{"id":220948,"date":"2002-10-29T00:00:00","date_gmt":"2002-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-essen-deinki-vs-rajiv-kumar-on-29-october-2002"},"modified":"2018-08-30T04:42:47","modified_gmt":"2018-08-29T23:12:47","slug":"ms-essen-deinki-vs-rajiv-kumar-on-29-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-essen-deinki-vs-rajiv-kumar-on-29-october-2002","title":{"rendered":"M\/S Essen Deinki vs Rajiv Kumar on 29 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S Essen Deinki vs Rajiv Kumar on 29 October, 2002<\/div>\n
Author: Banerjee<\/div>\n
Bench: Umesh C. Banerjee, Y.K. Sabharwal.<\/div>\n
           CASE NO.:\nAppeal (civil)  7038 of 2002\n\nPETITIONER:\nM\/s Essen Deinki\n\nRESPONDENT:\nRajiv Kumar\n\nDATE OF JUDGMENT: 29\/10\/2002\n\nBENCH:\nUmesh C. Banerjee & Y.K. Sabharwal.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
BANERJEE, J.\n<\/p>\n
Leave granted.\n<\/p>\n
\tGenerally  speaking, exercise of jurisdiction under Article
\n227 of the Constitution\t is  limited and  restrictive in nature.  It is
\nso exercised in the normal circumstances for want of jurisdiction,
\nerrors of law, perverse findings and gross violation of natural
\njustice, to name a few.\t  It is merely a revisional jurisdiction and
\ndoes not confer an unlimited authority or prerogative to correct all
\norders or even wrong decisions made within the limits of the
\njurisdiction of the Courts below. The finding of  fact being within
\nthe domain of the inferior Tribunal, except where it is a perverse
\nrecording thereof or not based on any material whatsoever
\nresulting in manifest injustice, interference under the Article is not
\ncalled for:\n<\/p>\n
The observations above however, find affirmance in the
\ndecision of this Court in   Nibaran Chandra Bag v. Mahendra Nath
\nGhughu (AIR<\/a> 1963 SC 1895).  In Nibaran (supra) this Court has
\nbeen rather categorical in recording that the jurisdiction so
\nconferred is  by no means appellate in\tnature for correcting errors
\nin the decision of the subordinate Courts or Tribunals but is merely
\na power of superintendence to be used to keep them within the
\nbounds of their authority.   More recently, in Mani Nariman
\nDaruwala and Bharucha (deceased) through LRs & Ors. v. Phiroz
\nN. Bhatena & Ors. (AIR 1991 SC 1494), this Court in the similar
\nvein stated :\n<\/p>\n
\t“In the exercise of this jurisdiction the High Court
\ncan set aside or ignore the findings of fact of an inferior
\nCourt or tribunal if there was no evidence to justify
\nsuch a conclusion and if no reasonable person could
\npossibly have come to the conclusion which the Court
\nor tribunal who has come or in other words it is a
\nfinding which was perverse in law.   Except to the
\nlimited extent indicated above the High Court has no
\njurisdiction to interfere with the findings of fact.”\n<\/p>\n
Needless to record that there is total unanimity of judicial
\nprecedents on the score that error must be that of law and patently
\non record committed by the inferior Tribunal so as to warrant
\nintervention  it ought not to act as a Court of appeal and there is
\nno dissention or even a contra note being sounded at any point of
\ntime till date.\t Incidentally, the illegality, if there be any, in an
\norder of an inferior Tribunal, it would however be a plain exercise
\nof jurisdiction under the Article  to correct the same as otherwise
\nthe law Courts would fail to subserve the needs of the society since
\nillegality cannot even be countenanced under any circumstances.
\nIn this context reference may also be made to a still later
\ndecision of this Court in the case of  Savita Chemicals (P) Ltd. v.
