# HARJINDER SINGH v. PUNJAB STATE WAREHOUSING CORPORATION

- **Citation:** [2010] 1 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 2010-01-05
- **Case number:** Civil Appeal No. 587 of 2010
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harjinder-singh-v-punjab-state-warehousing-corporation-26504
- **Pages:** 38

## Headnote

Constitution of India, 1950:
A
B
Article 226 and Articles 38, 39(a) to (e), 43 and 43-A read c
with the Preamble - Writ jurisdiction - High Court substituting
the award of reinstatement passed by Labour Court, by
directing compensation to workman - HELD: High Court
committed serious jurisdictional error by unjustifiably
interfering with the well reasoned award passed by Labour 0
Court, on the premise that initial appointment of workman was
illegal and unconstitutional, particularly, when no such plea
was raised before Labour Court - While exercising jurisdiction
under Article 226 and/or 227 in such matters, High Courts are
duty bound to keep in mind that Industrial Disputes Act and
other similar legislative enactments are social welfare
E
legislations which are to be interpreted keeping in view the
goals set out in the Preamble and Part=IV of the Constitution,
particularly, Articles 38, 39(a) to (e), 43 and 43-A - Industrial
Disputes Act, 1947 - ss. 25-F and 25-G - Social Justice.
F
Industrial Disputes Act, 1947:
ss. 25-F and 25-G - Retrenchment of workman, while
persons junior to him retained - HELD: Labour Court rightly
passed the award of reinstatement with 50% back wages - For G
attracting applicability of s.25-G, workman is not required to
prove that he had worked for a period of 240 days during
twelve calendar months preceding termination of his services
- It is sufficient for him to plead and prove that wl1ile effecting
591
H
592
StJPREME COURT REPORTS
[201 O] 1 S.C.R.
A retrenchment. employer violated the rule of 'fast come first go'
without any tangible reason - Constitution of India. 1950 -
Preamble, Articles 38, 39(a) to (e), 43, 43-A and 226.
In the reference arising out of the retrenchment of the
appellant-workman, the Labour Court passed the award
8 for his reinstatement with 50% back wages holding that
the principle of equality enshrined in s.25-G of the
Industrial Disputes Act, 1947 was violated and the
persons junior to the appellant were allowed to continue
in service. The High Court in the writ petition filed by the
C respondent-Corporation, though agreed with the Labour
Court that the action taken by the Corporation was
contrary to s.25-G of the Act, but did not approve the
award of reinstatement, on the premise that initial
appointment of the appellant was not in consonance with
D the statutory regulations and Articles 14 and 16 of the
Constitution of India, and substituted the award by
directing payment of compensation to the appellant.
Allowing the appeal of the workman, the Court
E
HELD:
By the Court:
1.1. Before the Labour Court, the appellant's claim for
F reinstatement with back wages was not resisted on the
ground that his initial appointment was illegal or
unconstitutional and neither any evidence was produced
nor any argument was advanced in that regard.
Therefore, the Labour Court did not get any opportunity
G to consider the issue whether reinstatement should be
denied to the appellant by applying the new jurisprudence
developed by the superior courts in recent years that the
court should not pass an award which may result in
perpetuation of illegality. This being the position, the
H Single Judge was not at all justified in entertaining the
HARJINDER SINGH v. PUNJAB STATE
593
WAREHOUSING CORPORATION
wholly unfounded and new plea raised on behalf of the
A
corporation for the first time during the course of
arguments. The Single Judge did not keep in view the
parameters laid down by this Court for exercise of
jurisdiction by High Court under Article 226 and/or 227
of the Constitution of India, and committed serious
B
jurisdictional error by unjustifiably interfering with an
otherwise well reasoned award passed by the Labour
Court and depriving the appellant of what may be the only
source of his own sustenance and that of his family.
[Para 10,11 and 16] [603-A; 608-F-H; 609-A-B; 614-C-D]
C
Syed Yakoob v. K.S. Radhakrishnan and others, 1964
SCR 64 = AIR 1964 SC 477 and Surya Dev Rai v. Ram
Chander

## Text

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[2010] 1 S.C.R. 591
HARJINDER SINGH
V.
