Allahabad High Court
Vinay Kumar Gaur Son Of Sri Harbir Singh ... vs The Presiding Officer, Labour Court ... on 20 November, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
The two writ petitions connected together challenge the validity and correctness of the impugned order arising out of the same proceedings, hence they are being decided by a common judgment.
2. The facts culled out from these connected writ petitions are that Sri Vinay Kumar Gaur, petitioner in Writ Petition No. 18151 of 2003 and arrayed as respondent No. 2 in Writ Petition No. 8988 of 2007, was employed as Weighment Clerk in the respondent-Modi Sugar Mills (hereinafter called as the Mills) for the season 1990-91 after interview on 12.09.1990 in pursuance of call letter of the employers dated 16.08.1990.
FACTS:
3. The case of the workman was that after retirement of his father from service of the Mills from the post of Cane Inspector on 8.7.1986, he was appointed on the basis of notification dated 15.7.1982 and posted by order dated 27.10.1990 as Clerk at the Purchase Centre Gate (Outer Centre) of the Mills as permanent seasonal employee. Licence was also taken by the employer Mills for appointing the workman as Weighment Clerk in his name which is required under law. After the close of the season 1990-91 when the workman went to join his duties in the next season on 17.10.1991 he was not allowed to work, compelling him to raise an industrial dispute which was registered as C.P. Case No. 111/92. On conciliation proceedings having failed the following reference; was sent to the Labour Court (II), U.P., Ghaziabad for adjudication where it was registered by the Labour Court as Adjudication Case No. 277 of 1993.:
D;kk lsok;kstdks }kjk vius deZpkjh Jh fou; dqekj xkSM+ iq= Jh gjchj flag] in osesUV DydZ dks fnukad 17-10-91 ls dk;Z ls i`Fkd @ oafpr fd;k tkuk mfpr @ rFkk oS/kkfud gS \ ;fn ugh rks lEcfU/kr Jfed D;k ykHk @ vqurks"k ¼fjyhQ½ ikus dk vf/kdkjh gS ,oa vU; fdl fooj.k lfgr A 3.1 On receipt of summons the workman filed his written statement claiming continuity of service w.e.f. 17.10.1991 with full back wages as permanent seasonal employee. He also adduced oral as well as documentary evidence in support of his case.
3.2 Per contra, the case of the employer-Mills was that reference has not been made by the appropriate Govt.; that appointment of the workman was temporary for the period 27.10.1990 to 10.12.1990 for which he had been paid. Thereafter he was again appointed for the period 14.12.1990 to 28.01.1991 and lastly for the period 23.03.1991 to 15.04.1991 and paid in full for his work in the aforesaid periods accordingly; that since the appointment of the workman was temporary he has no right to continue in next season 1991-92 and that provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 are therefore not attracted in case of such employee and he is not entitled to any relief as claimed by him.
3.3 The workman appears to have filed his rejoinder to the written statement of the employer but as thereafter they did not participate or appeared in the proceedings before the Labour Court in spite of grant of several opportunities, their right of firing rejoinder statement to the written statement of the workman and of oral and documentary evidence was forfeited by the Labour Court.
3.4 The workman filed 14 documents in support of his case. He also entered the witness box to give oral evidence and proved the documents filed by him.
3.5 By the impugned Award dated 16.9.1997 the Labour Court decided the reference against the employer holding that the workman had worked for the whole of the season of 1990-91 but was not allowed by the employers to join the Mills for work on start of the next season w.e.f. 17.10.1991 which was illegal and unjustified as there was no evidence produced by the employer to the contrary that the appointment of the workman during the period was temporary as claimed by them. It was also found as a matter of fact by the Labour Court that the employers had appointed the workman as Weighment Clerk in the Purchase Centre for which they had also taken licence from the Collector for appointing him as such and not temporarily as claimed by the employers as such the workman was liable to have been called for the next season 1991-92. The Labour Court after recording the aforesaid findings granted relief of reinstatement with continuity in service to the workman as permanent seasonal employee to be taken in employment as such within 30 days of the publication of the Award. The employers were further directed to pay wages to him as such with all other consequential benefits including providing him work in the subsequent seasons also.
