Allahabad High Court
M/S Gangeshwar Ltd. Deoband Saharanpur vs State Of U.P. And Ors. on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 209, (2020) 2 ADJ 840 (ALL)
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Reserved A.F.R. Case :- WRIT - C No. - 6562 of 2002 Petitioner :- M/S Gangeshwar Ltd. Deoband Saharanpur Respondent :- State Of U.P. And Ors. Counsel for Petitioner :- Bharati Sapru, Diptiman Singh, S.D. Singh Counsel for Respondent :- C.S.C.,Suman Sirohi,Sumati Rani Gupta Hon'ble J.J. Munir,J.
1. The pith and substance of the controversy, that has given rise to this Writ Petition, centers around two questions, to wit, (1) Whether in a reference made to the Labour Court regarding the validity of termination of services of the respondent-workman, could the Labour Court pronounce upon his status as a temporary or seasonal workman, in the absence of a specific reference to that effect?, (2) Whether the respondent-workman is seasonal or temporary within the meaning of Clause B. 1(2) or (3) of the Standing Orders Covering the Condition of Employment of Workmen in Vacuum Pan Sugar Factories in U.P.?
2. The facts giving rise to this Writ Petition are that the petitioners are a sugar mill, owned by a company incorporated under the Indian Companies Act, 1956, known as M/s. Gangeshwar Limited, Deoband, Saharanpur. The said company has its registered office at Deoband, District Saharanpur. It is the petitioner's case that the company has been rechristened as ''Triveni Engineering and Industries Limited, Deoband, Saharanpur'. The petitioners are engaged in the manufacture of crystal sugar through the vacuum pan process. It is the petitioner's case that the nature of the industry is seasonal. Business commences in the month of November and ends in April, invariably. Looking to the nature of the petitioner's business, engagement of employees in the petitioner's sugar mill is of varied terms and tenure. Some workmen are retained as temporary hands, others as seasonal ones, and some on a permanent basis. This variation of the terms and tenure of employment depends on the nature of the job that a particular workman discharges in the sugar factory. It is the petitioner's case that they are a seasonal industry as already said, and that conditions of services of their workman are governed by ''Standing Orders Covering the Condition of Employment of Workmen in Vacuum Pan Sugar Factories in U.P.' (for short, the Standing Orders) issued under Section 3(b) of the U.P. Industrial Disputes Act, 1947 (for short, the Act). Under the Standing Orders, workmen may be employed on various kinds of tenure, that are spelt out in Clause B-1 (1) to (6). These are:
"B. Classification of Workmen-
1. Workmen shall be classed as-
(1) Permanent, (2) Seasonal, (3)Temporary, (4) Probationers, (5) Apprentices, and (6) Substitutes."
3. It is the petitioner's further case that varied nature of work assigned to the above referred categories of workmen, is done as provided in the Standing Orders. It is stated by the petitioner for a fact that the raw material, on which the petitioner's industry runs, is sugarcane, and, therefore, the business of a sugar mill is entirely dependent on sugarcane production and its availability. The petitioner has also pleaded that availability of sugarcane fluctuates during different years, and in proportion to that, the requirement of hands to run the petitioner's sugar mill. It has been averred categorically in paragraph 9 of the Writ Petition that during years that there is excess production of sugarcane, the sugar mill per necessity requires a stronger work force in order to cope with increased business. A fortiori in years during which the production of sugarcane goes down, or the supply is otherwise short, the requirement of services of workmen also dwindles.
4. The cause of action leading to this petition appears to have arisen with Punjab Singh son of Dharmpal Singh, respondent no.3 to this petition, alleging that he was retained by the petitioners as a Cane Weighment Clerk during the entire crushing seasons 1994-95, 1995-96, 1996-97 and 1997-98. He regularly discharged his duties as such, at the various sugarcane procurement centres during all these seasons. It was claimed by the third respondent that during the crushing season 1998-99 also, he was retained on the post of a Cane Weighment Clerk, but on 06.01.1999 his services were dispensed with without prior notice. In short, he asserted his status to be a seasonal employee with the petitioners, and a cause of action arising in his favour on account of illegal termination of his services without notice as required by law. An industrial dispute was, accordingly, raised under Section 4-K of the Act between the petitioner-employers and respondent no.3, their workman, through a reference dated 09.09.1999 made by the Deputy Labour Commissioner, Saharanpur Region in the following terms (translated into English from Hindi vernacular):
"Whether the act of the employers in terminating the services of their workman, Sri Punjab Singh son of Dharmpal Singh, Cane Weighment Clerk, w.e.f. 06.01.1999, is lawful and proper? If no, what relief the concerned workman is entitled to?"
