Allahabad High Court
Mahak Singh Son Of Shri Peeru Singh vs The Presiding Officer, Industrial ... on 15 April, 2005
Equivalent citations: 2005(2)ESC1484
Author: V.C. Misra
Bench: V.C. Misra
JUDGMENT V.C. Misra, J.
1. Heard Sri Sidharth, learned counsel for the petitioner, standing counsel for respondent No. 1, Sri S.P. Gupta. Senior behalf of respondent No. 21. On the joint request of the counsel for parties, Since the facts and grounds are common and, the impugned awards published on 23.2.1999 and put up on the notice board on 9.3.1999 are also the same in the four connected writ petitions, the above mentioned Writ petitions are being disposed off finally by this common order and judgment and order at this stage in terms of the High Court Rules.
2. The facts of the cases mentioned above in brief are that the petitioners-workmen were appointed between the years 1987-1991 and all of them worked till they were retrenched from service in the year 1994 and 1995 respectively. They have claimed to have worked continuously from the date of their appointment for more than 240 days but have beep. 3 wrongly and illegally retrenched from service in violation of the . provisions of Section 6 N of the U.P. Industrial Dispute Act, 1947 (hereinafter referred to as the Act). Similar references in each case was made (by the State Government under Section 4 K of the Act to the effect as to whether the termination of the services of the workman by the employer was just and/or legal? If not, then to what benefit/relief was the Workman entitled to.
3. In pursuance, of the above references in Adjudication Cases 134 of 1995; 139 of 1995; 132 of 1995; 129 of 1995 and 127 1995 registered by respondent No. 1. The written statement, counter and rejoinder affidavits were exchanged between the parties. The workmen petitioners submitted that they had been allowed the grade number and provident fund number and had been working continuously till the date their services were terminated, as they had demanded for Various benefits to which they were entitled to, their services were terminated without giving any notice or compensation as per law, though the juniors to them Were retained in service. Since they had remained' without after their wrongful termination they claimed reinstatement with full back wages.
4. The case of the employer was that since workmen-petitioners were engaged intermittently as causal and temporary hands and the real dispute was not about their termination but about their regularization of service. It was also stressed that the workmen-petitioners themselves stopped reporting in time office to find out as to whether and work was available for them. In fact their services had actually not been terminated. It was stated that they had not worked for 240 days in the last 12 calendar months immediately preceding their to the same workmen-petitioners stated of termination that they were engaged for a which was of a permanent nature and artificial break in services was shown by the employer. They had also been issued wages slip and deduction of provident fund slips from their wages. The workmen-petitioners filed documents as evidence in support of their cases, which included the attendance cards for various months, with bounus slip, wage slip and provident-fund slip etc. They also requested} for summoning of several documents from respondent No. 2-the employer which included the attendance register, payment of bonus record arid provident fund and various other documents in their possession to prove their engagements as workmen-petitioners.
5. The employee produced only the extract of the last 12 calendar months of the workmen -petitioners immediately the date of their retrenchment showing that none of the workman had worked for more than 240 days in preceding last calendar months. However the employers failed to assign any reasons for not producing the said documents summoned attendance register before respondent No. 1 the Tribunal. The allowed the workmen-petitioners to lead the secondary evidence in support of their case.
6. Respondent No. 1 -Tribunal passed the impugned awards against the workmen-petitioners holding that no Serious inference could be drawn against the employer for non filing of the certain documents as it did not keep such record regarding temporary hands and calculated that the workmen concerned were engaged as temporary hands and they had not put in 240 days of service preceding the alleged termination of their service.
7. The workmen-petitioners being aggrieved by the said awards passed by respondent No. 1-the Tribunal against them filed the present writ petition mainly on the ground that the finding that the workmen-petitioners were temporary hands were perverse, since it was proved that they worked against permanent posts on the basis of the documents filed by them before it, and that they had worked continuously for a considerable period and this act of the employer amounted to unfair labour practice and though it did not produce the documentary evidence summoned from it, still the respondent No. 1 did not draw any adverse inference against the employer, which it should have since it was necessary to disprove the contention of the workmen- petitioners by producing it and, thus, it committed a; manifest error of law. It has also been stated specifically in paragraph 23 that along with workmen- petitioner, several other workmen had been illegally retrenched" about the same date and they had also raised an Industrial Dispute and had the production of the documents, and in the matter such workmen so retrenched, the same Presiding Officer, held the retrenchment Is illegal on the basis of adverse inference drawn against, the employer for hot producing the service record of the workman concerned. The present Workmen-petitioners have filed a true copy of such award dated 29.6.1918 passed in adjudication case No. 128 of 1995 in the matter between Jai Pal Singh and the employer.
