Supreme Court of India
HARJINDER SINGHversusPUNJAB STATE WAREHOUSING CORPORATION
- Citation
- 2010 INSC 9
- Decided
- 5 January 2010
- Disposal
- Appeal(s) allowed
Holding
The Supreme Court held that the High Court committed a serious jurisdictional error by unjustifiably substituting the Labour Court's award of reinstatement with compensation; the award under Section 25G stands.
Summary
Harjinder Singh, a workman employed by Punjab State Warehousing Corporation, was retrenched despite seniority over junior employees. The Labour Court awarded him reinstatement with 50% back wages under Section 25G of the Industrial Disputes Act, 1947. The Punjab & Haryana High Court, exercising writ jurisdiction under Article 226, set aside that award and ordered compensation, alleging the original appointment was illegal and violated Articles 14 and 16 of the Constitution. The Supreme Court held that the High Court erred by interfering with a well‑reasoned award without any jurisdictional defect, by raising a new plea of illegality for the first time, and by mischaracterising the workman's status. It restored the Labour Court's award, emphasizing the social‑justice ethos of the Constitution and the proper interpretation of Sections 25F and 25G. The appeal was allowed and costs awarded.
Issues considered
- The High Court's jurisdiction to interfere with a Labour Court award under Article 226/227.
- Whether the workman's initial appointment was illegal or unconstitutional and if such a plea could be raised for the first time in a writ petition.
- Applicability of Section 25F and Section 25G of the Industrial Disputes Act, 1947, particularly the 240‑day service requirement.
- Whether the workman was a daily‑wage employee for the purposes of the Act.
- The proper remedy for a violation of the ‘last‑come‑first‑go’ principle – reinstatement versus compensation.
Legislation cited
- Industrial Disputes Act, 1947s. 25-F, s. 25-G, s. 2(oo)(bb)
- Industrial Disputes (Central) Rules, 1957s. 77, s. 78
- Minimum Wages Act, 1972
- The Warehousing Corporations Act, 1962s. 23, s. 42
Subjects
Industrial retrenchmentReinstatementArticle 226Industrial Disputes ActSection 25GSocial justiceConstitutional lawLabour lawHigh Court jurisdictionEquality clause
Judgment
[2010] 1 S.C.R. 591
HARJINDER SINGH A
V.
PUNJAB STATE WAREHOUSING CORPORATION
(Civil Appeal No. 587 of 2010)
JANUARY 05, 2010
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
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.
D
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
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.400-
600. It was not even the case of the corporation that the F
appellant was employed on daily wages. [Para 12] [609-
B-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.
Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar 2006
(8 ) Suppl. SCR 1021 =(2006) 13 SCC 28, referred to.
c
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)
F
1.1. Judges of the last Court in the largest democracy
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
1=1973 SC 1461; and Bidi Supply Co. vs. Union of India
8
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; 626-
A-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
G
1956 SCR 267 referred to Para 4
1966 SCR 744 relied on Para 8
1976 (1) SCR 906 relied on Para 9
H
598 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 1992 (2) SCR 164 relied on Para 15
1992 (2) Suppl. SCR 454 relied on Para 16
1979 (3) SCR 1121 relied on Para 17
B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 587
of 2010.
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.
c
Dhruv Mehta, T.S. Sbarish, Mohit Abraham (for K.L. Mehta
& Co.) for the Appellant.
Vineet Dhanda, Sarad Kumar Singhania for the
Respondent.
0
The following Order of the Court was delivered
ORDER
1. Leave granted.
E
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:
"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
c 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
D 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.
E 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
F 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
G 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
H
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
604 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 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
B 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
c 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
D
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
E 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
F 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
G 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
H 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 A
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 B
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 C
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
0
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 E
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 F
the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-7-
2002 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. G
(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 H
606 SlJPREME COURT REPORTS [201 O] 1 S.C.R.
A 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
B
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
c procedure specified, and thereby occasioning failure of
justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
D 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
E 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
F 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.
G
(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
H 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 A
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
8
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 C
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 E
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 F
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 G
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 H
.
