Citation Codes

Equivalent Citations

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Case Number

Original Jurisdiction Case No. 1826 of 1982

Attorney(S)

S.K.Nanda
S.H.Das
S.B.Nanda
N.K.Mishra
M.R.Panda
M.Manwar
M.K.Raj Guru
G.Naik

Judges

R.C Patnaik
V. Gopalaswamy, JJ.

Acts

section-25-F of Indus-trial Disputes Act; and(c)
section 25-F of the Indutsrial Disputes Act.
section 25-FFF and not section 25-F
section 25-F

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This matter arises from an application by the employer, the Cuttack Municipal Council, seeking a writ of certiorari to quash an award of the Labour Court. The Labour Court had declared the termination of the services of 28 mates (opposite parties 2 to 29) with effect from 30-4-1980 to be illegal and unjustified, and directed their reinstatement with full back wages and continuity of service.

The employer's case before the Labour Court was that the mates had been appointed on a purely temporary basis by a council resolution dated 2-4-1979 to work under elected ward councillors and could be terminated without notice; after the council was suspended and superseded by the Government with effect from 24-4-1980, the management terminated their services effective 30-4-1980 because there was no necessity for them to continue.

The workmen's case before the Labour Court was that they were appointed on daily-wage basis with effect from 3-4-1979, assigned to particular wards and supervised the work of Coolies and Mazdoors engaged in sanitation/conservancy; they maintained daily diaries supervised by Sanitary Inspectors and ward councillors, and a resolution dated 23-2-1980 had been adopted to regularise their service conditions. They alleged termination on supersession occurred without payment of retrenchment compensation contrary to section 25-F of the Industrial Disputes Act.

The Government made a reference to the Labour Court framed as: whether the termination of the mates' services with effect from 1-5-1980 by the management of Cuttack Municipality was legal and/or justified and, if not, what relief they would be entitled to. Both parties adduced evidence before the Labour Court, which found termination amounted to retrenchment, there was non-compliance with section 25-F, and that the workmen were entitled to reinstatement with full back wages and continuity of service. The employer then filed the present writ application seeking to quash that award.

Legal Issues Presented

Whether the termination of the mates' services with effect from 1-5-1980 by the management of the Cuttack Municipality was legal and/or justified.
If the termination was not legal and/or justified, what reliefs the workmen would be entitled to (e.g., reinstatement, back wages, continuity of service).
Whether the facts constituted a "closure of the establishment" beyond the control of the employer such that section 25-FFF (closure provisions) rather than section 25-F (retrenchment compensation and procedures) of the Industrial Disputes Act applied.

Arguments of the Parties

Petitioner's (Employer's) Arguments

Submitted that the mates were temporary appointees created specifically to work under elected ward councillors and could be terminated at any time.
Argued that after the elected council was suspended and later superseded by the Government (effective 24-4-1980), there was no necessity for the mates to continue, so their services were terminated effective 30-4-1980.
Before this Court, counsel for the petitioners contended that the termination was part of a closure of the establishment beyond the employer's control and that section 25-FFF, and not section 25-F, applied.

Workmen's Arguments

Maintained they were engaged on daily-wage basis from 3-4-1979 and had substantive duties supervising work of Coolies and Mazdoors in sanitation and conservancy, in addition to appraising ward councillors of day-to-day problems.
Asserted that their services were regularised by a council resolution dated 23-2-1980 and that upon supersession their termination occurred without payment of retrenchment compensation contrary to section 25-F of the Industrial Disputes Act.
Before this Court, counsel for the workmen argued that the petitioners could not raise a new case (closure) which was not pleaded before the Labour Court, and that the Labour Court's fact findings could not be impugned in writ/certiorari proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Syed Yakoob v. K.S. Radhakrishnan, A.I.R. 1964 S.C. 447	Establishes that writ jurisdiction to issue certiorari is supervisory and not appellate; findings of fact by inferior tribunals based on appreciation of evidence cannot be reopened in writ proceedings.	The court relied on this principle to limit its review of the Labour Court's factual findings and to reject re-appreciation of evidence in certiorari jurisdiction.
Mohan Lal v. Management Of M/S Bharat Electronics Ltd., 1981 3 SCC 225	Identifies the exceptions to the general rule that termination constitutes retrenchment (e.g., disciplinary punishment, voluntary retirement, superannuation, ill-health); used to define the scope of "retrenchment".	The court invoked this authority to affirm that termination of service amounts to retrenchment except in the enumerated exceptions, supporting the Labour Court's conclusion that the terminations amounted to retrenchment.
Orissa Khadi & Pillage Industries Board v. Narottam Saha, 50 1980 C.L.T. 181	Held that supersession and dissolution of the Board of an incorporated body having perpetual succession does not bring about an end to the existence of the incorporated body.	The court applied this holding to reject the employer's contention that supersession of the Municipal Council amounted to closure of the establishment of mates.

