was enrolled as contract employee in Assistant
Expert Service, then his name has been sifted in contractor Sun Rise
Typing Class but he was remained continued in service for performing
same kind of work as directed by Officer of Corporation. No
direction has been given by Contractor to him. The nature of work
which was performed by workmen is discussed in para 4. According to
him, Mr. G. A. Das – Senior Deputy Director, Mr. K. Ambedkar
Manager of P & A Establishment have given direction to these
workmen and they were performing same kind of work in similar nature
and manner. His evidence is not only relating to his personal
evidence but it is relating to in favour of all, covering details of
all workmen those who are concerned in reference. He has made clear
statement in chief examination that whatever work performed by him
almost in similar nature of work, was performed by other employees
viz. Shri Amitkumar Haribhai Rohit, Rathod Ganpatbhai Somabhai,
Rohit Thakorbhai Somabhai, Parmar Amarsinh Babarbhai, Parmar
Sunilbhai Devjibhai and Vasava Gopalbhai Chandubhai. They all were
working with him and he knows each one and they are also performing
same work which has been performed by him in ONGC as employee of
petitioner corporation. All workmen were terminated on 5/10/1999
and each workman has completed 240 days continuous service. Before
that no notice, notice pay, and retrenchment compensation paid by
petitioner corporation and his last salary was Rs. 1500/- per month.
After his termination, he has made sincere efforts to get
employment but he was not able to get it. Similarly, other six
workmen were also made sincere efforts for getting job but all were
remained unemployed. They are prepared to join duty if petitioner
corporation is prepared to reinstate them. The said chief
examination was carried out dated 25/10/2002.
Thereafter,
one advocate Mr. Mahendra Patel has cross examined workman Shri
Pravinbhai Girdharbhai Parmar. In cross examination, this question
was not put to him by advocate of petitioner that he was not having
knowledge of other workmen. On the contrary, he has given his
answer in cross examination that he is having information and
knowledge about other workmen those who were working with him.
Therefore, contention raised by learned advocate Mr. Mehta that
evidence of one workman exh 16 is not enough to cover facts of other
six workmen, can not be accepted because looking to evidence of
Pravinbhai Girdharbhai Parmar exh 16 not a personal evidence, but it
covered evidence on behalf of all remaining workmen means common
evidence. Therefore, it was not necessary to examine other workmen
before Industrial Tribunal. Shri Pravinbhai Girdharbhai Parmar
examined vide exh 16 giving detailed evidence in respect to all
other six workmen and in respect to date of termination, date of
joining and nature of work performed by them. They were also
remained unemployed inspite of sincere efforts have been made by
them. Therefore, contention raised by learned advocate Mr. Mehta
can not be accepted.
The
respondent workman has produced certain written documents vide exh
12, from that I-card issued by employer is very relevant. The
respondent workman has produced xerox copy of various cheque and
also certain slips, which were given for taking tea and breakfast.
Similarly, vide exh 13, passbook has been produced on record.
Against which, no evidence has been produced as rebuttal evidence by
petitioner Corporation and such documents are not disputed by
petitioner Corporation.
In
light of this back ground, Industrial Tribunal has considered that
if according to petitioner Corporation, these workmen were working
under contractor then they should have to produce license received
by contractor where name of workmen must be there but no such
license was produced on record. Even Corporation was not having any
license in prohibited area under Act 1970. Therefore, Corporation
has failed to establish their case by leading proper oral and
documentary evidence before Industrial Tribunal. The Industrial
Tribunal has considered evidence which has been produced by workmen
and these workmen were working as an employee in prohibited area not
as an employee of contractor. The petitioner Corporation is having
possession of necessary documents but none of documents has been
produced by Corporation before Industrial Tribunal. One Shri
Pravinbhai Girdharbhai Parmar exh 16 was examined on behalf of all
the workmen. Thereafter, considering evidence on record, Industrial
Tribunal has come to conclusion that respondent workmen has
established facts on the basis of documents as well as oral evidence
that it was not genuine contract in prohibited area and whatever
arrangement was made that was considered to be a paper arrangement.