608 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 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
B 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 A
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 B
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. E
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 F
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
610 SUPREME COURT REPORTS [2010) 1 S.C.R.
A 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 25-
G of the Act, the workman is not required to prove that he had
B 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
E 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
F 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
G 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
H 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 re-
employment. 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 B
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 C
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, D
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 E
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 F
lesser period of service. In this manner a workman falling
in the lower category because of not being covered by
Section 25-F can claim consideration for re-employment
only if an eligible workman above him in the seniority list
is not available. Application of Section 25-H to the other G
retrenched workmen not covered by Section 25-F does
not, in any manner, prejudice those covered by Section 25-
F because the question of consideration of any retrenched
workman not covered by Section 25-F would arise only, if
and when, no retrenched workman covered by Section 25- H
612 SUPREME COURT REPORTS [2010) 1 S.C.R.
A F is available for re-employment. There is, thus, no reason
to curtail the ordinary meaning of "retrenched workmen" in
Section 25-H because of Rules 77 and 78, even assuming
the rules framed under the Act could have that effect.
The plain language of Section 25-H speaks only of re-
B
employment of "retrenched workmen". The ordinary
meaning of the expression "retrenched workmen" must
relate to the wide meaning of 'retrenchment' given in
Section 2(00). Section 25-F also uses the word
'retrenchment' but qualifies it by use of the further words
c "workman ... who has been in continuous service for not
less than one year". Thus, Section 25-F does not restrict
the meaning of retrenchment but qualifies the category of
retrenched workmen covered therein by use of the further
words "workman ... who has been in continuous service for
D not less than one year''. It is clear that Section 25-F applies
to the retrenchment of a workman who has been in
continuous service for not less thar'l one year and not to
any workman who has been in continuous service for less
than one year; and it does not restrict or curtail the meaning
E of retrenchment merely because the provision therein is
made only for the retrenchment of a workman who has
been in continuous service for not less than one, year.
Chapter V-A deals with all retrenchments while Section
25-F is confined only to the mode of retrenchment ~
F workmen in continuous service for not less than one year.
Section 25-G prescribes the principle for retrenchment
and applies ordinarily the principle of "last come first go"
which is not confined only to workmen who have been in
continuous service for not less than one year, covered
G by Section 25-F." (emphasis supplied)
14. The ratio of the above noted judgment was reiterated
in Samishta Dube v. City Board Etawah (1999) 3 SCC 14. In
that case, the Court interpreted Section 6-P of the U.P.
H
HARJINDER SINGH v. PUNJAB STATE, 613
WAREHOUSING CORPORATION.
Industrial Disputes Act, 1947, which is pari materia to Section A
25-G of the Act, and held:
Now this provision is not controlled by conditions as to
length of service contained in Section 6-N {which
corresponds to Section 25-F of the Industrial Disputes Act, B
1947).· Section 6-P does not require any p~rticular period
of continuous service as required by Section 6-N. In;
Kamlesh Singh v.. Presiding Officer in a matter which
arose under this very Section 6-P of the U.P. Act~ it was
so held. Hence the High Court was wrong in relying on the C
fact that the appellant had put in only three and a half
months of s'ervice and in denying relief. See also· in this
connection Central Bank of India v. S. Satyam.
Nor was the High Court correct in stating that no rule of
seniority was applicable to daily-wagers. There is no such D
restriction in Secti_on 6-P of the U.P. Act read with Section
2{z) of the U.P. Act which defines "workman".
It is true that the rule of "first come, last go" in Section· 6-P
could be deviated.from by an employer because the E
section uses• the word "ordinarily". It is, therefore,
permissible for the employer to deviate from the rule in
cases of lack of efficiency or loss of confidence, etc., as
held In Swadesam.itran Ltd. v: Workmen. But the burden
will then be on the employer to justify the deviation. No such
attempt has been made in the present case. Hence, it is F
clear that there is clear violation of Section 6-P of the U.P.
Act.
15. The distinction _between Sections 25-F and 25-G of the
Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd.. G
v. Hannesh Kumar (2006) 13 SCC 28, in the following words:
"We are not oblivious of the distinction in regard to the
legality of the .order of termination in a case where Section
H
614 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 25·F of the Act applies on the one hand, and a situation
where Section 25-G thereof applies on the other. Whereas
in a case where Section 25-F of the Act applies the
workman is bound to prove that he had been in continuous
service of 240 days during twelve months preceding the
B order of termination; in a case where he invokes the
provisions of Sections 25-G and 25-H thereof he may not
have to establish the said fact. See: Central Bank of India
v. S. Satyam, Samishta Dube v. City Board, Etawah, SB/
v. Rakesh Kumar Tewari and Jaipur Development
c Authority v. Ram Sahai."