3.6 The aforesaid Award was published on 13.1.1998 and came in force on 13.02.1998 after 30 days as per provisions of Section 6 read with Section 6-A of the U.P. Industrial Disputes Act, 1947.
3.7 A restoration application was thereafter prepared by the employers on 03.08.1998 but was moved before the Labour Court on 24.8.1998 for setting aside the aforesaid Award. The workman filed his objection inter alia, that the application was not maintainable having been filed much beyond the period of 30 days after publication of the Award which had taken effect under Section 6-A of the U.P. Industrial Disputes Act, 1947 and as such was liable to be rejected.
3.8 The Labour Court by order dated 30.1.2003 allowed the restoration application filed by the employers on, payment of Rs. 500/- as costs holding that the cause shown for setting aside the Award was sufficient. The order is as under:
30.1.03 Heard parties representatives on application 21-D. 21-D This restoration application has been moved for setting aside the award dated 16.9.97 on the grounds that applicant came to know of the award at the time of receiving ;the recovery orders on 26.6.98 and thereafter the applicants Counsel felt; sick and application could be moved on 3.8.98. The medical certificate of sickness has been filed.
The recovery proceedings have been stayed by Hon'ble High Court.
The ground is sufficient. Application 21-D is allowed on cost of Rs. 500/- within one month and Adj. Case No. 277/93 be restored.
Sd/-P.O. Labour Court II GBD 3.9 It is this order dated 30.1.2003 aforesaid passed by the Labour Court which is assailed by the workman in Writ Petition No. 18151 of 2002 on the ground that it does not contain any reason much less sufficient reason for setting aside the Award dated 16.9.1997 which had already taken effect on 12.2.1998 after 30 days of publication on 13.1.1998.
4. It is urged by the learned Counsel for the workman that the Labour Court had become functus officio after 30 days of publication of the Award. It had no jurisdiction to entertain the restoration application dated 24.8.1998 filed by the employers on 24.8.1998, i.e., after the Award had come into force on expiry of 30 days from the date of publication as is held in the case of Sangham Tape Co. v. Hans Raj 2004 (103) F.L.R. 699, hence the order of the Labour Court being illegal and against the provisions of law and the Act is liable to be quashed. He has also relied upon the decision rendered by this Court in U.P. Awas Vikas Parishad v. P.O., Industrial Tribunal (IV), U.P., Agra and Ors. dated 7.10.2005 in Writ Petition No. 54914 of 2004 which has been followed by this Court in U.P. State Electricity Board v. Sri Brahm Singh 2006 (110) F.L.R. 97.
4.1 It is submitted that the decision rendered in LLP. State Electricity Board (supra) was challenged in Special Leave Petition No. 10425 of 2006 before the Hon'ble Supreme Court which was dismissed in limine.
4.2 It is then submitted that the validity of the Government Notification dated 15.7.1982 has already been upheld by a Division Bench of this Court in U.P. State Sugar Corporation v. P.O. and Anr. 1996 (73) F.L.R. 1090, and as the employment of the workman as an heir of his father is a fact admitted by the employers they are estopped from raising any technical ground that the workman was not given employment pursuant to Government notification dated 15.7.1982. It is further submitted that the employers had not produced any evidence before the Labour Court in support of their case; hence their case that the employment of the workman was temporary must fail and as the workman had worked for whole of the season 1990-91 he was a seasonal employee as defined in the Standing Orders applicable to the sugar factories of the State of U.P. Seasonal Workman has been defined in the Standing Orders as under:
A seasonal workman is one who is engaged only for the crushing season and has completed his probationary period, if any.
5. On the basis of the above definition of Seasonal Workman, Sri Shyam Narain, learned Counsel for the workman has urged that admittedly the workman was not employed as probationer and having worked for whole of the season 1990-91 became a Seasonal Workman, as such he is entitled to employment in the next season 1991-92 as per Clause K of the Notified Standing Order, 1998. Reliance in this regard has also been placed upon the decision rendered in Basti Sugar Mills v. Prem Chand 1999 (81) FLR 312 (Para 7).
