Allahabad High Court
M/S Gangol Sahkari Dugdh Utpadak Sangh ... vs Presiding Officer, Labour Court-Ii ... on 7 April, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Reserved On 3.3.2017 Delivered On 7.4.2017 Case :- WRIT - C No. - 184 of 1999 Petitioner :- M/S Gangol Sahkari Dugdh Utpadak Sangh Ltd. Through G.M. Respondent :- Presiding Officer, Labour Court-Ii Meerut And Another Counsel for Petitioner :- Shesh Kumar,Sumati Rani Gupta Counsel for Respondent :- C.S.C.,Ajendra Kumar,Pankaj Srivastava,Suman Sirohi Hon'ble Mrs. Sangeeta Chandra,J.
1. Gangol Sahkari Dugdh Utpadak Sangh Ltd., Partapur, Meerut which is a co-operative society governed by the Co-operative Society Act 1965 and the terms and employment of whose employees are governed by the U.P Co-operative Societies Rules 1968 and U.P Co-operative Societies Service Employees Regulations, 1975 has approached this Court challenging an Award passed by the Presiding Officer Labour Court (3) U.P, Meerut dated 25.3.1998 in Adjudication Case No.46 of 1997, whereby respondent No.2 has been directed to be reinstated with 50 percent backwages.
2. The facts as mentioned in the Award impugned before this Court are that the respondent No.2 had filed a claim which after failure of conciliation proceedings was forwarded for adjudication by the Deputy Labour Commissioner vide reference in CP Case No.49 of 1989 dated 14.5.1991 under Section 4(K) of the U.P Industrial Disputes Act on which an adjudication Case No.46 of 1991 was registered. The respondent No.2 in his written statement had averred that the employer had a Dairy industry in which a sufficient number of workman are engaged and it is running a chilling plant at Sardhana, Meerut. The management of the Sardhana Plant is by the staff of PCDF and respondent No.2 was engaged as dairy-man on 3.10.1987 by the then management and he continued to work till 4.7.1988, during which period his work and conduct remained satisfactory. On 4.7.1988, his services were orally terminated by the then Supervisor without any disciplinary proceedings being conducted and without any opportunity of hearing to him. Since then the respondent No.2 had tried to obtain alternative employment, but had remained unemployed and had prayed for reinstatement with continuity in service and full backwages.
3. The respondent No.1 to the claim petition the Pradeshik Co-operative Dairy Federation (PCDF) in its written statement had stated that the respondent No.2 was never engaged by it and he was not its employee and there is no relationship of employer and employee between it and the respondent No.2 therefore, there is no question of his services being wrongly terminated by PCDF. It was disputed that (PCDF) was running the chilling plant at Sardhana, Meerut as alleged by the workman.
4. The respondent No.2 to the claim petition, who is the petitioner herein, submitted a written statement, an additional written statement and an amended written statement, and the claim of the workman was disputed that his services were wrongly terminated on 4.7.1988. It was also disputed that the workman had completed 240 days in a calendar year. According to the petitioner he had only completed 187 days and left work under the employers in March 1988 on his own and did not come back.
5. The Labour Court after taking evidence come to the conclusion that the workman was employed by the Gangol Sahkari Dugdh Utpadak Sahkari Sangh Co-operative Society and not by the U.P Co-operative Dairy Federation. With regard to calculation of 240 days, the workman had produced documentary evidence of wage bills which could not be disputed by the employers' witnesses which included wage bills of October 1987 to March-April 1988 and thereafter of June 1988. The workman had made a statement that although he had worked in May 1988 also, he could not submit the copies of wage bills because they were destroyed by the employers' witnesses.
Even though in the written statement filed by the Co-operative Society they had admitted that the workman was working as dairy man on the chilling plant, the defence witnesses had submitted in their oral evidence that the dairy man was never employed by the chilling plant directly, but was employed through the contractor. The Labour Court drew an inference that when the defence witnesses were so easily belying the written statement of the management, of the workman being employed under them, they could also have malafidely removed extracts from the attendance register. The Labour Court also came to the conclusion that since his illegal termination, the employee could not get work anywhere and remained unemployed and therefore directed reinstatement along with 50 percent of the back wages.