Court's Reasoning and Analysis

The court proceeded by first noting the limitation of writ/certiorari jurisdiction: it is supervisory and not appellate (relying on Syed Yakoob). Consequently, the factual findings recorded by the Labour Court after assessment of evidence could not be reopened by this Court unless there was some error such as admission of inadmissible evidence or no evidence at all supporting the findings. The court explicitly stated that no such ground (wrong admission/exclusion or no evidence) was put forward in this case.

The court examined the Labour Court's factual findings and the record as reproduced by the Labour Court. The Labour Court had found that the mates' duties were not limited to apprising councillors of daily problems: their main routine work involved supervising Coolies and Mazdoors in sanitation tasks (clearing drains, bushes, removing weeds and obstructions to prevent mosquito menace). The court observed these factual findings demonstrated that the mates were not merely personal servants of the councillors, and therefore the employer's characterization of the termination as an automatic consequence of supersession lacked substance.

The court also addressed the employer's argument that supersession of the council effected an automatic closure of the mates' establishment and therefore section 25-FFF would apply. It rejected this argument on two grounds stated in the opinion: (1) the Labour Court had shown factually that the mates were not exclusively personal appointees of councillors and performed broader municipal functions, and (2) reliance on Orissa Khadi & Pillage Industries Board v. Narottam Saha, which held that supersession/dissolution of the board of an incorporated body with perpetual succession does not end the existence of the incorporated body. Thus supersession did not amount to closure of the municipal establishment requiring application of closure provisions.

Applying the legal rule on retrenchment (as explained in Mohan Lal), the court observed that termination of a workman ordinarily constitutes retrenchment except in the limited exceptions listed in the statute/case law (punishment, voluntary retirement, superannuation where contract stipulates, ill-health). On the facts, the management admitted that the workmen had served under the Municipality for more than a year and that no retrenchment benefit or compensation was paid at the time of termination.

From those admissions and the Labour Court's findings, the court concluded that section 25-F of the Industrial Disputes Act had not been complied with. The Labour Court's direction for reinstatement with full back wages and continuity of service therefore followed from the finding of unlawful retrenchment.

The court further explained the principle governing award of back wages: full back wages are the normal rule where a workman was ready to work but prevented from doing so by an invalid act of the employer. Any party seeking to displace the normal rule of full back wages must plead and establish relevant circumstances necessitating departure from full back wages. Here, the employer had not pleaded any relevant circumstances to justify departing from full back wages.

Having applied these principles to the Labour Court's findings and the record, the court found no merit in the writ application and dismissed it with costs (hearing fee assessed at Rs. 250/-).

Holding and Implications

DISMISSED — The writ application filed by the Cuttack Municipal Council was dismissed.

Implications and direct effects:

The Labour Court's award that the termination of the 28 mates amounted to unlawful retrenchment stands.
The workmen are entitled to reinstatement with full back wages and continuity of service as ordered by the Labour Court.
The employer was ordered to pay costs; the hearing fee was assessed at Rs. 250/-.

The opinion does not purport to create any new legal precedent; it applied established principles (including limitations on certiorari review of factual findings and the statutory framework on retrenchment and exceptions) to the facts of this case. No broader novel legal rule was announced in the judgment.

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Cuttack Municipal Council Represented Through Its Chairman, & Another. v. Presiding Officer, Labour Court And Others Opp. Parties.

R.C Patnaik, J.:— This is an application by the employer, the Cuttack Municipal Council, seeking a writ of certiorari for the quashing of an award passed by the Labour Court declaring the termination of the service of 28 mates with effect from 30-4-1980 by the management as illegal and unjustified and directing their reinstatement with full back wages and continuity of service.

2. The case of the petitioner before the Labour Court was that opposite parties 2 to 29 were appointed as mates purely on temporary basis by council resolution dated 2-4-1979. They were to work under the elected ward councillors. There was an understanding that their service would be terminated at any time without notice. They were required to appraise the ward councillors the day to day problems of the wards. They were appointed on the recommendation of the respective ward councillors. When the council was suspended and later on superseded by the Government with effect from 24-4-1980, there was no necessity for the mates who were assisting the councillors, to continue. Accordingly, their services were terminated with effect from 30-4-1980. The workmen on the other hand averred that they were appointed on daily wage basis with effect from 3-4-1979 pursuant to a council resolution. Each of them had been assigned to a particular ward and his service was placed under the ward councillor. They were to supervise the work of the Coolies and Mazdoors engaged in the sanitation and conservancy work. They were to maintain daily diary of their work which was supervised by the Sanitary Inspectors and respective ward councillors. As Coolies and Mazdoors had been engaged on regular basis but these opposite parties had been engaged on daily wage basis, the Municipal Council adopted a resolution dated 23-2-1980 to regularise their service conditions. When the council was superseded, their services were terminated without payment of retrenchment compensation contrary to section 25-F of the Indutsrial Disputes Act. Having regard to the nature of the dispute that cropped up, the Government made a reference, namely, if the termination of the service of the mates with effect from 1-5-1980 by the management of Cuttack Municipality, was legal and/or justified and if not, what relief they would be entitled to?