5. On the basis of the said reference, Adjudication Case no.323 of 1999 was registered before the Labour Commissioner, U.P., Dehradun, the said Labour Court at the relevant time being the jurisdictional Labour Court for the district of Saharanpur, before reorganization of the State of Uttar Pradesh vide Act no.29 of 2000. Notice on the aforesaid case was issued to the employer and the workman. The respondent-workman filed his written statement on 24.01.2000 setting up a case that he was a seasonal Weighment Clerk, and that his services have been illegally terminated during the crushing season 1998-99, w.e.f. 06.01.1999. The petitioners filed their written statement dated 20.12.1999 taking a case that the respondent-workman had never been engaged in the regular establishment of the petitioners in any of the specified classifications of employees mentioned in the Standing Orders, and that the industrial dispute has been raised with an ulterior motive to seek employment by exerting pressure upon the petitioner-employers to absorb the workman in their service. It has been specifically averred in paragraph no.7 of the written statement filed by the petitioners that since the workman had never remained in their employment, the question of terminating his services does not arise. In substance, thus, the employers disowned the factum of the third respondent being ever employed in their establishment. The respondent-workman and the petitioner-employers, both filed their rejoinder statements dated 24.01.2000 and 25.05.2000, respectively.
6. The workman as part of his evidence filed thirteen documents through a list numbered as 7-B(II). In addition, the workman entered the witness box and testified in support of his case before the Labour Court as WW-1. The Employers on the other hand examined two witnesses in support of their case, to wit, Randeep Singh, Cane Supervisor and another Ravindra Singh, Mukhya Samaypal. It is recorded for a fact by the Labour Court that no documentary evidence was filed on behalf of the employers.
7. The Labour Court upon appreciation of the evidence on record returned a finding that the workman was employed during more than one crushing season. He held, therefore, that the workman fulfilled the requirement of a seasonal workman, who had a right to be engaged during the following crushing seasons and to receive emoluments therefor, until his services were determined in accordance with the Standing Orders. This Court proposes to scrutinize a little later the manner in which the Labour Court has considered the evidence in order to arrive at its conclusions, within the limited parameters of this Court's jurisdiction under Article 226 of the Constitution. On the basis of the findings hereinbefore referred to, the Labour Court proceeded to pass an award that the workman was unlawfully denied work w.e.f. 06.01.1999. It was further awarded that the workman be reinstated during the current crushing season, and be given other admissible benefits, to which he was entitled. It was still further awarded that for the denial to retain during the previous crushing seasons, the workman be paid compensation in the sum of Rs.5000/-. Cost of Rs.1000/- was also ordered in favour of the workman, and against the employers.
8. Assailing the aforesaid award, dated 31.10.2000 (published on 29.09.2001) made in Adjudication Case no.323/1999, the present writ petition has been filed.
9. The employer has assailed the award on grounds, amongst others, that no finding has been returned in terms of Clause 2K of the Standing Orders, where the various categories of workmen have been classified.
10. Dilating on the submissions, learned counsel for the petitioner, Sri Diptiman Singh has urged that the reference order did not proceed on the assumption that the workman was seasonal. According to the learned counsel, therefore, it was imperative for the Labour Court to return a finding in accordance with Clause 2K of the Standing Orders, based on relevant evidence to the effect that the workman was retained on a seasonal tenure. He points out that the said finding returned by the Labour Court is sketchy in its terms and not based on relevant evidence postulated under the Standing Orders. The conclusion, therefore, that the workman was retained on a seasonal basis is vitiated. In further elucidation of that submission, it is urged by Sri Diptiman Singh that no finding has been recorded by the Labour Court regarding the specific number of days during which the workman has worked, or is there any finding that he worked during the second half of the preceding crushing season. It is urged with much emphasis that in the absence of a clear finding that the workman was retained during the second half of the preceding crushing season, it is absolutely unlawful to conclude that the third respondent was a seasonal workman.
11. Learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in Bhogpur Coop. Sugar Mills Ltd. vs. Harmesh Kumar, (2006) 13 SCC 28 in support of his contention that where the order of reference was to the effect whether the termination of services of the workman was lawful, the Labour Court could not have gone into the question whether the employer was bound to re-engage the workman in all subsequent seasons. Learned counsel for the petitioner has drawn the attention of the Court to paragraphs 7 and 8 of the report in Bhogpur Coop. Sugar Mills Ltd. (supra), where it is held:
"7. The Labour Court derived its jurisdiction from the terms in reference. It ought to have exercised its jurisdiction within the four corners thereof.
8. The principal question which was referred by the State Government was as to whether the termination of services of the respondent was justified. The Labour Court was, therefore, not required to go into the question as to whether the appellant was bound to take the services of the respondent in all subsequent seasons or not."