16. In view of the above discussion, we hold that the
learned Single Judge of the High Court committed serious
jurisdictional error and unjustifiably interfered with the award of
reinstatement passed by the Labour Court with compensation
D of Rs.87,582/- by entertaining a wholly unfounded plea that the
appellant was appointed in violation of Articles 14 and 16 of
the Constitution and the regulations.
17. Before concluding, we consider it necessary to
E observe that 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 instruments are social
welfare legislations and the same are required to be interpreted
F 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
the promotion of welfare of the people, ensure equality between
G 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. More than 41 years
ago, Gajendragadkar, J, opined that "the concept of social and
economic justice is a living concept of revolutionary import; it
gives sustenance to the rule of law and meaning and
H
HARJINDER SINGH v. PUNJAB STATE 615
WAREHOUSING CORPORATION ·
significance to the ideal of welfare State" - State of Mysore v. A
Workers of Gold Mines AIR 1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum
Wages Act (1972) 2 SCC 108, this Court, while interpreting
the provisions of Minimum Wages Act, 1948, observed:
B
"The anxiety on the part of the society for improving the
general economic condition of some of its less favoured
members appears to be in supersession of the old
principle of absolute freedom of contract and the doctrine
of laissez faire and in recognition of the new principles of C
social welfare and common good. Prior to our Constitution
this principle was advocated by the movement for liberal
employment in civilised countries and the Act which is a
pre-constitution measure was the offspring of that
movement. Under our present Constitution the State is now D
expressly directed to endeavour to secure to all workers
{whether agricultural, industrial or otherwise) not only bare
physical subsistence but a living wage and conditions of
work ensuring a decent standard of life and full enjoyment
of leisure. This Directive Principle of State Policy being E
conducive to the general interest of the nation as a whole,
merely lays down the foundation for appropriate social
structure in which the labour will find its place of dignity,
legitimately due to it in lieu of its contribution to the
progress of national economic prosperity." F
19. The preamble and various Articles contained in Part
IV of the Constitution promote social justice so that life of every
individual becomes meaningful and he is able to live with
human dignity. The concept of social justice engrafted in the
Constitution consists Rf diverse principles essentially for the G
orderly growth and development of personality of every citizen.
Social justice is thus an integral part of justice in the generic
sense. Justice is the genus, of which social justice is one of its
species. Social justice is a dynamic devise to mitigate the
sufferings of the poor, weak, dalits; tribals and deprived H
616 SUPREME COURT REPORTS [2010] 1 S.C.R.
A sections of the society and to elevate them to the level of equality
to live a life with dignity of person. In other words. the aim of
social justice is to attain substantial degree of social, economic
and political equality, which is the legitimate expectation of
every section of the society. In a developing society like ours
B which is full of unbridgeable and ever widening gaps of
inequality in status and of opportunity, law is a catalyst to reach
the ladder of justice. The philosophy of welfare State and social
justice is amply reflected in large number of judgments of this
Court, various High Courts, National and State Industrial
c Tribunals involving interpretation of the provisions of the
Industrial Disputes Act, Indian Factories Act, Payment of
Wages Act, Minimum Wages Act, Payment of Bonus Act,
Workmen's Compensation Act, the Employees Insurance Act,
the Employees Provident Fund and Miscellaneous Provisions
D Act and the Shops and Commercial Establishments Act
enacted by different States.
