Deputy vs Vinod

Heard learned Advocate Mr. RC Jani for petitioner Deputy Executive Engineer, Tube well Sub Division, Taluka Panchayat, Mehsana and learned Advocate Ms.Hina Desai for respondents workmen Shri Vinod S. Makwana, Pasaji Kesaji Thakore, Kantiji Tejaji Thakore and Jaidev Ambalal Garoda.

Petitioner has challenged award passed by Labour Court, Kalol in Reference No. 205 of 1988 decided on 31st July, 2003, Exh.55 where labour court has granted reinstatement on the same terms and conditions on which workmen were in service and Rs.15000.00 lumpsum amount has been granted to individual each workman in lieu of back wages for interim period. Initially rule was issued by this court on 28th January, 2004 and ad interim relief has been granted by this court and thereafter, this court has directed petitioner to pay last drawn wages because reinstatement has been stayed by this Court.

Learned Advocate Mr. RC Jani for petitioner has raised contention before this Court that workmen were working with petitioner for more than four to five years as per case of respondents and on 31st October, 1987, when they reached to working place without giving any notice or notice pay and retrenchment compensation, service of each workman was illegally terminated by petitioner. He further submitted that one Nandubhai, whose name is mentioned by labour court in impugned award was not authorized person to appoint any workman but he was only employee of petitioner. He relied upon page 22 and submitted that work was given on contract basis, therefore, petitioner has not terminated service of workmen. He further submitted that labour court has considered facts which are contrary to record and, therefore, impugned award passed by labour court is bad in law. He also submitted that the reply was filed by petitioner at Exh. 18 wherein it was stated that such workers were never appointed by taluka panchayat and they were engaged by concerned mechanics on daily rate basis and on that basis muster roll prepared by mechanic and payments were being made accordingly. He further submitted that the respondents workmen themselves had abandoned the work and this fact has not been considered by labour court. He further submitted that labour court has relied upon certificates produced below exh.26 and 27 issued by Additional Assistant Engineer who is not an authority and having no power to issue such certificate but labour court has not considered this aspect and therefore award passed by labour court is bad. He also submitted that respondents have never completed 240 days continuous service within twelve months preceding date of termination and they were not employees of petitioner taluka panchayat and, therefore, question of compliance of section 25-F of ID Act does not arise. He relied upon decision of apex court reported in 2002 (1) SCC 520 and submitted that it is for employee to prove the case instead of throwing burden on employer and, therefore, labour court has committed an error in deciding reference. He also submitted that labour court has also committed an error in not observing that at present, activity of repairing of Patal Kuwa are being done through contractor by Panchayat and therefore, no such post can be filled up and without considering this, order of reinstatement on original post is passed which is contrary to provisions of law. As per his submission, labour court has committed gross error in not considering that there is no work and, therefore, there is no question of granting reinstatement and lumsum amount has been wrongly and roughly estimated which cannot be granted to such workmen, those who were working through contractor. He further submitted that petitioner panchayat has no provision in budget regarding payment of such amount to such workers are being engaged through contractors and payment to contractor is made after passing resolution by board and, therefore, it amounts to disturbing provisions of budget of financial year and, therefore award is required to be set aside. Except these submissions, no other submission is made by learned Advocate Mr. RC Jani for petitioner panchayat and except decision referred to above, no other decision has been cited by him before this court in support of contentions recorded herein above.

Learned Advocate Ms. Hina Desai for respondents workmen submitted that labour court has rightly examined matter on the basis of evidence on record and each workman has completed continuous service of 240 days in year and certificates have been produced to establish these facts by each workman and on that basis, labour court has rightly come to conclusion that service of each workman has been terminated by petitioner without following provisions of section 25-F of ID Act, 1947 and, therefore, such termination is rightly set aside by labour court and relief of reinstatement is rightly granted in favour of each workman, for that, according to her submission, no error is committed by labour court which would require interference of this court. She also submitted that labour court has rightly granted Rs.15,000.00 being lumsum amount because petitioner panchayat is a public body, dispute has been raised in the year 1988 when termination is dated 31st October, 1987and workmen were daily wager and, therefore, she submitted that entire award passed on the basis of facts and labour court has decided factual aspects and, therefore, such fact finding given by labour court cannot be disturbed by this court in exercise of powers under Article 227 of Constitution of India.