12. Sri Diptiman Singh has further placed reliance upon a decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. vs. Jai Veer Singh, (2007) 7 SCC 748. He submits that in the said decision that arose out of a reference whether the services of the workman were lawfully terminated, their Lordships did not approve of the Labour Court and the High Court going into the nature of appointment of the workman on this kind of a reference, holding him entitled to be absorbed on permanent basis and reinstating him with back-wages. He has invited the attention of the Court to paragraph 8 of the Report in Ganga Kisan Sahkari Chini Mills Ltd. (supra), where it is held:
"8. In support of the appeals, learned counsel for the appellant submitted that approach of the High Court is factually and legally wrong. Even if it is accepted that the period is 120 days, the workmen were not entitled to any relief. They admittedly worked for 109 days. The nature of appointment was not the subject-matter of reference and, therefore, the conclusion of the Labour Court, as affirmed by the High Court that the workmen were entitled to be absorbed on permanent basis and reinstated with back wages, was clearly erroneous."
13. The learned counsel for the petitioner has further invited attention of the Court to an unreported decision of this Court in M/s Triveni Engineering & Industries Ltd. vs. State Of U.P. And Others, Writ - C No. - 19918 of 2009, decided on 07.01.2010. In the said case too, the services of a Weighment Clerk were terminated by the employer, Sugar Factory. A reference was made to the Labour Court as to whether the action of the employer terminating the services of their workman from the start of the crushing season 1998 - 99 was just and valid or not. The workman had come up with a case that he was engaged as a Weighment Clerk in the crushing season 1992 - 93 and worked as such for four crushing seasons, the last being 1997 - 98. The employer on the other hand came up with a case that the workman was never engaged by them. The Court proceeded much on basis of the requirement that the right to engagement of a seasonal workman or to assail his termination during a particular crushing season, depended upon an answer to the issue whether during the later half of the last crushing season he had been engaged, or he had worked for the complete period of time, envisaged under Clause 2K(1) of the Standing Orders. The Court proceeded to hold that no specific evidence was referred to by the Labour Court in order to record a finding that the workman did work in the later half of the crushing season 1997 - 98, and that he was engaged for the complete half period of the last season. It was also held that most of the documents produced by the workman relate to the period only 1996 - 97. No document for the relevant season 1997-98 were produced, except the authority letter, claimed to have been issued by the employer. The period for which the authorization is granted is not mentioned. It has also been held by this Court in M/s Triveni Engineering & Industries Ltd. (supra) that all other documents relied upon by the workman relate to a period of time prior to the last crushing season. It was also, in particular, noticed by this Court that it was averred in para 10 of the written statement filed on behalf of the employer that the workman was not called at all for the crushing season 1998 - 99. This Court then also noticed that the industrial dispute was raised with a delay of about three and a half years that went against the workman. In these circumstances, the award of the Labour Court was quashed. It must be remarked here that this decision is not about the issue that in a reference about the legality of termination of a workman, the question whether he was a temporary hand or a seasonal employee, could not have been gone into by the Labour Court. Rather, it is related to the allied issues raised by the learned counsel for the petitioner that the Labour Court has wrongly answered the reference, inasmuch as, no finding in accordance with Clause 2K(1) of the Standing Orders has been recorded to the effect that the workman has rendered work for the required number of days, in the last crushing season. The decision has also turned much on the fact that there is no evidence considered by the Labour Court to hold that in the later half of the crushing season 1997 - 98, the workman was engaged for the complete half period. The absence of an appointment letter or engagement documents for the past four crushing seasons have also weighed with the Court. This decision may have some bearing on the question of the validity of the impugned judgment, in case it were to be held by this Court here that the Labour Court had jurisdiction on facts, that emerge in this case to determine the question that the workman held on seasonal terms. In case it were held that answering the question regarding nature of the workman's tenure was beyond the scope of reference, the question whether the reference was correctly answered on the basis of facts and evidence on record, would be superfluous. Thus, the effect of the decision of this Court in M/s Triveni Engineering & Industries Ltd. (supra) would be considered, a little later, depending upon the outcome of the answer to the principal question raised about the competence of the Labour Court to decide in the manner that it has done, within the terms of the reference made.
14. There are two other decisions relied upon by Sri Diptiman Singh in support of his case that he canvasses here. One is the decision of this Court in M/s Gangeshwar Ltd., Deoband, Saharan- pur vs. State Of U.P. & Others, decided on 12.04.2017, and the other is a decision of their Lordships of the Supreme Court in Batala Coop. Sugar Mills Ltd. v. Sowaran Singh, (2005) 8 SCC 481. A consideration of these decisions would also come about during the course of this judgment, once the principal issue, above noticed, is answered.