Therefore, such contract is considered to be Sham and bogus. In
such circumstances, there is no need for workmen to move machinery
under Labour Contract (Regulation and Abolition) Act, 1970 for
abolishing contract system.
The
Industrial Tribunal has also come to conclusion on factual aspect
and also considered decision of Apex Court in case of Steel
Authority of India reported in 2001 LLR 961. The Industrial
Tribunal has considered that I-card given by petitioner corporation
and other relevant documents which has been produced by workmen vide
exh 12 and 13, contract system which has been taken as defence was
not genuine but it was merely paper arrangement and same has been
considered to be Sham and bogus. Therefore, Industrial Tribunal has
decided only factual aspect of matter and against that no rebuttal
evidence led by petitioner corporation before Industrial Tribunal.
The workman has established their case properly before Industrial
Tribunal and evidence of workman remained unchallenged before
Industrial Tribunal.
According
to my opinion, when existence of contract between workmen and
corporation, if it is not established by petitioner corporation then
naturally, these workmen are considered to be an employee of
petitioner corporation because existence of contract has not been
established by petitioner before Industrial Tribunal. The service
rendered by each workman has completed more than 240 days continuous
service. The Section 25 F of I. D. Act, 1947 has been violated by
petitioner corporation being an undisputed facts and no gainfully
employment has been proved by petitioner corporation before
Industrial Tribunal. I have also considered evidence of Shri
Pravinbhai Girdharbhai Parmar exh 16 including cross examination.
The
decision of Apex Court as relied by learned advocate Mr. Mehta in
Steel Authority of India reported in 2001 (7) SCC 1 and in case of
State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1, are not
applicable to facts of present case. Therefore, in absence of
evidence from petitioner corporation, Industrial Tribunal has
rightly passed an award granting appropriate effective relief in
favour of workmen. For that, Industrial Tribunal has not committed
any error which would require interference by this Court while
exercising power under Art. 227 of Constitution of India.
This
Court is having limited jurisdiction and power to disturb finding of
fact recorded by Industrial Tribunal under Art. 227 of Constitution
of India as per recent decision of Apex Court in case of State
of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990.
The relevant observation made in 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.”
26. 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.
The
service of workmen terminated on 5/10/1999 and Industrial Tribunal
has passed an award on 22/10/2003 from date of termination, more
than 11 years have passed and from date of award more than 7 years
have passed. Even though, till the date award passed by Industrial
Tribunal, Baroda which is challenged in present petition has not
been implemented. The Corporate body being a State Authority
controlled by Central Government has misused a legal machinery for
denying legitimate right of workmen after adjudication by Industrial
Tribunal, Baroda without any protest, as if that petitioner
corporation is entitled to violate or commit breach of award without
any order of this Court. It is made clear by this Court that from
date on which petition is withdraw on 23/2/2004 till Review
application decided by Industrial Tribunal on 15/2/2010, in between
there was no stay at all operating in favour of petitioner
Corporation. What would be situation and condition of family of
workmen, petitioner Corporation has not taken even care to see that
atleast award must have to be complied with after order passed by
Industrial Tribunal in Review application. The petitioner
Corporation even not paid last drawn wages to concern employee,
those who are out of job since 5/10/1999 and award of reinstatement
was in favour of them since 22/10/2003. In such circumstances, no
labour matter, which are almost sensitive relating to right to life
and livelihood of family of workman, has been ignored as matter of
right by petitioner Corporation. The Corporation being giant
company not worried about even breach of award committed by
petitioner corporation under section 29 of Industrial Dispute Act,
1947. Such approach by petitioner Corporation being a giant
Corporation protected by Central Government earning lot of revenue
but not protected legitimate right of such seven employees those who
are out of job since 5/10/1999. While considering such kind of
facts, constitutional goal is to be kept in mind by this Court as
recently examined and express opinion how to deal with such labour
matter by High Court under Art. 226 and 227 of Constitution of India
in case of Harjinder Singh Vs Punjab State Warehousing Corpn.
reported in 2010 (1) SCALE 613, relevant para 17 to 44
is quoted as under:
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 substances to the rule of law and meaning and
significance to the ideal of welfare State: – State of Mysore Vs.