I have considered submissions made by both learned advocates. I have also perused impugned award made by labour court. Before labour court, statement of claim was filed by each workman separately at Exh. 7, 9. According to workmen, they were working with petitioner panchayat as mechanical helper in repairing and pipe fitting of pump, motor line and carrying out same work with petitioner panchayat at Patal Kuwa. On 31.10.1987, at village Panchot on Patal Kuwa, they were having duties and in said Patal kuwa, with column pipe 26 that is with motor pump, level of said bore comes to 260 ft. and looking to that, mechanical gangman would require at least six persons and responsible mechanical person Nandubhai Jadav was informed that said pump could not be opened through four persons and, therefore, he had been excited and abused and said that more persons will not be available now you are not required and saying so, by way of an oral order, terminated their service. In connection with said incident, workmen had approached the Deputy Executive Engineer Shri HK Patel, Taluka Development Officer Shri Ninama Saheb, Taluka President Shri Ishwarbhai and Executive Engineer Shri Sompura Saheb, District President Shri Ishwarbhai Chavda etc. and had requested to Supervisor Shri PM Patel to re-engage them but of no avail. It was also alleged by workmen in their statement of claim that one Rahimbhai Nabubhai whose service was terminated after termination of their service was again engaged by petitioner establishment and new workmen were also engaged and though they are senior workmen, they have not been re-engaged for work and at the time of terminating their service, legal procedure has not been followed and retrenchment compensation has not been paid and, therefore, termination is violative of section 25-F,G and H of ID Act, 1947 and, therefore, workmen were praying for reinstatement with back wages for interim period before labour court.

Before labour court, reply was filed by petitioner panchayat at Exh. 18 denying averments made in statement of claim by workmen. According to case of petitioner, these workmen were appointed by mechanic on contract basis on daily wage and they were not employees of petitioner panchayat and they have to carry out some repairing work on Hangami Basis and, therefore, question of terminating their service does not arise.