\nDyes & Chemical Workers’ Union & Anr.<\/a> (1999 (2) SCC 143),
\nwherein this Court in paragraph 19 of the Report observed :
\n“. Under Article 227 of the Constitution of
\nIndia, the High Court could not have set aside any
\nfinding reached by the lower authorities where two
\nviews were possible and unless those findings were
\nfound to be patently bad and suffering from clear errors
\nof law. ..”\n<\/p>\n
Adverting however, to the factual score at this juncture,  it
\nappears that the Respondent-workman joined the services of the
\nAppellant as  a helper\ton  1st July, 1990  and\t  continued  till    26th
\nFebruary, 1991.\t The service was terminated however,  on the
\nground that in his short stay with the Appellant his work was not
\nfound to be of\tdesired standard.   The Appellant did not feel it
\nexpedient, however, to comply with the provisions of Section 25-F
\nby reason of non-completion of 240 days in the preceding 12
\ncalendar months.  As a matter of fact it has been the contention of
\nthe Appellant at all stages that the Respondent-workman worked
\nfor a total period of 219 days in totality within the preceding 12
\nmonths period thereby falling short of statutory requirements
\nnoticed above.\n<\/p>\n
Mr. Ranjit Kumar, learned Senior Advocate appearing in
\nsupport of the Appeal, however, incidentally contended that the
\ncalculation of 219 days stands out to be inclusive of Sundays and
\npaid holidays excepting the working days on which the
\nRespondent was unauthorisedly absent since there was a strike on
\n25th February, 1991.\n<\/p>\n
\tThe factual score depict that the Respondent-workman raised
\nan industrial dispute which was referred to by the Appropriate
\nGovernment for adjudication to the Labour Court vide Reference
\nNo.129 of 1995.\t  Significantly, Mr. Ranjit Kumar with his usual
\neloquence emphasised the stand of the Respondent-workman
\nhimself\t in his statement recorded on 25th November, 1997 in the
\nproceedings before the Labour Court to the effect that he had not
\ncompleted 240 days of service.\tSubsequently, upon consideration
\non the factual score, the Labour Court passed an Award in favour
\nof the Appellant herein and returned a finding on fact that the
\nconcerned workman had not completed 240 days and, therefore,
\nthe termination was held to be valid and compliance of\tSection
\n25-F was not required in terms of the provisions of the Industrial
\nDisputes Act.\n<\/p>\n
To continue with the factual backdrop, the Respondent-
\nworkman\t however, filed a Civil Writ Petition being C.W.P.
\nNo.15275 of 1999 against the said Award passed by the learned
\nLabour Court, wherein the workman stated that there was some
\namount of miscalculation of the number of working days since
\nRespondent-workman had in fact worked for exactly 240 days.
\n\tNeedless to record however that on 25th February, 1991,
\nthere was a strike and the Respondent-workman did also
\nparticipate therein and this aspect of the matter stands highlighted
\nby Mr. Ranjit Kumar in his submissions that the High Court in
\nexercising jurisdiction under Article 227 of the Constitution
\nreappreciated the evidence on record and was pleased to take a
\ndifferent view from the finding arrived at by the learned Labour
\nCourt on the basis of Workmen of American Express International
\nBanking Corporation v. Management of American Express
\nInternational Banking Corporation<\/a> (1985 (4) SCC 71), inter alia,
\nrecording that while calculating the actual working days, Sundays
\nand other paid holidays can be taken into account.   Mr. Ranjit
\nKumar has been rather vocal in the context that the High Court
\nfailed to consider that\t even if the calculation of the Respondent-
\nworkman was taken on the face value, the workman had completed
\nonly 239 days as on 25th February, 1991, when admittedly the