15. In answer to the proposition that the Labour Court could not have gone into the question of the workman being employed on a seasonal tenure contemplated under Clause B-1(2) of the Standing Orders, entitling him to the benefits of Clause 2-K, Ms. Sumati Rani Gupta has urged that in order to ascertain whether a workman held on a seasonal tenure, he has to demonstrate that he was employed in the last crushing season as per Clause 2-K of the Standing Orders, so far as the employers are concerned. She submits that the employers are a Sugar Factory in U.P., to whom the Standing Orders apply. They are a seasonal industry, and, therefore, a seasonal workman has to bring his case within the four corners of Clause 2-K of the Standing Orders. He has nothing more to establish, in order to prove that he is a seasonal workman. She has further argued that payment of retaining allowance demonstrates that the workman had put in a minimum period of actual working days, which in the least has to be a period of two months. This submission of Ms. Gupta has been advanced in the context of a strong suggestion by the learned counsel for the petitioner that a seasonal workman has to prove that he is in receipt of a retaining allowance, and since there is no evidence about such receipt by the workman, he cannot be regarded as a seasonal employee. To entertain these kinds of submissions would appear to be a bit out of context here, where the question examined is whether the Labour Court could go into the question on the terms of the reference made that the workman held on seasonal terms. The thrust of Ms. Gupta's submission is that considering the reference order admittedly relates to the post of a Weighment Clerk held by the workman, it is inherent in the nature of that work that retention is as a seasonal workman. Learned Counsel for the workman has, therefore, termed as completely specious the basis of the employers' case that the Labour Court has travelled beyond the reference, inasmuch as, the work of a Weighment Clerk relates to a crushing season alone in a Sugar Factory.
16. It is argued by the learned counsel for the workman that as per Clause 2-K of the Standing Orders, a seasonal clerk has a right to be called for the next crushing season, if he has worked during the previous crushing season, which normally lasts 180 days. She submits that the period of 240 days would not be applicable to a seasonal workman, unless he is a retainer. She has further submitted that the concept of retaining allowance is not a concomitant of seasonal employment; there could be a seasonal workman with no right to receipt of a retaining allowance. As such, in the submission of the learned counsel for the workman, it is not imperative for the workman to establish that he is in receipt of retaining allowance before he can claim to be a seasonal workman. She has pointed out that the concept of retaining allowance dates back to disputes and conflicts that erupted between the employers and the workman during the years 1955 to 1960 when certain class of workmen were paid retaining allowance. The conflict resulted in the formation of a Wage Board and various categories of workmen were directed to raise their grievances about the right to receive a retaining allowance also, before the Wage Board. In this connection, she has referred to the decision of their Lordships of the Supreme Court in Rohtas Sugar Ltd vs. Mazdoor Seva Sangh, AIR 1960 SC 671, where it has been held:
"8. Nor is it clear from the materials on the record that unskilled workmen employed in a particular factory consider themselves attached to that factory. It appears to be clear that once the season is over the unskilled workmen cease to have any contractual relations with the employers and may rejoin on the commencement of the season or may not rejoin at their sweet will. As regards the observations of the Tribunal that "the seasonal employees are entitled to the benefit of provident fund, gratuity and also bonus which shows that in fact their connection with the employers is not broken" the materials on the record are too scanty for arriving at any definite conclusion.
9. In consideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories, with whom we are concerned in the present appeals a much better course will be to raise the wage structure with an eye to this fact that for a part of the off season at least when (sic) they remain unemployed than to pay a retaining allowance for the entire off season.
10. The appellant's counsel readily agrees that the fact that these unskilled workmen find employment in the sugar factories only for a few months and are in comparative difficulty in the matter of finding employment during the remaining months, should be taken into consideration in fixing their wages. We are informed that a Wage Board entrusted with the task of fixing the wages of the workmen concerned in these disputes is sitting at the present time. The interests of both the employers and labour will, we think be best served if instead of confirming the order made by the Appellate Tribunal as regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this Wage Board. We have no doubt that such a claim will be sympathetically considered by the Wage Board, especially as the employers have through their counsel, recognized before us the reasonableness of their claim. The appellants have through their counsel also undertaken that they will not claim restitution of the amounts already paid as retaining allowance and further that they will continue to pay the retaining allowance for the next season-half at the commencement of the season and the other half midway during the season-till the wages have been fixed by the Wage Board. Accordingly we allow the appeals and set aside the order passed by the Labour Appellate Tribunal of India, Dhanbad, as regards retaining allowance to unskilled workmen and also its order as regards payment of halting allowance and travelling allowance and wages to workmen attending proceedings of necessity of the Industrial Tribunal. But as has been mentioned earlier the appellants have undertaken not to seek restitution as regards the halting or retaining allowance already paid and further that they will continue to pay retaining allowance for the next season-half at the commencement of the season and the other half mid-way during the season-till the wages are fixed by the Wage Board."