PUNJAB STATE WAREHOUSING CORPORATION
(Civil Appeal No. 587 of 2010)
JANUARY 05, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
A
B
Article 226 and Articles 38, 39(a) to (e), 43 and 43-A read c
with the Preamble - Writ jurisdiction - High Court substituting
the award of reinstatement passed by Labour Court, by
directing compensation to workman - HELD: High Court
committed serious jurisdictional error by unjustifiably
interfering with the well reasoned award passed by Labour 0
Court, on the premise that initial appointment of workman was
illegal and unconstitutional, particularly, when no such plea
was raised before Labour Court - While exercising jurisdiction
under Article 226 and/or 227 in such matters, High Courts are
duty bound to keep in mind that Industrial Disputes Act and
other similar legislative enactments are social welfare
E
legislations which are to be interpreted keeping in view the
goals set out in the Preamble and Part=IV of the Constitution,
particularly, Articles 38, 39(a) to (e), 43 and 43-A - Industrial
Disputes Act, 1947 - ss. 25-F and 25-G - Social Justice.
F
Industrial Disputes Act, 1947:
ss. 25-F and 25-G - Retrenchment of workman, while
persons junior to him retained - HELD: Labour Court rightly
passed the award of reinstatement with 50% back wages - For G
attracting applicability of s.25-G, workman is not required to
prove that he had worked for a period of 240 days during
twelve calendar months preceding termination of his services
- It is sufficient for him to plead and prove that wl1ile effecting
591
H
592
StJPREME COURT REPORTS
[201 O] 1 S.C.R.
A retrenchment. employer violated the rule of 'fast come first go'
without any tangible reason - Constitution of India. 1950 -
Preamble, Articles 38, 39(a) to (e), 43, 43-A and 226.
In the reference arising out of the retrenchment of the
appellant-workman, the Labour Court passed the award
8 for his reinstatement with 50% back wages holding that
the principle of equality enshrined in s.25-G of the
Industrial Disputes Act, 1947 was violated and the
persons junior to the appellant were allowed to continue
in service. The High Court in the writ petition filed by the
C respondent-Corporation, though agreed with the Labour
Court that the action taken by the Corporation was
contrary to s.25-G of the Act, but did not approve the
award of reinstatement, on the premise that initial
appointment of the appellant was not in consonance with
D the statutory regulations and Articles 14 and 16 of the
Constitution of India, and substituted the award by
directing payment of compensation to the appellant.
Allowing the appeal of the workman, the Court
E
HELD:
By the Court:
1.1. Before the Labour Court, the appellant's claim for
F reinstatement with back wages was not resisted on the
ground that his initial appointment was illegal or
unconstitutional and neither any evidence was produced
nor any argument was advanced in that regard.
Therefore, the Labour Court did not get any opportunity
G to consider the issue whether reinstatement should be
denied to the appellant by applying the new jurisprudence
developed by the superior courts in recent years that the
court should not pass an award which may result in
perpetuation of illegality. This being the position, the
H Single Judge was not at all justified in entertaining the
HARJINDER SINGH v. PUNJAB STATE
593
WAREHOUSING CORPORATION
wholly unfounded and new plea raised on behalf of the
A
corporation for the first time during the course of
arguments. The Single Judge did not keep in view the
parameters laid down by this Court for exercise of
jurisdiction by High Court under Article 226 and/or 227
of the Constitution of India, and committed serious
B
jurisdictional error by unjustifiably interfering with an
otherwise well reasoned award passed by the Labour
Court and depriving the appellant of what may be the only
source of his own sustenance and that of his family.
[Para 10,11 and 16] [603-A; 608-F-H; 609-A-B; 614-C-D]
C
Syed Yakoob v. K.S. Radhakrishnan and others, 1964
SCR 64 = AIR 1964 SC 477 and Surya Dev Rai v. Ram
Chander Rai and others 2003 (2 ) Suppl. SCR 290 = 2003
(6) sec 675, relied on.
1.2. Another serious error committed by the Single
Judge is that he decided the writ petition by erroneously
assuming that the appellant was a daily wage employee.