\nworkers went on strike and the Respondent-workman thus had not
\ncompleted 240 days.   Mr. Ranjit Kumar contended that in exercise
\nof jurisdiction under Article 227 of the Constitution, the High
\nCourt has not only exceeded its jurisdiction but clearly erred in
\ninterfering with the finding of fact.\tAggrieved by the order, the
\nAppellant herein thus moved this Court under Article 136 of the
\nConstitution.\n<\/p>\n
\tThe principal issue thus appears to be as to whether the
\nRespondent-workman had completed 240 days of service in terms
\nof the statutory provisions.  The evidence in support of the
\nconcerned workman himself however answers  the issue in the
\nnegative, since it has been categorically stated: “it is correct that I
\nhave not  completed 240 days of serviceI proceeded on
\nstrike on 25.2.91”.   Admittedly the Respondent-workman’s
\nservice was terminated on 26.2.91 due to non-satisfactory work
\nand it has been Mr. Ranjit Kumar’s definite and emphatic
\nsubmission that the respondent had worked not more than 219
\ndays as noticed herein before and question thus of having an
\nanswer in the affirmative to the issue posed herein before would
\nnot arise.\n<\/p>\n
\tIncidentally, be it noted that the Labour Court upon perusal
\nof the evidence and on a thorough probe into the matter came to a
\ndefinite conclusion that worker has failed to prove that his services
\nhad been terminated in an illegal manner by the respondent (the
\nAppellant herein) and thereby recorded an answer in  the negative
\nfor the issue as posed. In the final analysis upon consideration of
\nall relevant facts the Labour Court recorded: “In the final analysis,
\nthe view of my above findings, I see no merit in this reference and
\nthe same is hereby declined.  Appropriate Government be
\ninformed.”\n<\/p>\n
\tIt is against this order of the Labour Court that the High
\nCourt was approached under Article 227 of the Constitution and
\nthe latter relying upon the decision of this Court in American
\nExpress\t  (supra) came to a conclusion that the workman in fact
\nhave completed 240 days of service and as such allowed writ
\npetition and did set aside the award of the Labour Court with a
\ndirection that the petitioner be reinstated in service with full back
\nwages.\t  It is this finding which is under challenge before this
\nCourt with the grant of leave under Article 136 of the Constitution.
\nThe record of proceedings referred to thus depict that the Labour
\nCourt while rejected the Reference on appreciation of facts, the
\nHigh Court thought it fit to reverse it on the basis of the law laid
\ndown by this Court in American Express (supra).\t  It would thus be
\nconvenient to note the opinion expressed by this Court in
\nAmerican Express at this juncture.   This Court in paragraph 5 of
\nthe Report has stated as below :\n<\/p>\n
“5.\tSection\t 25-F of the Industrial Disputes Act
\nis plainly intended to give relief to retrenched
\nworkmen.   The qualification for relief under Section
\n25-F is that he should be a workman employed in an
\nindustry and has been in continuous service for not less
\nthan one year under an employer.   What is continuous
\nservice has been defined and explained in Section 25-B
\nof the Industrial Disputes Act.\t In the present case, the
\nprovision which is of relevance is Section 25-B(2)\n<\/p>\n
(a)(ii) which to the extent that it  concerns us, provides
\nthat a workman who is not in continuous service for a
\nperiod of one year shall be deemed to be in continuous
\nservice for a period of one year if the workman, during
\na period of twelve calendar months preceding the date
\nwith reference to which the calculation is to be made,
\nhas actually worked under the employer for not less
\nthan 240 days.\t The expression which we are required
\nto construe is “actually worked under the employer”.
