M/S. ESSEN DEINKIversusRAJIV KUMAR

                           MIS. ESSEN DEINKI                                       A
                                       v.
                              RAJIV KUMAR

                            OCTOBER 29, 2002

         [UMESH C. BANERJEE AND Y.K. SABHAR WAL, JJ.]                              B


       Industrial Disputes Act, 1947-Section 25F-Workman-Services-
Termination of on ground of unsatisfactory work-Non-compliance of section
25F as workman failing to complete 240 days of service-Reference-Labour C
Court holding that as workman had not completed 240 days of service
termination valid and compliance of section not required-High Court holding
that workman completed 240 days reversed the order of labour Court-
Justification of-Held, the proof of working for 240 days is on employee and
workman has stated at the stage of evidence that he has not worked for 240
days, thus High Court erred in reversing the order of labour Court-High D
Court could not overturn the finding of fact without assailing order of
labour Court as otherwise perverse-Constitution of India, 1950-Artic/e
227-Finding of fact-Interference with.

       Respondent-workman joined appellant as helper. Appellant terminated
services of respondent-workman as his work was not satisfactory. It also did       E
not comply with the provision of Section 25F of the Industrial Disputes Act,
1947 as the respondent-workman had not completed 240 days in the preceding
12 calendar months. Respondent-workman raised an industrial dispute.
Labour Court held that since respondent-workman had not completed 240 days
of service his termination was valid and there was no requirement of               F
compliance of Section 25F of the Act and passed an award in favour of
appellant Respondent-workman filed a writ petition. High Court reappreciated
the evidence and held that workmen in fact completed 240 days of service and
set aside the award of Labour Court. Hence the present appeal.

      Respondent contended that High Court in exercise of jurisdiction under       G
Article 227 of the Constitution not only exceeded its jurisdiction but clearly
erred in interfering with the finding of fact that the workman had not completed
240 days of service.

      Allowing the appeal, the Court
                                     499                                           H
    500                     SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A         HELD: I. The requirement of completing 240 days in service under
    section 25 F of the Industrial Disputes Act, 1947 cannot be disputed and it is
    for the employee concerned to prove that he has in fact completed 240 days in
    the last preceding 12 months' period. It has been the definite case of the
    workman concerned whilst at the stage of evidence that he has not worked
B   for 240 days. It is also a finding of fact which High Court cannot possibly
    overturn without assailing the order of Labour Court as otherwise perverse.
    High Court unfortunately did not deal with the matter in that perspective. Thus
    High Court committed a manifest error in reversing the order of Labour Court
                                                                 1505-D-F; 506-CI

       Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR (1963) SC 1895;
c Mani Nariman  Daruwala and Bharucha (deceased) through Lrs. and Ors. v.
    Phiroz N. Bhatena and Ors., AIR 11991) SC 1494; Workmen of American
    Express International Banking Corporation v. Management of American
    Express International Banking Corporation, 11985) 4 SCC 71 and Savita
    Chemicals (P) Ltd v. Dyes and Chemical Workers Union and Anr., 11999) 2
D   sec 143, referred to.
          Range Forest Officer v. S. T. Hadimani, 12002) 3 SCC 25, relied on.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7038 of2002.

         From the Judgment and Order dated 26.9.2002 of the Punjab and Haryana
E   High Court in C.W.P. No. 15275 of 1999.

          Ranjit Kumar, S.S. Ray and Ms. Rakhi Ray, for the Appellant.

          S.K. Bansal, Roopak Bansal and Harbans Lal Bajaj, for the Respondent.

          The Judgment of the Court was delivered by
F
           BANERJEE, J. Leave granted.

