Allahabad High Court
U.P. State Sugar Corporation Ltd. vs The Presiding Officer Labour Court And ... on 3 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 38 A.F.R. Case :- WRIT - C No. - 4975 of 2001 Petitioner :- U.P. State Sugar Corporation Ltd. Respondent :- The Presiding Officer Labour Court And Another Counsel for Petitioner :- R.K.Srivastava, Shakti Swarup Nigam Counsel for Respondent :- C.S.C., P.C.Singh,Santosh K. Srivastava, Sumitra Singh,Bhoopendra Nath Singh Connected with Case :- WRIT - C No. - 4976 of 2001 Petitioner :- U.P. State Sugar Corporation Ltd. Respondent :- The Presiding Officer Labour Court And Another Counsel for Petitioner :- R.K.Srivastava, Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,P.C.Singh,S.K. Srivastava,Sumitra Singh,Bhoopendra Nath Singh Connected with Case :- WRIT - C No. - 20683 of 2001 Petitioner :- U.P.State Sugar Corporation Ltd. Through Its G.M. Respondent :- Presiding Officer Labour Court And Others Counsel for Petitioner :- R.K.Srivastava, Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,P.C. Singh,Phool Chandra Singh, S.K.Srivastava,Sumitra Singh Connected with Case :- WRIT - C No. - 20684 of 2001 Petitioner :- U.P.State Sugar Corporation Ltd.Unit Munderwa Respondent :- Presiding Officer Labour Court And Others Counsel for Petitioner :- R.K.Srivastava,Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,P.C. Singh,Phool Chandra Singh, S.K.Srivastava,Sumitra Singh Hon'ble J.J. Munir,J.
1. These are four writ petitions arising out of awards passed by the Presiding Officer, Labour Court, U.P., Gorakhpur dated 11.08.1999 and 13.08.1999 in Adjudication Case nos.103 of 1987 & 118 of 1987 and Misc. Case nos.404 of 1987, 90 of 1991 & 403 of 1987. The Labour Court has entered awards in the four industrial disputes between the U.P. State Sugar Corporation Limited, Unit Munderwa, District Basti (since re-named as U.P. Sugar and Cane Development Corporation, Unit Munderwa, Basti) and its various workmen who brought these industrial disputes, accepting the workmen's claims. These various workmen are the respondents to the writ petitions, whereas the U.P. Sugar and Cane Development Corporation, Unit Munderwa, Basti are the petitioners. The U.P. Sugar and Cane Development Corporation, Unit Munderwa, Basti is hereinafter referred to as the Employers whereas the private respondents in each of the writ petitions are hereinafter referred to as the workmen (except for singular reference where the name of the particular workman is mentioned).
2. All the four petitions involve similar questions of fact and law. As such, all the petitions were connected and heard together with Writ - C No.4975 of 2001, being treated to be the leading case. Nevertheless, in order to indicate precise facts that are individual to the different writ petitions, the cause of action and course of proceedings in each involved, those facts and the course of proceedings in the four writ petitions would be set out separately in a brief statement about it.
3. Writ - C No.4975 of 2001 has been preferred by the Employer assailing an award of the Presiding Officer, Labour Court, U.P., Gorakhpur passed in Adjudication Case no.103 of 1987 between the Employer and the registered Union of their workmen known as Sugar Mill Munderwa Mazdoor Panchayat, Munderwa Bazar, Lalganj Road, Munderwa, Basti (for short the Union), representing the interest of the workmen numbering fifteen, with particulars detailed in the Annexure to the order of reference.
4. The State Government vide Government Order no.5170-75(श्र0आ0)/36-श्रम (।) सी0बी0 68/86 बस्ती, dated 11.02.1987, made the following reference under Section 2-K of the U.P. Industrial Disputes Act, 1947 (for short the Act) to the adjudication of the Presiding Officer, Labour Court, U.P., Gorakhpur:
क्या सेवायोजकों द्वारा संलग्न सूची में अंकित 15 कर्मचारियों को मौसमी श्रमिक घोषित किया जाना चाहिए? यदि हां, तो किस तिथि से तथा अन्य किस विवरण सहित?
5. The Labour Court proceeded to hear and determine the aforesaid Adjudication Case vide judgment and award dated 11.08.1999, whereby it held that the fifteen workmen whose names are appended to the order of reference are declared seasonal, and that they would be entitled to all benefits of seasonal engagement with effect from the year 1985-86. The Employers were ordered to pay in costs a sum of Rs.100/-.
