Jagdish v. Presiding Officer Industrial Tribunal Cum Labour Court Panipat and Another

INoTHEoHIGHoCOURToOFoPUNJABo&oHARYANAo AToCHANDIGARH **** CWP-27176-2022 Date of Decision: 18.08.2023 JAGDISH o.....oPETITIONER Versus PRESIDING OFFICER, INDUSTRIAL TRIBUNAL CUM LABOUR COURT PANIPAT AND ANOTHERS ooooo.....oRESPONDENTS CORAM:oHON'BLEoMR.oJUSTICEoHARSHoBUNGER Present: Mr. Balkar Singh, Advocate for the petitioner. HARSHoBUNGERoJ.o(ORAL)

¶1Petitioner-workman (Jagdish) has filed this petition under Articles 226/227 of the Constitution of India, seeking a writ of certiorari for setting aside the impugned award dated 07.03.2022 (Annexure P-1) passed Industrial Tribunal-cum-Labour Court, Panipat (hereinafter referred to as "the Tribunal"); whereby the reference of the industrial dispute has been decided against him. A further prayer has been made for directing the respondents to reinstate the petitioner with all consequential benefits.

¶2Briefly, Petitioner (Jagdish) raised an industrial dispute, which was referred for adjudication to the learned Industrial Tribunal, Panipatunder section 2-A(2) and (3) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the 1947 Act").

¶3In the claim petition, petitioner claimed that he served as Chowkidarw.e.f 12.05.2000 on salary of Rs. 12,001/- per month under the Respondent No.2 – District Food and Supply Controller, Sonepat. Petitioner claimed that his services were terminated in the month of October, 2018 without any notice, chargesheet, enquiry or compensation. Petitioner further claimed that he had completed more than 240 days of continuous service therefore, the termination of services of the petitioner-workman was illegal, unjustified and against the provisions of the 1947 Act.

¶4The aforestated claim of the petitioner-workman was opposed by the respondent-management by submitting its reply wherein it was inter-alia stated the workman was appointed purely on contract basis for a period of 89 days by the Inspector Food and Supply, Gohana. It is further stated that the service of the workman was again taken for a specific period of 30 days in January, 2013. It was stated by the respondent-management that apart from aforesaid period, the petitioner was never retained/appointed as Chowkidar and after receiving circular dated 01.02.1999 issued by Chief Secretary, Haryana, the management has outsourced the security work through an agency.

¶5From the pleadings of the parties, the following issues were framed: "(1) Whether the claimant falls within the definition of 'workman' as defined under section 2(s) of the Industrial Disputes Act, 1947? OPC

(2) Whether the service of the claimant was illegally terminated? OPC I attest to the accuracy and (3) Whether the respondent has not followed the principle of CWP-27176-2022 - - first come last go at the time of termination of service of the claimant? OPC

(4) Relief."

¶6Petitioner in support of his claim, examined himself as WW-1 and closed his evidence.

¶7On the other hand, RW-1 Suman Bala, Superintendent from the office of the management was examined and tendered her affidavit as Ex. RW-1/A.

¶8Upon appreciating the material / evidence available on record, the Tribunal below rejected the claim of the petitioner-workman and answered the reference against the petitioner-workman vide the impugned Award dated 07.03.2022 (Annexure P-1).

¶9In the aforementioned circumstances, the petitioner has filed the instant writ petition before this Court.

¶10I have heard learned counsel for the petitioner and perused the paper book.

¶11A perusal of the paperbook would manifest that the respondent management had disputed the employee-employer relationship between the petitioner-workman and respondent-management.

¶12In Workmen of Neelgiri Co-operative Marketing Society Ltd. v. State of Tamil Nadu and Others, 2004 LLR 351 (Supreme Court), Hon'ble Apex court has held that it is was for the workman to have proved the existence of employer-employee relationship between the parties.