          Generally speaking exercise of jurisdiction under Article 227 of the
   Constitution is limited and restrictive in nature. It.is so exerdsed in the normal
   circumstances for want of jurisdiction, errors of law, perverse findings and
G gross violation of natural justice, to name a few. It is merely a revisional
   jurisdiction and does not confer an unlimited authority or prerogative to
    correct all orders or even wrong decisions made within the limits of the
   jurisdiction of the Courts below. The finding of fact being within the domain
    of the inferior Tribunal, except where it is a perverse recording there of or not
H · based on any material whatsoever resulting in manifest injustice, interference
                 ESSEN DEINKI v. RAJIV KUMAR [BANERJEE, J.]                       501

     under the Article is not called for:                                                 A
           The observations above however, find affinnance in the decision of this
     Court in Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR (1963) SC
     1895. In Nibaran (supra) this Court has been rather categorical in recording
     that the jurisdiction so conferred is by no means appellate in nature for
     correcting errors in the decision of the subordinate Courts or Tribunals but         B
     is merely a power of superintendence to be used to keep them within the
     bounds of their authority. More recently, in Mani Nariman Daruwala and
     Bharucha (deceased) through LRs and Ors. v. Phiroz N. Bhatena and Ors.,
     AIR (1991) SC 14~4, this Court in the similar vein stated:

                 "In the exercise of this jurisdiction the High Court can set aside       C
             or ignore the findings of fact of an inferior Court or tribunal if there
             was no evidence to justify such a conclusion and if no reasonable
             person could possibly have come to the conclusion which the Court
             or tribunal who has come or in other words it is a finding which was
             perverse in law. Except to the limited extent indicated above the High       D
~.
             Court has no jurisdiction to int•irfere with the findings of fact."

           Needless to record that there is total unanimity of judicial precedent on
     the score that error must be that of law and patently on record committed by
     the inferior Tribunal so as to warrant intervention-it ought not to act as a
     Court of appeal and there is no dissention or even a contra note being               E
     sounded at any point of time till date. Incidentally, the illegality, if there be
     any, in an order of an inferior Tribunal, it would however be a plain exercise
     of jurisdiction under the Article to correct the same as otherwise the law
     Courts would fail to subserve the needs of the society since illegality cannot
     even be countenanced under any circumstances.
                                                                                          F
           In this context reference may also be made to a still later decision of
     this Court in the case of Savita Chemicals (P) Ltd. v. Dyes & Chemical
     Workers' Union and Anr., [1999] 2 SCC 143, wherein this Court in paragraph
     19 of the Report observed :

             " .......... Under Article 227 of the Constitution oflndia, the High Court   G
             could not have set aside any finding reached by the lower authorities
             where two views were possible and unless those findings were found
             to be patently bad and suffering from clear errors of law ........."

          Adverting however, to the factual score at this juncture, it appears that
     the Respondent-workman joined the services of the Appellant as a helper on           H
    502                     SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A   1st July, 1990 and continued till 26th February, 1991. The service was terminated
    however, on the ground that in his short stay with the Appellant his work
    was not found to be of desired standard. The Appellant did not feel it
    expedient, however, to comply with the provisions of Section 25-F by reason
    of non-completion of 240 days in the preceding 12 calendar months. As a
    matters of fact it has been the contention of the Appellant at all stages that
B   the Respondent-workman worked for a total period of 219 days in totality with
    in the preceding 12 months period thereby falling short of statutory
    requirements noticed above.

          Mr. Ranjit Kumar, learned senior Advocate appearing in support of the
C Appeal, however, incidentally contended that the calculation of 219 days
    stands out to be inclusive of Sundays and paid holidays excepting the
    working days on which the Respondent was unauthorisedly absent since
    there was a strike on 25th February, 1991.

