- (1.) CHALLENGE in the present writ petition is to the award dated 30.09.2004 (Annexure P -8) whereby, the Labour Court Ambala declined the reference and dismissed the claim of the workman on the ground that he had not completed 240 days from May 1995 to April, 1996. A perusal of the paper book would go on to show that in the demand notice under Section 2 -A of the Industrial Disputes Act, 1947 (in short 'the Act') dated 31.08.1998 (Annexure P -3), the petitioner -workman took the plea that he had worked from 01.12.1992 to 30.04.1996 with various breaks and his services had been terminated when a regular post of a Mali had been created to accommodate some other person. He had made numerous representations but of no avail.
(2.) IN the reply to the demand notice dated 30.09.1998 (Annexure P -4), the respondent -management took a stand that the appointment was on daily wage basis and denied that the department wanted to accommodate some other person. That appointment letters had been issued on 10.01.1995 and on 19.01.1996 for 89 days. In fact, the post of Mali had become surplus at the Murthal plant and the regular employees had been transferred and posted at Shahabad plant. A claim petition was preferred on the same set of allegations which was rebutted by filing the reply and replication was also filed.
(3.) THE Labour Court, after taking into consideration the statement of the workman as WW -1 and Narender Kumar, Accountant as MW -1, held that the statement of the workman that he had worked upto 17.07.1996 was contrary to his stand that he had worked from 30.04.1996. As per the record and the copies of Exs. M -1 to M -31, which were the wages and attendance sheet, he worked upto April 1996 and while calculating backward from 30.04.1996, it was held that he worked only for 229 days in the preceding 12 months. The reliance upon the experience certificates that he had worked from 01.12.1992 onwards till 30.04.1996 with breaks would not mean that he had a continuous and regular appointment and, therefore, it could not be held that there was any violation of provisions of Section 25 -F of the Act. The argument that another person had been appointed and accommodated was also rebutted on the ground that the plant at Murthal had closed and the staff posted there had become surplus and accordingly, was posted at Shahabad Markanda. Reliance was placed upon the letter of the Managing Director of the Corporation dated 20.07.1998 and it was held that the said person namely Ram Khilan, being a regular employee had a much better right than a daily wager. Thus, it would be clear that a categorical finding of fact was recorded by the Labour Court that the workman had failed to complete 240 days and, therefore, the protection under Section 25 -F of the Act could not be granted to him. The onus to prove the fact that he had completed 240 days in a calendar year thus lay upon the workman as the per the settled principles of law and an adverse inference could not be drawn against the management since the management had produced the relevant record which was duly examined by the Labour Court. The reliance upon the work certificates showing that he had worked for 8 months and 7 days was also considered by the Labour Court by holding that it was not mentioned that he was working regularly and continuously from the date of his employment i.e. 01.12.1992 to 30.04.1996 since the attendance sheet showed that he had only worked for 229 days. Even otherwise, 240 days have to be considered backwards from the date of retrenchment and the Labour Court has already recorded a factual finding which could not be rebutted by the counsel for the petitioner. It has time and again been held by the Apex Court that while exercising the powers of writ jurisdiction under Article 226 of the Constitution of India, this Court is to exercise its power only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice has taken place. The High Court will not convert itself into a Court of appeal and indulge, appreciate or evaluate evidence and correct errors in drawing inferences or correct errors of mere formal or technical character. The said principle was laid down in Surya Dev Rai vs. Ram Chander Rai and others, 2003 6 SCC 675. It is where the Tribunal has acted illegally in exercise of jurisdiction conferred on it and decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice, this Court would interfere. The error of law has to be apparent on the face of the record and it has to be manifestly clear that the conclusion of law recorded by the Tribunal is in misinterpretation of the relevant statutory provisions or in ignorance in regard of the same. Thus, what can be corrected is an error of law, which would be of such character which is apparent on the face of the record and if the statutory provision is capable of two constructions and one of it had been adopted by the Tribunal, it may not be desirable to correct the same by way of writ of certiorari.;