6. It is urged that since the employers had raised a contention in their written statement that the workman was employed as a temporary workman therefore the Labour Court was bound to decide the nature of his employment and it committed no illegality in holding the workman to be a permanent seasonal employee. In this regard Sri Shyam Narain, learned Counsel for the workman, has relied upon Para 5 of the decision rendered in Indian Farmers Fertilizer Corporation Ltd. v. Industrial Tribunal (I), Allahabad and Ors. , and prays that for the same reason the writ petition of the petitioner-workman is liable to be allowed.
6.1 A Per contra, the learned Counsel for the respondents Sri Shakti Swaroop Nigam has submitted that ingredients of the ex-parte Award, when written statement of employee has been filed but the employers did not participate thereafter, has been given in the judgment dated 14.9.2005 rendered in Writ Petition No. 48737 of 2004, Devyani Beverages Ltd. v. Labour Court II, Ghaziabad and Ors.
7. In that case the High Court in the facts and circumstances of that case had held that it is true that the petitioner-employer had appeared before the Labour Court at the initial stage and the record reveals that they had also filed their written statement on 1.10.1999. However, as there was no Presiding Officer posted for more than two years and after the new Presiding Officer had joined, he rightly chose to send fresh notice to the parties. The notice sent to the employer on 2.8.2002 was returned back unserved. The record does not reveal that the Labour Court, at any stage of the proceedings, had recorded its finding to the effect that on return of unserved notice, the service on the employer would be deemed sufficient. Merely because the registered notice sent to a party is returned back unserved would not automatically lead to the presumption of deemed service. The satisfaction of the Court concerned, on the facts and circumstances of the case, has to be specifically recorded in this regard. Thus, on the facts of this case, it does not appear that the petitioner-employer, who had earlier appeared to contest the case and also filed his written statement, would deliberately avoid appearing in the proceedings before the Labour Court if the notice had actually been served on the employer.
8. Further as regards the merits of the claim of the workman, the Court in that case found that a perusal of the award shows that without even discussing any evidence, and without actually recording any finding that the workman had worked for more than 240 days in a year or that he was ever paid any wages or salary, the Labour Court arrived at a conclusion that the passing of the oral termination order dated 10.12.1997 passed by the employer was not justified, and after quashing the same, allowed the entire claim of the workman. As already stated above, in the award itself it has been recorded that the written statement of the employer had been tiled. The Labour Court, thus, before passing the award on merits, ought to have also considered the case of the employer as set out in their written statement, even if the employer, for any reason, could not participate in the proceedings subsequently. In the absence of the same, the ex-parte award passed by the Labour Court deserves to be set aside on this count also.
9. Though order to recall its ex-parte award is discretionary and is to be based upon sufficiency of reasons, it is to be passed within the four corners of law by a judicious approach.
10. This Court in Uttar Pradesh Avas Evam Vikas Parishad through the Housing Commissioner v. Presiding Officer, Industrial Tribunal (4), U.P., Agra and Ors., considered the provisions of the U.P. Industrial Disputes Act, 1947 and Rules framed thereunder as well as the provisions of the Industrial Disputes Act (Central) and relevant rules thereunder. The Court considered as to what would be the limitation in law for filing an application for recall of the Award as in the present case and came to the conclusion that limitation for filing such an application is within 30 days of the publication of the Award. The relevant extract of the judgment is as under:
Conclusions:
The question before the Court is thus confined as to whether the summons could have been deemed to have been served on the petitioner and whether the application for restoration could have been filed beyond the limitation often days as provided under Rule 16 of the U.P. Industrial Disputes Rules, 1957. If so, what would be the limitation in law for filing the application? Whether the application for setting aside ex parte order was barred by time and whether petitioner is guilty of latches. There are two types of ex parte award (i) in which service is sufficient and (ii) in which party is not served or is not properly served.