\nThis expression, according to us, cannot mean those
\ndays only when the workman worked with hammer,
\nsickle or pen, but must necessarily comprehend all
\nthose days during which he was in the employment of
\nthe employer and for which he had been paid wages
\neither under express or implied contract of service or by
\ncompulsion of statute, standing orders etc.   The learned
\ncounsel for the Management would urge that only those
\ndays which are mentioned in the Explanation to Section
\n25-B(2) should be taken into account for the purpose of
\ncalculating the number of days on which the workmen
\nhad actually worked though he had not so worked and
\nno other days.\t We do not think that we are entitled to
\nso constrain the construction of the expression “actually
\nworked under the employer”.   The explanation is only
\nclarificatory, as all explanations are, and cannot be used
\nto limit the expanse of the main provision.   If the
\nexpression “actually worked under the employer” is
\ncapable of comprehending the days during which the
\nworkman was in employment and was paid wages
\nand we see no impediment to so construe the expression
\n there is no reason why the expression should be
\nlimited by the explanation.   To give it any other
\nmeaning than what we have done would bring the
\nobject of Section 25-F very close to frustration.   It is
\nnot necessary to give examples of how Section 25-F
\nmay be frustrated as they are too obvious to be stated.”\n<\/p>\n
\tWhilst it is true that the law seems to be rather well settled as
\nregards the ‘bread and butter’ statutes and the welfare legislation
\nintroduced in the Statute Book for the purposes of eradication of
\nsocial malady, it is a duty incumbent on to the law Courts to offer a
\nmuch broader interpretation since the legislation is otherwise
\ndesigned to perpetration of any arbitrary action and no contra view
\nthus is plausible.   American Express affirms such a view.\n<\/p>\n
\tSignificantly, the appellant’s contention does not run counter
\nto the opinion expressed in American Express.\tIt has been the
\ndefinite contention of Mr. Ranjit Kumar that even the test laid
\ndown under American Express does not stand to acceptance of the
\nworkman’s case.\t  The requirement of the Statute of 240 days
\ncannot be disputed and it is for the employee concerned to prove
\nthat he has in fact completed 240 days in the last preceding 12
\nmonths’ period.\t  As noticed hereinbefore, it has been the definite
\ncase of the workman concerned whilst at the stage of evidence that
\nhe has not worked for 240 days, as noticed hereinbefore in this
\njudgment more fully.   And it is on this score Mr. Ranjit Kumar has
\nbeen rather emphatic that the High Court has thus fallen into a
\ngrave error in reversing the order of the Labour Court.\t  It is a
\nfinding of fact which the High Court cannot possibly overturn
\nwithout assailing the order of the Labour Court as otherwise
\nperverse.   The High Court unfortunately has not dealt with the
\nmatter in that perspective.\n<\/p>\n
\tThe proof of working for 240 days is stated to be on the
\nemployee in the event of any denial of such a factum and it is on
\nthis score that this Court in Range Forest Officer v. S.T. Hadimani<\/a>
\n(2002 (3) SCC 25) was pleased to state as below :\n<\/p>\n
” In our opinion the Tribunal was not right in
\nplacing the onus  on the management without first
\ndetermining on the basis of cogent evidence that the
\nrespondent had worked for more than 240 days in the
\nyear preceding his termination.\t  It was the case of the
\nclaimant that he had so worked but this claim was
\ndenied by the appellant.   It was then for the claimant to
\nlead evidence to show that he had in fact worked for
\n240 days in the year preceding his termination.\t  Filing
\nof an affidavit is only his own statement in his favour
\nand that cannot be regarded as sufficient evidence for
\nany court or tribunal to come to the conclusion that a
\nworkman had, in fact, worked for 240 days in a year.
\nNo proof of receipt of salary or wages for 240 days or
\norder or record of appointment or engagement for this
\nperiod was produced by the workman.   On this ground
\nalone, the award is liable to be set aside. .”\n<\/p>\n
\tHaving regard to the opinion of this Court in the last noted
\ndecision, question of affirmance of the impugned judgment cannot
\nand does not arise more so by reason of the fact that even this
\nCourt searched in vain in regard to the availability of such an
\nevidence.   The High Court, in our view, has thus committed a
\nmanifest error in reversing the order of the Labour Court.\n<\/p>\n
\tThe appeal, therefore, succeeds.   The impugned order stands
\nset aside and quashed and the order of the Labour Court stands
\nrestored.   No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S Essen Deinki vs Rajiv Kumar on 29 October, 2002 Author: Banerjee Bench: Umesh C. Banerjee, Y.K. Sabharwal. CASE NO.: Appeal (civil) 7038 of 2002 PETITIONER: M\/s Essen Deinki RESPONDENT: Rajiv Kumar DATE OF JUDGMENT: 29\/10\/2002 BENCH: Umesh C. Banerjee & Y.K. Sabharwal. JUDGMENT: JUDGMENT BANERJEE, J. Leave granted. Generally speaking, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-220948","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S Essen Deinki vs Rajiv Kumar on 29 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-essen-deinki-vs-rajiv-kumar-on-29-october-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Essen Deinki vs Rajiv Kumar on 29 October, 2002 - 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