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Judgment
K.M. JOSEPH, C.J. (Oral)
SHARAD KUMAR SHARMA, J.
There is delay of 18 days in filing this appeal. Though, we notice that the first respondent is the Labour Commissioner, U.P. Kanpur, the other
parties i.e. respondent nos. 2 to 18 are represented by Mr. D.S. Patni, learned counsel. In the circumstances, after hearing learned counsel for the
parties, we are of the view that the reason for delay has been satisfactorily explained hence delay should be condoned. Accordingly, the delay
condonation application will stand allowed and the delay will stand condoned.
Appellant is the writ petitioner. The writ petition is one, which is styled by the petitioner to be under Article 226 of the Constitution of India. This
case is a sequel to an earlier litigation, which was launched in the Allahabad High Court. By way of Writ Petition 23588 of 1987 Bhagat Singh and
Others Vs. ONGC, it was decided by Allahabad High Court on 11.10.1990, the Allahabad High Court framed certain questions and referred to be
decided by the Labour Commissioner. The workers, who were petitioners in the petition claimed to be daily wagers and who, according to the
appellant/writ petitioner, were contractual labourers, approached the Allahabad High Court and in the same, the learned Single Judge in regard to the
plea for regularization and payment of wages equal to the regularly employed Class-IV employees of the company, took the view that it cannot be
decided in the writ petition and consequently by judgment dated 11.10.1990 directed as follows:
“(i) The tender invited by the respondent company for settlement of service in favour of private contractors so as to replace the petitioners by
contract labour is quashed. The respondents are restrained from inviting any tender for contract labour, which would have the effect of ousting the
petitioners as daily wage labour. The respondents may engage contract labour, if permitted to do so by the Act of 1970 but the engagement of
contract labour shall not have the effect of replacing the petitioners.
(ii) The petitioners are declared to be daily wage/contingent labourers of the respondent company and they are entitled to continue with the respondent
company as such labourers until their services are retrenched in accordance with the provisions of law applicable to them.
(iii) The respondents are directed to refer the matter to the Labour Commissioner, U.P. for determining the question of the petitioners’ similarity
or otherwise with class IV employees of the company who are regularly appointed, who shall after affording reasonable opportunity to the rival
contenders ascertain about the nature of duty of the petitioners and that of the regularly appointed class IV employees of the company, whether the
services rendered by the petitioners are similar in nature to the services which are being rendered by the regular class IV employees of the company,
whether there is any qualification or merit required for being appointed as Class IV employees and whether the petitioners and class IV employees of
the respondent company appointed on regular basis have any similarity in their merit and qualification and what is the basis for disparity in their
emoluments. The respondent company shall refer the matter to the Labour Commissioner within one month from the date they obtain a certified copy
of this order and the Labour Commissioner shall determine the aforesaid questions within a period of six months. He shall give reasonable opportunity
to both the parties of being heard and of placing their respective cases before him. In case, on facts, the petitioners succeed in establishing that they
are similarly circumstanced with the regularly appointed class IV employees of the company, the company shall pay them equal pay for equal work
i.e. the same pay and allowance which are being paid to the regularly appointed class IV employees within two months from the date of receipt of the
report of the Labour Commissioner and shall consider them for regular appointment as Class IV employees.
The writ petition succeeds and is allowed to the extent indicated above. There will be no order as to costs.â€
Pursuant to the same, the matter was referred to the Labour Commissioner. The Writ Petition, which was filed by the appellant in this case before
Allahabad High Court, is one, which is filed challenging the decision of the Labour Commissioner dated 23.10.1991. The learned Single Judge has
dismissed the writ petition by the judgment impugned in the appeal dated 22.03.2018. In doing so, the learned Single Judge took the following view:
“9. It is settled position in law that in exercise of powers under Article 227 of Constitution of India, this Court cannot disturb findings of fact
recorded by Subordinate Courts/Authorities/Tribunals. It is not the case of the petitioner that the findings recorded by the Labour Commissioner in his
report are perverse. In such view of the matter, there is no scope for interference with the report submitted by the Labour Commissioner pursuant to
judgment of Allahabad High Court.â€
Mr. Piyush Garg, learned counsel for the appellant/writ petitioner would submit that the Labour Commissioner, while deciding question referred to it
by High Court vide its judgment dated 11.10.1990, is not the authority one contemplated under any Statute. On the basis of the direction of the High
Court, the matter was gone into. He would also submit that the Labour Commissioner cannot, in such circumstances, be characterized as Tribunal to
make writ amenable as one to be under Article 227 of the Constitution. He would submit that actually the findings of the Labour Commissioner are
clearly perverse. In this regard, he would submit that in regard to the qualifications, the Labour Commissioner notes the arguments of the workers that
they were qualified and records finding that they were qualified.
Per contra, Mr. D.S. Patni, learned counsel for the workers/respondent nos. 2 to 18 would point out paragraph no. 7 of the impugned judgment
dated 22.03.2018 in appeal. The same reads as follows:
“7. The third submission of learned counsel for the petitioner is that the findings recorded by Labour Commissioner, U.P in his report are
erroneous.â€
He would, therefore, submit that there is no such case, as pointed out to the learned Single Judge in paragraph no. 7 by the appellant that the
findings recorded are perverse and, therefore, there is no merit in the case.
Be it under Article 226 or 227 of the Constitution of India, the findings of a body, which has been entrusted with the task of recording finding of
facts in judicial review proceedings, can be overturned if it is found that the findings are perverse. We have noticed the findings of the learned Single
Judge regarding the stand taken by the appellant/writ petitioner before the learned Single Judge to the effect the judgment to Labour Commissioner to
be erroneous. If it is found that the case of the appellant/writ petitioner in appeal is that it was challenged on the ground being perverse, it is not seen
as such reflected in the judgment. The Appellate Court takes the judgment as conclusive regarding what transpired before the Court and what was the
contention before the Court from the judgment itself. Any party, who is aggrieved in this regard, has the remedy of approaching the very same forum
by seeking a review or recall if a Court adopts a contrary view than what was argued.
In such circumstances, we do not think that we should permit the appellant/writ petitioner to maintain this Appeal. The appeal will stand dismissed
without prejudice to the right of the appellant/writ petitioner to seek review/ recall before the learned Single Judge. We make it clear that this will be
without prejudice to the right of the appellant to challenge the judgment impugned in appeal, if need arises. We also make it clear that we have not
conclusively pronounced on the maintainability of the appeal.
There will be no order as to cost.