Madhya Pradesh High Court
Krishi Upaj Mandi Samiti, Dabra, Distt. ... vs Presiding Officer, Labour Court No. 1 ... on 1 March, 2001
Equivalent citations: [2000(87)FLR629], (2001)IILLJ464MP, 2001(3)MPHT24
ORDER S.S. Jha, J.
1. Petitioner Krishi Upaj Mandi Samiti has filed this petition challenging the Award Annexurc P-17 passed by the Presiding Officer of Labour Court No. 1, Gwalior under the Industrial Disputes Act, 1947.
2. 14 daily wages employees were retrenched by the petitioner Samili. Against the order of retrenchment, conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947 (hereinafter, referred to as the 'Act') were initiated by the Assistant Labour Commissioner and on failure of conciliation proceedings, dispute has been referred by the Labour Commissioner, Madhya Pradesh, Indore to the Labour Court No. 1, Gwalior to decide the validity of termination of 14 workmen by the petitioner-society. The Labour Court Was also required to consider the reliefs for which the workmen are entitled for and the nature of directions to be issued to the employer.
3. The dispute has been answered by the Presiding Officer holding therein that the retrenchment of respondents 3 to 7 is contrary to law. These workmen had worked for more than 240 days in a year and their retrenchment without payment of retrenchment compensation is bad in law. Termination has been set aside and directions have been issued to reinstate the respondents-workmen without back wages.
4. Counsel for the petitioners contended that the respondents are not regular workmen. They were engaged in the exigency of work in the season. Since no work was available on the expiry of the season, they were called next year. Nature of work of respondents was that of seasonal workmen, as such they are not entitled for reinstatement. It was urged that appointment could be made in the Mandi according to rules, under the provisions of Section 30 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, and daily wager cannot be recruited in the Mandi. Even otherwise, finding that the respondents workmen had worked for more than 240 days in a year is incorrect. In Para 9 of the Award it is mentioned that respondent Santosh Singh had worked for 232 days in the year 1983, vide Ex. P-11. Vide Ex. D-4 respondent Narayan Singh had worked for 211 days in the year 1986. But if the Sundays are included then the number of days will be 240 days.
5. Counsel for petitioners submitted that document Annexure P-5 filed before this Court itself discloses that while calculating the period Sundays and holidays have been counted, which is apparent on examination of the chart of Santosh Singh Solanki of the year 1983. Santosh Singh Solanki had worked for 232 days only, out of which 31 days of the month of January, 28 days of the month of February, 31 days of the month of May, 30 days of the month of June, 31 days of the month of October, 30 days of the month of November and 31 days of the month of December are counted. Therefore, when every day of the month is included that will also include Sunday and holiday: Learned counsel submitted that question of inclusion of Sundays and holidays does riot arise in this case. Therefore, the Labour Court has erred in holding that respondent Santosh Singh Solanki had worked for more than 240 days in the year 1983. It is apparent from the chart Annexure P-5 that respondent Santosh Singh Solanki was engaged during season from the year 1982 onwards till the year 1989 and in any of the years he had not worked for more than 240 days.
6. Learned counsel for petitioner submitted that similarly respondent Narayan Singh had not worked for more than 240 days in any year from 1986 to 1989. Chart of the days on which Narayan Singh had worked is filed as Annexure P-8 and exhibited:as Ex. D-4. Question of adding Sundays and holidays in this chart does not arise as Narayan singh has been shown to have worked for 28 days in the month of Feb., 31 days in the month of March, 31 days in the month of May, 30 days in the month of November and 30 days in the month of December in the year 1986, which shows that Sundays and holidays have already been counted. Counsel, therefore, submitted that these workmen had not worked for more than 240 days in a year. Therefore, the finding of the Presiding Officer is contrary to law and evidence on record. As such, directions of reinstatement of respondents Narayan Singh and Santosh Singh are bad in law. Even otherwise, directions to reinstate respondents Harishankar, Khemraj Raje and Harnam Singh are bad in law. The workmen were engaged on account of exigency of work and after expiry of work, the have no right to be reinstated, and the question of retrenchment does not arise.
7. Counsel for petitioner relied upon the judgment in the case of Anil Bapurao Kanase Vs. Krishna Sahakari Sakhar Karkhana Ltd., reported in AIR 1997 SC 2698, and submitted that termination of services after work was over does not amount to retrenchment; factory is however obliged to engage the workman in the next season in succeeding years in order of seniority. Counsel for petitioner submitted that the respondents were engaged as seasonal workmen and they have no right of regularisation and in the light of the decision in the case of Anil Bapurao Kanase (supra) respondents had no right of regularisation. However, the petitioners are prepared to take work from these respondents during the season as and when work is available.
8. Counsel for petitioners then submitted that the year of work is to be seen from the date of reference. The reference was dated 26-10-1990. Thus the period of 240 days should be counted from the preceding calendar year. Therefore, at the most, period of work done in the year 1989 could be considered and none of the workmen had worked for more than 240 days in the year 1989. Thus, direction of reinstatement is bad in law and deserved to be quashed.
9. Counsel for petitioners invited attention to the provisions of Section 10 of the Act. Section 10 of the Act provides that when the appropriate Government is of the opinion that any industrial dispute exists or is ap- . prehended, it may at any time by order in writing refer the matter appearing to be connected with or relevant to dispute to a Court for enquiry.