20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001)
1SCC118, R.P. Sethi, J. observed: "that after independence
the concept of social justice has become a part of our legal
E system. This concept gives meaning and significance to the
democratic ways of life and of making the life dynamic. The
concept of welfare State would remain in oblivion unless social
justice is dispensed. Dispensation of social justice and
achieving the goals set forth in the Constitution are not possible
F without the active, concerted and dynamic efforts made by the
persons concerned with the justice dispensation system. In
L.l.C. of India v. Consumer Education and Research Centre
and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed
that social Justice is a device to ensure life to be meaningful
G and liveable with human dignity. The State is obliged to provide
to workmen facilities to reach minimum standard of health,
economic security and civilized living. The principle laid down
by this law requires courts to ensure that a workman who has
not been found guilty can not be deprived of what he is entitled
H to get. Obviou;;;ly when a workman has been illegally deprived
HARJINDER SINGH v. PUNJAB STATE 617
WAREHOUSING CORPORATION
of his device then that is misconduct on the part of the A
employer and employer can not possibly be permitted to
deprive a person of what is due to him. ·
· 21. In 70s, 80s and early 90s; the courts repeatedly
negated the doctrine of laissez faire and the theory of hire and B
fire. In his treaties: Democracy, Equality and Freedom, Justice
Mathew wrote:
. "The original concept of employmentwas that of master
and servant. It was therefore held that a court will not
specifically enforce a contract of employment. The law has C
adhered to the age-old rule that an employer may dismiss
the employee at will. Certainly, an employee can never
expect to be completely free to do what he likes to do. He
must face the prospect of discharge for failing or refusing
to do his work in accordance with his employer's D
directions. Such control by the employer over the employee
is fundamental to the employment relationship. But there
are innumerable facets of the employee's life that have little
or no relevance to the employment relationship and over
which the employer should not be allowed to exercise E
control. It is no doubt difficult to draw a line between
reasonable demands of an employer and those which are
unreasonable as having no relation to the employment
itself. The rule that an employer can arbitrarily discharge
an employee with or without regard to the actuating motive F
is a rule settled beyond doubt. But the rule became settled
at a time when the words ·master' and ·servant' were
taken more literally than they are now and when, as h early
Roman Law, the rights of the servant, like the rights of any
other member of the household, were not his own, but G
those of his patet;Jamilias. The overtones of ihis ancient
docirine are discernible in the judicial opinion which
rationalised the employer's absolute right to discharge the
employee. Such a philosophy of the employer's dominion
over ~is employee may have been in tune with the rustic H
618 SUPREME COURT REPORTS [2010] 1 S.C.R.
A simplicity of bygone days. But that philosophy is
incompatible with these days of large, impersonal,
corporate employers. The conditions have now vastly
changed and it is difficult to regard the contract of
employment with large scale industries and government
B enterprises conducted by bodies which are created under
special statutes as mere contract of personal service.
Where large number of people are unemployed and it is
extremely difficult to find employment, an employee who
is discharged from service might have to remain without
c means of subsistence for a considerably long time and
damages in the shape of wages for a certain period may
not be an adequate compensation to the employee for
non-employment. In other words, damages would be a
poor substitute for reinstatement. The traditional rule has
D survived because of the sustenance it received from the
law of contracts. From the contractual principle of mutuality
of obligation, it was reasoned that if the employee can quit
his job at will, then so too must the employer have the right
to terminate the relationship for any or no reason. And
there are a number of cases in which even contracts for
E
permanent employment, i.e. for indefinite terms, have been
held unenforceable on the ground that they lack mutuality
of obligation. But these case demonstrate that mutuality is
a high-sounding phrase of little use as an analytical tool
and it would seem clear that mutuality of obligation is not
F an inexorable requirement and that lack of mutuality is
simply, as many courts have come to recognize, an
imperfect way of referring to the real obstacle to enforcing
any kind of contractual limitation on the employer's right of
discharge, i.e. lack of consideration. If there is anything in
G contract law which seems likely to advance the present
inquiry, it is the growing tendency to protect individuals from
contracts of adhesion from over-reaching terms often found
in standard forms of contract used by large commercial
establishments. Judicial disfavour of contracts of adhesion
H
HARJINDER SINGH v. PUNJAB STATE 619
WAREHOUSING CORPORATION
has been said to reflect the assumed need to protect the A
weaker contracting part against the harshness of the
common law and the abuses of freedom of contract. The
same philosophy seems to provide an appropriate
answer to the argument, which still seems to have some
vitality, that "the servant cannot complain, as he takes the B
employment on the terms which are offered to him."
(emphasis added)