Before labour Court, vide Exh. 19, one Shri Jaydevbhai Ambaram Garoda, workman was examined and cross examined; vide Exh. 20, workman Kantiji was examined; vide Exh. 24, one workman Pashaji was examined; vide Exh. 29, Vinodbhai Makwana was examined; vide Exh. 25, certain documents have been produced by Respondents and vide Exh. 30, closing purshis was filed by Respondents. Vide Exh. 32, witness for establishment Shri Bababhai Ambaram was examined and vide Exh. 35, witness Hariharbhai Chaudhari was examined and vide Exh. 42, witness for establishment Shri Nandlal Gokaldas was examined. Vide Exh. 44, witness Haribhai Karshanbhai was examined and thereafter, arguments of both parties were heard.In para 6, reasons have been recorded by labour court. Labour Court has framed issue whether workman has completed continuous service as required under section 25B of ID Act, 1947 or not. Labour Court has considered oral evidence of each workman, what has happened on site at bore at Panchot on 31st October, 1987 was considered by labour court. According to workmen, they were employed by one Nandubhai, even work was being entrusted to them by said Nandubhai and for whatever days they were working, they were receiving wages from petitioner panchayat and presence register was also being prepared by Nandubhai and according to instructions / directions given by Nandubhai, each workman was in service of petitioner panchayat for about eight years. Accordingly, each workman has given evidence. Witness Kantiji Tejaji examined at Exh. 20 has deposed in his examination in chief that he was working as mechanical helper. In his cross examination, it was deposed by him that he was doing work of bore fitting and he was engaged by Atmarambhai who was mechanic and his presence for 30 days was being marked and it was denied by him that his presence was not being marked after completion of work of repairing of one bore in-between work of another bore is given to him. In his cross examination, it was stated by him that certificate Exh.25/1 is his certificate. It was given pakka Exh. 26 and it was issued by Additional Assistant Engineer,Taluka Panchayat, Patal Kuva, Mehsana on 3.1.85 to Shri Kantiji and he is working since four years on muster as daily wager on mechanical side in mechanical gang. Similarly, in respect to certificate mark 25/2 which was exhibited as Exh. 27, which was issued by Additional Assistant Engineer in favour of Jaydevbhai Ambaram on 3.1.85 and he is also working on mechanical side since four years as per said certificate. Similarly, as per Exh. 29, in case of Vinodbhai also, he was working for more than three years as mechanical helper and doing work of repairing of bore. Similarly, at Exh. 24, Pashaji has deposed that since three years, he was serving in the first party establishment as helper and he was getting work for 240 days meaning thereby for whole year and in his cross examinatin, it was denied by him that he was receiving salary for the days for which he was working. Vide Exh. 26 and Exh. 27, certificate of working days and period of Kantiji Thakore and Jaydevbhai Garoda are produced. Witness for establishment Shri Bababhai Patel has deposed in his deposition at Exh. 32 that by engaging rojamdar labourers, work of bore repairing was being done and Patal Kuva of Mehsana Taluka were being maintained in that manner and rojamdar labourers who are continuing were being engaged and if labourers are not coming, then, persons having knowledge of repairing were being engaged as per their availability and labourers were being engaged on muster and mechanic was marking presence of rojamdars and salary was being paid by Taluka Panchayat as per the wages prescribed by Government. It was also deposed by him that he is aware of office record of workmen and they were coming for repairing and were being called as per requirement but in his cross examination, it was stated by him that he has worked as Deputy Executive Engineer in Mehsana from 16.10.1989 and prior to that, he was in Chanasma Taluka Panchayat and he has no personal knowledge of the work prior to October, 1989. He has also no knowledge as to whether workmen were being called for work by writing letter in 1987 or not. He has no personal knowledge that the workmen were performing work continuously since eight years, upto 1987. Another witness for petitioner establishment Shri Harisinhbhai Chaubhari has given deposition at Exh. 35 that he is working as Deputy Executive Engineer Mehsana Taluka Panchayat Patal Kuva Branch and he is aware of the record. He has also given same evidence that the workmen were daily wagers employed by Panchayat but they were not permanent employees. However, this witness is not aware about fact that on which terms, these workmen were employed by petitioner. Muster Roll of workmen are in custody of petitioner panchayat and said witness Harisinh was ready and willing to produce on record before labour court but ultimately muster roll were not produced by petitioner before labour court. It is necessary to note one important admission made by witness Harisinh in his evidence at Exh.35 that each workman has completed 240 days continuous service within one year and witness Nandlal at Exh. 42 has also admitted in his examination in chief that workmen were being engaged by petitioner panchayat on muster and each month, they were working for more than 10 to 15 days and some time, they were being continued for entire month. He also admitted that after termination of service of these workmen in 1987, new daily wagers have been recruited/employed by petitioner panchayat. It is also admitted by said witness that these workmen were working with panchayat since last three to four years. However, how many persons have been taken on daily wage basis for work at Patal Kuva for repairing bore, for that, he was having no personal knowledge. Labour Court, Kalol has considered this oral evidence of workmen as well as evidence of each witness of petitioner and has also considered certificates produced by workmen,admitted by witness for petitioner panchayat and after considering all this evidence on record, labour court has come to conclusion that each workman has completed 240 days continuous service with petitioner panchayat and after considering decision of this Court in case of Moti Ceramics Ind. v. Jivuben Rupa and others [2000 (2) GLR 1558] = 2000 (1) CLR 126, labour court has come to conclusion that petitioner being taluka panchayat, is a public body and workmen were employed by petitioner on muster roll as daily wagers and workmen worked since many years. That fact has been proved before labour court by oral and documentary evidence led before labour court and accordingly labour court has come to conclusion that workmen have completed continuous service of 240 days as per admission made by witness for petitioner and relevant record was not produced by petitioner panchayat before labour court. In all, four witnesses were examined by petitioner panchayat before labour court and one witness has shown willingness in his cross examination that he will produce muster roll and yet, that muster roll has not been produced before labour court by petitioner and, therefore, labour court has considered two aspects, one is entire oral evidence of each workmen and certificates as referred to above and non production of relevant record in respect of workmen namely muster roll pay register etc. and, therefore, in absence of such documents, labour court has rightly drawn adverse inference against petitioner and has rightly come to conclusion that workmen have completed 240 days continuous service within preceding 12 months from date of termination in light of certificates admitted by witness for petitioner and workmen have performed continuous duties as per section 25B of ID Act, 1947. Considering deposition of workmen on oath before labour court wherein it was deposed by workmen that before terminating their service, petitioner has not given any notice, notice pay in lieu thereof and retrenchment compensation as well as deposition of witness for petitioner Shri Nandlal at Exh. 42 wherein it was deposed by him that it is correct that after terminating service of workmen, on their place, other persons were working and that while terminating service of present workmen, petitioner has not given notice or notice pay in lieu of notice and retrenchment compensation has also not been paid to them, labour court has come to conclusion in light of evidence on record that in terminating service of respondents workmen, petitioner has committed breach of section 25-F, G and H of ID Act, 1947. Labour Court has also observed that the nature of work which was being performed by workmen remained continue and such work has been given by petitioner at present on contract basis and, therefore, labour court has come to conclusion that such termination is contrary to section 25F, G and H of ID Act, 1947. Therefore, labour court has set aside termination order of workmen dated 31st October, 1987.