Workers of Gold Mines AIR 1958 SC 923.
18. In
Y. A. Mamarde Vs. 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 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
principle was advocated by the movement for liberal employment in
civilized 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 endeavor 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 conductive 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 deprived sections 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 Court, National and State
Industrial Tribunals involving interpretation of the provisions of
the Industrial Dispute Act, Indian Factories Act, Payment of Wages
Act, Minimum Wages Act, Payment of Bonus Act, Workmen’s Compensation
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 Vs. 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 givens
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 Vs. Consumer Education and Research Center 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 his device then that is misconduct on the part of
the 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 teaties:
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 become settled
at the 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 and discernible in the judicial
opinion which rationalized 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 the philosophy is incompatible with
these days of large, impersonal, corporate employers. The
conditions have not vastly changed and it is difficult to regard
the contract of employment with large scale industries and
government 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 has 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 overreaching
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 pari 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 to
have some vitality, that the servant can not complain, as he
takes the employment on the terms which are offered to him.
22. In
Government Branch Press Vs. 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 from is not applicable to
government servants. Secondly, even with regard to private
employment, much of it has passed into 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 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 retionalised 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 the Constitutional
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 Labouratories
(India) Ltd Vs. 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 of contract, the contract being not left to be
negotiated by two unequal persons but statutory 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 present
one, 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 unbrearable 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 fat 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
derived 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.
Ganguly,
J.- I entirely agree with the view express by me 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 importance aspect in
decision making by this Court.
26. 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 Premable, which has been recognized, a part of the
Constitution in His Holiness Kesavananda Bharti Sripadagalvaru and
others vs. State of Kerala and another (1973 SC 1461), we can
discern that as divide 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)
27. 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.
28. 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, page 487)
29. 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 as
stake, for the butcher, the baker and the candlestick maker .
It lays down for this land a rule of 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.
30. 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 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
Defenced and Defiled. Mac Millan 1974 p. 29)
31. I
am in entire agreement with the aforesaid interpretation of the
Constitution given by this Court and also by the eminent jurist.
32. 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 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 judgment, His Lordship was endorsed by
justice Mathew in Kesavannanda Bharti (supra) (at page 1949, para
1717 of the report) and it was held that the State under Article 12
would include the judiciary.
33. This
was again reiterated by Justice Mathew in the Constitution bench
judgment in the case of State of Kerala and another Vs. N. M.
Thomas and others (AIE 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’
34. In
view of such an authoritative pronouncement the definition of State
under Article 12 encompass the judiciary and in Kesavnanda (supra)
it was held that judicial process is also state action
(Para 1717, page 1949.)
35. That
being the legal position under Article 38 of the Constitution, a
duty is cast of 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.
36. 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.
37. 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.
38. 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.
39. 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].
40. 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]
41. 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 when 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]
42. 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.
43. 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 in our 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.
44. How Stunningly relevant are these words and how deep are the ditches created in our society by the so called advanced of globalization.
Recently,
Apex Court in case of International Airport authority of India
Vs. International Air Cargo Workers Union and Ors
reported in 2009 (6) SCALE 169, wherein it is held that in
case when labour contract is bogus, sham and merely paper
arrangement then remedy is available to Union/workers under
provision of Industrial Dispute Act, 1947. The legal background and
question for decision in above referred decision has been discussed
and highlighted position as well as made it clear by Apex Court and
in light of aforesaid decision of Apex Court. The decision which has
been relied by learned advocate Mr. Mehta in case of State of
Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 and in case of
Steel Authority of India as referred above are not much relevant and
applicable to facts of present case because legal position has been
now made clear by Apex Court recently. In recent decision of
International Airport Authority as referred above, relevant
observation made by Apex Court in para 16 to 20, which are quoted as
under:
16. When the
learned Single Judge considered the matter, the legal position was
governed by the decision in Gujarat Electricity Board Vs. Hindu
Mazdoor Sabha 1995 (5) SCC 27, partly modified by Air India
Statutory Corporation Vs. United Labour Union 1997 (9) SCC 377. by
the time the Division Bench decided the writ appeal, the decision of
the Constitution Bench in Steel Authority of India Ltd., Vs.