6. At the outset, learned counsel for the petitioner placed before this Court judgment rendered by the Hon'ble Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd Vs. Additional Labour Commissioner and others 2007 (2) ADJ Page 25 (Supreme Court) and judgment rendered by the co-ordinate bench of this Court dated 31.1.2010 in Writ Petition No. 33737 of 1994 M/s Pradeshik Co-operative Dairy Federation Ltd. (PCDF) Partapur, Meerut Vs. Labour Court, 1 U.P, Meerut and others. The counsel for respondent No.2 Ms. Sumati Rani Gupta respondent No.2 however, has disputed the applicability of the judgment rendered in the case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Commissioner and others.
7. When the writ petition was filed by the petitioner society, it did not take any pleading, with regard to the workman being governed by the U.P Co-operative Societies Act, 1965 and the Rules of 1968 and the Regulations of 1975. The main ground for challenging the award of the Labour Court were regarding the adjudication case being started without following due procedure as no proper conciliation proceedings were conducted before the Conciliation Officer and that the Presiding Officer, Labour Court had failed to consider the evidence led by the Co-operative Society that the respondent No.2 had not worked for 240 days and had arbitrarily drawn an interference that the relevant extract of the attendance register had not been deliberately made available. It was averred in the Writ Petition that since, the respondent No.2 had not worked for 240 days, therefore the relief given by the Labour Court was not admissible to him under Section 6 (N) of the U.P Industrial Disputes Act.
8. The counsel for the workman respondent No.2 Ms. Sumati Rani Gupta has relied upon two judgments of the Hon'ble Supreme Court for the proposition that artificial breaks in services should be excluded while calculating 240 days they are:- Workman of American Express International Banking Corporation Vs. Management of American Express International Bank Corporation AIR 1986 Page (SC) 458 and H.D. Singh Vs. Reserve Bank of India AIR 1986 (Supreme Court) Page 132.
9. The question regarding whether the workman had worked for 240 days or not, cannot be gone into by the Writ Court at this stage as has been held by the Hon'ble Supreme Court in the case of Heinz India (P) Ltd. v. State of U.P and others (2012) 5 SCC Page 443. The Supreme Court has observed thus:-
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus:-
"Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system... ...
"I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
10. The judgment mentioned above can be read with the judgment of the Hon'ble Supreme Court in Harjinder Singh vs Punjab State Warehousing Corporation, 2010 (3) SCC 192, the relevant paragraph of which reads as under:
"21. Before concluding, we consider it necessary to 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 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 43- A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:
"10. ... 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 significance to the ideal of welfare State."(State of Mysore Vs. Workers of Gold Mines,13, AIR p. 928, para 10.) "-----A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it.-----"
11. This Court is mostly concerned with the issue of applicability of the judgment rendered in the case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner and others (Supra) relied upon by the counsel for the petitioner. The counsel for the respondent No.2 argued that the U.P Co-operative Societies Act 1965 has been promulgated for the furtherance of co-operative movement and for providing the smooth functioning of Co-operative Societies and the Rules of 1968 provide for the responsibilities of various officers invested with their supervision, guidance and control. The object and reason for promulgation of the Co-operative Societies Act was not to regulate the service conditions of the employees of the Co-operative Society and it only incidentally provides the terms and conditions of employment of employees related with management, supervision and control of co-operative societies.
12. With regard to U.P Co-operative Societies Rules and Regulations, 1975, it has been submitted that the definition of employee given under the said Regulations is such as to include only whole time employees and not casual workers engaged on daily-wage basis or workers engaged on part time basis. Only those employees who fall within the definition of employee under the U.P Co-operative Societies Regulations, 1975 will be covered within the ambit of Sections 121 and 122 of the U.P Co-operative Societies Act.
