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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

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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

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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,

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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

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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.