National Union Waterfront Workers 2001 (7) SCC 1 (for short
‘SHAIL’) had been rendered, but on account of the short gap between
the two dates, the Division Bench did not notice the decision in
SAIL.
17. In Gujarat
Electricity Board, this Court held:
….the
exclusively authority to decide whether the contract labour should
be abolished or not is that of the appropriate Government under the
said provision. It is further not disputed before that the
decision of the Government is final subject, of course, to the
judicial review on the usual grounds. However, as stated earlier,
the exclusive jurisdiction of the appropriate Government under
Section 10 of the Act arises only where the Labuor contract is
genuine and the question can be examined and adjudicated upon by
the court or by the industrial adjudicator, as the case may be.
Hence, in such cases, the workmen can make a grievance that there
is not genuine contract and that they are in fact the employees of
the principal employer.
If the contract
is sham or not genuine, the workmen of the so called contractor can
raise an industrial dispute for declaring that they were always the
employees of the principal employer and for claiming the
appropriate service conditions. When such dispute is raised, it is
not a dispute for abolition of the labour contract and hence the
provisions of Section 10 of the Act will not bar either the raising
or the adjudication of the dispute. When such dispute is raised,
the industrial adjudicator has to decide whether the contract is
sham or genuine. It is only if the adjudicator comes to the
conclusion that the contract is genuine, he may refer the workmen
to the appropriate Government for abolition of the contract labour
under Section 10 of the Act and keep the dispute pending. However,
he can do so if the dispute is espoused by the direct workmen of
the principal employer. If the workmen of the principal employer
have no espoused the dispute, the adjudicator, after coming to the
conclusion that the contract is genuine, has to reject the
reference, the dispute being not an industrial dispute within
meaning of Section 2(k) of the I. D. Act. He will not be competent
to give any relief to the workmen of the erstwhile contractor even
if the labour contract is abolished by the appropriate Government
under section 10 of the Act.
In view of the
provisions of section 10 of the Act, it is only the appropriate
government which has the authority to abolish genuine labour
contract in accordance with the provisions of the said section. No
court including industrial adjudicator has jurisdiction to do so.
18. Gujarat
Electricity Board was partly overruled in Air India in regard to the
question whether on abolition of contract labour system, the
contract labour have to be automatically absorbed by the principal
employer, this Court held as follows in Air India:
The moment
the contract labour system stands prohibited under section 10(1),
the embargo to continue as a contract labour is put an end direct
relationship has been provided between the workmen and the
principal employer. Thereby, the principal employer directly
becomes reasonable for taking the services of the workmen hitherto
regulated through the contractor. The linkage between the
contractor and the employee stood snapped and direct relationship
stood restored between the principal employer and the contract
labuor as its employees. Considering from this perspective, all
the workmen in the respective services working on contract labour
are required to be absorbed in the establishment of the employer.
19. A course
correction, if we may use that expression, was applied by the
Constitution Bench, in SAIL. This Court made it clear that neither
section 10 nor any other provision in CLRA Act provides for
automatic absorption of contract labour on issuing a notification by
the appropriate government under section 10(1) of the CLRA Act and
consequently the principal employer can not be required to absorb
the contract labour working in the establishment. This Court
further held that on a prohibition notification being issued under
section 10(1) of the CLRA Act, prohibiting employment of contract
labuor in any process, operation or other work, if an industrial
dispute is raised by any contract labour in regard to conditions of
service, the industrial adjudicator has been interposed either on
the ground of having undertaken to produce any given result for the
establishment or for supply of contract labour for work of the
establishment under a genuine contract, or as a mere
rule/camouflager to evade compliance with various beneficial
legislations so as to deprive the workers of statutory benefits. If
the contract is found to be sham or nominal and merely a camouflage,
then the so called contract labour will have to be treated as direct
employees of the principle employer and the industrial adjudicator
should direct the principal employer to regularize their services in
the establishment subject to such conditions as it may specify for
that purpose. On the other hand if the contract is found to be
genuine and at the same time there is a prohibition notification
under section 10(1) of CLRA Act, in respect of the establishment,
the principal employer intending to employ regular workmen for the
process, operation or other work of the establishment in regard to
which the prohibition notification has been issued, it shall give
preference to the erstwhile contract labour if otherwise found
suitable, if necessary by giving relaxation of age. As noticed
above, SAIL did not specifically deal with the legal position as to
when a dispute is brought before the Industrial Adjudicator as to
whether the contract labour agreement is sham, nominal and merely a
camouflage, when there is no prohibition notification under section
10(1) of CLRA Act.