While considering question of back wages, labour court has considered question of gainful employment. Dispute has been raised in the year 1988. Labour Court has considered long delay in deciding reference of about fifteen years and considering all such aspects, labour court thought it fit to grant lumsum amount in lieu of back wages because petitioner panchayat is a statutory body. Accordingly, labour court granted relief of reinstatement with continuity of service to each workman on original post on same terms and conditions with lumsum amount of Rs.15000.00 in lieu of back wages, by way of compensation, for interim period of about fifteen years.

I have considered reasoning given by labour court. I have also considered submissions made by both learned advocates. I have also examined matter in detail. I have also considered evidence of four witnesses for petitioner as well as certificates at Exh. 26 and 27 produced on record and admitted by witness for petitioner. I have also considered one admission made by witness for petitioner Shri Harisinh Chaudhari who was examined at Exh. 35 and has admitted that each workman has completed continuous service of 240 days. Therefore, considering such fact finding given by labour court for deciding factual aspect, normally this court cannot disturb such fact finding unless it is successfully established before this court that such fact finding given by labour court is contrary to evidence on record and/or perverse. In case before hand, learned Advocate Mr. RC Jani for petitioner has not been able to establish that these findings of fact recorded by labour court are perverse and contrary to evidence on record. Completion of 240 days continuous service was established before labour court on the basis of evidence of workmen as well as certificates at Exh. 26 and 27 and evidence of four witnesses for petitioner as discussed above. Adverse inference was drawn by labour court against petitioner because witness for petitioner admitted before labour court that relevant documents are in possession of petitioner and same will be produced before labour court but subsequently, such documents were not produced by petitioner before labour court. Therefore, considering such finding of fact recorded by labour court after appreciating oral and documentary evidence on record, according to my opinion, labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of the Constitution of India. Labour court has rightly granted lumsum amount of Rs.15000.00 to each workman in lieu of back wages for interim period of about fifteen years while keeping in mind relevant factors and, for that, labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of Constitution of India. Normally this court cannot disturb such finding of fact decided by labour court in exercise of powers under Article 227 of Constitution of India. Findings given by labour court that the termination of service of workmen is violative of section 25F, G and H are also based upon appreciation of facts and, therefore, labour court has rightly decided such aspects.

[See :

Rameshkumar versus State of Haryana, 2010 (1) SCALE 432; Harjinder Singh versus Punjab State Warehousing Corporation, 2010 (1) SCALE page 613;

Krishnan, 2010 (2) SCALE page 848].

Recently apex court has considered scope of Article 227 of Constitution of India in case of State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010.

The relevant Para 22 to 29 are quoted as under:

22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.

23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.

24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.

25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-

"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."

This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.

27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.

28.In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.

29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.

In view of above observations made by this court while discussing evidence on record and reasoning given by labour court, according to my opinion, no interference of this court is required under Article 227 of Constitution of India. Hence, there is no substance in this petition and, therefore, this petition is dismissed with no order as to costs. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.

It is directed to petitioner panchayat to implement award passed by Labour Court Kalol in Reference (LCK) NO. 205 of 1988 dated 31st July, 2003 published on 4th August, 2003 within one month from date of receipt of copy of this order.

(H.K.Rathod,J.) Vyas Top