Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
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, exercise of jurisdiction under Article
227 of the Constitution is limited and restrictive in nature. It is
so exercised in the normal circumstances for want of jurisdiction,
errors of law, perverse findings and gross violation of natural
justice, to name a few. It is merely a revisional jurisdiction and
does not confer an unlimited authority or prerogative to correct all
orders or even wrong decisions made within the limits of the
jurisdiction of the Courts below. The finding of fact being within
the domain of the inferior Tribunal, except where it is a perverse
recording thereof or not based on any material whatsoever
resulting in manifest injustice, interference under the Article is not
called for:
The observations above however, find affirmance in the
decision of this Court in Nibaran Chandra Bag v. Mahendra Nath
Ghughu (AIR 1963 SC 1895). In Nibaran (supra) this Court has
been rather categorical in recording that the jurisdiction so
conferred is by no means appellate in nature for correcting errors
in the decision of the subordinate Courts or Tribunals but is merely
a power of superintendence to be used to keep them within the
bounds of their authority. More recently, in Mani Nariman
Daruwala and Bharucha (deceased) through LRs & Ors. v. Phiroz
N. Bhatena & Ors. (AIR 1991 SC 1494), this Court in the similar
vein stated :
"In the exercise of this jurisdiction the High Court
can set aside or ignore the findings of fact of an inferior
Court or tribunal if there was no evidence to justify
such a conclusion and if no reasonable person could
possibly have come to the conclusion which the Court
or tribunal who has come or in other words it is a
finding which was perverse in law. Except to the
limited extent indicated above the High Court has no
jurisdiction to interfere with the findings of fact."
Needless to record that there is total unanimity of judicial
precedents on the score that error must be that of law and patently
on record committed by the inferior Tribunal so as to warrant
intervention it ought not to act as a Court of appeal and there is
no dissention or even a contra note being sounded at any point of
time till date. Incidentally, the illegality, if there be any, in an
order of an inferior Tribunal, it would however be a plain exercise
of jurisdiction under the Article to correct the same as otherwise
the law Courts would fail to subserve the needs of the society since
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
illegality cannot even be countenanced under any circumstances.
In this context reference may also be made to a still later
decision of this Court in the case of Savita Chemicals (P) Ltd. v.
Dyes & Chemical Workers’ Union & Anr. (1999 (2) SCC 143),
wherein this Court in paragraph 19 of the Report observed :
". Under Article 227 of the Constitution of
India, the High Court could not have set aside any
finding reached by the lower authorities where two
views were possible and unless those findings were
found to be patently bad and suffering from clear errors
of law. .."
Adverting however, to the factual score at this juncture, it
appears that the Respondent-workman joined the services of the
Appellant as a helper on 1st July, 1990 and continued till 26th
February, 1991. The service was terminated however, on the
ground that in his short stay with the Appellant his work was not
found to be of desired standard. The Appellant did not feel it
expedient, however, to comply with the provisions of Section 25-F
by reason of non-completion of 240 days in the preceding 12
calendar months. As a matter of fact it has been the contention of
the Appellant at all stages that the Respondent-workman worked
for a total period of 219 days in totality within the preceding 12
months period thereby falling short of statutory requirements
noticed above.
Mr. Ranjit Kumar, learned Senior Advocate appearing in
support of the Appeal, however, incidentally contended that the
calculation of 219 days stands out to be inclusive of Sundays and
paid holidays excepting the working days on which the
Respondent was unauthorisedly absent since there was a strike on
25th February, 1991.
The factual score depict that the Respondent-workman raised
an industrial dispute which was referred to by the Appropriate
Government for adjudication to the Labour Court vide Reference
No.129 of 1995. Significantly, Mr. Ranjit Kumar with his usual
eloquence emphasised the stand of the Respondent-workman
himself in his statement recorded on 25th November, 1997 in the
proceedings before the Labour Court to the effect that he had not
completed 240 days of service. Subsequently, upon consideration
on the factual score, the Labour Court passed an Award in favour
of the Appellant herein and returned a finding on fact that the
concerned workman had not completed 240 days and, therefore,
the termination was held to be valid and compliance of Section
25-F was not required in terms of the provisions of the Industrial
Disputes Act.