10. Counsel for petitioners then invited attention to Section 25F of the Act and submitted that no workman employed in an industry who has been in continuous service for not less than one year under an employer shall be retrenched by the employer or certain conditions. Learned counsel submitted that the period of one year should be counted from the date of reference and not otherwise.
11. Counsel for petitioners then invited attention to Section 25B of the Act, and submitted that the definition of continuous service would mean that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a ceasation of work which is not due to any fault on the part of the workman.
12. Counsel for petitioners submitted that the period of one year would mean the period of one year prior to the date of reference and the Tribunal cannot look beyond the period of one year of the year of reference.
13. Counsel for respondents-workmen has placed reliance on the judgment of this Court in the case of State of M.P. Vs. Ram Prakash Sharma and others, reported in 1989 MPLJ 36, and submitted that under the Industrial Employment (Standing Orders) Act, 1961 and the rules made thereunder known as Industrial Employment (Standing Orders) Rules, 1963, a workman engaged on daily wages acquires the status of permanent employee after completion of six months satisfactory service. Learned counsel submitted that the services of respondents are governed by the Standard Standing Orders framed under the aforesaid Rules, 1963. The workmen being seasonal employees had acquired the status of seasonal permanent employees. Since the workmen had worked for so many years, therefore, their retrenchment is bad in law. He further submitted that in the case of seasonal employees, working of 240 days in a year is not mandatory; it should not be less than three months or 90 days in a year.
14. For similar principle, another judgment in the case of Madhya Pradesh State Road Transport Corp. Vs. Harish Jayanti Prasad Agrawal, reported in 1990 MPLJ 97, was referred and it was submitted that if a person had worked for more than six months he shall be deemed to be permanent workmen.
15. Learned counsel then referred to the judgment of Gujrat High Court in the case of Mod Ceramic Industries Vs. Jivuben Rupabhai, reported in 2000 Lab. I.C. 1921, and submitted that mere fact that the workman had not worked for 240 days in a year or years during his long employment would not debar him from claiming entire amount of retrenchment compensation. Reliance was also placed on the judgment in the case of O.N.G.C. Mazdoor Union Vs. Oil and Natural Gas Commission, reported in 2000 Lab. I.C. 2571, wherein it has been held that employee working for more than 240 days; continuously serving and worked for more than 10 to 15 years are entitled for regularisation.
16. Counsel for respondents then referred to the judgment in the case of Gujrat Agricultural University Vs. Rathod Labhu Bechar, reported in 2001 AIR SCW 351, and submitted that daily wage workers completing more than 10 years are entitled for regularisation under the scheme of regularisation.
17. To resolve the dispute, it will be appropriate to consider the rules framed under the Madhya Pradesh Industrial Employment (Standing Orders) Act.
18. Annexure to Industrial Employment (Standing Orders) Rules, 1963 relates to Standard Standing Orders for all Undertakings of the State. Clause 2 (ii) defines a "permanent seasonal employee" means an employee who has completed service for a period equal to 2/3 of the duration of the season or three months whichever is less in a clear vacancy and shall be deemed to be a permanent employee for the purposes of these orders.
19. Considering the provisions of the Rules, it is apparent from the documents Annexures P-2 to P-10 that the workmen were required to work between September to June. Thus, the workmen had worked for almost nine months in a year. Some of the workmen had worked from the year 1977 and they have been called every year to work, which shows that the workmen had worked to the satisfaction of their employer and they are entitled to be deemed to be permanent employees.
20. The only question involved in this case is whether the respondents-workmen worked against clear vacancy.
21. It is apparent that there is no clearvacancy, as the respondents have been required to work every year in particular season. Respondents-workmen had worked to the satisfaction of their employer, but they have not worked against clear vacancies to be classified as permanent.
22. The contention of the counsel for petitioners that since the dispute is under the provisions of the Act, therefore, the workmen are not entitled for the benefits of M.P. Industrial Employment (Standing Orders) Act is misconceived. For counting continuous service under Section 25B of the Act, explanation (i) to sub-section (2) provides that for the purposes of counting of days on which workman had actually worked under an employer which includes the days on which he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act or under any other law applicable to the industrial establishment.
23. Thus, the provisions of Industrial Employment (Standing Orders) Act, 1961 will be applicable in the present case. Even if the provisions are made applicable, no direction for classification of the respondents as permanent can be passed as they have not worked against clear vacancies.
24. However, in the present case, the workmen had worked for not less than three months in a year. A workman is required to work for 240 days in a year, if he is required to work for whole year. In the present case, the respondents were required to work for around nine months in a year, therefore, it was not necessary for them to work for 240 days in a year. However, if they had worked for about 180 days in a year, that itself was sufficient for direction to continue them in subsequent seasons according to their seniority.
25. Therefore, the Award of the Labour Court is modified in the light of the case of Anil Bapurao Kanase (supra) and it is directed that stopping the workman from coming to work after the work is over does not amount to retrenchment. However, the petitioners are obliged to engage these workmen when season starts in succeeding years in the order of seniority. It is also directed that the petitioners shall consider the cases of respondents-workmen for regularisation under the scheme for regularisation framed by the Government and shall pass appropriate orders within a period of four months from today.
26. Petition succeeds in part and is allowed. There shall be no order as to costs.
27. Writ Petition partly allowed.