13. On the other hand, the U.P Industrial Disputes Act 1947 is a statute dealing with matters relating to running of factories and settlement of industrial disputes arising out of terms and conditions of service of employees who fall within the definition of workman. The chilling plant being run at Sardhana by the petitioner society was a factory under the Factories Act. Although the Management of the said factory was registered under the U.P Co-operative Societies Act, 1965, with regard to maintenance of wage register, control of production process and distribution of wages etc, the running of chilling plant was governed by the Minimum Wages Act and the Schedule of Employment in Milk Dairies.
14. It was argued on behalf of the respondent No.2 that the production was controlled by Factories Act and analogous laws and only the management being run by the Co-operative Society did not make the chilling plant, which was actually a factory, into Co-operative Society.
15. The counsel for the respondent has also relied upon various Government Orders / Standing Orders issued for engineering industries employing less than 50 workers in various employments including employment in milk dairies. It has been argued that the minimum rates of wages of unskilled, semi skilled, skilled and highly skilled staff were determined on the basis of minimum rates of wages determined by the Government of U.P. in exercise of powers under Section 3 and 4 of the Minimum Wages Act, 1948.
16. The counsel for the respondent also referred to the other notifications issued by the Government of U.P, in exercise of power under Section 3 of the U.P Industrial Disputes Act, 1947 with regard to workman employed in co-operative spinning mills and co-operative sugar mills. It was also argued that several rules, regulations and official notifications viz; the U.P Cane Co-operative Sugar Mills Service Regulations 1975 were specifically framed for workers / employees working in co-operative vacuum pan, sugar mills and it was argued that in regard to the service conditions and any disputes arising therein, and even for persons employed in the chilling plant, run by the Gangol Sahkari Dugdh Utpadak Sangh, U.P. Industrial Disputes Act will still apply and the respondent No.2 being a "workman" within the meaning of Section 2(Z) of the U.P Industrial Disputes Act and the petitioner being covered under the definition of "employer" as given under the U.P Industrial Disputes Act, the U.P Co-operative Societies Act and the Rules, Regulations framed therunder would not apply as the U.P. Co-operative Societies Act deals with co-operative societies and not with industrial disputes.
17. It was also argued that Registrar could not decide dispute regarding the terms and conditions of employment of persons like the respondent No.2 who were engaged to do manual labour like washing and cleaning of milk cans by the management of the chilling plant at Sardhana.
18. The main thrust of the argument by the counsel for the respondent No.2 is that there being no provision for employment of persons like the respondent No.2 as workman in factories / industries being run and managed by co-operative society, whereas there being specific provisions for maintenance of industrial relations and industrial peace in the Industrial Disputes Act, the U.P Industrial Disputes Act would apply and not the U.P Co-operative Societies Act.
19. Although, at first blush the arguments of the respondent No.2 seem to carry much weight and do appear attractive, on detailed examination of the same and a close reading of the judgment rendered by the Hon'ble Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. (Supra), I find that almost the same arguments were advanced by the learned senior counsel for the employees of the Zila Sahkari Bank before the Hon'ble Supreme Court. The Hon'ble Supreme Court has recorded the submissions of the learned senior counsel appearing of the employees of the Bank thus:-
"-------It was then submitted that the U.P. I.D. Act is a special statute dealing with Industrial Disputes and therefore will exclude the application of U.P. Cooperative Societies Act which is a general statute-----"
"-------It was submitted that it has been placed beyond any doubt that the U.P. Cooperative Societies Act is an Act dealing with Cooperative Societies and not industrial disputes and the provisions therein are themselves unambiguous about the applicability of the various Labour Laws including U.P.I.D. Act.
(i) Section 135 of the Act is as under:
"135. Certain Acts not to apply to co-operative societies - The provisions contained in the Industrial Disputes Act, 1947 (Act XIV of 1947) and the U.P. Industrial Dispsutes Act, 1947 (U.P. Act XVIII of 1947) shall not apply to Cooperative Societies."
(ii) Regulation 103 of the U.P. Cooperative societies Employees Regulation,1975 is as under:
"103. The provisions of these Regulations to the extent of their inconsistency, with any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962, Workmen's Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any co-operative society or class of co-operative societies, shall be deemed to inoperative."
