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CASE NO.: Appeal (civil)  2636 of 2006

PETITIONER: State Bank of Bikaner & Jaipur

RESPONDENT: Om Prakash Sharma

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 18897 of 2004)  

S.B. SINHA, J.

Leave granted.

This appeal is directed against a judgment and order dated 3.6.2004  passed by a Division Bench of the Rajasthan High court, whereby and  whereunder an intra-court appeal filed by the appellant herein from a  judgment and order dated 23.4.2004 passed by a learned Single Judge  affirming an Award of the Central Government Industrial Tribunal-cum-  Labour Court (CGIT) dated 13.9.1999 was dismissed.   

The respondent herein was a casual workman.  He had worked with  the appellant-Bank from 6.8.1994 till 17.11.1994.  His services were  terminated.  An industrial dispute was raised by him culminating in a  reference made by the Appropriate Government to the Industrial Tribunal  which reads as under:

"Whether the action of the management of  SBBJ, Jaipur is justified in terminating the services  of Wrokman Shri Om Prakash Sharma S/o Shri  Sita Ram Sharma w.e.f. 19/11/94 and employing  another junior workman Shri Vijay Kumar in his  place without giving any opportunity of  employment in violation of section 25H of ID Act,  1947?  If not, what relief the workman is entitled?"

Before the Labour Court, a contention was raised as to whether the  provisions Section 25H of the Industrial Disputes Act, 1947 (’the Act’, for  short) and Rule 77 of the Industrial disputes (Central) Rules, 1957 (ID  Rules) have been violated, as one Vijay Kumar was said to be junior to him  and was said to have been appointed in his place.  A finding of fact was  arrived at that the respondent failed to prove that after his termination of  services Vijay Kumar was employed in his place in violation of Section 25H  of the Act or otherwise.  A finding, however, was arrived at that, no  seniority record was maintained, as is required under the Rules.  The  appellant was, thus, found to have violated Rule 77 of the ID Rules.  A  further finding was arrived at that Rule 77 being mandatory in nature, the  respondent was entitled to be reinstated in service with 50% of back wages.   

Aggrieved by and dissatisfied with the said Award, a writ petition was  filed by the appellant herein before the Rajasthan High Court which was  numbered as S.B. Civil Writ Petition No.1474 of 2000.   

A learned Single Judge of the High Court in dismissing the said writ

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petition opined that if the reference in question referred only to Section 25H  of the Act, the same would not mean that the tribunal was debarred from  going into the other illegalities committed under the Act or the amended  Rules.

An intra-court appeal preferred by the appellant herein thereagainst  was dismissed by a Division Bench stating:

"Learned Single Judge while relying upon  the judgment of the Supreme Court in Sadhna vs.  National Insurance Co. (2003 (3) SCC 526) found  that it was not a fit case to exercise jurisdiction  under Article 227 of the Constitution of India.

We do not find any error or illegality in the  impugned order passed by the learned Single  Judge.  The Labour Court by its award dated  September 13, 1999 set aside the oral order of the  appellant terminating the services of the  respondent workman as the appellant failed to  publish the seniority list of workmen in accordance  with Rule 77 of the Industrial Disputes (Central)  Rules.  

Accordingly, the appeal fails and is hereby  dismissed."

The Industrial Court, it is well settled, derives its jurisdiction from the  reference.  {See Mukand Ltd. vs. Mukand Staff & Officers’ Association,  [(2004) 10 SCC 460].}  The reference made to the CGIT specifically refers  to only one question, i.e., "Whether any illegality was committed by the  management in giving appointment to one Vijay Kumar in place of the  respondent in violation of Section 25H of ID Act, 1947?"  Non-maintenance  of any register in terms of Rule 77 of the ID Rules was, thus, not in issue.   Before the Industrial Court, the parties adduced evidence.  An attempt was  made by the respondent herein to show that one Vijay Singh was appointed,  although the name of one Vijay Kumar appeared in the reference.  An  attempt was also made by the respondent to show that Vijay Kumar and  Vijay Singh are one and the same person.  In fact, one voucher was  produced which was allegedly issued in the name of one Vijay Sharma.  The  said contentions of the respondent were denied and disputed by the appellant  herein.   