¶13In the instant case, the Tribunal below returned the following finding: "9. Having knocked the doors of Court, it wasAPURVA CWP-27176-2022 -!- incumbent upon the claimant to prove that he was appointed as Chowkidar by respondent however, the verbal statement made by the claimant (WW-1) has not been corroborated by any documentary evidence like appointment letter, attendance record, payment of salary to the claimant by respondent. it is pertinent to mention here that during his cross-examination, the claimant (WW-1) admitted that neither the post of chowkidar was advertised nor his interview was conducted nor appointment letter was issued to him. he also admitted that he was engaged for a period of 89 days. he further admitted that no identity card was ever issued to him by respondent.

¶10it is relevant to note that here that in its written statement, respondent has taken specific stand that on

20.04.2001, the claimant was appointed by the Inspector Food & Supply, Gohana purely on contract basis only for a period of 89 days and then for a period of 30 days in the month of January, 2013. It is also submitted that except above said period, the claimant was never retained or appointed as PR Chowkidar and after receiving Circular Letter No. 6/47/98-1GS-I dated

01.02.1999 issued by chief secretary, Haryana Government, the respondent is getting done security work through agency. the stand taken by the respondent has not been disputed by claimant, the way of filing replication/rejoinder, which amounts to admission of said facts on the part of claimant.

¶11It is important to note that the name of the claimant is Jagdish s/o Jai Karan. In her affidavit Ex. RW-1/A, tendered in lieu of examination-in-chief, RW-1 Suman Bala, Superintendent from the O/o respondent had categorically stated that no person in the name of I attest to the accuracy and Jagdish s/o Jai Karan was ever appointed as CWP-27176-2022 -"- Chowkidar. She added that the name of the fellow appointed as chowkidar for a period of 89 days by Inspector Food & Supply, Gohana on contract basis on

24.04.2001 was Jagish S/o of Jai Kishan surprisingly no suggestion to the contrary were put to the witness which amounts to admission of said facts on the part of claimant. Meaning thereby that appointment of Jagdish s/o Jai Kishan did not confer any right on the claimant, name of whose father is Jai Karan. It implies that the case of the claimant that he was an employee of the respondent and there existed a relationship employee and employer between him and respondent, stood falsified.

¶12After receiving circular Letter No. 6/47/98-1GS-I dated 01.02.1999 issued by Chief Secretary, Haryana Government, service agreements were executed between respondent and M/s Premier Security and Manpower Service during the year 2016-2018, copy of which have been placed on record as Ex. R-1 to Ex. R-4. Respondent has placed on record copy of bills submitted by above named agency, attendance record of its manpower as well as payment made by respondent to the agency as Ex. R-6 to Ex. R-22. A bare reading of said documents reveals that the claimant was not even engaged by M/s Premier Security and Manpower Service, as his name is not reflecting in any attendance record. Meaning thereby that the claimant was not even employee of Ms/ Premier Security and Manpower Service.

¶13On the basis of disclosure made by respondent in his written statement, at the most, it can be said that on

20.04.2001, the respondent had engaged the claimant on contract basis for a period of 89 days and then for a specific period of 30 days in the month of January 2013. I attest to the accuracy and By no stretch of imagination, it can be taken that cause CWP-27176-2022 -#- of action arose in favour of claimant on account of his appointment by the respondent for said two periods."

¶14A perusal of the above extracted findings returned by the Tribunal below would show that the petitioner-workman failed to discharge the onus to prove employer-employee relationship. It is observed that mere self serving statement by the petitioner-workman in this regard was not sufficient to prove the employer-employee relationship between the parties. Something more was required in the shape of documents, that is, appointment letters, payment vouchers, etc. to indicate that petitioner-workman has in fact been in the employment of respondent-management and had worked with it continuously for a period of 240 days in a year preceding the date of termination. In this case, the workman in his cross examination had admitted that the post of Chowkidar was not advertised and no appointment letter was issued to him.