8. The present workmen-petitioners have sough the relief for issuance of a writ, order or direction in the nature of certiorari quashing the impugned award declaring their retrenchment as illegal with a further prayer in the nature of mandamus directing respondent No. 2 to reinstate the workman-petitioner in service with full back wages and all other allied benefits and treating them to be in continuous service.
9. The case of respondent No. 2 in the counter affidavit supporting the award is that to meet the temporary work an extra hand for emergent requirement of plant by persons like the petitioner-workmen was engaged requirement of plant by persons like the petitioner-workmen was engaged from a reserved pool of a temporary hand. In paragraphs 6 and 7 of counter affidavit, it has been mentioned:
"That standing order covering conditions of employment of employment of workmen in Vaccum Pan Sugar Factories in U.P. have been frame. under the provisions of Section 3 of the U.P. Industrial Dispute Act, 1947."
"That Clause 'B' deals with classification of workmen. A temporary workman has been defined to mean one who is engaged for work on temporary or causal nature or fill in a temporary need of extra hands on permanent, seasonal of temporary post."
In paragraph 8 of the counter affidavit, the classification of the workmen-petitioner shown therein, has been mentioned according to the standing orders as :
"That under the said standing provisions have also been made for termination of employment of workman under Clause (L) of the Standing Orders. Clause (L) 3 is with regards to Temporary Workman'.
Clause (L) 3 reads thus:-
"(3) No notice shall be necessary for termination of services of temporary/causal workman at the end of the period for which he was engaged."
10. It has been further stated that the classification of the workman-petitioner is not automatically enter-changeable and a temporary hand cannot claim the status of seasonal workman and cannot claim the regularization as a permanent workmen, and since the workmen in the reserved pool had been engaged for the causal requirement and had on their own stopped reporting to the time office to find out as to whether there was any temporary requirement after the alleged date of termination of service, and also as they had admittedly not worked for more than 240 days within 12 calendar months immediately preceding the said date, they had no vested right for continuous employment, more so, since present case not of dismissal, retrenchment or otherwise termination of terms and conditions of Section 2 A the Industrial Dispute Act and as such there being no reference of valid dispute referred to the Tribunal, the order of reference was void ab initio. It has been further submitted that the application filed by the workmen summoning the document were wholly misconceived, since the said documents were not relevant at all and the Tribunal has disposed off the said application by affording the workmen opportunity to produce the secondary evidence.
11. Learned counsel for the petitioner in support of his case has relied upon the decisions in the cases of Suraj Pal Singh v. P.O. Labour Court No. III (Del. H.C.), reported 2002 (95) FLR 521, H.D. Singh v. R.B.I., reported in 1985 (51) FLR, 494, Handloom Intensive Development Corporation v. Zaheeruddin Ansari and Ors., reported in 1993 FLR, 382, Ashok Kumar v. Managing Director, U.P. Leather Development and Marketing Corporation, reported in 1997 (77) FLR, 461, U.P. Drugs & Pharmaceuticals Co. Ltd. v. Ramanuj Yadav and Ors., reported in 2003 (99), FLR 331.