This is ex facie contrary to the averments contained in
D
the statement of claim filed by the workman that he was
E
appointed in the scale of Rs.350-525 and the orders
dated 3.10.1986 and 25.2.1987 issued by the Executive
Engineer appointing the appellant as Work Munshi in the
pay scale of Rs.355-525 and then in the scale of Rs.400600. It was not even the case of the corporation that the
F
appellant was employed on daily wages. [Para 12] [609B-D]
1.3. Admittedly, the appellant had worked with the
Corporation from 5.3.1986 to 5. 7 .1988. Therefore, it was
not open for the Corporation to contend that the appellant G
had not completed 240 days service. Moreover, it is
settled law that for attracting the applicability of s.25-G of
the Act, the workman is not required to prove that he had
worked for a period of 240 days during twelve calendar
months preceding the termination of his service and it is
H
594
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A sufficient for him to plead and prove that while effecting
retrenchment, the employer violated the rule of 'last come
first go' without any tangible reason. (Para 13) (609-G-H;
610-A-B]
Central Bank of India v. S. Satyam 1996 (4) Suppl. SCR
B 214 = (1996) 5 SCC 419; and Samishta Dube v. City Board
Etawah 1999 ( 1 ) SCR 930 = (1999) 3 sec 14, relied on.
c
Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar 2006
(8 ) Suppl. SCR 1021 =(2006) 13 SCC 28, referred to.
1.4. While exercising jurisdiction under Articles 226
and/or 227 of the Constitution in matters like the present
one, the High Courts are duty bound to keep in mind that
the Industrial Disputes Act and other similar legislative
0
instruments are social welfare legislations and the same
are required to be interpreted keeping In view the goals
set out in the Preamble of the Constitution and the
provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e), 43 and 43A in particular, which
mandate that the State should secure a social order for
E the promotion of welfare of the people, ensure equality
between men and women and equitable distribution of
material resources of the community to sub-serve the
common good and also ensure that the workers get their
dues. [Para 17) [614-D-G]
F
State of Mysore v. Workers of Gold Mines 1959 SCR
895 = AIR 1958 SC 923; Y.A. Mamarde v. Authority under
the Minimum Wages Act 1973 (1) SCR 161 = (1972) 2 SCC
108; Ramon Services (P) Ltd. v. Subhash Kapoor 2000 (4)
G Suppl. SCR 550 =(2001) 1 SCC 118; L.l.C. of India v.
Consumer Education and Research Centre and Others 1995
( 1 ) Suppl. SCR 349 = (1995) 5 SCC 482; Government
Branch Press v. D.B. Bel/iappa 1979 ( 2) SCR 458 = (1979)
1 SCC 477; Glaxo Labotratories (India) Ltd. v. Presiding
H Officer 1984 (1) SCR 230 = (1984) 1 sec 1, relied on.
HARJINDER SINGH v: PUNJAB STATE
595
WAREHOUSING CORPORATION
1.5. The stock plea ralaed by the public employer in
A
the cases of illegal retrenchment, with the attractive
mantras of globalisation and liberalization, that the initial
employment/engagement of the workman-employee was
contrary to some or the other statute or that reinstatement
of the workman will put unbearable burden on the
B
financial health of the establishment, cannot be accepted
by courts being unmindful of the accountability of the
wrong doer and indirectly punishing the tiny beneficiary
of the wrong ignoring the fact that he may have
continued in the employment for years together and that c
micro wages earned by him may be the only source of
his livelihood. It needs no emphasis that if a man is
deprived of his livelihoQd, he is deprived of all his
fundamental and constitutional rights and for him the
goal of social and economic justice, equality of status and
0
of opportunity, the freedoms enshrined in the
Constitution remain illusory, Therefore, the approach of
the courts must be compatible with the constitutional
philosophy of which the Directive Principles of State
Policy constitute an integral part and justice due to the
E
workman should not be denied by entertaining the
specious and untenable grounds put forward by the
employer - public or private. [Para 23] [621-C-F]
Per Ganguly, J. (Supplementing)
1.1. Judges of the last Court in the largest democracy
F
of the world have a duty and the basic duty is to articulate
the Constitutional goal which has found such an eloquent
utterance in the Preamble. Judges and specially the
judges of the highest Court have a vital role to ensure that G
the promise is fulfilled. If the judges fail to discharge their
duty in making an effort to make the Preambular promise
a reality, they fail to uphold and abide by the Constitution
which is their oath of office. This has to be put as high
H
596
SUPREME COURT REPORTS
(2010] 1 S.C.R.
A ;1s that and should be equated with the conscience of this
Court. [Para 2 and 3) [622-B-C; 623-A-B]
His Holiness Kesavananda Bharati Sripadagalvaru and
others vs. State of Kerela and another 1973 (0) Suppl. SCR
8 1=1973 SC 1461; and Bidi Supply Co. vs. Union of India
and others 1956 SCR 267 =AIR 1956 SC 479, referred to.