¶15NothingohasobeenobroughtoonorecordoeitherobeforeotheoTribuna be o!oorobeforeothisocourtotoosho!othatothereo!asoan"oe#$ o"ee%e#$ o"er re ationshi$ o bet!een o the o $arties o or o that o the o $etitioner%!or&#an o !as a$$ointedoaso'ho!&idar(oasoc ai#edob"ohi#.o 1). *urther(otheo$eri$heriesoofothisocourtotooe+ercise oCertiorari ,urisdiction o stands o authoritati-e "o de ineated o in oSyed o Yakoob o v. o K.S. Radhakrishnan,oAIRo1964oSupremeoCourto4 $o!hereino.ob/b eoSu$re#e 'ourtohe doasounder: "7.oTheoquestionoaboutotheolimitsoofotheojurisdictionoofoHigh CourtsoinoissuingoaowritoofocertiorariounderoArticleo226ohas beenofrequentlyoconsideredobyothisoCourtoandotheotrueolegal APURVA positionoinothatobehalfoisonoolongeroinodoubt.oAowritoof certiorariocanobeoissuedoforocorrectingoerrorsoofojurisdiction committedobyoinferiorocourtsoorotribunalso:otheseoareocases whereoordersoareopassedobyoinferiorocourtsoorotribunalsowithout jurisdiction,ooroisoinoexcessoofoit,ooroasoaoresultoofofailureoto exerciseojurisdiction.oAowritocanosimilarlyobeoissuedowhereoin exerciseoofojurisdictionoconferredoonoit,otheoCourtooroTribunal actsoillegallyooroimproperly,oasoforoinstance,oitodecidesoa questionowithoutogivingoanoopportunityotoobeoheardotootheoparty affectedobyotheoorder,oorowhereotheoprocedureoadoptedoin dealingowithotheodisputeoisoopposedotooprinciplesoofonatural justice.oThereois,ohowever,onoodoubtothatotheojurisdictionoto issueoaowritoofocertiorarioisoaosupervisoryojurisdictionoandothe CourtoexercisingoitoisonotoentitledotooactoasoanoappellateoCourt. Thisolimitationonecessarilyomeansothatofindingsoofofactoreached byotheoinferioroCourtooroTribunaloasoresultoofotheoappreciation of o evidence o cannot o be o reopened o or o questioned o in o writ proceedings.oAnoerroroofolawowhichoisoapparentoonotheofaceoof theorecordocanobeocorrectedobyoaowrit,obutonotoanoerroroofofact, howeverograveoitomayoappearotoobe.oInoregardotooaofindingoof factorecordedobyotheoTribunal,oaowritoofocertiorariocanobe issuedoifoitoisoshownothatoinorecordingotheosaidofinding,othe Tribunalohadoerroneouslyorefusedotooadmitoadmissibleoand materialoevidence,oorohadoerroneouslyoadmittedoinadmissible evidenceowhichohasoinfluencedotheoimpugnedofinding.oSimilarly, ifoaofindingoofofactoisobasedoononooevidence,othatowouldobe regardedoasoanoerroroofolawowhichocanobeocorrectedobyoaowrit ofocertiorari.oInodealingowithothisocategoryoofocases,ohowever, weomustoalwaysobearoinomindothatoaofindingoofofactorecordedoby theoTribunalocannotobeochallengedoinoproceedingsoforoaowritoof certiorari o on o the o ground o that o the o relevant o and o material evidenceoadducedobeforeotheoTribunalowasoinsufficientoor inadequateotoosustainotheoimpugnedofinding.oTheoadequacyoor sufficiencyoofoevidenceoledoonoaopointoandotheoinferenceoofofact toobeodrawnofromotheosaidofindingoareowithinotheoexclusive 2023.11.30 17:25 jurisdictionoofotheoTribunal,oandotheosaidopointsocannotobe agitatedobeforeoaowritoCourt.oItoisowithinotheseolimitsothatothe jurisdictionoconferredoonotheoHighoCourtsounderoArticleo226oto issueoaowritoofocertiorariocanobeolegitimatelyoexercisedo(vide HarioVishnuoKamathov.oAhmadoIshaque,o1955-1oSCRo1104: NagendraoNathov.oCommr.oofoHillsoDivision,o1958oSCRo1240 andoKaushalyaoDeviov.oBachittaroSingh,oAIRo1960oSupreme Courto1168.