3. Both the parties adduced evidence before the Labour Court. Upon a consideration of the materials, the Labour Court recorded the following findings:—

(a) termination of the service of opposite parties 2 to 29 amounted to retrenchment;

(b) there was non-compliance of section-25-F of Indus-trial Disputes Act; and

(c) the termination was, therefore, invalid and the workmen were entitled to reinstatement in service with full back wages and continuity of service.

4. Mr. M.R Panda, the learned counsel for the petitioners, has assailed the decision of the Labour Court contending that the Labour Court erred in exercise of jurisdiction by its failure to take into account the facts and circumstances which indicated that the case was one of closure of the establishment beyond the control of the employer and section 25-FFF and not section 25-F was applicable to the present case.

5. Mr. S.B Nanda, learned counsel for the workmen, has repelled the submissions made on behalf of the petitioners by submitting that it is impermissible to the petitioners to plead a new case when such a case, as urged before this Court, was not pleaded by them. The Labour Court upon assessment of materials has recorded certain findings which are not available to be impugned in the certiorari jurisdiction.

6. The Labour Court has succinctly reproduced the case of the management. For facility of reference, we quote the relevant averments:

“3. That after suspensions/supersession of elected Council with effect from 24-4-1980 there was no necessity for these workmen to appraise of daily problem of the ward to the concerned councillor and accordingly their services were terminated with effect from 30-4-1980 afternoon.

4. That the post of temporary mates were created by the Council specifically to work under the elected Ward Councillors for appraising the daily problem of the ward, and their engagements were made on the recommendation of the concerned Ward Councillors.

5. That in view of the above there was no justification to allow them to work under the Councillors since elected Council ceased to function due to super-session by the Councillors.”

7. The Labour Court on an appraisal of the evidence held:

“……From this, it is apparent that the secondparty workmen were engaged not only for apprising the daily problems of the wards to their respective Council-lors everyday and to act according to their direction, but also in addition to that, their main routine work was to engage and supervise the works of the said Coolies and Mazdoors who were engaged in clearing the drains, clearing the bushes, removing the weeds from the ponds and pools and other stagnant and watering areas and removing any obstruction in the drains and culverts for prevention of mosquito menace in the city in their respective wards and to report their authorities.………”

8. It also observed:—

“………It cannot be said that on the suspension of Municipal Council, the services of the second-party workmen were, in fact, not personally meant for the Councillors only………”

9. About a quarcer of a century back, the Constitution Bench of the Supreme Court in Syed Yakoob v. K.S Radhakrishnan . A.I.R 1964 S.C 447.:

“……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 a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings findings 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. ……”

10. It is not contended here in this case that the Tribunal has erroneously refused to admit admissible material or has erroneously admitted inadmissible evidence which influenced the Tribunal to record the impugned findings. Nor it is that the finding of fact is based upon no evidence. We would therefore, examine the case on the basis of the findings reached by the Tribunal. On the findings as extracted above, the case of closure of the establishment has no leg to stand on. Besides, there was no plea before the Labour Court that there was a closure of the undertaking.

11. The closure that was argued before us was, no doubt, ingenious but lacks substance. It was contended that upon supersession of the Municipal Council, there was automatic closure of the establishment of mates. The Labour Court has demonstrated how factually the assertion is incorrect. The mates were not the personal servants of the Councillors. Their main duty was to supervise the work done by the Coolies and Mazdoors. Apprising the Councillors of the work done by them or the problems of the wards were additional features of their duty but not the sole duty. Besides, it is now too late in the day to contend that supersession of the Municipal Council would amount to closure when the entire establishment of the Munici-pality went on uninterrupted. In Orissa Khadi & Pillage Industries Board v. Narottam Saha . 501980 C.L.T 181., it was held that supersession and dissolution of the Board of an incorporated body having perpetual succession did not bring about an end to the existence of the incorporated body. Hence, the said contention also fails.

12. Termination by the employer of the service of a workman for any reason whatsoever would constitute retrench-ment except in cases excepted in the section itself. Excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill-health (see Mohan Lal v. Management Of M/S Bharat Electronics Ltd. . 1981 3 SCC 225) Hence, the conclusion of the Labour Court that the termination of the workmen amounted to retrenchment cannot be faulted.

13. The management witness admitted before the Labour Court that the workmen had served under the Munici-pality for more than a year and no retrenchment benefit or compensation was given to them at the time of termination of their services. The Tribunal, therefore, correctly held that section 25-F had not been complied with. It directed reinstate-ment of the workmen with full back wages and continuity of service.

14. Full back wages would be the normal rule and the party objecting to it must establish the reasons necessitating the departure. Where the workman was ready to work but for the invalid act of the employer, there is no justification for not awarding him full back wages which is very legitimately due to him. Since no relevant circumstances were pleaded by the employer, the workmen were entitled to full back wages with continuity of service. The reliefs granted also do not call for interference. We, therefore, see no merit in this writ appli-cation which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 250/-.

V. Gopalaswamy, J.:— I agree.

15. Writ application dismissed.

Cuttack Municipal Co... v. Presiding Officer, L...