1.2. Under Article 38 of the Constitution, a duty is cast
on the State, which includes the judiciary, to secure a
social order for promotion of welfare of the people. [Para
C 11) [625-8-C]
Naresh Shridhar Mirajkar and others vs. State of
Maharastra and Anr. 1966 SCR 744 =AIR 1967 SC 1; State
of Kerela and another vs. N. M. Thomas and others 1976 (1)
D SCR 906 =AIR 1976 SC 490, relied on.
1.3. This Court has a duty to interpret statutes with
social welfare benefits In such a way as to further the
statutory goal and not to frustrate it. In doing so this Court
should make an effort to protect the rights of weaker
E sections of the society in view of the clear constitutional
mandate. Thus, social justice, the very signature tune of
our Constitution and being deeply embedded in our
Constitutional ethos in a way is the arch of the
Constitution which ensures rights of the common man to
F be interpreted in a meaningful way so that life can be
lived with human dignity. [Para 13 and 14] [625-G-H; 626A-B]
Sri Srinivasa Theatre and Others vs. Government of
G Tamil Nadu and Others 1992 ( 2) SCR 164 = (1992) 2 SCC
643; Indra Sawhney and Others vs. Union of India and Others
1992 (2) Suppl. SCR 454 = 1992 Supp. (3) SCC 217; and
Authorised Officer, Thanjavur and another vs. S. Naganatha
Ayyar and others 1979 (3) SCR 1121 = (1979) 3 sec 466,
H relied on.
HARJINDER SINGH v. PUNJAB STATE
597
WAREHOUSING CORPORATION
1.4. Any attempt to dilute the constitutional A
imperatives in order to promote the so called trends of
"Globalisation", may result in precarious consequences.
At this critical juncture the judges' duty is to uphold the
constitutional focus on social justice without being in any
way misled by the glitz and glare of globalization. [Para
B
19 and 21] [627-D-E; 628-B-C]
Case Law Reference :
Order by the Court
1964 SCR 64
relied on
Para 10
c
2003 (2) Suppl. SCR 290
relied on
Para 10
1996 (4) Suppl. SCR 214
relied on
Para 13
1999 (1) SCR 930
relied on
Para 14
D
2006 (8) Suppl. SCR 1021 referred to
Para 15
1959 SCR 895
relied on
Para 17
1973 (1) SCR 161
relied on
Para 18
E
2000 (4) Suppl. SCR 550
relied on
Para 20
1995 (1) Suppl. SCR 349
relied on
Para 20
1979 (2) SCR 458
relied on
Para 22
F
1984 (1) SCR 230
relied on
Para 22
Order by Ganguly, J.
1973 (0) Suppl. SCR 1
referred to ·Para 2
1956 SCR 267
referred to
Para 4
G
1966 SCR 744
relied on
Para 8
1976 (1) SCR 906
relied on
Para 9
H
A
598
SUPREME COURT REPORTS
1992 (2) SCR 164
relied on
1992 (2) Suppl. SCR 454
relied on
1979 (3) SCR 1121
relied on
[2010] 1 S.C.R.
Para 15
Para 16
Para 17
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 587
of 2010.
c
From the Judgment & Order dated 06.02.2009 of the High
Court of Punjab & Haryana at Chandigarh in Civil Writ Petition
No. 372 of 2001.
Dhruv Mehta, T.S. Sbarish, Mohit Abraham (for K.L. Mehta
& Co.) for the Appellant.
Vineet Dhanda, Sarad Kumar Singhania for the
0
Respondent.
E
The following Order of the Court was delivered
ORDER
1. Leave granted.
2. This appea, 1s directed against order dated 6.2.2009
passed by the learned Single Judge of the Punjab and Haryana
High Court in Writ Petition No.372 of 2001 whereby he modified
the award passed by the Labour Court, Gurdaspur (for short,
F 'the Labour Court') in Reference No.43 of 1996 and directed
that in lieu of reinstatement with 50% back wages, the appellant
herein shall be paid Rs.87,582/- by way of compensation.