22. In Government Branch Press v. D.B. Belliappa (1979)
1 sec 477, the employer invoked the theory of hire and fire c
by contending that the respondent's appointment was purely
temporary and his service could be terminated at any time in
accordance with the terms and conditions of appointment which
he had voluntarily accepted. While rejecting this plea as wholly
misconceived, the Court observed: o
"It is borrowed from the archaic common law concept that
employment was a matter between the master and servant
only. In the first place, this rule in its original absolute form
is not applicable to government servants. Secondly, even E
with regard to private employment, much of it has passed
into the fossils of time. "This rule held the field at the time
when the master and servant were taken more literally than
they are now and when, as in early Roman Law, the rights
of the servant, like the rights of any other member of the
household, were not his own, but those of his pater F
familias". The overtones of this ancient doctrine are
discernible in the Anglo-American jurisprudence of the 18th
century and the first half of the 20th century, which
rationalised the employer's absolute right to discharge the
employee. "Such a philosophy", as pointed out by K.K. G
Mathew, J. (vide his treatise: "Democracy, Equality and
Freedom", p. 326), "of the employer's dominion over his
employee may have been in tune with the rustic simplicity
of bygone days. But that philosophy is incompatible with
H
620 SUPREME COURT REPORTS [2010) 1 S.C.R.
A these days of large, impersonal, corporate employers''. To
bring it in tune with vastly changed and changing socio·
economic conditions and mores of the day, much of this
old, antiquated and unjust doctrine has been eroded by
judicial decisions and legislation, particularly in its
B application to persons in public employment, to whom the
Constitutional protection of Articles 14, 15, 16 and 311 is
available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected In Glaxo
Labotratories (India) Ltd. v. Presiding Officer (1984) 1 SCC
C 1, in the following words:
"In the days of laissez-faire when industrial relation was
governed by the harsh weighted law of hire and fire the
management was the supreme master, the relationship
D being referable to contract between unequals and the
action of the management treated almost sacrosanct. The
developing notions of social justice and the expanding
horizon of socio-economic justice necessitated statutory
protection to the unequal partner in the industry namely,
E those who invest blood and flesh against those who bring
in capital. Moving from the days when whim of the
employer was suprema lex, the Act took a modest step
to compel by statute the employer to prescribe minimum
conditions of service subject to which employment is given.
The Act was enacted as its long title shows to require
F
employers in industrial establishments to define with
sufficient precision the conditions of employment under
them and to make the said conditions known to workmen
employed by them. The movement was from status to
contract, the contract being not left to be negotiated by two
G unequal persons but statutorily imposed. If this socially
beneficial Act was enacted for ameliorating the conditions
of the weaker partner, conditions of service prescribed
thereunder must receive such interpretation as to advance
the intendment underlying the Act and defeat the mischief."
H
HARJINDER SINGH v. PUNJAB STATE 621
WAREHOUSING CORPORATION
23. Of late, there has been a visible shift in the courts A
approach in dealing with the cases involving the interpretation
of social welfare legislations. The attractive mantras of
globalization and liberalisation are fast becoming the raison
d'etre of the judicial process and an impression has been
created that the constitutional courts are no longer sympathetic B
towards the plight of industrial and unorganized workers. In large
number of cases like the present one, relief has been denied
to the employees falling in the category of workmen, who are
illegally retrenched from service by creating by-lanes and side-
lanes in the jurisprudence developed by this Court in three c
decades. The stock plea raised by the public employer in such
cases is 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 financial health of the establishment. The courts have 0
readily accepted such plea unmindful of the accountability of the
wrong doer and indirectly punished the tiny beneficiary of the
wrong ignoring the fact that he may have continued in the
employment for years together ·and that micro wages earned
by him may be the only source of his livelihood. It need no E
emphasis that if a man is deprived of his livelihood, he is
deprived of all his fundamental and constitutional rights and for
him the goal of social and economic justice, equality of status
and 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 F
Directive Principles of State Policy constitute an integral part
and ,justice due to the workman should not be denied by
entertaining the specious and untenable grounds put forward by
the employer - public or private.
G
24. In the result, the appeal is allowed. The impugned order
of the High Court is set aside and the award passed by the
Labour Court is restored. The ar~ellant shall get cost of
Rs.25,000/- from the corporation.
H
622 SUPREME COURT REPORTS [2010) 1 S.C.R.
A ORDER
BY ASOK KUMAR GANGULI, J.
1. I entirely agree with the views expressed by my learned
Brother Justice G.S. Singhvi. Having regard to the changing
B judicial approach noticed by His Lordship and if I, may say so,
rightly, I may add a few words. I consider it a very important
aspect in decision making by this Court.