To continue with the factual backdrop, the Respondent-
workman however, filed a Civil Writ Petition being C.W.P.
No.15275 of 1999 against the said Award passed by the learned
Labour Court, wherein the workman stated that there was some
amount of miscalculation of the number of working days since
Respondent-workman had in fact worked for exactly 240 days.
Needless to record however that on 25th February, 1991,
there was a strike and the Respondent-workman did also
participate therein and this aspect of the matter stands highlighted
by Mr. Ranjit Kumar in his submissions that the High Court in
exercising jurisdiction under Article 227 of the Constitution
reappreciated the evidence on record and was pleased to take a
different view from the finding arrived at by the learned Labour
Court on the basis of Workmen of American Express International
Banking Corporation v. Management of American Express
International Banking Corporation (1985 (4) SCC 71), inter alia,
recording that while calculating the actual working days, Sundays
and other paid holidays can be taken into account. Mr. Ranjit
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
Kumar has been rather vocal in the context that the High Court
failed to consider that even if the calculation of the Respondent-
workman was taken on the face value, the workman had completed
only 239 days as on 25th February, 1991, when admittedly the
workers went on strike and the Respondent-workman thus had not
completed 240 days. Mr. Ranjit Kumar contended that in exercise
of jurisdiction under Article 227 of the Constitution, the High
Court has not only exceeded its jurisdiction but clearly erred in
interfering with the finding of fact. Aggrieved by the order, the
Appellant herein thus moved this Court under Article 136 of the
Constitution.
The principal issue thus appears to be as to whether the
Respondent-workman had completed 240 days of service in terms
of the statutory provisions. The evidence in support of the
concerned workman himself however answers the issue in the
negative, since it has been categorically stated: "it is correct that I
have not completed 240 days of serviceI proceeded on
strike on 25.2.91". Admittedly the Respondent-workman’s
service was terminated on 26.2.91 due to non-satisfactory work
and it has been Mr. Ranjit Kumar’s definite and emphatic
submission that the respondent had worked not more than 219
days as noticed herein before and question thus of having an
answer in the affirmative to the issue posed herein before would
not arise.
Incidentally, be it noted that the Labour Court upon perusal
of the evidence and on a thorough probe into the matter came to a
definite conclusion that worker has failed to prove that his services
had been terminated in an illegal manner by the respondent (the
Appellant herein) and thereby recorded an answer in the negative
for the issue as posed. In the final analysis upon consideration of
all relevant facts the Labour Court recorded: "In the final analysis,
the view of my above findings, I see no merit in this reference and
the same is hereby declined. Appropriate Government be
informed."
It is against this order of the Labour Court that the High
Court was approached under Article 227 of the Constitution and
the latter relying upon the decision of this Court in American
Express (supra) came to a conclusion that the workman in fact
have completed 240 days of service and as such allowed writ
petition and did set aside the award of the Labour Court with a
direction that the petitioner be reinstated in service with full back
wages. It is this finding which is under challenge before this
Court with the grant of leave under Article 136 of the Constitution.
The record of proceedings referred to thus depict that the Labour
Court while rejected the Reference on appreciation of facts, the
High Court thought it fit to reverse it on the basis of the law laid
down by this Court in American Express (supra). It would thus be
convenient to note the opinion expressed by this Court in
American Express at this juncture. This Court in paragraph 5 of
the Report has stated as below :
"5. Section 25-F of the Industrial Disputes Act
is plainly intended to give relief to retrenched
workmen. The qualification for relief under Section
25-F is that he should be a workman employed in an
industry and has been in continuous service for not less
than one year under an employer. What is continuous
service has been defined and explained in Section 25-B
of the Industrial Disputes Act. In the present case, the
provision which is of relevance is Section 25-B(2)
(a)(ii) which to the extent that it concerns us, provides
that a workman who is not in continuous service for a
period of one year shall be deemed to be in continuous
service for a period of one year if the workman, during
a period of twelve calendar months preceding the date
with reference to which the calculation is to be made,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
has actually worked under the employer for not less
than 240 days. The expression which we are required
to construe is "actually worked under the employer".
