JUDGMENT

1. The limitations on this Court exercising extraordinary and supervisory powers under Arts. 226 and 227 of the Constitution of India in the matter of an award of the Central Government Labour Court, Ernakulam, acting on a reference of the Government of India, relating to the jutifiability of the action of the petitioner's management as regards retrenchment and/or termination, are well known and established. However, the Court is made aware of the limitations, set down by the decisions cited.

2. Under Art. 226, the decision of the subordinate Tribunal only be annulled, whereas under Art. 227 appropriately further directions can be issued by the High Court Workmen of Nellikkai Estate v. Superintendent Neilikkai Estate [1959 - II L.L.J 751]. Jurisdiction under Arts. 226 and 227 of the Constitution of India is not different and superintendence-both judicial and administrative-does not widen. The powers are to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the ambit and bounds of their authority and not for correcting mere errors Malabar Products, Ltd. v. Industrial Tribunal [1958 - I L.L.J 47]. In this situation, interference by the High Court is not obligatory if justice of the case does not warrant such interference. It is only in matters when the Tribunal acts without jurisdiction or in excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in it by law or there is an error apparent on the face of the record and all these aspects have resulted in manifest in justice [See Kerala Solvent Extractions, Ltd. v. A. Unnikrishnan (1995 (2) L.L.N 968)]. This makes the powers to disturb the findings on questions of fact more than difficult in exercise of extraordinary powers.

3. Normally, interference by this Court in writ proceedings with the findings of fact would amount to reappreciation of evidence or its reappraisal and reaching different conclusion on a matter to be exclusively decided by the Tribunals would not be permissible. A wrong finding could never's be characterised a perverse one Parry's (Calcutta) Employees' Union v. Parry and Company [1966 - I L.L.J 535. The High Court would interfere in cases where there is complete absence of evidence to support the finding, where the conclusions are arbitrary, perverse or capricious, when were cases where no reasonable person could possibly have come to the conclusion that is recorded, if there is erroneous admission of inadmissible evidence. However, adequacy of sufficiency of evidence, possibility of a different conclusion or that the conclusion was improper would not be the occasions for interference [See Assistant Security Officer, Pothannur v. Kullingu Gounder [1978— I L.L.J 117], If the finding is recorded without adverting to material pieces of evidence or the evidence is appreciated in a callous manner or with an indifferent attitude drawing casual inferences, the interference gets justified. However, these are only the parameters of an illustrative character, and are not exhaustive K.A Abdul Salam v. District Judge [1991 (1) K.L.J 541]

4. In this petition, when Civil Miscellaneous Petition No. 7403 of 1993, seeking orders under S. 17-B of the Industrial Disputes Act, 1947, claiming for payment of full wages pending the proceedings of this original petition came up for orders, there was an occasion for this Court to go through the ward and then the original petition itself was taken up for hearing and decision. Reading of the impugned award with counsel for the parties presented incongruous aspects leading to carefully going through the evidence translated and the record of documents.

5. Certain observations from the impugned award would need reproduction ad verbatim. However, necessary factual matrix would have to be laid in the first instance.

6. Sri M.E Thomas is the employee. He joined W.H.D' Cruz and Sons an account on and from 2 September, 1974. His working hours from beginning to end were from 10 A.M to 1.00 P.M throughout. He was the sole accountant. Another accountant was appointed in 1985.

7. The management on 11 February, 1987, by notice brought to his notice that working hours are from 9 to 4.30 P.M and failure to attend accordingly would invite disciplinary proceedings. Explanation, dated 14 February, 1987, was not acceptable. In fact, the management issued a chargesheet, dated 27 February, 1987. Enquiry notice was also served on 3 March, 1987. Domestic enquiry which had commenced, but by the communication, dated 11 January, 1988, Sri Thomas was informed that it was closed and dropped.

8. On 21 April, 1988 the management served retrenchment notice stating that the part-time services of the employee. Sri Thomas were not needed and he was retrenched. Notice pay and retrenchment compensation as due under law were sent and are received under protest.

