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Judgment
This writ petition has been filed in the exercise of power conferred under Article 227 of the Constitution of India whereby the award in Reference Case No.22/2014 dated 06.04.2015, has been passed for engagement of the workman without giving any back wages.
Learned counsel for the respondent-Management by assailing the argument has submitted that the reference has been answered on the basis of document produced by the workman which was obtained under the Provision of Right to Information Act showing therein that the workman has already worked for a period of 293 days and hence, the evidence led by the Management has not been appreciated by the Tribunal and as such, the award cannot be said to be with application of mind rather it is mechanical and cryptic.
Mr. Waris, learned counsel for the respondent-Workman, has submitted that although the award has been passed by making reference with respect to the document produced under Right to Information Act, 2005 but from the counter-affidavit filed by him on behalf of workman it can be demonstrated that the evidence has been led by the workman showing therein that the petitioner has performed continuous service of 240 days and as such, before retrenching the workman from service the condition prescribed under the Provision of 25-F of the Industrial Disputes Act, 1976 ought to have been complied with since it has not been complied therefore the Tribunal by accepting the document obtained by the petitioner under the Provision of Right to Information Act showing that the petitioner has performed duty for 293 days has answered the reference in favour of the workman hence, there is no infirmity.
In response, learned counsel for the petitioner has submitted that the primary duty of the Tribunal is to exercise power of adjudication under the statutory provision as per the Provision of Industrial Dispute Act, which is to be based upon the deposition of the witnesses which ought to have been taken into consideration before reaching to the conclusion but the Tribunal had failed to appreciate it, therefore, the award cannot be said to be with appropriate reasoning, which having not been found in the award.
Learned counsel appearing for the Workman has been submitted that the ground taken in the counter-affidavit is against the settled proposition of law since any reasoning cannot be supplemented by way of an affidavit.
Having heard learned counsel for the parties and on appreciation of the rival submissions and before going into the legally and propriety of the award, it needs to refer the Provision of Section 25-B of the Industrial Disputes Act, 1947 stipulates the continuous service which is as under:-
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause
(1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
Explanation.- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been on leave with full wages, earned in the previous years;
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25-F confers power upon the Management for retrenchment but before doing the same certain conditions prescribed therein is necessary to be complied with i.e. (a) the workman has been given one month' notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice. (b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months.
Thus, it is evident that before retrenching a workman in exercise of power conferred under Section 25-F of the Industrial Disputes Act,1947 two conditions is precedent therein i.e. (1) notice is to be given to the workman and thereafter retrenchment compensation.
The other condition is that workman has to discharge his duty for a period of 240 days continuous service from the definition stipulated under Section 25-F of the Industrial Disputes Act, 1947.
The workman having been retrenched without following any conditions as stipulated under Section 25-F of the Industrial Disputes Act, has raised a dispute, the same has been referred for conciliation but cancellation was failed and a failure report was submitted as per the provision stipulated under Section 12-4 of the Industrial Disputes Act, 1947 and thereafter, the appropriate Government has made reference to that effect.
"Whether the action of the management of Central Bank of India, Muzaffarpur in terminating the service of Shri Ramesh Kumar, Sub-Staff, Devapur Branch, P.O.- Motihari, District-East Champaran (Bihar) is legal and or justified? If not, what relief Sri Ramesh Kumar is entitled to?"
The reference has been answered in favour of the workman by passing an award of engagement but without any backwages.
The same has been challenged by the workman by invoking the power of jurisdiction by this Court under Article 227 of the Constitution of India.
It needs to refer herein that the scope of High Court for interfering with an award in exercise of power under Article 227 of the Constitution of India is least, save and except, if the award is without jurisdiction or there is an error apparent on the face of record or the award is perverse.
This Court, after going across the findings stipulated in the award, has found that merely on the basis of the document furnished by the petitioner under the Provision of Right to Information Act showing therein that the workman has performed her duty for a period of 293 days continuously, has answered the reference.
It has been brought on record by the workman by filing a counter-affidavit the evidence of witnesses but surprisingly no reference to that effect have been made, therefore, the award cannot be said to be based upon the consideration of material of fact.
The ground which has been urged by the counsel for the Workman that the witnesses have stated in his favour as would be evident from the material brought on record by way of the counter-affidavit but the said part of pleading in the counter-affidavit cannot be acceptable for treating it the part of the award unless reflected therein and further the reason cannot be supplemented by way of filing of an affidavit in this regard reference may be made to the judgment of
Hon'ble Supreme Court rendered in the case of: Commissioner of Police, Bombay Vs. Gordhandas Bhanji, A.I.R. (39) 1952 Supreme Court 16, Para-vii (b)
"b. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Mohinder Singh Gill And Another Vs. The Chief Election Commissioner, New Delhi And Others, (1978) 1 SCC 405, Para-8:
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
East Coast Railway And Another Vs. Mahadev Appa Rao And Others, 2010 7 SCC 678, Para-9:
There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of any such order is under challenge. The legal position in this regard is settled by the decision of this Court in Commr. of Police v. Gordhandas Bhanji wherein this Court observed: (AIR p. 18, para 9)
"9. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
United Air Travel Services Through Its Proprietor A.D.M. Anwar Khan Vs. Union of India Through Secretary (Ministry of External Affairs), 2018 8 SCC 141, para-11.
11.The learned counsel for the petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v.Chief Election Commr. [Mohinder Singh Gill v.Chief Election Commr., (1978) 1 SCC 405] to submit that such a plea cannot be accepted. We may note that this is a well-settled legal position in many judicial pronouncements of this Court, but it is not necessary to revert to the same. In para
8 of the aforesaid judgment, V.R. Krishna Iyer, J., in his inimitable style states as under: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. In Gordhandas Bhanji [Commr. of Police v.Gordhandas Bhanji, AIR 1952 SC 16] : (AIR p. 18, para 9)
'9. ...public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'
In view of the above settled proposition of law, the contentions urged by the learned counsel for the workman is not acceptable hence rejected.
Therefore, this Court is inclined to exercise the power conferred under Article 227 of the Constitution of India by interfering with the award dated 06.04.2015 which accordingly is hereby, set aside alongwith the notification published in the Official Gazette in exercise of power under Section 17 of the Industrial Disputes Act.
In consequence thereof, the matter is remitted before the Industrial Tribunal for passing a fresh award on the basis of material already available on record within a period of eight weeks from the date of receipt of copy of this order.
Accordingly, the writ petition is disposed of.