Under the Industrial Disputes Act of Industrial Disputes Act, 1947 (Central). In Rule 22 of Central Rules there is no limitation provided for application for setting aside ex parte award but in U.P. limitation of 10 days has been inserted.
This Court in a catena of decisions has held that application under Rule 16(2) has to be filed within 10 days of the order. Reference may be made to Deen Daval Shodh Sansthan v. State 1997 (1) LLJ 982 and U.P. State Road Transport Corporation v. State 1996 (1) LLJ 31.
The question regarding limitation for filing application for recall/setting aside of the ex parte order/award under the U.P. Industrial Disputes Rules, 1957 was specifically considered in detail by this Court in Civil Misc. Writ No. 16152 of 1999 Shree Talkies, Mohaddipur Gorakhpur v. Labour Court (U.P.) at Gorakhpur and Anr.
According to law laid down in U.P. State Sugar Corporation v. Om Prakash Upadhava 2002 (93) FLR 600, the U.P. Industrial Disputes Act alone applies in State of U.P., hence in U.P. Ten days limitation has to be followed and application filed after 10 days after ex parte award will be barred by limitation. Hon'ble the Apex Court also in a catena of decisions has held that the Labour Court or Tribunal does not become functus officio till expiry of 30 days from the publication of award. Reference may be made to cases of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) and Sanghavi Tape Co. v. Hans Raj (supra). Thus if the application for setting aside the ex parte award is not filed within 10 days, it can be filed with application under Section 5 of the Limitation Act up to 30 days of publication of the award. The Labour Court has no jurisdiction to entertain such application after 30 days of publication of ex parte award.
In so far as second type of cases are concerned it may be noted that Article 123 (Explanation) of Limitation Act itself provides that substituted service will not be deemed to be due service and matter may be considered by Labour Court/Tribunal. Right to proceed ex parte is procedural. Every procedure in law has been provided to enhance justice and not injustice. Hence, the Labour Court/Tribunal has to exercise jurisdiction to do justice in view of circumstances and facts of each case.
In paragraph 9 of the judgment in State of U.P. and Anr. v. Bachai Lal and Anr. 1997 (76) F.L.R.-919 it has been held that:
The next question that arises for consideration is as to whether the application filed after ten days of the exparte award is maintainable. In my opinion, the Labour Court retains jurisdiction to entertain an application for setting aside an ex-parte award at least till the award attains finality under Section 6 of the Act albeit according to Grindlays Bank Ltd. ( supra), it retains jurisdiction "until expiry of 30 days from the publication of the award". It is another thing that the jurisdiction can be invoked only upon sufficient cause being shown for absence.
Similarly in paragraph 13 of the judgment in U.P. Power Corporation Ltd. and Anr. v. Presiding Officer Labour Court, Ghaziabad and Anr. (2003) (98) FLR-998 it is observed by Hon'ble the Supreme Court as under:
As has already been held that the award was made under Rule 12(9), question of limitation of ten days does not arise. The Labour Court could still recall the order dated 2.8.1986 as by 3.9.1986, when the recall application was filed, the award was not enforceable as it was not published, thus the question of limitation of ten days did not arise. The merits of the reason for nonappearance was to a large extent in the judicial discretion of the Labour Court.
In both the aforesaid cases the High Court had held that the Labour Court retains jurisdiction to entertain an application for setting aside an ex-parte award till it attains finality under Section 6 of the U.P. Industrial Disputes Act, 1947. In these cases, the Court took support from the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors., (supra) and categorically held that the term "sufficient" used in Rule 16, no doubt, should receive liberal construction so as to advance substantial justice but if the party is found guilty of latches, indifference and inaction or where want of bona fides is imputable to the party, it cannot be said to have shown sufficient cause for absence.
In the instant case, admittedly the award has been published and has attained finality. It has become enforceable as the application for recall for ex parte award was filed after 30 days from the date of its publication.