17. Learned counsel for the workman has further urged that the nature of a workman's job whether it is permanent, seasonal or temporary, depends upon the nature of the work and the purpose of his engagement. This submission, the learned counsel for the workman has stressed looking to the nature of the work of a Weighment Clerk in a Sugar Factory, that is admittedly the workman's assignment. The submission is advanced in aid of the proposition that a Weighment Clerk in a Sugar Factory, as already said hereinbefore, can be nothing, but a seasonal workman. A fortiori, according to the learned counsel for the workman, there was nothing wrong about the Labour Court proceeding on basis that the nature of the workman's engagement was seasonal. In order to substantiate the distinction between a permanent, seasonal and a temporary workman, learned counsel for the workman has placed reliance upon the decision of the Supreme Court in Jaswant Sugar Mills Ltd. vs. Badri Prasad, AIR 1967 SC 513 : (1961) 1 LLJ 649. The said appeal before their Lordships arose out of a reference to the Labour Court in terms "Whether the employers should be required to designate their fifteen workmen mentioned in the annexure as permanent workmen. If so, with what details?" In Jaswant Sugar Mills Ltd. (supra), it was held thus:
"3. The main question for our consideration in the present appeal by the employer by special leave is the proper construction of the definition of a permanent workman. In deciding on the proper meaning to be attached to the words and phrases used in the definition it will be proper to consider the question in the background of the definition in the Standing Order of two other kinds of workmen, viz., Seasonal Workmen and Temporary Workmen. A Seasonal Workman is defined as one who is engaged for the crushing season only and/or may also be employed for the period necessary for cleaning and overhauling either before or after the season and is discharged after the work is finished. A Temporary Workman is defined as one who is engaged in the work of a temporary and casual nature or to fill in a temporary need of extra hands on permanent or temporary jobs.
4. Reading the three definitions together it is abundantly dear that while a seasonal workman is engaged in a job which lasts during the crushing season only, a temporary workman may be engaged either for work of a temporary or casual nature or work of a permanent nature; but a permanent workman is one who is engaged on a permanent nature of work only. The distinction between a permanent workman engaged on work of a permanent nature and a temporary workman engaged on work of a permanent nature is in the fact that a temporary workman is engaged to fill in a temporary need of extra hands of permanent jobs. In this background it becomes clear that the words engaged on a permanent nature of work throughout the year" were intended to mean "engaged on a permanent nature of work lasting throughout the year" and not "engaged throughout the year on a permanent nature of work." When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need. It will be unreasonable to think that the Standing Orders left a loop-hole for the employer to prevent a person engaged on a work of permanent nature which lasts throughout the year, from becoming permanent by the device of discharging him from time to time. By such a device it would be possible for the employer to prevent any workman from becoming permanent, even though the work on which he is engaged lasts throughout the year and is in its nature permanent. That could not have been the intention when the Standing Orders were framed. It stands much more to reason that in speaking of a workman being engaged on a permanent nature of work throughout the year, those who framed the Standing Orders proceeded on the assumption that if the work of a permanent nature lasts throughout the year a workman who has completed his probationary period, if any, will continue to be engaged in that work. We are, therefore, of opinion that the Appellate Tribunal was right in thinking that to be a permanent workman within the definition it is not necessary that the workman should be engaged throughout the year. What is necessary is that the work on which he is engaged is of a permanent nature and lasts throughout the year."
18. At this stage, one submission put forward by Sri Diptiman Singh, learned counsel for the petitioner, to which some allusion has already been made hereinbefore, urged from the contrary perspective must be noticed. It is argued that payment of retaining allowance is a necessary incident of seasonal engagement. In the absence of proof of the fact that the workman was in receipt of retaining allowance, there can be no case of seasonal engagement. It is emphasized that there is no finding by the Labour Court that retaining allowance was paid to the workman. In this context, reliance has been placed by the learned counsel for the employers upon a decision of the Supreme Court in Managing Director, Chalthan Vibhag Sahakari Khand Udyog vs. Govt. Labour Officer, (1981) 2 SCC 147. Learned counsel for the petitioner has invited attention of the Court to paragraph 6 of the Report in Managing Director, Chalthan Vibhag Sahakari Khand Udyog (supra):
"6. There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression "salary or wage". It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off-season for their forced idleness. The payment of such allowance by the management to its workmen during the off-season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workman returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes of the nature of basic wage on a diminished scale. The definition of the expression "salary or wage" given in Section 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of Section 2(21), but comes within the substantive part of the definition of "salary or wage" in Section 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their "salary or wage" within the meaning of Section 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable under the Payment of Bonus Act, 1965."