8.oItois,oofocourse,onotoeasyotoodefineooroadequatelyodescribe whatoanoerroroofolawoapparentoonotheofaceoofotheorecordomeans. Whatocanobeocorrectedobyoaowritohasotoobeoanoerroroofolaw;obut itomustobeosuchoanoerroroofolawoasocanobeoregardedoasoone whichoisoapparentoonotheofaceoofotheorecord.oWhereoitois manifestooroclearothatotheoconclusionoofolaworecordedobyoan inferioroCourt oor oTribunal ois obased oon o an oobvious omis-interpretationoofotheorelevantostatutoryoprovision,oorosometimes inoignoranceoofoit,ooromayobe,oevenoinodisregardoofoit,oorois expresslyofoundedoonoreasonsowhichoareowrongoinolaw,otheosaid conclusionocanobeocorrectedobyoaowritoofocertiorari.oInoallothese cases, o the o impugned o conclusion o should o be o so o plainly inconsistent owith otheorelevant ostatutoryoprovision othat ono difficultyoisoexperiencedobyotheoHighoCourtoinoholdingothatothe saidoerroroofolawoisoapparentoonotheofaceoofotheorecord.oItomay alsoobeothatoinosomeocases,otheoimpugnedoerroroofolawomayonot beoobviousooropatentoonotheofaceoofotheorecordoasosuchoandothe Courtomayoneedoanoargumentotoodiscoverotheosaidoerror;obut thereocanobeonoodoubtothatowhatocanobeocorrectedobyoaowritoof certiorarioisoanoerroroofolawoandotheosaidoerroromust,oonothe whole,obeoofosuchoaocharacteroasowouldosatisfyotheotestothatoitois anoerroroofolawoapparentoonotheofaceoofotheorecord.oIfoa statutoryoprovisionoisoreasonablyocapableoofotwooconstructions andooneoconstructionohasobeenoadoptedobyotheoinferioroCourtoor Tribunal,oitsoconclusionomayonotonecessarilyooroalwaysobeoopen toocorrectionobyoaowritoofocertiorari.oInoouroopinion,oitois neitheropossibleonorodesirableotooattemptoeitherotoodefineooroto 2023.11.30 17:25 describe o adequately o all o cases o of o errors o which o can o be appropriatelyodescribedoasoerrorsoofolawoapparentoonotheoface ofotheorecord.oWhetherooronotoanoimpugnedoerroroisoanoerroroof lawoandoanoerroroofolawowhichoisoapparentoonotheofaceoofothe record,omustoalwaysodependouponotheofactsoandocircumstances ofoeachocasesoandouponotheonatureoandoscopeoofotheolegal provisionowhichoisoallegedotoohaveobeenomisconstruedoor contravened."

¶17Inoviewoofotheoaboveodiscussion,oIoamoofotheoconsideredoview thatoaofactualofindingohasobeenorecordedobyotheoTribunalobelowothatothereois noomaterialoonorecordotooshowotheorelationshipoofoemployeeoandoemployer inter-seotheoparties.oLearnedocounseloforotheopetitionerohasofailedotoodislodge theofindingsoofotheoTribunalobelowoaccordingly,othereoisonooscopeofor interferenceoinotheoawardopassedobyolearnedotribunalobelow.oTherefore,othe writopetitionoisoaccordinglyodismissedoinolimine.

18.o Allopendingoapplication(s),oifoany,oshalloalsoostandoclosed.

18.08.2023 (HARSHoBUNGER) Himani/Apurva oooJUDGE Whetherospeaking/reasoned : Yes/No Whetheroreportable : Yes/No