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Judgment
B.S. Verma, J.—By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the impugned award dated 28-11-2002, which was published on 11-12-2002 (Annexure No. 9 to the writ petition). By the impugned award dated 28-11-2002, the Central Government Industrial-Cum- Labour Court, Lucknow (for short the Labour Court) while adjudicating Industrial Dispute No. 38/2002 (Delhi No. 129/90) between Shri Kultar Singh and the Chairman, O.N.G.C., Tel Bhawan, Dehradun, has held that the action of the management in terminating the services of Kultar Singh, contingent employee, is void-ab-initio and that the workman is entitled to reinstatement with full back wages and all other service benefits, treating the order of termination non-est.
Briefly stated, the facts giving rise to the present writ petition are that the Petitioner-ONGC is a public sector company registered under the Companies Act 1956 with its Headquarters at Dehradun. According to the Petitioner, there are several category of workers employed in the ONGC, namely, regular, contingent, temporary, casual, daily wagers and contract labourers and the term ''contingent'' includes temporary and casual type of employment of a workman. The Petitioner has annexed copy of certified standing orders for contingent employees of the ONGC which govern the employment of such employees, as Annexure 1 to the petition and according to the Petitioner, in order to become a temporary worker, one has to have attendance of not less than 180 days. Under Clause 9 of the certified standing orders, there has to be attendance of the workmen and as per Clause 11 thereof, the workmen must apply for leave and notify in writing his absence and joining. If the workman failed to join his duty, he will be deemed to be discharged and under Clause 14, there can be termination.
According to the Petitioner, the Respondent No. 2 was a workman, but he was never appointed by the ONGC and the Petitioner never issued any appointment letter. The Petitioner has framed rules and Regulations for all class of services in ONGC, which are known as ONGC Recruitment and Promotion Regulation, 1980. Under this Regulation, a selection committee sits to select candidates on the basis of qualification prescribed. Thereafter, appointment letter is issued by the appointing authority as per rules with a probation period. The Respondent No. 2 was neither appointed under these Rules, nor he was ever given an appointment letter. He served as a worker/labourer. Under the Rules, attendance is maintained only of those workers who are appointed by ONGC. According to the Petitioner, the payment to the Respondent No. 2 and others was made to one of the same category of workers, which was given to other workers on the basis of minimum wages and work performed. The Respondent No. 2 was never paid conveyance allowance, house rent allowance etc. The Respondent No. 2 performed work as a labourer/worker in the year 1985 and there was no relationship of master and servant between the Petitioner and the Respondent No. 2. The Petitioner has also taken this plea before the Labour Court. The Respondent No. 2 performed the work as and when it suited to him. On the basis of the work performed by the Respondent No. 2 had worked between 2-3-1983 and 29-1-1987 as mentioned in paragraph No. 8 of the memo of writ petition and thereafter no work was assigned to him. No order of termination was issued against the Respondent No. 2 because the Respondent No. 2 had abstained himself from the work.
The Respondent No. 2 raised industrial dispute before the Conciliation Officer. The Respondent No. 2 was offered as proposal to join but he did not turn up.
On 25-10-1990, the matter was referred by the appropriate Government i.e. Central Government, in exercise of powers conferred under Clause (d) of Sub-section (1) and Sub-Section 2(A) of Section 10 of the Industrial Disputes Act, 1947 and the reference for adjudication reads as under:
Whether the action of the management of O.N.G.C. Dehradun in terminating the services of Shri Kultar Singh, contingent worker is justified? If not, what relief is the workman entitled to?
Before the Labour Court, the management has denied the relationship of master and servant and further disputed his working period. The management has not disputed the engagement of the workman in between the period 1982 and 1987.
The learned Labour Court after hearing both the parties, has observed in paragraph No. 6 as under:
It is clear from the above order, that a workman on putting in not less than 180 days of attendance in any period of 12 consecutive months, and those having completed 240 days of more and possessing minimum qualification prescribed by the ONGC, were entitled to be considered for conversion as regular employee. Order No. 2 of the CSOs does not require 240 days working in twelve months or one year like Section 25-B of the Industrial Disputes Act, 1947. The period of 240 days or more should be actual working days in a year or number of years, to make a workman, eligible to be considered for conversion as regular employee. Sub para (iii) categories casual workman those who are neither temporary nor regular. Admitted case is, that the workman had worked for 188 days in six consecutive months from 1.1.85 to 7.7.85. This fact is admitted in para 2 of the Written Statement. This fact is also corroborated by the certificate dated 18.11.85, issued by M.S. Rana, Administrative Officer ONGC. The management had not lead any evidence to rebut this fact by showing attendance register that the workman had not put attendance for 180 days or more. In fact, management, despite demand failed to produce this register on convenient plea of not being available. The onus is on the management to show that certificate was wrong or averments in para 2 of the Written Statement are based on incorrect facts. The working period of 188 days is within any period of twelve consecutive months satisfies requirement of order 2 of the CSOs. Further, admitted working period of the workman had been more than 240 days as per order 2 of the CSOs and on this account also he acquired status of temporary contingent employee as required under Order 2(ii) of the CSOs and acquired a right of conversion as regular employee.