2. Judges of the last Court in the largest democracy of the
c world have a duty and the basic duty is to articulate the
Constitutional goal which has found such an eloquent utterance
in the Preamble. If we look at our Preamble, which has been
recognised, a part of the Constitution in His Holiness
Kesavananda Bharati Sripadaga/varu and others vs. State of
0 Kerela and another- [1973 SC 1461], we can discern that as
divided in three parts. The first part is a declaration whereby
people of India adopte9 and gave to themselves the
Constitution. The second part is a resolution whereby people
of India solemnly resolved to constitute India into a sovereign,
E socialist, secular, democratic republic. However, the most vital
part is the promise and the promise is to secure to all its
citizens:
"JUSTICE, social, economic and political;
F LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the
G
unity and integrity of the Nation;"
[See Justice R.C. Lahoti, Preamble- The Spirit and
backbone of the Constitution of India, Anundoram
Barooah law Lectures, Seventh Series, Eastern Book
H Company, 2004, at p. 3]
HARJINDER SINGH v. PUNJAB STATE 623
WARE.HOUSING CORPORATION
3. Judges and specially the judges of the highest Court A
have a vital role to ensure that 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. In my humble
opinion, this has to be put as high as that and should be B
equated with the conscience of this Court.
4. As early as in 1.956, in a Constitution Bench judgment
dealing with an Article 32 petition, Justice Vivian Bose, while
interpreting the Article 14 of the Constitution, posed the C
following question:
"After all, for whose benefit was the Constitution enacted?"
[Bidi Supply Co. vs. Union of India and
others - AIR 1956 SC 479 at Para 23, pg. o
487)
5. Having posed the question, the Learned Judge
answered the same in his inimitable words and which I may
quote:
E
"I am clear that the Constitution is not for the exclusive
benefit of Governments and States; it is not only for
lawyers and politicians and officials and those highly
placed. It also exists for the common man, for the poor
and the humble, for those who have businesses at stake, F
for the "butcher, the baker and the candlestick maker". It
lays down for this land a "rule lof law" as understood in the
free democracies of the world. It constitutes India into a
Sovereign Democratic Republic and guarantees in every
page rights and freedom to the individual side by side and G
consistent with the overriding power of the State to act for
the common good of all. n
[Ibid, Emphasis supplied)
H
624 SUPREME COURT REPORTS (2010) 1 S.C.R.
A 6. The essence of our Constitution was also explained by
the eminent jurist Palkhivala in the following words:
"Our Constitution is primarily shaped and moulded for the
common man. It takes no account of "the portly presence
of the potentates, goodly in girth". It is a Constitution not
B
meant for the ruler
"but the ranker, the tramp of the road,
The slave with the sack on his shoulders pricked
c on with the goad,
The man with too W"ighty a burden, too weary a
load.""
[N. A. Palkhivala, Our Constitution Defaced
D and Defiled, MacMillan, 1974, p. 29)
7. I am in entire agreement with the aforesaid
interpretation of the Constitution given by this Court and also
by the eminent jurist.
E
8. In this context another aspect is of some relevance and
it was pointed out by Justice Hidayatullah, as His Lordship was
then, in Naresh Shridhar Mirajkar and others vs. State of
Maharastra and Anr. - [AIR 1967 SC 1). In a minority judgment,
His Lordship held that the judiciary is a State within the
F meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the
report]. This minority view of His Lordship was endorsed by
Justice Mathew in Kesavananda Bharati (supra) [at page
1949, para 1717 of the report] and it was held that the State
under Article 12 would include the judiciary.
G
9. This was again reiterated by Justice Mathew in the
Constitution bench judgement in the case of State of Kerela
and another vs. N. M. Thomas and others [AIR 1976 SC 490)
where Justice Mathew's view was the majority view, though
H
HARJINDER SINGH v. PUNJAB STATE 625
WAREHOUSING CORPORATION
given separately. At para 89, page 515 of the report, his A
Lordship held that under Article 12, 'State' would include 'Court'.
10. In view of such an authoritative pronouncement the
definition of State under Article 12 encompass the judiciary and
in Kesavananda (supra) it was held that "judicial process" is 8
also "state action" [Para 1717, pg. 1949]
11. That being the legal position, under Article 38 of the
Constitution, a duty is cast on the State, which includes the
judiciary, to secure a social order for the promotion of the
welfare of the people. Article 38(1) runs as follows: c
'The State shall strive to promote the welfare of the people
by securing and protecting as effectively as it may a social
order in which justice, social, economic and political, shall
inform all the institutions of the national life." D
This is echoing the preambular promise
12. Therefore, it is clearly the duty of the judiciary to
promote a social order in which justice, economic and political
informs all the institution of the national life. This was also made E
clear in Kesavananda Bharati (supra) by Justice Mathew at
para 1728, p. 1952 and His Lordship held that the Directive
Principles nevertheless are:
"... fundamental in the governance of the country and all the F
organs of the State, including the judiciary are bound to
enforce those directives. The Fundamental Rights
themselves have no fixed content; most of them are mere
empty vessels into which each generation must pour its
content in the light of its experience."