In that context, the Industrial Court held that the appellant was not  guilty of violation of provisions of Section 25H of the Act.  Section 25H  reads thus:

"25H.       Where any workmen are retrenched, and  the employer proposes to take into his employment  any persons, he shall, in 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 preference over other  persons."                                 

It is no doubt true, as was contended by Mr. M.P. Calla, learned  Senior Counsel appearing on behalf of the respondent herein, that the  Labour Court formulated four different issues and one of the issues was the  purported non-compliance of Rule 77 of the ID Rules.  But the Labour Court  even could not have framed any such issue.  Rule 77 reads thus: "Maintenance of seniority list of workman: -

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The employer shall prepare a list of all workman in  the particular category from which retrenchment is  contemplated arranged accordingly to the seniority  of their service in that category and cause a copy  thereof to be pasted on a notice board in a  conspicuous place in the premises of the industrial  before the actual date of retrenchment."

By reason of the said Rule, the employer has been enjoined with a  duty to prepare a list of all workmen in the particular category from which  retrenchment is contemplated.  Such a list was not prepared.  The  consequence of non-maintenance of the said document has been provided in  Rule 79 of the ID Rules, being imposition of penalty.  In case of violation on  the part of the management to comply with the statutory provisions, thus, it  could have been subjected to penalty.  Rule 77 may be mandatory in  character as was urged by Mr. Calla, but, only because the appellant herein  did not maintain the prescribed register, the same by itself would not mean  that the respondent herein would be entitled to be reinstated in service with  back wages without establishing that the provision of Section 25H was  violated.  The termination of the workman was not in issue.  In any event,  the Labour Court did not arrive at a finding that the termination of services  of the appellant was illegal.  He had not completed 240 days of service.  In  that view of the matter, the provisions of Section 25F of the Industrial  Disputes Act, 1947 was not required to be complied with.   

The specific issue which was, therefore, referred for determination by  the Labour Court, related to the dispute as regards violation of Section 25H  of the Act.  If the said provisions had not been found to be violated, the  question of setting aside the order of termination by the Labour Court did  not and could not arise.  The learned Single Judge proceeded on the premise  that the High Court, in exercise of its writ jurisdiction, cannot sit in appeal  over the Award of the Labour Court.  The learned Single Judge was right,  but then, only because the jurisdiction of the High Court, while exercising of  its power of judicial review was limited, it would not mean that even a  jurisdictional error could not have been corrected.  The provisions of Article  226 and 227 of the Constitution of India would be attracted if the inferior  Tribunal has, inter alia, committed a jurisdictional error.  What would be the  ground for judicial review, in regard to the orders passed by an inferior  Tribunal is no longer a res integra.   

In Sadhna Lodh vs. National Insurance Co. Ltd. [(2003) 3 SCC  524], the issue which came for consideration before this Court was as to  whether in the face of the provision for an appeal, the High Court could  exercise its power of judicial review.  It was held that when an appeal power  is vested in the High Court, ordinarily the writ jurisdiction could not be  taken recourse to.  Even in such a case, the court was held to have limited  jurisdiction.

In the instant case, the Award of the Labour Court suffers from an  illegality, which appears on the face of the record.  The jurisdiction of the  Labour Court emanated from the order of the reference.  It could not have  passed an order going beyond the terms of the reference.  While passing the  Award, if the Labour Court exceeds its jurisdiction, the Award must be held  to be suffering from a jurisdictional error.  It was capable of being corrected  by the High Court in exercise of its power of judicial review.  The High  Court, therefore, clearly fell in error in refusing to exercise its jurisdiction.   The Award and the judgment of the High Court, therefore, cannot be  sustained.  Consequently, the appeal is allowed and the judgment of the  High Court is set aside.   The award is set aside to the extent of order of  reinstatement with back wages.  The writ petition filed by the appellant in  the High Court is, thus, allowed.