9. The dispute under the Industrial Disputes Act, 1947, that is raised is that the retrenchment is in violation of the provisions (Ss. 25-F and 25-G) of the Industrial Disputes Act, 1947, the employee being a permanent employee not having been retrenched against the principle “last come first go.” The dispute was referred to the Central Government Labour Court, Ernakulam, and was registered as Industrial Dispute No. 12 of 1988, and in the impugned award, dated 31 March, 1992, reinstatement with back-wages in full has been awarded.

10. The question to be determined is whether the employee Sri Thomas is a permanent employee or a part-time employee. At the hearing of the petition it is crystallised plainly that if the employee is part-time employee then the action is correct in law and justified and there is no dispute even with regard to the payment of dues in pursuance of the notice of retrenchment and it is plainly stated that legal dues are paid and received under protest, the protest begin only on the ground that the employee is permanent and, therefore, there is violation of Ss. 25-F and 25-A of the Industrial Disputes Act, 1947.

11. On a reading of the impugned award, the following observations created incongruities with the final conclusion of the Labour Court that the employee is a permanent one and this led to the probe through the entire record:

(1) It is an admitted that M.E Thomas was employed by the management as an accountant with effect from 2 September, 1974. It is also on admitted fact that his working hours are from 10 A.M to 1 P.M has come out in evidence that the working hours of the management establishment is 9 A.M to 430 P.M

(2) The workman was examined as MW 1 who would depose in support of the adverments in the claim statement. He would further depose that he was employed in the management establishment from 1974 and his working hours were from 10 A.M to 1 P.M He was only an accountant who was working there at that time.

(3) He was not shown as part-time accountant in any of the records kept by the management. He would further depose that he was ready to work from 9 A.M to 4.30 A.M, if he was paid salary properly.

(4) He would depose in the cross-examination that working hours of the company were from 9 A.M to 430 P.M for all other employees and he alone was working from 10 A.M to 1 P.M and after 1 P.M he was working in his firm wherein he is also one of the partners. He would further depose that he was never asked to do work from 9 A.M to 4.30 P.M by the management.

(5) When he (the employee) was asked to work from 9 A.M to 4.30 P.M which are the working hours of the establishment the worker was not prepared to do the work. Hence, in 1985 another accountant was appointed as full time accountant. He has received the gratuity and provident fund amount.

In the light of these aspects, the following conclusion was drawn by the Labour Court.

“In the absence of any evidence to show he was appointed as part-time accountant it is to be held that he was appointed as an accountant in the establishment fixing the working hours from 10 A.M to 1 P.M It is also pertinent to note that no distinction is drawn in the definition of workman as defined in the Industrial Disputes Act as part-time workman or full-time workman. At any rate the employee will come within the ambit of the definition of ‘workman’ as defined in the Industrial Disputes Act.”

Being completely incongruous, the evidence and the documents required examination and scrutiny to see whether the conclusion recorded by the Labour Court that the employee is a permanent workman is congruent with some of the glaring facets found hereinabove.

12. Obviously, certain legal rights flow from the position, if established that Sri Thomas was a permanent employee. This factual position has to be seen from various facets apart from and independent of averments of the parties. If his Court finds that vital and important aspects are wholly left out of consideration, and a casual approach to the question floats on the surface of the record, rendering the ultimate conclusion wholly incongruent, it would not be necessary for this Court on grounds of dignity to term the conclusion of such question perverse, inconsistent with the reasonable approach keeping in mind that this Court also has to approach the Labour Court's reasoning on basis of respect of the Court. However, even then, many facets that emerge from the evidence shatter the conclusion rendering it incongruent for sustenance. They are:

(A) From the evidence of Sri Thomas-employee:

Examination-in-chief:

(1) I am the worker in this case. I joined in the establishment of the opposite party on 2 September, 1974, as accountant. I prepared the final accounts and connected works. From 1974 my working time was 10 A.M to 1 P.M There was no complaint about my work. It is true that I was a part-time employee.

(2) All the rest of the employees were given the increase in dearness allowance.

(3) I am prepared to work from 9 A.M to 4.30 P.M but salary was to given accordingly.

Cross-examination:

(1) The working time of the management establishment is 9.30 A.M to 4.30 P.M Except me all the employees are working from 9 A.M to 4.30 P.M I alone worked from 10 A.M to 1. P.M after 1 o'clock I attended the establishment of which I was partner. Even now I am working there.