This expression, according to us, cannot mean those
days only when the workman worked with hammer,
sickle or pen, but must necessarily comprehend all
those days during which he was in the employment of
the employer and for which he had been paid wages
either under express or implied contract of service or by
compulsion of statute, standing orders etc. The learned
counsel for the Management would urge that only those
days which are mentioned in the Explanation to Section
25-B(2) should be taken into account for the purpose of
calculating the number of days on which the workmen
had actually worked though he had not so worked and
no other days. We do not think that we are entitled to
so constrain the construction of the expression "actually
worked under the employer". The explanation is only
clarificatory, as all explanations are, and cannot be used
to limit the expanse of the main provision. If the
expression "actually worked under the employer" is
capable of comprehending the days during which the
workman was in employment and was paid wages
and we see no impediment to so construe the expression
there is no reason why the expression should be
limited by the explanation. To give it any other
meaning than what we have done would bring the
object of Section 25-F very close to frustration. It is
not necessary to give examples of how Section 25-F
may be frustrated as they are too obvious to be stated."
Whilst it is true that the law seems to be rather well settled as
regards the ’bread and butter’ statutes and the welfare legislation
introduced in the Statute Book for the purposes of eradication of
social malady, it is a duty incumbent on to the law Courts to offer a
much broader interpretation since the legislation is otherwise
designed to perpetration of any arbitrary action and no contra view
thus is plausible. American Express affirms such a view.
Significantly, the appellant’s contention does not run counter
to the opinion expressed in American Express. It has been the
definite contention of Mr. Ranjit Kumar that even the test laid
down under American Express does not stand to acceptance of the
workman’s case. The requirement of the Statute of 240 days
cannot be disputed and it is for the employee concerned to prove
that he has in fact completed 240 days in the last preceding 12
months’ period. As noticed hereinbefore, it has been the definite
case of the workman concerned whilst at the stage of evidence that
he has not worked for 240 days, as noticed hereinbefore in this
judgment more fully. And it is on this score Mr. Ranjit Kumar has
been rather emphatic that the High Court has thus fallen into a
grave error in reversing the order of the Labour Court. It is a
finding of fact which the High Court cannot possibly overturn
without assailing the order of the Labour Court as otherwise
perverse. The High Court unfortunately has not dealt with the
matter in that perspective.
The proof of working for 240 days is stated to be on the
employee in the event of any denial of such a factum and it is on
this score that this Court in Range Forest Officer v. S.T. Hadimani
(2002 (3) SCC 25) was pleased to state as below :
" In our opinion the Tribunal was not right in
placing the onus on the management without first
determining on the basis of cogent evidence that the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
respondent had worked for more than 240 days in the
year preceding his termination. It was the case of the
claimant that he had so worked but this claim was
denied by the appellant. It was then for the claimant to
lead evidence to show that he had in fact worked for
240 days in the year preceding his termination. Filing
of an affidavit is only his own statement in his favour
and that cannot be regarded as sufficient evidence for
any court or tribunal to come to the conclusion that a
workman had, in fact, worked for 240 days in a year.
No proof of receipt of salary or wages for 240 days or
order or record of appointment or engagement for this
period was produced by the workman. On this ground
alone, the award is liable to be set aside. ."
Having regard to the opinion of this Court in the last noted
decision, question of affirmance of the impugned judgment cannot
and does not arise more so by reason of the fact that even this
Court searched in vain in regard to the availability of such an
evidence. The High Court, in our view, has thus committed a
manifest error in reversing the order of the Labour Court.
The appeal, therefore, succeeds. The impugned order stands
set aside and quashed and the order of the Labour Court stands
restored. No costs.