20. But where
there is no abolition of contract labour under section 10 of CLRA
Act, but the contract labour contend that the contract between
principal employer and contractor is sham and nominal, the remedy is
purely under the ID Act, the principles in Gujarat Electricity Board
continue to govern the issue. The remedy of the workmen is to
approach the industrial adjudicator for an adjudication of their
dispute that they are the direct employees of the principle employer
and the agreement is sham, nominal and merely a camouglage, even
when there is no order under section 10(1) of CLRA Act. The
Industrial adjudicator can grant the relief sough if it finds that
contract between principal employer and the contractor is sham,
nominal and merely a camouflage to deny employment benefits to the
employer and that there is in fact a direct employment, by applying
tests like: who pays the salary; who has the power to remove/dismiss
from service to initiate disciplinary action; who can tell the
employee the way in which the work should be done, in short who has
direction and control over the employee. But where there is no
notification under section 10 of the CLRA Act and where it is not
proved in the industrial adjudication that the contract was
sham/nominal and camouflage, then the question of directing the
principal employer to absorb or regularize the services of the
contract labour does not arise. The tests that are applied to find
out whether a person is an employee or an independent contract may
not automatically apply in finding out whether the contract labour
agreement is a sham, nominal and is a mere camouflage. For example,
if the contract is for supply of labour, necessarily, the labour
supplied by the contractor will work under the directions,
supervision and control of the principal employer but that would not
make the worker a direct employee of the principal employer, if the
salary is paid by contractor, if the right to regulate employment is
with the contractor, and the ultimate supervision and control lies
with the contractor. The principal employer only controls and
directs the work to be done by a contract labour, when such labuor
is assigned/alloted/sent to him. But it is the contractor as
employer who chooses whether the worker is to be assigned/alloted to
the principal employer or used otherwise. In short, worker being
the employee of the contractor, the ultimate supervision and control
lies with the contractor as he decides where the employee will work
and how long he will work and subject to what conditions. Only when
the contractor assigns/sends the worker to work under the principal
employer, the worker works under the supervision and control of the
principal employer but that is secondary control. The primary
control is with the contractor.
In
view of observations made by Apex Court as referred above, according
to my opinion, there is no substance at all in present petition.
The Industrial Tribunal, Baroda has not committed any error and no
such error are pointed by learned advocate Mr. Mehta on behalf of
petitioner which required interference and which exercised power
under Art. 227 of Constitution of India. Accordingly, present
petition is dismissed.
Let
petitioner Corporation may consider observation which is already
made by this Court in body of present order. It is necessary to
issue certain direction for doing substantial justice to respondent
workmen. The service of workmen were terminated on 5/10/1999 and an
industrial dispute was raised by Union which referred for
adjudication on 20/3/2002 being ITC no. 17/2002. The award passed by
Industrial Tribunal, Baroda on 22/10/2003 granted reinstatement with
full back wages as direct employees of petitioner and also directed
to pay all benefits as permanent employee of petitioner. They
should have to consider permanent from date on which they were join
in service. Thereafter, petition was filed by petitioner being SCA
no. 2193/2004 and order was passed by this Court on 23/2/2002. The
review application was preferred by petitioner in the year 2009
being no. 2/2009 exh 9 decided on 15/2/2010. this award is not
implemented so far by petitioner as admitted by learned advocate Mr.
Mehta before this Court. Even after such long gap of more than 10
years from date of termination and seven years from date of award,
workmen are not able to get fruit of such award. Therefore, it is
directed to petitioner to implement and to execute award passed by
Industrial Tribunal, Baroda in reference no. 17/2002 dated
22/10/2003 within a period of two months from date of receiving
copy of present order.
(H.K.RATHOD,
J)
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