High Court of Punjab and HaryanaCWP/16775/2023dismissed

Noornisha v. Presiding Officer Industrial Tribunam Cum Labour Court And ORS.

2023-08-04Mr. Justice Harsh Bunger19 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CWP-16775-2023 (O&M) Date of Decision: 04.08.2023 NOORNISHA

...Petitioner

Versus

PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUMLABOUR COURT-III, FARIDABAD AND OTHERS

...Respondents

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present :

Mr. Deepak Sonak, Advocate for the petitioner. HARSH BUNGER, J. (ORAL) 1.

! "

$% $ % & ' & ( $)# * "

! + , !!!"

- .

(

# $ (

( /

$ 0("

# ( ( #

$%2$ %) ! + , !!!"

3 + 4$

&$ !

# - 5

6/ -

7("

%%8

( )9$))$ %)9

( /

(

$ !

# #

)) ( / "

: ;

(

/ # <

(

( # < ( /# /

)% (

# < $

# '

# - # <

# < / / $ (#

# = 6 "

( ( = 6$

# "

# >

( / ! 5 "

)28 "

? )28 4$

#("

(

( / $ 8$ * "

- "

( # ( "

# $

& "

( ) *

,% -.

% "

/,%

9$ -

# "

# @ 0-#

% "2 3

2 4)1

4)'

1 % .5

(

4)'

1 &

4)'

'#8

$ ! /

AA)

( / @

& 9 : ) 6 ;

-# !# -+#

!-# .# -<

( = &

11>- &

7# <#

/9 #

11> &

,# ?

.# -# -< "

11>!

)

# #4# )

+ "

%)$%8$ % )$ $ * "

/ '

- #

=A)

# ( / @

/( $ -

;

, 1> (

B#&#

3# #C#

) "

" A"

7# <#

9 #

,#+E. . !>!+7

#- # !#

+ "

%&$%C$ %

$ C$ B #

$% $ % & ' & ( + .

$ 2$ 0#

##/

# #

$% $ % & ' & "

$ )%$ ,

# , "

(

# -

, = < 7("

%%8

( )9$))$ %)9"

( /

(

( / "

)28$ !

(

( $ ! ' /

(

B # -

$ !

8% ( )

#= 6

(

( $ !

(

B # -

( $ !

/ /

# # $

#("

( #

$% $ % & ' & ( +

(

( /

#$ ))$ !

) $ It would be apposite to refer to a few judicial pronouncements, as would be germane to the issue in hand.

13.

While considering an issue of existence of relationship of employer and employee between the parties, in Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu & Ors., (2004) 3 SCC 514, Hon'ble Supreme Court held as under:- "47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.

48. In N.C. John v. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers'

Union and Others, 1973 LIC 398, the Kerala High Court held :

"The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship."

49. In Swapan Das Gupta and Others. v. The First Labour Court of West Bengal and Others, 1975 LIC 202, it has been held :

"Where a person asserts that he was a workmen of the Company, and it is denied

by the company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company but of some other person."

50. The question whether the relationship between the parties is one of the employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse..." In Kirloskar Brothers Limited v. Ramcharan 2023(1) SCC 463, Hon'ble Supreme Court held as under:- "4.

5 Thus, as observed and held by this Court, neither Section 10 of the CLRA Act nor any other provision in the Act, expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or any other work in any establishment and consequently, the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.

work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefits thereunder.

4.6 In the present case, neither any notification under Section 10(1) of the CLRA Act has been issued prohibiting the contract labour, nor there are allegations and/or even findings that the contract is sham and bogus and/or camouflage.

xxx xxx xxx 4.8 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and in the absence of any notification under Section 10 of the CLRA Act and in the absence of any allegations and/or findings that the contract was sham and camouflage, both the Industrial Tribunal as well as the High Court have committed a serious error in reinstating the contesting respondents and directing the appellant - principal employer to absorb them as their employees. The parties shall be governed by the CLRA Act and relief, if any, could have been granted under the provisions of the CLRA Act and not under the MPIR Act.

14.

Further, while considering an issue as to whether the workman had completed 240 days of work under the management in terms of section 25B, so as to attract provisions of section 25F of the Industrial Disputes Act, 1947, in the case of Surendranagar District Panchayat v. Dahyabhai Amarsinh, 2005(8) SCC 750, Hon'ble Supreme Court held as under:- "9. To attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the

purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorised leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workman shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e.

, not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove.

(2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of sub-section (2). By the legal fiction of sub-section 2(a) (i), the workman shall be deemed to be in continuous service for one year if he is employed underground

in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workman has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.

10. For the purposes of calculation of number of days worked by the employee, by fiction his days of absence from work have been included if the workman 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 the Industrial Disputes Act 1947, or in any other law applicable to the industrial establishment; (ii) has been on leave with full wages, earned in the previous year; (iii) has been absent due to temporary disablement caused by accident arising out of and in the course of employment ; and (iv) has been on maternity leave, in case the employee is a female, however, that the total number of such maternity leave does not exceed 12 weeks.

xxx xxx xxx

19. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has

not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act.

The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workmanrespondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non-compliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers.

compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved..."

)9$ Coming to the case in hand; the Tribunal / #

$% $ % & ' &"

# * "

, !!!"

- .

# #@ 0-!#

(' "

8 '%

(

) * +

-.#--# -.

% ""

# C

# '

" A"

&# '

% "

-+ -E#

$$$

% %

;

# &

11-

% %

* + -. ,% -.

# ,

A C> C C "# 9%

# #4# )

# ,

# 3

# F% $

# C

% F$#11->(

* +

-.#

% "

/ # C

F$#

F@# ! %

7 < - -- "

# &

- "

3 %

9 D%

" A"

, "

>A"

&# "

# 9

% #

% %

% ># =

% ""

* +

,% -.# &

# C

% "

C .

3# # (# ( "

,#-

" #8

) $ A perusal of the above extracted findings of Tribunal would make it evident that the petitioner-workman failed to discharge the onus placed upon her of proving employee-employer relationship nor it was proved that the petitioner-workman had completed 240 days work under the Management in terms of section 25B of 1947 Act, so as to attract the provisions of section 25F of the 1947 Act. No appointment letter or proof of receipt of salary or wages or any record of engagement by Forest Department or any order in that regard was produced; even no co-worker has been examined by petitioner-workman in support of his claim. Rather, the petitioner-workman had admitted in his cross-examination that neither any identity card nor any appointment letter was issued by Forest Department. Thus, once the petitioner-workman had failed to prove employee-employer relationship and / or that he had completed 240 days work under the Management, no relief could have been granted to her. )$ #

# # = 6"

( .

/ $ !

# $ ! # "

># ;4 '

!"#$%&'!"

0-.# %

% % "

"% #

" " # = %

9" &

( &

%# $

)C$ It is trite that this court, in such matters, exercises certiorari jurisdiction, the peripheries of which stand authoritatively delineated in Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 Supreme Court 477 : "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard, to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is,

however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.

Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court.

It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; it must be such an error of law as

can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record.

It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari.

In our opinion, it neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconducted or contravened."

)2$ D

# ( ! + # #

( # ( ( #

$% $ % & ' &"

(

( ( "

' # > $

#("

%$ #$

)$ #

$ August 4th, 2023 (HARSH BUNGER) Gurpreet/Apurva/Himani JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No