          The factual score depict that the Respondent-workman raised an
D   industrial dispute which was referred to by the Appropriate Government for
    adjudication to the Labour Court vide Reference No.129 of 1995. significantly,      ......
    Mr. Ranjit Kumar with his usual eloquence emphasised the stand of the
    Respondent-workman himself in his statement recorded on 25th November,
    1997 in the proceedings before the Labour Court to the effect that he had not
    completed 240 days of service. Subsequently, upon consideration on the
E   factual score, the Labour Court passed an Award in favour of the Appellant
    herein and returned a finding on fact that the concerned workman had not
    completed 240 days and, therefore, the termination was held to be valid and
    compliance of Section 25-F was not required in terms of the provisions of the
    Industrial Disputes Act.
F
           To continue with the factual backdrop, the Respondent-workman
    however, filed a Civil Writ Petition being C. W.P. No.15275 of 1999 against the
    said Award passed by the learned Labour Court, wherein the workman stated
    that there was some amount of miscalculation of the number of working days
    since Respondent-workman had in fact worked for exactly 240 days.
G
          Needless to record however that on 25th February, 1991, there was a
    strike and the Respondent-workman did also participate therein and this
    aspect of the matter stands highlighted by Mr.. Ranjit Kumar in his submissions
    that the High Court in exercising jurisdiction under Article 227 of the
    Constitution reappreciated the evidence on record and was pleased to take
H   a different view from the finding arrived at by the learned Labour Court on
            ESSEN DEINKI v. RAJIV KUMAR [BANERJEE, J.]                      503
the basis of Workmen of American Express International Banking                     A
Corporation v. Management of American Express International Banking
Corporation, [ 1985] 4 SCC 71, inter a/ia, recording that while calculating the
actual working days, Sundays and other paid holidays can be taken into
account. Mr. Ranjit Kumar has been rather vocal in the context that the High
Court failed to consider that even if the calculation of the Respondent-           B
workman was taken on the face value, the workmen had completed only 239
days as on 25th February, 1991, when admittedly the workers went on strike
and the Respondent-workman thus had not completed 240 days. Mr. Ranjit
Kumar contended that in exercise of jurisdiction under Article 227 of the
Constitution, the High Court has not only exceeded its jurisdiction but clearly
erred in interfering with the finding of fact. Aggrieved by the order, the         C
Appellant herein thus moved this Court under Article 136 of the Constitution.

       The principal issue thus appears to be as to whether the Respondent-
workman had completed 240 days of service in terms of the statutory provisions.
The evidence in support of the concerned workman himself however answers
the issue in the negative since it has been categorically stated. "it is correct   D
that I have not completed 240 days of service. I proceeded strike on 25.2.91".
Admittedly the Respondent-workman's service was terminated on 26.2.91 due
to non-satisfactory work and it has been Mr. Ranjit Kumar's definite and
emphatic submission that the respondent had worked not more than 219 days
as noticed herein before and question thus of having an answer in the              E
affirmative to the issue posed herein before would not arise.

       Incidentally, be it noted that the Labour Court upon perusal of the
evidence and on a thorough probe into the matter came to a definite conclusion
that worker has failed to prove that his services had been terminated in an
illegal manner by the respondent (the Appellant herein) and thereby recorded       F
an answer in the negative for the issue as posed. In the final analysis upon
consideration of all relevant facts the Labour Court recorded: "In the final
analysis, the view of my above findings, I see no merit in this reference and
the same is hereby declined. Appropriate Government be informed.

      It is against this order of the Labour Court that the High Court was         G
approached under Article 227 of the Constitution and the latter relying upon
the decision of this Court in American Express (supra) came to a conclusion
that the workman in fact have completed 240 days of service and as sue~
allowed writ petition and did set aside the award of the Labour Court with
a direction that the petitioner be reinstated in service with full back wages.     H
    504                    SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A   It is this finding which is under challenge before this Court with the grant of
    leave under Article 136 of the Constitution. The record of proceedings referred
    to thus depict that the Labour Court while rejected the Reference on
    appreciation of facts, the High Court thought it fit to reverse it on the basis
    of the law laid down by this Court in American Express (supra). It would thus
    be convenient to note the opinion expressed by this Court in American
B   Express at this juncture. This Court in paragraph 5 of the Report has stated
    as below:

                "5. Section 25-F of the Industrial Disputes Act is plainly intended
            to give relief to retrenched workmen. The qualification for relief under
            Section 25-F is that he should be a workman employed in an industry
c           and has been in continuous service for not less than one year under
            an employer. What is continuous service has been defined and
            explained in Section 25-B of the Industrial Disputes Act. In the present
            case, the provision which is of relevance is Section 25-B(2)(a)(ii)
            which to the extent that it concerns us, provides that a workman who
D           is not in continuous service for a period of one year shall be deemed
            to be in continuous service for a period of one year if the workman
            during a period of twelve calendar months preceding the date with
            reference to which the calculation is to be made, has actually worked
            under the employer for not less than 240 days. The expression which
            we are required to construe is "actually worked under the employer".
E           This expression, according to us, cannot mean those days only when
            the workman worked with hammer, sickle or pen, but must necessarily
            comprehend all those days during which he was in the employment
            of the employer and for which he had been paid wages either under
            express or implied contract of service or by compulsion of statute,
F           standing orders etc. The learned counsel for the Management would
            urge that only those days which are mentioned in the Explanation to
            Section 25-8(2) should be taken into account for the purpose of
            calculating the number of days on which the workmen had actually
            worked though he had not so worked and no other days. We do not
            think that we are entitled to so constrain the construction of the
G           expression "actually worked under the employer." The explanation is
            only clarificatory, as all explanations are, and cannot be used to limit
            the expanse of the main provision. If the expression "actually worked
            under the employer" is capable of comprehending the days during
             which the workman was in employment and was paid wages-and we
H            see no impediment to so construe the expression there is no reason
        ESSEN DEINKI v. RAJIV KUMAR SUBBA [BANERJEE, J.]                    505
        why the expression should be limited by the explanation. To give it        A
        any other meaning than what we have done would bring the object
        of Section 25-F very close to frustration. It is not necessary to give
        example of how Section 25-F may be frustrated as they are too obvious
        to be stated."

      Whilst it is true that the laws seems to be rather well settled as regards   B
the 'bread and butter' statutes and the welfare legislation introduced in the
Statute Book for the purposes of eradication of social malady, it is a duty
incumbent on to the law Courts to offer a much broader interpretation since
the legislation is otherwise designed to preparation of any arbitrary action
and no contra view thus is plausible. American Express affirms such a view.        C
       Significantly, the appellant's contention does not run counter to the
opinion expressed in American Express. It has been the definite contention
of Mr. Ranjit Kumar that even the test laid down under American Express
does not stand to acceptance of the workman's case. The requirement of the
Statute of 240 days cannot be disputed and it is for the employee concerned        D
to prove that he has in fact completed 240 days in the last preceding 12
months' period. As noticed hereinbefore, it has been the definite case of the
workman concerned whilst at the stage of evidence that he has not worked
for 240 days, as noticed hereinbefore in this judgment more fully. And it is
on this score Mr. Ranjit Kumar has been rather emphatic that the High Court
has thus fallen into a grave error in reversing the order of the Labour Court.     E
It is a finding of fact which the High Court cannot possibly overturn without
assailing the order of the Labour Court as otherwise perverse. The High Court
unfortunately has not dealt with the matter in that perspective.

      The proof of working for 240 days is stated to be on the employee in         F
the event of any denial of such a factum and it is on this score that this Court
in Range Forest Officer v. S. T. Hadimani, (2002] 3 SCC 25 was pleased to state
as below:

        " ............ .In our opinion the Tribunal was not right in placing the onus
        on the management without first determining on the basis of cogent G
        evidence that the respondent had worked for more than 240 days in
        the year preceding his termination. It was the case of the claimant that
        he had so worked but this claim was denied by the appellant. It was
        then for the claimant to lead evidence to show that he had in fact
        worked for 240 days in the year preceding his termination. Filing of
        an affidavit is only his own statement in his favour and that cannot H
    506                    SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A          be regarded as sufficient evidence for any court or tribunal to come
           to the conclusion that a workman had, in fact, worked for 240 days
           in a year, No proof of receipt of salary or wages for 240 days or order
           or record of appointment or engagement for this period was produced
           by the worK:man. On this ground alone, the award is liable to be set
           aside."
B
          Having regard to the opinion of this Court in the last noted decision,
    question,of affirmance of the impugned judgment cannot and does not arise
    more so .by reason of the fact that even this Court searched in vain in regard
    to the availability of such an evidence. The High Court, in our view, has thus
C   committed a manifest error in reversing the order of the Labour Court.

         The appeal, therefore, succeeds. The impugned order stands set aside
    and quashed and the order of the Labour Court stands restored. No costs.

    N.J.                                                         Appeal allowed.