"------In the above Act, Section 70 provides for disputes which can be referred to Arbitration of the Registrar. Clause (1) thereof provides that Section 70 applies to "any dispute relating to the Constitution, management or the business of a cooperative society." Clause (2) thereof provides for including in the above disputes any "claims for amounts due" but this is also for the purposes of sub-Section(1) and therefore would have to be read along with clause (1).------"
"------Application of Labour Laws The learned senior counsel submitted that the legislature has specifically provided in the provisions of the U.P. Cooperative Societies Act itself that the Labour Laws will apply to the employees of the cooperative societies, in Regulation 103 and in non-enforcement of Section 135. The fact that Section 135 has not been brought into force indicates clearly that (a) in order to exclude Labour laws there must be statutory exclusion (b) failing such an exclusion Labour Law will apply. In this case, there is a fact an exclusion however under Section 135 has not been brought into force.
Regulation 103 specifically provides that any provision of 1975 Regulations which is inconsistent with any of the Labour Laws shall be deemed inoperative to the extent of such inconsistency.------"
"-----These Regulations also make it clear that under all circumstances industrial relations are governed by the U.P. Industrial Disputes Act and not by the U.P. Cooperative Societies Act.-----"
"----The present dispute is not "any dispute relating to the Constitution, management or the business of a cooperative society" and, therefore, the machinery provided in Section 70 or 128 of the U.P. Cooperative Societies Act would not be available to the employees of the Bank to enforce the settlement.----"
20. Thereafter, the Hon'ble Supreme Court has rejected the arguments made by the Learned Senior Counsel thus:-
"----The general legal principle in interpretation of statutes is that 'the general Act should lead to the special Act'. Upon this general principle of law, the intention of the U.P legislature is clear, that the special enactment U.P Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other Labour Laws. It is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended 'head-on-conflict and collision' between authorities under different Acts. ------"
21. The Hon'ble Supreme Court rejected the contention made by the learned senior counsel appearing for the employees and held that general legal principle in statutory construction is that the General Act should lead to the Special Act. The intention of the U.P Legislature was clear that the provisions of U.P Co-operative Societies Act, 1965 alone should apply in matters of employment in co-operative societies to the exclusion of all other labour laws. It is a complete code in itself as regards employment in co-operative Societies and its machinery and of the provisions. The general act that is the U.P Industrial Disputes Act 1947 will have no applicability and stands excluded after the enforcement of U.P Co-operative Societies Act and the observations made by the Hon'ble Supreme Court in Paragraph 53 of the said judgment are relevant and are produced hereinbelow:-
"-------We are therefore of the view that the Asst. Labour Commissioner (ALC)'s jurisdiction was wrongly invoked and his order dated 15.03.2003 under Section 6H, U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or not the government has enforced section135 (UPCS Act) because, in any case the said provision (S.135) had been included in the Act only by way of clarification and abundant caution.-----"
22. The judgment of the Hon'ble Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd being applicable to the facts of the case, the learned counsel for the petitioner has also produced before this Court two other judgments rendered by this Court relying upon Ghaziabad Zila Sahkari Bank Ltd. (Supra)
23. The learned counsel for the petitioner has also relied upon judgment rendered by the Hon'ble Supreme Court in the State Of Himachal Pradesh vs Suresh Kumar Verma JT 1996 2 (SC) 45, Himanshu Kumar Vidhyarthi and others Vs. State of Bihar and others AIR 1997 (SC)3657 and State of U.P Vs. Labour Court Haldwani and others 1991 (1) AWC Page 768.
24. I do not think it necessary to deal with these aforecited judgments as I have already held that the matter stands completely covered by the judgment of the Hon'ble Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. (Supra) and the Labour Court had no jurisdiction to entertain the dispute raised by the respondent No.2.
25. Consequently, the impugned award of the Labour Court is set aside and the writ petition is allowed.
Order Date :-7.4.2017 S Rawat