19. To determine what a seasonal workman connotes, a brief survey of the definition of a 'seasonal workman' and conditions governing employment of seasonal workmen under the Standing Orders, must be undertaken. Clause B.1.(2) of the Standing Orders defines a seasonal workman thus:
"B. Classification of workmen
1. Workmen shall be classed as:
(1) x x (2) A "Seasonal Workman" is one who is engaged only for the crushing season and has completed his probationary period, if any."
20. Likewise, a temporary workman, and a probationer who are two other classes of workmen, of the total six hereinbefore detailed, are defined under Clause B. 1 (3) and (4) as under:
"(3) A "Temporary Workman" is one who is engaged for meeting a temporary or casual requirement.
(4) A "Probationer" is one who is provisionally employed for a period specified by the management at the time of employment to fill a permanent/seasonal vacancy or a new post of permanent/seasonal nature & who may be confirmed at the completion of that period if his services are found satisfactory. The probationary period shall be six months in the case of permanent workmen & the one month or half of the season whichever is less in the case of seasonal workmen.
Provided that if no period of probation is specified by the management at the time of employment, the period of probation shall be deemed to be six months in the case of permanent workmen & one month or half of the season whichever is less, in the case of seasonal workmen.
Provided further that if after the expiry of probationary period, no orders are passed by the management the probationers shall be deemed to have been confirmed automatically."
21. So far as the special condition governing employment of seasonal workman are concerned, these are governed by Clause K, 1, 2 and 3 of the Standing Orders. Sub clause 4 of Clause K is not relevant and is, therefore, not being referred to. Clause K. 1, 2 and 3 of the Standing Orders read thus:
"1. A seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half or the last preceding season shall be employed by the factory in the current season and shall be entitled to get retaining allowance provided he joins the current season and works for at least one month. The payment of retaining allowance shall be made within two months of the date of commencement of the season.
Explanation-Unauthorised absence during the second of the last preceding season of a workman who has not been validly dismissed under these Standing Orders and of a workman who has been re-employed by the management in the current season, shall be deemed to have been condoned by the management.
2. Every seasonal workman who worked during the last season shall be put on his old job whether he was in the "R" shift or in any of the usual shifts.
However, if the exigencies of work so require, the management may transfer a workman from one job to another or from one shift to another including 'R' shift so however, that the number of workmen so transferred does not exceed five percent of total number of the employees of the factory and that the wages and status of such workman is not affected in any way.
3. A seasonal workman, who is a retainer shall be liable to be called on duty at any time in the off season and if he does not report for duty within 10 days, he shall lose his retaining allowance for the period for which he was called for duty."
22. So far as the termination of services of a workman is concerned, the same are governed by Clause L of the Standing Orders, whereas termination/dismissal on ground of misconduct is governed by Clause M.
23. This Court has considered the rival submissions advanced on behalf of both parties, vis-a-vis, the question whether in a reference relating to validity of termination of services of the respondent-workman, the Labour Court can pronounce upon his status as a temporary or seasonal hand, in the absence of those specific terms referred. The proposition that the Labour Court could not hold the workman to be a seasonal employee, draws support from the decision of their Lordships of the Supreme Court in Bhogpur Coop. Sugar Mills Ltd. (supra). In the aforesaid decision, the question arose in the context of facts that the workman was engaged by the employers, a Sugar Mill at the beginning of the crushing season along with others. The workmen were recruited at the commencement of the season and retrenched at the end of it. The respondent, no doubt, was appointed as a seasonal workman as the facts of the case would show. It also figures from the facts there, that he was retained on daily-wage basis. The workman appears to have raised an industrial dispute against the termination of his services at the end of the crushing season, which apparently came to an end with end of the season. A reference was made in the following terms [extracted from the Report in Bhogpur Coop. Sugar Mills Ltd. (supra)]:
"Whether termination of services of Shri Harmesh Kumar workman is justified and in order? If not, to what relief/exact amount of compensation is he entitled?"
24. The Labour Court held that the workman had not been able to establish that he had worked for 240 days, but further held that the employers having not called the workman in the subsequent crushing season, whereas his juniors were invited to join, constituted a violation of Section 25-G of the Industrial Disputes Act. In accord with the finding, an award was made directing the employers to re-employ the workman from the season in which juniors to him were called, but the workman was not. It was also awarded that the workman shall be paid back-wages etc. with other allied and monetary benefits, that his juniors had received on joining duties when the workman was denied re-engagement.