(2) John D'Cotha was appointed as accountant in 1985. His work was from 9 A.M to 4.30 P.M I was not asked to work from 9 A.M to 4.30 P.M at anytime. If asked I would have worked so. Enquiry was conducted on the ground that I was not working from 9 A.M to 4.30 P.M

(3) I had not written to the management that I would work from 9 A.M to 4.30 P.M if any salary was enhanced.

(4) From 1985, there was increase in the turnover in the company.

(B) From the evidence of the Manager-Sri Fernandez

Examination-in-chief:

(1) I am the Manager of the management establishment. There was only one accountant till 1985. He was attending work from 10 A.M to 1 o'clock. But office time of the establishment is 9 A.M to 430 P.M There was some change in the accounting system from 1985. Thomas was asked to work full time, but he was not prepared. The reason stated was that he was a partner in the company where he has to attend work after 1 o'clock.

(2) In 1987 also, Thomas was asked to Work full time, but he was not prepared. There was no work for both full-time accountant and part-time accountant Therefore, part-time accountant was retrenched. Thomas received retrenchment compensation, notice pay and gratuity. He withdrew also provident fund. He is working fulltime in the firm of which he was a partner since then.

Cross-examination:

Before the Assistant Labour Commissioner he has stated that he was prepared to work from 9 AM. to 4.30 P.M But he did not infirm his readiness to the company at any time. He has stated in his statement before the Conciliation Officer that he was prepared to work from 10 A.M to 4.30 P.M and recorded in the minutes before the Assistant Labour Commissioner. Exhibit W9 is the minutes.

Similarly, from the documents, the following aspects have a staring effect on the question to be decided and settled.

(A) As far back as in 1981 - as seen from Exhibit Wl, Sri Thomas is shown as part-time accountant, in the information supplied on 23 December, 1981, to the Labour Enforcement Officer.

(B) In the salary certificate Exhibit W2, dated 27 January, 1986, Sri Thomas is shown as an accountant with Rs. 1,000 as salary per month.

(C) In a character certificate - Exhibit it W 3, dated 2 December, 1985, Sri Thomas is referred to as the chief accountant. Only one accountant is described in the character certificate as the Chief Accountant.

(D) Even up to 14 December, 1987 (Exhibit W6) Sri Thomas took the stand that change from 10 A.M to 1 P.M cannot be changed as it is a change in the service condition. It is seen from the following.

“Now, I am informed by your letter, dated 11 February, 1987, that my working hours in the establishment is from 9 A.M to 430 P.M I submit that change in the conditions of service, namely, working hours of me has not been so far informed to me nor any notice of the change in the service conditions has been served on me. Any change in the conditions of service regarding the working hours, etc., has to be informed to me. Notice, must be give to me in the prescribed manner regarding the changes. No opportunity to consider the effect of the change of service conditions is afforded to me to present my view on the change. Therefore, I request you not to change my service conditions in the establishment. I submit that I have not violated any direction. Therefore, I request hour not to alter the change of service conditions in my working hours, which I am observing from 1974 onwards.”

(E) Management's reply, dated 19 February, 1987 (Exhibit P6), is eloquent and if the following portion is seen the position would be clear. It reads:

“It is incorrect to state that your working hours in this establishment is limited from 10 A.M to 1 P.M as we would vehemently repudiate that far back in 1984 when there was a change in the management set up, you were personally impressed of your working hours from 9 AM. to 4.30 P.M in line with the rest of the office staff.

We also deny that your salary was fixed on the limited working hours as averred by you as no specific working hours were fixed for you and there was no special consideration whatsoever for your working hours and we would reiterate that your working hours has no exemption nor for that reason any exception from the other officer staff working hours.”