3. The appellant was employed in the services of the
G Punjah State Warehousing Corporation (hereinafter described
as 'the corporation') as work charge Motor Mate with effect
from 5.3.1986. After seven months, the Executive Engineer of
the corporation issued order dated 3.10.1986 whereby he
appointed the appellant as Work Munshi in the pay scale of
Rs.350-525 for a period of three months. The same officer
H
HARJINDER SINGH v. PUNJAB STATE
599
WAREHOUSING CORPORATION
issued another order dated 5.2.1987 and appointed the
A
appellant as Work Munshi in the pay scale of Rs.400-600 for
a period of three months. Though, the tenure specified in the
second order ended on 4.5.1987, the appellant was continued
in service till 5. 7 .1988 i.e., the date on which the Managing
Director of the corporation issued one month's notice seeking
B
to terminate his service by way of retrenchment. However, the
implementation of that notice was stayed by the Punjab and
Haryana High Court in Writ Petition No.8723 of 1988 filed by
the appellant. The writ petition was finally dismissed as
withdrawn with liberty to the appellant to avail remedy under the c
Industrial Disputes Act, 1947 (for short, 'the Act'). After two
months, the Managing Director of the corporation issued notice
dated 26.11.1992 for retrenchment of the appellant and 21
other workmen by giving them one month's pay and allowances
in lieu of notice as per the requirement of Section 25F(a) of 0
the Act.
4. As a sequel to withdrawal of the writ petition, the
appellant raised an industrial dispute which was referred by the
Government of Punjab to the Labour Court. In the statement of
claim filed by him, the appellant pleaded that the action taken
E
for termination of his service by way of retrenchment is contrary
to the mandate of Sections 25F and 25M of the Act and that
there has been violation of the rule of last-come-first go
inasmuch as persons junior to him were retained in service. In
the reply filed on behalf of the corporation, it was pleaded that
F
the appellant's service was terminated by way of retrenchment
because the projects on which he was employed had been
completed. It was also pleaded that the impugned action was
taken after complying with Section 25F of the Act. However, it
was not denied that persons junior to the appellant were
G
retained in service.
5. The learned Presiding Officer of the Labour Court
considered the pleadings of the parties and evidence produced
by them and passed award dated 15.12.1999 for reinstatement
H
600
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A of the appellant with 50% back wages. The Labour Court held
that even though the appellant was retrenched after complying
with Section 25-F of the Act, the principle of equality enshrined
in Section 25G of the Act was violated and persons junior to
the appellant were allowed to continue in service. This is evident
B from paragraph 12 of the award, which reads as under:
c
D
E
F
G
H
"However, the contention of the AR of the workman about
gross violation of the principles of equality as enshrined in
Section 25G of the Act is full of substance. Ved Prakash,
MW1, when cross-examined, admits that as per the salary
record, the workman had drawn his monthly wages from
10.3.86 to 26.11.92 regularly in every month. He admits
that the workman namely Nirmal Singh, Anju Gupta,
Harbans Singh mentioned in the seniority list are juniors
to the workman concerned and they are still working with
the respondent. He further admitted that the work is existing
with the respondent against which the workman was
employed. He also admits that persons who were
retrenchment have been reinstated in job through the
different Courts and they are working with the respondent.
Therefore, the grievance of the WW workman get support
from the statement of MW1 that juniors to him namely Anju
Gupta, Shubh Dhayan and Joginder Singh are still working
with the respondent and that his statement has not been
put to cross-examination and as such his version must be
assumed to be correct in the light of seniority list, Ex.X1.
No reason whatsoever was assigned by the respondent to
dispute with the services of the workman while retaining
juniors. Even it is so mentioned in the appointment orders
Ex. WI to W3 that seniors of the workman can be
terminated on ten days notice, does not mean principle of
"last come, first go" as envisaged in sec. 25G of the Act
are not required to be complied with. Reliance is placed
upon a Supreme Court case reported as 1999 (2). SCT.
Page 284: Samishta Dube vs. City Board: Etaway: that
wherein it was held that "rule of first come, last go' could
HARJINDER SINGH v. PUNJAB STATE
601
WAREHOUSING CORPORATION
be deviated by the employer in cases of lack of efficiency
A
or loss of confidence-But burden is on the employer to
justify deviation. No such attempt made by the respondent
Employer High Court was not correct in stating that rule of
seniority is not applicable to daily wagers. There is clear
violation of sec. 25 G of the Act. Appellant is entitled for
B
reappointment. There is also no evidence that the workman
was appointed for specific period and for specific job and
the further that the nature of job was casual one and as
such the workman is entitled to reinstatement. Therefore,
I hold that the termination of services of the workman is in c
contravention of sec.25G of the 1.0. Act."
6. The corporation challenged the award of the Labour
Court in Writ Petition No.372/2001 mainly on the grounds that
the dispute raised by the appellant could not be treated as
industrial dispute because the termination of his service was
D
covered by Section 2(oo)(bb) of the Act; that the appellant was
not a regular employee and he was not working against any
sanctioned post; that the appellant had not worked for a period
of 240 days and that there was no post against which he could
be reinstated.