25. The High Court, on a Writ Petition being filed, approved the award of the Labour Court, recording the following finding [extracted verbatim from the report in re Bhogpur Coop. Sugar Mills Ltd. (supra)]:
"We, however, find no merit in this argument for the reason that a positive finding has been recorded by the Tribunal that persons junior to the workman had been retained and it is also admitted by the management that they had not offered any appointment to the respondent on account of pendency of the dispute in the court. We are of the opinion that had it been the case of the management that the exigencies of services did not warrant his re-employment, something could be said in its favour but this is not the case of the management. No offer was made to the workman on account of the pendency of the proceedings before the Labour Court."
26. It was in the context of the aforesaid facts that their Lordships held that both the High Court and the Labour Court fell in error in going into the question whether the employers were obliged to reinstate the workman in all subsequent seasons, and ordering them to do so with consequential benefits. It was also in that context that it was held that all that the Labour Court was required to see was whether the termination of services of the workman, that was subject matter of the reference, was lawful or not.
27. In the present case, the facts show that the workman's case is that he was retained as a Weighment Clerk during the crushing seasons 1994 - 95, 1995 - 96, 1997 - 98, and again during the crushing season 1998 - 99. It is the workman's specific case that during the crushing season 1998 - 99, which commenced in October, 1998, he was called back to work, but without cause or reason, his services were dispensed with on 06.01.1999. He has claimed to have worked during the crushing season 1998 - 99 from October, 1998 until 06.01.1999, which is a period of a little over two months. In the context of the aforesaid facts, there appears to be little doubt that the workman was engaged as a seasonal employee by the petitioner-employers, the post of Weighment Clerk in a Sugar Factory being essentially one associated with the crushing season.There is documentary evidence also, about the engagement of the workman during the four crushing seasons, led on the side of the workman whereas there is none, except bald oral evidence on behalf of the Employer in denial of the workman's rights. More about the proof of each side's case by the evidence led, would be said later. At this stage, suffice it to say that on the facts obtaining, the case of parties and the evidence on record, the Labour Court committed no error in proceeding on the basis that the petitioner was a seasonal hand. The decision in Bhogpur Coop. Sugar Mills Ltd. (supra) relied upon by the Employers is not at all attracted here. It was a cause of action based on the right to re-engagement after end of one season.
28. So far as the decision in Ganga Kisan Sahkari Chini Mills Ltd. (Supra) is concerned, the proposition there is still farther off. In Ganga Kisan Sahkari Chini Mills (Supra), the case before their Lordships of the Supreme Court involved the validity of a decision where the Labour Court had awarded that the workman be absorbed on a permanent basis, together with back wages whereas the reference was in terms, whether the services of the workman were lawfully terminated. It was in that context that their Lordships held that the nature of appointment was not the subject matter of reference and, therefore, disapproved the decision of the Labour Court as affirmed by the High Court. The present case almost proceeds on facts that speak of a seasonal engagement going by the nature of duties of a Weighment Clerk in a Sugar Mill. This case seen in the background of documentary evidence that establishes a case of engagement by the Employers, led on the workman's side with nothing in rebuttal offered by the Employer, clearly makes it to be one where the Labour Court did not commit any manifest error of law in proceeding on the assumption that the engagement was seasonal.
29. The contention advanced on behalf of the Employers by Sri Diptiman Singh to the effect that the absence of evidence and discussion by the Labour Court regarding payment of retaining allowance ex facie excludes a case of seasonal engagement, is not prima facie tenable. This is not to say that the contention does not require further evaluation, while answering the question about the status of the workman being a temporary or a seasonal hand. All that this Court may remark for the present is that the absence of evidence regarding payment of retaining allowance or a finding about it recorded by the Labour Court, does not essentially exclude a case of seasonal engagement that with other evidence about it on record, may preclude the Labour Court from proceeding on the basis that the engagement was seasonal. There is no such principle inferable from the decision of their Lordships in Managing Director, Chalthan Vibhag Sahakari Khand Udyog (supra) relied upon by the learned counsel for the petitioner.
30. To examine a little further the evidence offered by each side in respect of their respective cases, it is apparent from the impugned award that the workman filed licences issued in his favour for the crushing seasons 1995-96, 1996-97 and 1997-98 by the District Magistrate in accordance with Rule 87 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules 1954 read with Order 16(d) of the U.P. Sugarcane Supply and Purchase Order, 1954, authorizing him to act as a Weighment Clerk in a Sugar Mill. These licences bear signatures and seal of the occupier acting on behalf of the Employer (Sugar Mill). The occupier has attested the photograph of the workman. The signatures of the occupier were not identified by Randeep Singh, Cane Supervisor, a witness appearing for the Employer, but he has admitted the fact that during these crushing seasons, Sri S.K. Tanwar was the Vice President and the occupier (of the Sugar Mill).