G
13. In view of such clear enunciation of the legal principles,
I am in clear agreement with Brother J. Singhvi that 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
H
626 SUPREME COURT REPORTS [2010] 1 S.C.R.
A it. In doing so this Court should make an effort to protect the
rights of the weaker sections of the society In view of the clear
constitutional mandate discussed above.
14. Thus, social justice, the very signature tune of our
8 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 be interpreted in a meaningful way
so that life can be lived with human dignity.
15. Commenting on the importance of Article 38 in the
C Constitutional scheme, this court in Sri Srinivasa Theatre and
Others vs. Government of Tamil Nadu and others [(1992) 2
sec 643], held that equality before law is a dynamic concept
having many facets. One facet- the most commonly
acknowledged- is that there shall be not be any privileged
D person or class and that none shall be above the law. This Court
held that Art 38 contemplates an equal society [Para 10, pg.
651].
16. In Indra Sawhney and Others vs. Union of India and
E Others [1992 Supp. (3) SCC 217], the Constitution Bench of
the Supreme Court held that:
"The content of the expression "equality before law" Is
illustrated not only by Articles 15 to 18 but also by the
several articles in Part IV, in particular, Articles 38, 39, 39-
F A, 41 and 46."
[at Paras 643, pg. 633)
17. Therefore, the Judges of this Court are, not mere
phonographic recorders but are empirical social scientists and ·
G the interpreters of the social context in which they work. That is
why it was said in Authorised Officer, Thanjavur and another
vs. S. Naganatha Awar and others - [(1979) 3 SCC 466), while
interpreting the land reforms Act, that beneficial construction has
to be given to welfare legislation. Justice Krishna Iyer, speaking
H
HARJINDER SINGH v. PUNJAB STATE 627
WAREHOUSING CORPORATION
for the Court, made it very clear that even though the judges A
are "constitutional invigilators and statutory interpreters" they
should "also be responsive to part IV of the Constitution being
"one of the trinity of the nation's appointed instrumentalities in
the transformation of the socio-economic order". The Learned
Judge made it very clear that when the Judges "decode social B
legislation, they must be animated by a goal oriented approach"
and the Learned Judge opined, and if I may say so, unerringly,
that in this country "the judiciary is not a mere umpire, as some
assume, but an activist catalyst in the constitutional scheme."
[Para 1, p. 468] c
18. I am in entire agreement with the aforesaid view and I
share the anxiety of my Lord Brother Justice Sf nghvi about a
disturbing contrary trend which is discernible in recent times
and which is sought to be justified in the name of globalisation
and liberalisation of economy. D
19. I am bf the view that any attempt to dilute the
constitutional imperatives in order to promote the so called
trends of "Globalisation", may result in precarious
consequences. Reports of suicidal deaths of farmers in E
thousands from all over the country along with escalation of
terrorism throw dangerous signal. Here if we may remember
Tagore who several decades ago, in a slightly different context,
spoke of eventualities which may visit us in our mad rush to ape
western ways of life. Here if I may quote the immortal words of F
Tagore:
"We have for over a century been dragged by the
prosperous West behind its chariot, choked by the dust,
deafened by the noise, humbled by our own helplessness
and overwhelmed by the speed. We agreed to G
acknowledge that this chariot-drive was progress, and the
progress was civilization. If we ever ventured to ask
"progress toward what, and progress for whom", it was
considered to be peculiarly and ridiculously oriental to
entertain such ideas about the absoluteness of progress. H
...
628 SUPREME COURT REPORTS [2010) 1 S.C.R.
A Of late, a voice has come to us to take count not only of
the scientific perfection of the chariot but of the depth of
the ditches lying in its path."
20. How stunningly relevant are these words and how deep
8 are the ditches created in our society by the so called advance
of globalization.
21. At this critical juncture the judges' duty, to my mind, is
to uphold the constitutional focus on social justice without being
in any way misled by the glitz and glare of globalization.
c
R.P. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Industrial retrenchment"Sign in to search