It appears from the perusal of restoration/recall application filed by the petitioner before the Tribunal that the petitioner in paragraph 5 of the affidavit filed along with the restoration application has stated that since the notice was not traceable in the office of the petitioner at Lucknow, it could not be presumed to have been served on the petitioner. Paragraph 5 is as under:
5. That, therefore, this is a case in which the service has been presumed by the Hon'ble Tribunal but as information gathered from Lucknow the notice of the Honble Tribunal is not traceable, therefore, obviously the service of the notice cannot be presumed.
It is apparently clear from perusal of paragraph 5 above that service of summons is not definitely denied by the petitioner. What is said is that it is not traceable, hence notice cannot be presumed. Further, the restoration application having been fded more than 30 days after the publication of the award, the same was not maintainable in view of the recent judgment of Hon'ble the Supreme Court in Sansam Tape Co. case (supra) wherein it has been held that when the Court has become functus officio it has no right to entertain any application whatever may be the reason.
The ex parte award passed on 25.5.93 was published on 31.1.94. It would have become enforceable on expiry of 30 days thereafter publication in accordance with Sub-section (3) of Section 6 of the U.P. Industrial Disputes Act. The application for setting aside award was filed on 15.2.94 i.e. within 30 days of the publication of the award. Rule 16(2) of the U.P. Industrial Disputes Act provides as under:
16 (2). The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence, if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order.
Limitation Act, 1963 provides that limitation for suits and applications. Section 29(2) of Limitation Act, 1963 provides as under:
29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
Under entry 123 limitation for moving application for ex-parte decree is 30 days but in view of Section 29(1) the limitation of 30 days. It will have to be read as 10 days in cases governed by U.P. Industrial Disputes Act which is a special Act. The provisions of Limitation Act have not been excluded by the U.P. Industrial Disputes Act. Hence Sections 4 to 24 of Limitation Act including Section 5 thereof applies to proceedings under U.P. Industrial Disputes Act also and a party can file application under Ride 16(2) of U.P. Industrial Disputes Rules with application under Section 5 of the Limitation Act explaining the delay in not filing application within 10 days and the Labour Court has full power to decide it providing of course the application is moved within 30 days of the publication of the ex-parte order or award. If application is filed after said 30 days the Labour Court can not entertain it as it becomes functus officio on expiry of 30 days.
A Full Bench of this Court in case of Badri Prasad Haridas 1983 U.P. Local Bodies and Education Cases page 56 : 1984 (48) FLR-315 relying on the case of Grindlavs Bank (supra) held that Labour Court/Industrial Tribunal retains power to set aside ex-parte proceedings till award is enforced after 30 days of the publication. The Tribunal rejected its application for setting aside the ex parte award as the Tribunal was not satisfied with the explanation offered by the petitioner in paragraphs 5 and 7 of the application in respect of delay in filing application under Rule 16(2) of the Industrial Disputes Rules. The view taken is not perverse or arbitrary.
For the reasons stated above and in view of law considered above, the writ petition fails and is dismissed as the remedy of challenging the ex parte award was not availed of by the petitioner since the restoration application was filed beyond prescribed period of limitation. No order as to costs.
The aforesaid judgment was again followed in U.P. State Electricity Board, Muzaffarnagar v. Brahm Singh and Anr. 2006 (110) F.L.R. 97, against which the employers preferred Special Leave to Appeal (Civil) No(s). 10425/2006 before the Apex Court - U.P. State Electricity Board v. Brahm Singh, which was dismissed by the following order/judgment dated 14.07.2006 by the Apex Court:
Heard.
The special leave petition is dismissed.
At this stage, the Counsel appearing for the petitioner prays that the time granted by the High Court be extended. The High Court had granted two months' time to the petitioner to reinstate the respondent. This period is extended by another month from today.
11. A perusal of the order dated 30.1.2003 shows that the Labour Court has not at all given any basis for concluding that reasons given for setting aside the ex-parte Award were sufficient. It has only recorded its conclusions without considering the law as to whether the application was maintainable beyond the period of limitation, i.e., after 30 days of publication of Award or not. It is only after giving a finding in this retard; that the Labour Court could have gone into sufficiency of reasons, hence Writ Petition No. 18151/2003 is allowed.