The learned Labour Court after considering the other provisions of the Certified Standing Orders has observed in paragraph No. 9 as under:
The order No. 14(i) casts obligation on the ONGC management to issue notice in accordance the provisions of the Industrial Disputes Act, 1947. It also provides 7 days notice mandatory in case one month notice is not necessary. The management conceded that compliance of this order was not made. It has based its case on the definition of ''continuous service'' as defined u/s 25-B of the Industrial Disputes Act, 1947. It has been held earlier that the provisions of Industrial Disputes Act, 1947 may apply if the CSOs are silent. The mode of termination is specifically provided and the management had no escape but to have followed it.
With the above findings, the learned Labour Court vide impugned award dated 28-11-2002 has held that the action of the management in terminating the services of Kultar Singh, contingent employee, is void-ab-initio and has directed reinstatement of the Respondent No. 2 with full back wages and all other service benefits treating the order of termination non-est.
On behalf of the Respondent No. 2-workman, counter affidavit has been filed. The averments made in the writ petition have been refuted in the counter affidavit. It is stated in para No. 3 of the counter affidavit as under:
The Petitioner management has deliberately withheld the attendance register and further has been unable to disprove the certificate dated 18.11.1985 issued by M.S. Rana, Administrative Officer, ONGC. As such it has been correctly held that the Respondent No. 2 workman acquired temporary status of temporary contingent employee as per Order 2(II) of the certified standing orders and as such acquired a right of conversion as a regular employee. Even Section 25(F)(a) & (b) of the I.D. Act 1947 has not been complied with.
The Respondent No. 2 in reply to the contents of paragraph Nos. 1 to 4 at page No. 4 of the counter affidavit has given the details of work done by him between 1.3.1987 and 29.1.1987.
On behalf of the Petitioner, rejoinder affidavit has been filed, wherein the averments made in the memo of writ petition have been reiterated. In paragraph No. 6, which is in reply to the contents of paragraph No. 3 of the writ petition, it is stated that mere issuance of the certificate by Mr. M.S. Rana does not make any person as employee of the Petitioner. Under the rules as well as under the standing orders, it is the competent authority who has to appoint a person in any capacity in the ONGC, therefore, the letter of Mr. M.S. Rana dated 13-11-1985 could not have been admitted in evidence.
I have heard Learned Counsel for the parties and perused the material placed before this Court.
This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned.
In the case Ranjeet Singh Vs. Ravi Prakash, , the Apex Court has observed inter alia in paragraph 4 of the judgment that "An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal."
The Apex Court in the case of Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, while dealing with Articles 226 and 227 of the Constitution of India has observed as under:
Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.
Learned Counsel for the Petitioner has vehemently contended that the learned Labour Court was not justified in considering the Order No. 2 of the Certified Standing Orders against the provisions of Section 25-B of the Industrial Disputes Act, 1947 in reckoning the continuous service of the workman. According to the Petitioner, the workman had not worked for a period of not less than 240 days during a period of twelve calendar months preceding the date with reference to which calculation is to be made, for a period of one year.
In reply the Learned Counsel for the Respondent No. 2-workman has contended that the Respondent had put in 278 days of service in the year 1985. Learned Counsel for the Respondent No. 2 has further submitted that the Respondent No. 2 being a contingent worker was entitled for either 7 days notice or one month notice or wages in lieu thereof as well as compensation u/s 25-F(a) and (b) of the Industrial Disputes Act 1947.
So far as the contention of the Learned Counsel for the Petitioner regarding the period of service rendered by the workman is concerned, a perusal of the impugned award reveals that the Petitioner has withheld the attendance register which could be the best evidence to show whether the workman had worked for a period of less than 240 days, as contended by the Learned Counsel for the Petitioner. Moreover, from a bare perusal of the industrial dispute, which was referred to the Labour Court for adjudication, it is obvious that in the reference, the workman Shri Kultar Singh has been mentioned contingent worker. Undisputedly, the Petitioner had participated before the conciliation officer and when the conciliation proceedings did not yield, the dispute was referred for adjudication by the appropriate Government. In this view of the matter also, in my view, the learned Labour Court was justified in considering the relevant Certified Standing Orders (CSOs) applicable to the services of contingent worker. Needless to mention that it is the own case of the Petitioner that the employment of different class of labourers is governed by the certified standing orders. The Petitioner itself has annexed copy of the standing order as Annexure-1 to the petition.
Learned Counsel for the Petitioner ONGC has also vehemently contended that the mandatory period of service 240 days of the workman has to be calculated preceding the date of reference, but the learned Labour Court has not reckoned the continuous service as prescribed u/s 25-B of the Industrial Disputes Act.