31. The Labour Court has looked into the evidence of one Subhash Chandra led on behalf of the Employers in Adjudication Cases Nos.143 of 1999 and 72 of 2000, relating to the same Employer, but other workmen. In those Adjudication Cases, the witness appearing for the Sugar Mill has acknowledged the signatures of Sri S.K. Tanwar on the Letter of Authority appointing Sri Prabhat Gaud as the Authorized Representative to appear in those Adjudication Cases. The Labour Court has compared the signatures of the occupier on the three licenses for the three successive crushing seasons relied upon by the workman with those of the occupier on the Letters of Authority in Adjudication Cases Nos.143 of 1999 and 72 of 2000, that are admitted specimen of the occupier's signatures. The Labour Court has recorded on a comparison a positive finding that the signatures of the occupier, Sri Tanwar, that are admitted, and those on the licences issued to the workman for the three crushing seasons are similar. The Labour Court has also taken into consideration for the three successive crushing seasons' application made by the workman to the Collector for the issue of Weighment Clerk Licence. Each application bears a photograph of the workman attested by the occupier of the Employer (Sugar Mill). There is also an inspection report noticed by the Labour Court relating to the month of March, 1997, during which the workman was reported to be on duty at the Purchase Centre of the Employers functioning as Weighment Clerk.
32. In the face of all this evidence led by the workman and a mid season termination of engagement during the crushing season 1998-99 on 6th January, which going by the commencement of the season in the month of October, 1998, would make for a period of little over two months, the approach of the Labour Court cannot be said to be manifestly illegal in accepting the workman's case of seasonal engagement. This is particularly so as the Labour Court has remarked that the Employers, except for the two witnesses whose oral evidence has been led on their behalf, did not bring on record any document to rebut the workman's case, such as the Attendance Register or the Pay Roll.
33. There is one feature about the case which renders the case of the Employer, howsoever finely put to assail the impugned award unbelievable. It is the unfairness of the Employers' stand. The Employer has throughout pleaded a case that the workman was never employed with them. The workman has brought on record sufficient evidence to show that the workman was indeed engaged by the Employer as a Weighment Clerk during the crushing seasons 1995-96, 1996-97 and 1997-98. The occupier's signatures on the Weighment Clerk's licence of the workman attesting his photograph, and also on the application made each year by the workman to the District Magistrate for the issue of that licence also attesting his photograph is no mean proof of the workman's engagement during those crushing seasons. The Employers after taking the stand that the workman had nothing to do with their establishment, were certainly obliged to lead documentary evidence to establish their case of non-association with the workman or to establish at least a case that the workman's engagement was not seasonal. It is further held that the workman is a seasonal hand within the meaning of Clause B. 1(2) or (3) of the Standing Orders, covering the conditions of employment of workman in Vacuum Pan Sugar Factories in U.P.
34. Now, this being the conclusion on the questions, it must be held that the impugned award passed by the Labour Court is based on a plausible view of the evidence on record and does not suffer from any such manifest illegality or patent error as to invite interference by this Court under Article 226 of the Constitution insofar as the Labour Court's conclusion and findings are concerned.
35. Turning to the question of relief that the Labour Court has granted, it has been ordered that the workman be reinstated in service from the current season (current at the time when the impugned award was made) and that he be given other admissible benefits. It has further been order that for deprivation of engagement during the past crushing seasons, a sum of Rs.5000/- be paid in compensation and Rs.1000/- in costs towards litigation. The impugned award was made on 31.10.2000 and this petition was admitted to hearing on 14.02.2002, when the operation of the said award was ordered to remain stayed till further orders. The impugned award has remained inoperative ever-since. A perusal of the counter affidavit filed on behalf of the workman, dated 28.08.2002 shows that he was aged 39 years in the February of the year 2002. Reckoning the workman's age by the passage of time, he would be aged about 57 years. The workman has been out of employment since January, 1999, which reckons his period of disassociation with the work to which he has been ordered to be reinstated as 21 years. At this distance of time and the workman's age, it would not be feasible to order the Employers to reinstate him as a seasonal hand in their establishment. But, the termination of the workman's engagement being found to be unlawful and improper, ends of justice would be met by ordering the petitioner-Employers to pay the workman a lump sum of Rs.5 lakhs within two months of the date of this judgment. Any delayed payment of this money in lump sum, in lieu of reinstatement, will carry interest at Bank Rate from the expiry of two months of this judgment, till realization in accordance with law.
36. The writ petition is partly allowed and the impugned award of the Labour Court stands modified accordingly. There shall be no order as to costs.
Order Date :- 03.01.2020 Anoop