12. The Court is now to consider the challenge to the Award in connected Writ Petition No. 8988 of 2007. For this purpose the operative part of the Award passed by the Labour Court is quoted as under:
vr% bl fu"d"kZ ij igqWprk gwW fd lacaf/kr Jfed us lhtu o"kZ 90&91 esa iwjs lhtu dk;Z fd;k vkSj u;s lhtu o"kZ 91&92 esa tc og 17-10-91 dks dk;Z ij mifLFkr gqvk rks mldks dk;Z ij ugh fy;k Fkk tks fu;e fo:) o vuqfpr gS A vr% esjk vfHkfu.kZ; gS fd izfroknh lsok;kstd vokMZ izdk'ku ds rhl fnu ds vUnj lEcfU/kr Jfed dks iqjkuh ds dze esa gj lhtu esa fu;ksftr djs rFkk lacf/kr Jfed dks lhtuy deZpkjh dk osru o vU; leLr fgr ykHk Hkqxrku djsssa A okn ls lacaf/kr Jfed izfrfuf/k dks oknO;; ds :i esa :i;s 100@& dk Hkh Hkqxrku mDr vof/k ds vUnj djsa A gLrk0 vi0 ¼vkj0,y0 lksuh½ ihBklhu vf/kdkjh A
13. The Connected Writ Petition No. 8988 of 2007. Modi Sugar Mills (Modi Industries Ltd.) v. Presiding Officer, Labour Court (II), U.P. Ghaziabad and Anr., has been filed for quashing the Award dated 16.09.1997 passed in Adjudication Case No. 277/1993.
At the time of admission the Court has passed the following order:
Affidavit of service has been filed today. Sri S.S. Nigam, Advocate has put in appearance on behalf of respondent no, 2 who is employer. As prayed by Sri Nigam counter affidavit may be filed within three weeks. Rejoinder affidavit may be filed within next two weeks. List after five weeks.
In the mean time further proceedings consequent to the impugned order dated 30.1.2003 will remain stayed till further orders.
Sd/-. S. Harkauli, J.
8.7.2003
14. The contention of the learned Counsel for the employers is that the workman has been appointed in place of his father on 27.10.1990 as Weighment Clerk after retirement of his father on 8.7.1986 who was working as Cane Inspector in pursuance of notification dated 15.7.1982. It is stated that the notification in pursuance of which the workman was appointed in place of his father has been quashed by this Court in United Provinces Sugar Co. Ltd. v. Slate of U.P. (supra). He placed reliance upon paragraph 16 of the aforesaid judgment which is quoted as under:
In the present case, the Union has raised a dispute with regard to employment or non-employment of the heirs of the retired workers or deceased workers which is clearly not an industrial dispute contemplated under Section 2(1) of the U.P. Industrial Disputes Act. Consequently, no industrial dispute could he referred for adjudication.
15. Sri S.S. Nigam has further urged in Writ Petition No. 8988 of 2007 filed on behalf of M/s Modi Sugar Mills that workman has simply stated and gave an affidavit that he had worked for the entire season 1990-91 but has not given any proof of his salary, appointment or engagement, hence there is no proof much less any "sufficient proof" of his employment as seasonal worker in the Mills.
16. According to the employers the workman had worked for 122 days as daily wager, as such in view of the apex court decisions rendered in Haryana State Electronics Development Corporation v. Mamni 2006 (109) F.L.R. 1000, and Nagar Mahapalika (now Municipal Corporation) v. State of U.P. and Ors. 2006 (109) 1092, the workman cannot be reinstated.