This argument of the Learned Counsel for the Petitioner is of no avail. The learned Labour Court in paragraph 5 of the impugned award has dealt with the status of the workman and in the case of the workman-Respondent No. 2, it is an admitted fact that the workman had worked for 188 days in six consecutive months from 1.1.1985 to 7-7-1985. In paragraph No. 6 of the impugned award, which has been reproduced earlier, the learned Labour Court has mentioned that Order No. 2, which is applicable to the case of the workman, does not require 240 days working in twelve months or one year like Section 25-B of the Industrial Disputes Act. The Petitioner has utterly failed to establish before the Labour Court that the status of the workman was not that of a contingent worker or that he belonged to any other category except contingent worker.
Learned Counsel for the Petitioner in support of its contention has placed reliance upon a Division Bench judgment of the Delhi High Court in the case of Management of Apparel Export Promotion Council Vs. Surya Prakash, . In that case it has been observed that Section 25-B of the Industrial Disputes Act contains a notional definition that once 240 days service has been put in by the workman in the preceding twelve months it will be deemed to be continuous service for a year.
The ratio of the judgment cannot be disputed. The facts of the case at hand are quite distinct. In the instant case, the management has denied relationship of master and servant and has also disputed the working period of the workman. In paragraph No. 1 of the written statement filed by the workman, the periods of work of his engagement have been given between 1-3-1983 and 29-1-1987. This period of engagement has admitted in the written statement filed by the Petitioner-ONGC. Moreover, in the written statement, the Petitioner itself has admitted the applicability of certified standing orders as that of contingent employees in paragraph No. 5 of its written statement. Moreover, the dispute referred to the Labour Court itself mentioned that the matter related to Kultar Singh a contingent worker of the ONGC. Therefore, the learned Labour Court has rightly considered the provisions of CSOs, which were applicable to the workman-Respondent No. 2. Moreover, in the impugned award the learned Labour Court has specifically dealt with the provisions of Section 25-B and the provisions of Certified Standing Orders applicable to the services of the workman. The learned Labour Court in paragraph No. 6 has categorically mentioned that the attendance register of the workmen, which was in possession of the ONGC, was not produced before the Labour Court by the Petitioner to substantiate that the workman had not worked for the prescribed period of 240 days. Even in this writ petition, the Petitioner has admitted that provisions of certified standing orders govern the service condition of different class of employees of the ONGC.
Learned Counsel for the Petitioner has also relied upon the case of Gujarat Water Supply and Sewerage Board Vs. M.D. Doshi, . This case law is not applicable to the facts of the case at hand, because in the case before the Gujarat High Court, the workman was working as a daily wager clerk initially for a period of 30 days, which came to be extended from time to time. His employment came to an end after expiry of 30 days from time to time. In the case at hand, it is admitted case that the workman had worked for a period of 188 days from 1-1-1985 to 7-7-85. In the case at hand, it is the admitted position that before the Conciliation Officer the Petitioner ONGC has agreed to offer employment to the workman. The facts of the case are quite distinct.
The Learned Counsel for the Respondent No. 2-workman on the other hand has submitted that the Respondent No. 2 had put in 278 days service in the year 1985 and 242 days service in the year 1986. It is settled law that besides the working days, Sundays and other public holidays are added to the working days falling in a year. Learned Counsel for the workman also contended that neither 7 days notice nor one month notice nor wages in lieu thereof along with due compensation was ever paid to the workman u/s 25-F(a) and (b) of the Industrial Disputes Act 1947.
Learned Counsel for the Respondent No. 2-workman has argued that it is not necessary for the workman to contend and prove that there has been breach of Section 25-F of the Industrial Disputes Act and also otherwise it is not required that the workman should have been in continuous employment within the meaning of Section 25-B before he could be said to have been retrenched. In support of his contention has placed reliance upon the following case-law:
Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari,
Central Bank of India Vs. S. Satyam and others, .
Executive Engineer Vs. Harisingh Modhbhai Gadhvi, .
Learned Counsel for the Respondent No. 2 workman has submitted that the Certified Standings Order have statutory force, therefore, the Petitioner ONGC was bound to adhere to the said orders. In support of his argument, reliance has been placd in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., .
Learned Counsel for the Respondent No. 2 workman has further submitted that it was obligatory on the part of the Petitioner-ONGC to proof that the workman did not complete 240 days of service so as to constitute continuous service. In support of his argument, reliance has been placed in the case of Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda (2010) 1 SCC 47 wherein the case of R.M. Yellatti Vs. The Assistant Executive Engineer, was followed and it has been observed by the Apex Court in paragraph No. 17 as under:
Applying the principles laid down in the above case by this Court, the evidence produced by the Appellant has not been consistent. The Appellant claims that the Respondent did not work for 240 days. The Respondent was a workman hired on a dailywage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the Appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service.
In the case at hand, the as has been observed by the learned Labour Court inter alia in paragraph 6 of the impugned award that "the management had not lead any evidence to rebut this fact by showing attendance register that the workman had not put attendance for 180 days or more. In fact, the management, despite demand failed to produce this register on convenient plea of not being available."
For the reasons and discussion above, I am of the considered view that the learned Labour Court has not committed any manifest error of law or perversity in passing the impugned award. The impugned award passed by the learned Labour Court does not call for any interference by this Court. The writ petition being devoid of merit is liable to the dismissed outright.
The writ petition is dismissed. Costs easy.