(F) From the reply at the end, dated 19 December, 1987 (Exhibit W7), Sri Thomas has taken following stand:

“There was no accountant in the company other than myself from 1974 onwards and I have been working there from 10 A.M to 1 P.M since 1974. That is my working hours in the company. I am not a part-time employee as described by you. My working hours is from 10 AM. to 1 P.M

I reiterate that I am the chief accountant of the company ever since 1974 and I am a full-time employee with working hours from 10 A.M to 1. P.M”

13. It would clearly appear that there is an admission of Sri Thomas that he was a part-time employee. Learned counsel saw the record himself in Malayalam in original and had difficulty and was left with nothing more than to state that it was a mistake. Apart therefrom, it is established that the working hours are from 9 A.M to 4.30 P.M and Sri Thomas was only one whose timing was from 10 A.M to 1. P.M and it is further admitted by him that after 1 P.M he was looking after his own partnership business for all these years. The evidence is that even thereafter he looks after his own partnership business. These aspects go more than a long way to find any element of congruency with the conclusion recorded by the Labour Court. Probe in the record was necessitated on the bare reading of the impugned award and consequent scrutiny and careful examination thereof made me more than difficult to accept the conclusion. In fact, the employment, admittedly for three hours have deep intrinsic elements to make it more than clear that the appointment was part-time and this impact apart from other aspects shown from the evidence on record, the engagement of Sri Thomas in looking after his own partnership business lent enough assurance to the difficulty to support the conclusion of the Labour Court. Learned counsel for the employee relied on S. 6 of the Kerala Shops and Commercial Establishments Act, 1960, providing the outer limit of eight hours as daily working hours and 48 hours as weekly working hours. This is of no help in any way to consider the nature of the employment in this petition.

14. For the above reasons, the petition succeeds, impugned award, dated 31 March, 1992, in Industrial Dispute No. 22 of 1988, of the Central Government Labour Court, Ernakulam, gets quashed and set aside and thereby the reference as per the order, dated 21 December, 1988, of the Government of India stands rejected with no orders as to costs.

15. The judgment requires a post-script with regard to the provisions of S. 17-B of the Industrial Disputes Act, 1947. The said provision enacts a statutory form of a separate and independent right available to a workman during the pendency of the proceedings. The two decisions (a) Bharat Singh v. New Delhi Tuberculosis Centre [1986 (2) L.L.N 4] and Bhaskaran (K.) v. Janardhanan Pillai (R.) [1989 (1) L.L.N 74], cited make the position crystal clear.

16. In this petition, such on order is passed earlier by this Court on 31 May, 1993, in Civil Miscellaneous Petition No. 7403 of 1993 (Mohammed, J.) and being an independent and separate right adjudicated and also being final between the parties, the said order is binding on the petitioner, there being no appeal therefrom. In fact, the employee preferred contempt petition (C.C.C No. 95 of 1994) and the Division Bench therein, by order, dated 8 June, 1994, passed the following order:

“Having heard both sides, we hold that the following order would be sufficient:

The respondent is directed to pay Rs. 12,000 in three equal monthly intalments, the first instalment to be paid on or before 5 July, 1994. The second instalment (Rs. 4,000) should be paid on or before 5 August, 1994, and the third instalment has to be paid on or before 5 September, 1994. Iif the aforesaid condition is not complied with, it is open to the petitioner to take necessary action in accordance with law.”

17. This is while disposing of the contempt case-submission of learned counsel for the petitioner that the order decides civil miscellaneous petition with modification has no substance. The order only grants relief to get over the rigour of contempt keeping the order under S. 17-B of the Industrial Disputes Act, 1947, intact. In fact the contempt petition itself was based on the order under S. 17-B of the Industrial Disputes Act, 1947. It being relating to an independent right after the award and being of the Court of co-ordinate jurisdiction would remain intact in this petition.

18. Be that as it may, it is a lesson to this Court. Normally, no party has or gets any vested right in the life of the litigation in this or any other Court. It is observed such many times without number. However, S. 17-B of the Industrial Disputes Act is a statutory exception and creates liability in favour of the workman and against the employer and therein evitable elongated life of the litigation in such a case becomes necessary to be watched and controlled by the parties and the system by a process of expedition or characterisation of such petitions as a separate priority-category having preceding position as compared to other pending proceedings. In my judgment, some thought is necessary in the direction. This much is sufficient in the context.

19. In the result, petition succeeds in terms of Para. 13 of this judgment. Order, dated 31 May, 1993, in Civil Miscellaneous Petition No. 7403 of 19931 as stated above, has already become final. No order as to costs.