E
7. The learned Single Judge rejected the plea that the
termination of the appellant's service is covered by Section
2(oo) (bb) by observing that from the evidence produced before
the Labour Court, it was clearly established that the work
F
against which the appellant was engaged was still continuing.
The learned Single Judge also agreed with the Labour Court
that the action taken by the corporation was contrary to Section
25-G of the Act. He however, did not approve the award of
reinstatement on the premise that initial appointment of the
G
appellant was not in consonance with the statutory regulations
and Articles 14 and 16 of the Constitution and, accordingly,
substituted the award of reinstatement with 50% back wages
by directing that the appellant shall be paid a sum of
Rs.87,582/- by way of compensation.
H
602
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
8. Shri Dhruv Mehta, learned counsel for the appellant
referred to the averments contained in the reply filed on behalf
of the corporation before the Labour Court and the writ petition
filed before the High Court to show that in the pleadings of the
corporation there was not even a whisper that the appellant's
B initial engagement/appointment was illegal and argued that the
learned Single Judge had no jurisdiction to interfere with the
award of reinstatement by assuming that the appellant was
appointed in violation of Articles 14 and 16 of the Constitution
and the regulations framed under Section 42 read with Section
c 23 of the Warehousing Corporations Act, 1962 (for short, 'the
1962 Act'). Shri Mehta further argued that the question whether
the appellant's appointment was made in contravention of the
regulations framed under the 1962 Act or the doctrine of equality
enshrined in the Constitution, is a pure question of fact which
0 could be decided only on the basis of pleadings and evidence
produced before the Labour Court and as no such evidence
was produced before the Labour Court, the High Court was not
at all justified in entertaining the new plea raised for the first
time during the course of hearing of the writ petition.
E
9. Learned counsel for the corporation supported the
impugned order and vehemently argued that the learned Single
Judge did not commit any error by setting aside the award of
reinstatement because the appellant's appointment was for a
fixed period and his service was terminated after complying
F with Section 25-F of the Act. Learned counsel repeatedly
emphasised that the initial appointment of the appellant was
contrary to the Punjab State Warehousing Corporation Staff
Groups C and D Service Regulations, 2002 (for short 'the
Regulations') and argued that the learned Single Judge rightly
G setaside the award of reinstatement because the appellant was
appointed in violation of Articles 14 and 16 of the Constitution
and the relevant regulations.
10. We have considered the respective submissions. In
H our opinion, the impugned order is liable to be set aside only
HARJINDER SINGH v. PUNJAB STATE
603
WAREHOUSING CORPORATION
on the ground that while interfering with the award of the Labour
A
Court, the learned Single Judge did not keep in view the
parameters laid down by this Court for exercise of jurisdiction
by the High Court under Articles 226 and/or 227 of the
Constitution - Syed Yakoob v. K.S. Radhakrishnan and
others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander
B
Rai and others 2003 (6) SCC 675. In Syed Yakoob's case,
this Court delineated the scope of the writ of certiorari in the
following words:
"The question about the limits of the jurisdiction of High
C
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
D
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 properly, as for instance,
it decides a question without giving an opportunity, be
E
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
F
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
G
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 a
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
H
A
B
c
D
E
F
G
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604
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[2010] 1 S.C.R.
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 (vide Hari Vishnu Karnath v. Syed
Ahmad lshaque 1955 (1) SCR 1104, Nagandra Nath Bora
v. Commissioner of Hills Division and Appeals Assam
1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh
AIR 1960SC1168).
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; hut it must be such an error of law as can be
regarded as one which is app.arent 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
HARJINDER SINGH v. PUNJAB STATE
. ·sos
WAREHOUSING CORPORATION
by the High Court in holding that the said error of law is
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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
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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
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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 is neither possible nor desirable
to attempt either to define or to describe adequately all
cases--0f errors which can be appropriately described as
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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 misconstrued or
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contravened."
11. In Surya Dev Rai's case, a two-Judge Bench, after
threadbare analysis of Articles 226 and 227 of the Constitution
and considering large number of judicial precedents, recorded
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the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-72002 in Section 115 of the Code of Civil Procedure cannot
and does not affect in any manner the jurisdiction of the
High Court under Articles 226 and 227 of the Constitution.