17. He also submits that under Section 11 of the Industrial Disputes Act, the Labour Court has ample power to device its own procedure/power to set aside an ex-parte Award. In support of this contention he has relied upon the decision of the apex court rendered in Anil Sood v. Presiding Officer, Labour Court II 2001 (89) F.L.R. 229. He further relied upon the decision rendered by Jaipur Bench of Rajasthan High Court in Divisional Forest Officer v. Ram Kalyan and Anr. 2006 (110) F.L.R. 74, wherein it has been held that the application for setting aside the ex-parte award is maintainable even after publication of the award in the Gazette.
18. The learned Counsel for the employers then cited an apex court decision rendered in State of Uttaranchal v. Ajit Singh Bhola and Anr. 2004 (3) A.W.C. 2380 (SC), wherein it has been held that an illegal order will not be quashed if its effect is to revive another illegal order.
19. Reliance has been placed by him upon the apex court decisions rendered in Range Forest Officer v. S.T. Hadimani ; Municipal Corporation, Faridabad v. Siri Niwas ; Essen Deinki v. Rajiv Kumar ; and M.P. Electricity Board v. Hari Ram in support of his contention.
In Range Forest Officer (Supra), it is held that the workman's affidavit was not sufficient evidence for the purpose of factual proof of facts.
20. In the decisions cited by the Counsel for the employers, i.e., (i) Municipal Corporation (Supra); (ii) Essen Deinki (Supra) and (iii) M.P. Electricity Board (Supra) it has been held by the the Supreme Court that burden of proof was on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment. On facts, the workman had adduced no evidence whatsoever in this regard before the Tribunal or High Court, apart from examining himself which was not enough material that the workman could have been placed before the Tribunal. In this regard it was pointed out that the High Court in the circumstances committed a manifest error in reinstating the workman only on the basis of adverse inference drawn against the employer for not producing the muster rolls.
21. He further contended that if the workman treats himself to be a seasonal workman he is not entitled for re-instatement or for compensation in view of the decision rendered in Morinda Co-Op. Sugar Mills Ltd. v. Ram Kishan and Ors. .
22. Lastly it is contended that the provisions of Industrial Disputes Act are not applicable to the seasonal sugar factory in view of the apex court decision rendered in Anil Bapurao Kanase v. Krishna Sahakari Sakhar. Karkhana Ltd. .
23. The learned Counsel for the workman in rebuttal in this petition submits that the workman had been appointed in his own right vide order dated 27.10.1990 and was posted at the Purchase Centre Gate of the Mills. No evidence was given by the employers regarding employment of the workman as temporary employee, hence after appreciation of oral and documentary evidence on record the Labour Court has rightly come to the conclusion that the workman was appointed as a permanent seasonal workman and has rightly directed the employers to continue the workman as a seasonal workman. He then urged that the Writ Petition No. 8988 of 2007 was filed by the workman after 9 years of the enforcement of the Award challenging its validity and correctness and as such was liable to be dismissed as the employers cannot get any benefit of the restoration application filed before the Labour Court which was a nullity having been moved before a court which had become functus officio. He urged that in the circumstances even if the workman had been appointed under the notification dated 15.7.1982 his rights were perfected after 9 years of passing of the Award. Moreover, the father of the workman was working as Cane Inspector and had retired on 8.7.1986 whereas the workman was appointed as Weighment Clerk on 27.10.1990, as such he could not be said to have been employed in place of his father after more than four years, the two posts being different therefore the case of United Provinces Sugar Co. Ltd. cited by Sri S.S. Nigam regarding quashing of the notification dated 15.7.1982 has no effect on his appointment on another post. He further submits that the reference was not as to whether the termination of services of the workman who has been appointed in pursuance of notification dated 15.7.1982 was justified and legal or not, rather it was as to whether the order of termination of the workman was legal and justified or not.
24. The decisions relied upon by Sri S.S. Nigam rendered in Range Forest Officer v. S.T. Hadimani ; Municipal Corporation, Faridabad v. Siri Niwas ; Essen Deinki v. Rajiv Kumar ; and M.P. Electricity Board v. Hari Ram etc. are not applicable to the facts and circumstances of the case as in the instant case the workman has filed his written statement and also entered into witness box for proving his case that he had continuously worked for 240 days' service, therefore, he has discharged his burden of proof and the onus has shifted on the employers.
