MUNICIPAL COUNCIL, SUJANPUR versus SURINDER KUMAR KUMAR

Citation: [2006] SUPP. 1 S.C.R. 914 · Decided: 05-05-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
MUNICIPAL COUNCIL, SUJANPUR 
v. 
SURINDER KUMAR 
MAY 5, 2006 
B 
(S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.) 
Industrial Disputes Act, 1947-Sections 2(s), 10(/)(c), I IA and 25F: 
Daily waged workman-Appointed in violation of the Recruitment Rules 
C at the instance of an MLA-Subsequently terminated--Entit/ement to relief of 
re-instatement with full back wages-Held: Not entitled--However having 
regard to the factual circumstances, employer asked to award monetary 
compensation of Rs. 50,000 to the workman-Constitution of India, 1950-
Articles 12, 14 and 16. 
D 
Termination-Burden of proof-To establish completion of 240 days of 
work within preceding 12 months -Lies on the workman. 
Constitution of India, 1950-Article 226-Writ of certiorari-Issuance 
of-Held: Can be issued if there is an error of law apparent on the face of 
E the record 
Appellant-employer is a statutory body and being a local authority, 
governed by the Punjab Municipal Act. It terminated the services of 
Respondent, a daily wager. Questioning the validity and legality thereof, 
an industrial dispute was raised, The Labour Court held that although 
F the respondent was appointed with the designation of Supervisor, he was 
merely discharging the duties of a workman; that the respondent having 
completed 240 days of work within a period of twelve months preceding 
his termination, it was the bounden duty of the Appellant to produce the 
entire relevant records but the same had not been done; that in terminating 
the services of the respondent, the appellant had not complied with the 
G statutory requirements contained in Section 2SF of the Industrial Disputes 
Act as no compensation had been paid to him in terms thereof, and 
accordingly directed the respondent to be reinstated in service with full 
back wages and allied benefits from the date of termination till actual 
reinstatement. Writ petition filed by the Appellant against the said award 
11 
914 
MUNICIPAL COUNCIL, SUJANPUR v. SURINDER KUMAR 
915 
was dismissed by High Court which, being of the view that its jurisdiction A 
in the matter of issuing a writ of certiorari is limited, declined to go into 
the question as regards the payment of entire back wages. Hence the 
present appeal. 
Allowing the appeal, the Court 
HELD: 1.1. The High Court's jurisdiction to issue a writ of certiorari 
though is limited, a writ of certiorari can be issued if there is an error of 
B 
law apparent on the face of the record. The Labour Court and the High 
Court also proceeded wrongly on the premise that the burden of proof to 
establish non-completion of 240 days of work within a period of twelve C 
months preceding the termination, was on the management. The burden 
was on the workman. (918-F; 919-B] 
1.2. The Labour Court and consequently the High Court also 
completely misdirected themselves insofar as they failed to take into 
consideration that relief to be granted in terms of Section I IA of the said D 
Act being discretionary in nature, a Labour Court was required to 
consider the facts of each case therefor. Only because relief by way of 
reinstatement with full back wages would be lawful, it would not mean 
that the same would be granted automatically. For the said purpose, the 
nature of the appointment, the purpose for which such appointment had 
been made, the duration/tenure of work, the question whether the post E 
was a sanctioned one, being relevant facts, must be taken into 
consideration. (919-E, Ff 
S.N Chandrashekar and Anr. v. State of Karnataka and Ors., (2006) 2 
SCALE 248; Bombay Dyeing & Mfg. Co, Ltd. v. Bombay Environmental 
Action Group & Ors., (2006) 3 SCALE I; U.P. State Brassware Corporation 
& Ors. v. Udit Narain Pandey, JT (2005) 10 SC 344, State of M.P. v. Arjan 
Lal Rajak, (2006] 2 SCC 610 and Manager, Reserve Bank of India, Bangalore 
v. S. Mani & Ors., (2005( 5 SCC 100, relied on. 
F 
Judicial Review of Administrative Action, by S.A. De Smith, IVth G 
Edition, p. 136, referred to. 
2.1. The appointment of the Respondent was not in a sanctioned post. 
Being a 'State' within the meaning of Article 12 of the Constitution of 
India, the Appellant tor the purpose of recruiting its employees was bound 
to follow the recruitment rules. Any recruitment made in violation of such H 
916 
SUPREME COURT REPORTS [2006) SUPP. I S.C.R. 
A rules as also in violation of the constitutional scheme enshrined under 
Articles 14 and 16 of the Constitution of India would be void in law. If a 
p

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