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(2) Interlocutory orders, passed by the courts subordinate
to the High Court, against which remedy of revision has
been excluded by CPC Amendment Act 46 of 1999 are
nevertheless open to challenge in, and continte to be
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[201 O] 1 S.C.R.
subject to, certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari, under Article 226 of the Constitution, is
issued for correcting gross errors of jurisdiction i.e. when
a subordinate court is found to have acted (i) without
jurisdiction -
by assuming jurisdiction where there exists
none, or (ii) in excess of its jurisdiction -
by overstepping
or crossing the limits of jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no
procedure specified, and thereby occasioning failure of
justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When a
subordinate court has assumed a jurisdiction which it does
not h:ave or has failed to exercise a jurisdiction which it
does have or the jurisdiction though available is being
exercised by the court in a manner not permitted by law
and failure of justice or grave injustice has occasioned
thereby, the High Court may step in to exercise its
super.1isory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact
or of law unless the following requirements are satisfied:
(i) the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance
or utter disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which
can be perceived or demonstrated without involving into
any lengthy or complicated argument or a long-drawn
process of reasoning. Where two inferences are
reas~ably possible and the subordinate court has chosen
HARJINDER SINGH v. PUNJAB STATE
607
WAREHOUSING CORPORATION
to take one view, the error cannot be called gross or
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patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exerci,sed sparingly and
only in appropriate cases where the judicial conscience of
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the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during
the pendency of any suit or proceedings in a subordinate
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court and the error though calling for correction is yet
capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking certiorari
or supervisory jurisdiction of the High Court would obstruct
the smooth flow and/or early disposal of the suit or D
proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later
stage and refusal to intervene would result in travesty of
justice or where such refusal itself would result in
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prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not convert itself into a court of appeal and
indulge in reappreciation or evaluation of evidence or
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correct errors in drawing inferences or correct errors of
mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction
to issue a writ of certiorari and those calling for exercise
of supervisory jurisdiction are almost similar and the width
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of jurisdiction exercised by the High Courts in India unlike
English courts has almost obliterated the distinction
between the two jurisdictions. While exercising jurisdiction
to issue a writ of certiorari, the High Court may annul or
set aside the act, order or proceedings of the subordinate
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[2010] 1 S.C.R.
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courts but cannot· substftt:tte-fts-uwil tfec~lon in place
thereof. In exercise of supervisory jurisdiction the High ·
Court may not only give suitable directions so as to guide
the subordinate court as to the manner in which it would
act or proceed thereafter or afresh, the High Court may in
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appropriate cases itself make an order in supersession
or substitution of the order of the subordinate court as the
court should have made in the facts and circumstances of
the case."
A reading of the impugned order shows that the learned
C Single Judge did not find any jurisdictional error in the award
of the Labour Court. He also did not find that the award was
vitiated by any error of law apparent on the face of the record
or that there was violation of rules of natural justice. As a matter
of fact, the learned Single Judge rejected the argument of the
D corporation that termination of the appellant's service falls within
the ambit of Section 2(oo)(bb) of the Act, and expressed
unequivocal agreement with the Labour Court that the action
taken by the Managing Director of corporation was contrary to
Section 25G of the Act which embodies the rule of last come
E first go. Notwithstanding this, the learned Single Judge
substituted the award of reinstatement of the appellant with
compensation of Rs.87,582/- by assuming that appellant was
initially appointed without complying with the equality clause
enshrined in Articles 14 and 16 of the Constitution of India and
F the relevant regulations. While doing so, the learned Single
Judge failed to notice that in the reply filed on behalf of the
corporation before the Labour Court, the appellant's claim for
. reinstatement with back wages was not resisted on the ground
that his initial appointment was illegal or unconstitutional and
G that neither any evidence was produced nor any argument was
advanced in that regard. Therefore, the Labour Court did not
get any opportunity to consider the issue whether reinstatement
should be denied to the appellant by applying the new
jurisprudence developed by the superior courts in recent years
H that the court should not pass an award which may result in
HARJINDER SINGH v. PUNJAB STATE
t:l09
WAREHOUSING CORPORATION
perpetuation of illegality. This being the position, the learned
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Single Judge was not at all justified in entertaining the new plea
raised on behalf of the corporation for the first time during the
course of arguments and over turn an otherwise well reasoned
award passed by the Labour Court and deprive the appellant
of what may be the only source of his own sustenance and that
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of his family.