12. The learned counsel for respondent No. 2 has referred to decisions in the case of Ranger Forest Officer v. T.S. Handimani, reported in 2002 (94) FLR 622-623, wherein the Hon'ble Apex Court held that on the dispute as to whether they had worked for more than 240 days in a year proceeding their termination, the Labour Court was not right in placing the onus on the employer without first determining on the basis of cogent evidence and it was for the workman to lead the evidence or to show the evidence to have worked for more than 240 days in the year preceding his termination. The facts of this case are not applicable to the fact of the present case. In the present case the entire documents were placed before the labour court in their possession proving that they had sought for the necessary documents in possession of the employer which the employer failed to produce without any sufficient and cogent reasons and which were the best evidence to prove that the workmen had or not put in more than 240 days preceding years. Whereas the documents filed by the employer related only to the period of 1995 the year immediately proceeding the cessation of work. The case of Essen Deinki v. Rajiv Kumar, reported in 2002 (95) FLR, S.C., 949-953. are also not applicable to the present set of facts and so also the case of Kisan Sahkari Chini Mills Ltd and Ors. v. Awdesh Singh and Ors., reported in 1993 (67) FLR Alld. High Court, 602-604, as the said cases had been filed directly before this court under Article 226/227 of the constitution of India instead of getting the dispute resolved by the labour Court/Industrial Tribunal and also in the case of Airtech Private Ltd. v. State of U.P. and Ors., reported in 1984 (49) FLR, 38-85, wherein the Labour Court had placed the burden of proof on the employer directing him to lead the evidence first was set aside as per the rules of the U.P. Industrial Dispute Rules, 1957. It is imperative upon the workmen to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence, if the employer does not care to controvert the averments made in the affidavit nothing further needs to be proved or done by the workmen. The labour court was duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit and give its decision or award accepting the averments made in the affidavit as correct. This provision indicates the burden of proving the case lies on the workman referred to labour court in adjudication by the Government. It is settled law that the burden of proof never shifts, it is onus which keeps on shifting from stage to stage. In the present set of cases, the workmen had discharged their continuous working since 1991 to 1995 and the onus was on the employer to have proved otherwise by producing the entire record for the period 1991 to 1995 which it failed. The onus had shifted on the employer. In the case of Jaswant Sugar Mills Ltd. Meerut (Supra), the distinction between the permanent and temporary workmen have been interpreted and was not the matter discussing the provisions of Section 2A of the Industrial Dispute Act, 1947.
13. I have looked into the record of the case and heard learned counsel for the parties at length and find that to dispel the condition of the workmen-petitioners the employer had ample opportunity to produce their best evidence on record i.e. the document in their possession sought for by the employment summoned by the labour Coourt before it. This onus was on the employers, which they failed to fulfill without assigning any cogent reasons, under the present circumstances the Labour Court was obliged to draw an adverse presumption, under Section 114 Illustration (g) of the Indian Evidence Act, 1872, against it.
14. The respondents-employers having taken work from the workmen-petitioners of a permanent nature but allege to have engaged them to meet the causal and temporary requirement of work, without any evidence in support of the same amounts to unfair labour practice. This aspect of the matter has been criticized by the Hon'ble Apex Court in the case of Jaswant Sugar Mills Ltd, Meerut v. Badari Prasad and Ors., reported in 1961 FLR, S.C. 83-85.
15. Subsequently, the labour court has also failed to apply its mind to the fact that the definition of continuous service as per Section 2 (g) of the U.P. Industrial Dispute Act, 1947 included "interrupted service" also on account of sickness unauthorized leave etc referred to therein and which is not due to by fault on the part of the workmen-petitioners The labour court has, thus, erred in recording the finding of non-completion of continuous service on the basis of work of 12 months immediately preceding the date of termination of service without considering whether the shortfall in number of working days was caused by any of the reasons enumerated under aforesaid Section 2 (g) of the Act. Thus, alleged termination of the service of workmen-petitioners who have worked for more than 240 days in a calendar year even though have not completed 240 days during the immediately preceding 12 calendar months are deemed to be in continuous service and their termination being in violation of Section 6 N of the Act was illegal.
16. It is settled law that the provision of 6 N of the U.P. Industrial Dispute Act, 1947 apply to the workman who have worked more than 240 days in a calendar year preceding to their termination cannot be restricted to work immediately preceding the the of termination and will be deemed to be in continuous service. The present case is fully covered by the decision given in the case of U.P. Drugs & Pharmaceuticals Company, Ltd. v. Ramanuj Yadav and Ors., reported in 2003 (99), FLR, 331.
17. Under the said facts and circumstances of the case, let a writ of certiorari be issued to quash the respective impugned awards in adjudication cases nos. 134 of 1995; 139 of 1995; 132 of 1995; 129 of 1995 and 127 1995, Annexures Nos. 9, 8, 8, 8 and 8 to the writ petitions respectively. The respondent No. 2 is directed to reinstate the workmen-petitioners with continuity in service, unaffected by the impugned retrenchment and under the present circumstances of the case the petitioners shall be paid their half back wages w.e.f. 1995 the dates of their illegal retrenchment.
18. With the above observations, the writ petitions are allowed. No order as to costs.