25. As regards the maintainability of the application for setting aside the ex-parte Award even after publication of the Award in Gazette is concerned, suffice it to say that there is no quarrel with the statement of the workman by learned Counsel for the employers. However, the Apex Court upheld the law laid down by this Court in U.P. Avas Evam Vikas Parishad (Supra) which was followed in U.P. State Electricity Board (Supra), wherein the Court has considered the question of application for restoration after publication of the Award and has construed the provisions of the Central as well as State Act harmoniously.
In any case the proceedings before the Labour Court cannot be said to be an ex-parte proceedings as the employers had appeared before the Labour Court and had filed their written statement but thereafter they did not discharge their burden of proof to the effect that the workman had not continuously worked for 240 days. It may be noted that in sugar mills continuous work of 120 days is sufficient.
26. The Labour Court has given a finding of fact based on evidence and record that the workman was appointed as a permanent seasonal employee and not as a temporary employee. As the employers have not discharged the burden of proof in this regard they cannot take any recourse to the law laid down in Devyani Beverages Ltd. (Supra). Even if tested on the anvil of law laid down in Devyani Beverages (Supra) it is established that the facts of that case were totally different than that of the present case and in that case there was no Presiding Officer posted for more than two years. Notices were sent to the opposite parties after two years which had returned unserved and it was revealed from the record that the Labour Court has not recorded any finding to the effect that service was sufficient whereas in the instant case the service was sufficient and the workman had appeared before the Labour Court, but thereafter for the reasons best known to the employers they refrained themselves from proving their case before the Labour Court by cogent evidence. The employers did not appear before the Labour Court even at the time of arguments nor filed any application for setting aside the ex-parte proceedings though they had full knowledge that the proceedings before the Labour Court were going on. In the circumstances, the law laid down by the Apex Court in Anil Sood (Supra) as well as in Divisional Forest Officer (Supra) and Haryana State Electronics Development Corporation (Supra) do not apply to the facts of this case. For the similar reasons the law laid down in the case of Morinda Co-op. Sugar Mills (Supra) and Anil Bapurao Kanase (Supra) will not apply as in the instant case a specific finding of fact has been recorded by the Labour Court that the workman has worked as a permanent seasonal employee and in the absence of any cogent evidence and participation of the employers after they had filed their written statement they even had no audacity to appear before the Labour Court at the time of arguments. In the case of Morinda Co-op. Sugar Mills (Supra) the question of non-renewal of contract vis-a-vis Clause (bb) of Section 2(oo) of the Act was under consideration whereas in the case of Anil Bapurao Kanase (Supra) the question of termination of the workman after closure of the factory after crushing season was considered. The workman in the instant case having been held to be a permanent seasonal employee cannot be equated with the status of the workman of the aforesaid cases as the question involved in these writ petitions is different than the aforesaid cases.
27. After hearing learned Counsel for the parties, I am of the opinion that the Labour Court after considering the entire evidence on record and the pleadings of the parties found that the workman had worked for the entire season. A seasonal employee may be a permanent employee. An industrial dispute within the ambit of the State Act is to be decided in accordance with the provisions of the U.P. Industrial Disputes Act and the Rules framed thereunder. The Standing Orders applicable to the workman have been notified under Section 3(b) of the U.P. Industrial Disputes Act, 1947, hence it's provisions are to be considered under the State Act by the State Labour Court. The workman had perfected his rights when the employers had not challenged the award for about 9 years. However, this petition has been filed after more than 9 years after the award had been passed only to get over the question of delay in challenging the Award on the ground of recall application having been filed. As held earlier the Labour Court has committed an error on law and facts in recalling the award by its order dated 30.1.2003 which was not maintainable and the Award does not suffer from any illegality or infirmity in view of the aforesaid discussion in this judgment.
For the reasons stated above, Writ Petition No. 18151 of 2003 succeeds while Writ Petition No. 8988 of 2007 is dismissed. No order as to costs.