12. Another serious error committed by the learned Single
Judge is that he decided the writ petition by erroneously
assuming that the appellant was a daily wage employee. This C
is ex facie contrary to the averments contained in the statement
of claim filed by the workman that he was appointed in the scale
of Rs.350-525 and the orders dated 3.10.1986 and 25.2.1987
issued by the concerned Executive Engineer appointing the
appellant as Work Munshi in the pay scale of Rs.355-525 and
then in the scale of Rs.400-600. This was not even the case of D
the corporation that the appellant was employed on daily
wages. It seems that attention of the learned Single Judge was
not drawn to the relevant records, else he would not have
passed the impugned order on a wholly unfounded assumption
that the appellant was a daily wager.
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13. It is true that in the writ petition filed by it, the
corporation did plead that the dispute raised by the appellant
was not an industrial dispute because he had not worked
continuously for a period of 240 days, the learned Single Judge
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rightly refused to entertain the same because no such argument
was advanced before him and also because that plea is
falsified by the averments contained in para 2 of the reply filed
on behalf of the corporation to the statement of claim wherein
it was admitted that the appellant was engaged as work charge G
Motor Mate for construction work on 5.3.1986 and he worked
in that capacity and also as Work Munshi from 3.10.1986 and,
as mentioned above, even after expiry of the period of three
months' specified in order dated 5.2.1987, the appellant
continued to work till 5.7.1988 when first notice of retrenchment H
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[2010) 1 S.C.R.
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was issued by the Managing Director of the corporation.
Therefore, it was not open for the corporation to contend that
the appellant had not completed 240 dl;lys service. Moreover,
it is settled law that for attracting the applicability of Section 25G of the Act, the workman is not required to prove that he had
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worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for
him to plead and prove that while effecting retrenchment, the
employer violated the rule of 'last come first go' without any
tangible reason. In Central Bank of India v. S. Satyam (1996)
c 5 sec 419, this Court considered an analogous issue in the
context of Section 25-H of the Act, which casts a duty upon the
employer to give an opportunity to the retrenched workmen to
offer themselves for re-employment on a preferential basis. It
was argued on behalf of the bank that an offer of re-employment
D envisaged in Section 25-H should be confined only to that
category of retrenched workmen who are covered by Section
25-F and a restricted meaning should be given to the term
'retrenchment' as defined in Section 2(00). While rejecting the
argument, this Court analysed Section 25-F, 25-H, Rules 77
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and 78 of the Industrial Disputes (Central) Rules, 1957, referred
to Section 25-G and held:
"Section 25-H then provides for re-employment of
retrenched workmen. It says that when the employer
proposes to take into his employ any persons, he shall, in
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such manner as may be prescribed, give an opportunity
to the retrenched workmen who are citizens of India to offer
themselves for re-employment, and such retrenched
workmen who offer themselves for re-employment shall
have preferenc: over other persons. Rules 77 and 78 of
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the Industrial Disputes (Central) Rules, 1957 prescribe the
mode of re-employment. Rule 77 requires maintenance of
seniority list of all workmen in a particular category from
which retrenchment is contemplated arranged according
to seniority of their service in that category and publication
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of that list. Rule 78 prescribes the mode of re-employment
HARJINDER SINGH v. PUNJAB STATE
611
WAREHOUSING CORPORATION
of retrenched workmen. The requirement in Rule 78 is of A
notice in the manner prescribed to every one of all the
retrenched workmen eligible to be considered for reemployment. Shri Pai contends that Rules 77 and 78 are
unworkable unless the application of Section 25-H is
confined to the category of retrenched workmen to whom
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Section 25-F applies. We are unable to accept this
contention.
Rule 77 requires the employer to maintain a seniority list
of workmen in that p~rticular category from which
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retrenchment is contem~lated arranged according to the
seniority of their servic;ie;i, The category of workmen to
whom Section 25-F applies is distinct from those to whom
it is inapplicable. There is no practical difficulty in
maintenance of seniority list of workmen with reference to
the particular category to which they belong. Rule 77,
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therefore, does not present any difficulty. Rule 78 speaks
of retrenched workmen eligible to be considered for filling
the vacancies and here also the distinction based on the
category of workmen can be maintai~ed because those
falling in the category of Section 25../ are entitled to be
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placed higher than those who do not fall in that category.
It is no doubt true that persons who have been retrenched
after a longer period of service which places them higher
in the seniority list are entitled to be considered for re-
•ernp]~Y.r:tl~m.tearlier than those placed lower because of a
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lesser period of service.