6. Aggrieved, this writ petition has been filed.
7. Pending the aforesaid Adjudication Case, the Employers terminated the services of the workmen by an oral order with effect from 10.03.1987 without service of any notice or pay in lieu of the period of notice, or payment of retrenchment compensation. This led fourteen of the fifteen workmen, for whose benefit Adjudication Case no.103 of 1987 had been brought by the Union to file Misc. Case no.404 of 1987, under Section 6-F of the Act, on basis that pending adjudication of the Industrial Dispute, termination of their service was one in violation of Section 6-E. The workmen through the aforesaid misc. case sought reinstatement in service with continuity and back-wages, besides consequential benefits. A similar application giving rise to Misc. Case no.90 of 1991 was filed by the fifteenth workman, Ram Lal, also under Section 6-F of the Act.
8. Both the misc. cases were heard together and decided by the Labour Court, also vide a judgment and award dated 11.08.1999, whereby it was held that the act of the Employers in terminating the services of the fifteenth workmen was unlawful and improper. It was further awarded that all the workmen are entitled to reinstatement.
9. Writ - C No.20684 of 2001 has been brought by the Employers against the last mentioned award, passed in the two misc. cases under reference.
10. Writ - C No.4976 of 2001 has been preferred by the Employers from a judgment and award of the Presiding Officer, Labour Court, U.P., Gorakhpur, dated 13.08.1999, passed in Adjudication Case no.118 of 1987, between the Employers and the Union representing the interest of twenty-five workmen, whose details are mentioned in the attached schedule to the order of reference giving rise to the last mentioned adjudication case. The twenty-five workmen are arrayed as respondent nos.3 to 27 to this petition. Some of these workmen have died pending this writ petition and their heirs and legal representatives have been brought on record. Adjudication Case no.118 of 1987 was registered on the basis of an order of reference, bearing Government Order no.5261-66(श्र0आ0)/36-श्रम (।) सी0बी0 69/86 बस्ती, dated 11.02.1987, which came to be made after a failed conciliation between the Employers and the Union representing the workmen's interest. The order under Section 2-K of the Act above mentioned, referred the following dispute to the adjudication of the Presiding Officer, Labour Court, U.P., Gorakhpur:
1. क्या सेवायोजकों द्वारा संलग्न परिशिष्ट में अंकित 25 श्रमिकों को मौसमी श्रमिक घोषित न किया जाना अनुचित तथा/ अथवा अवैधानिक है? यदि हां, तो संबन्धित श्रमिक क्या लाभ/ क्षतिपूर्ति (रिलीफ) पाने के अधिकारी हैं तथा किन अन्य विवरणों सहित?
2. यदि वाद पद संख्या-1 श्रमिकों के पक्ष में निर्णीत होती है तो क्या संबंधित श्रमिकों को कार्य के अनुरूप निर्धारित वेतनमान दिया जाना चाहिए? यदि हां तो किस तिथि से तथा अन्य किस विवरण सहित?
11. The Labour Court proceeded to hear and determine the aforesaid adjudication case vide judgment and award dated 13.08.1999, whereby it held that the twenty-five workmen whose names are detailed in the schedule appended to the order of reference are declared seasonal and entitled to be paid salary as determined by the Wage Board, together with other benefits from the season 1985-86.
12. Aggrieved, this writ petition has been filed.
13. Pending the aforesaid adjudication case, it appears that the Employers terminated the services of eighteen of the twenty-five workmen, on whose behalf the Union had raised the industrial dispute under reference on various dates without service of any prior notice or payment of wages in lieu of notice. These eighteen workmen are arrayed as respondent nos.3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 17, 20, 21, 23, 24, 25 and 26. The other private respondents appear to have been unnecessarily impleaded. These workmen, accordingly, filed a miscellaneous application, dated 29.07.1987 in the pending Adjudication Case no.118 of 1987, under Section 6-F of the Act, alleging termination of their services in violation of Section 6-E. This application came to be registered as Misc. Case no.403 of 1987. These workmen sought relief that the industrial dispute be registered and it be awarded that the workmen were entitled to reinstatement on the post that they were working together with payment of salary, continuity of service, arrears of salary for the period of their unlawful termination of services and other consequential benefits, together with due interest.
14. The aforesaid miscellaneous case came up for determination before the Presiding Officer, Labour Court, U.P., Gorakhpur, who after hearing the workmen and the Employers, held that the services of the workmen have been terminated in violation of Section 6-E of the Act, and awarded that they be reinstated to the posts they were working, together with all consequential benefits. The workmen were further awarded Rs.100/- in costs.
15. Aggrieved, Writ - C No.20684 of 2001 has been filed.
16. Heard Sri Shakti Swarup Nigam, learned Senior Advocate assisted by Sri Alok Kumar Srivastava, learned Counsel for the petitioner, Sri Lalloo Singh, learned Advocate holding brief of Sri B.N. Singh, learned Counsel appearing on behalf of the respondent-workmen and Sri Ajeet Kumar Singh, learned Standing Counsel appearing on behalf of respondent no.1, in all the writ petitions.
17. In the leading writ petition upon issue of notice by the Labour Court, the Employers and the Union on behalf of the fifteen workmen, put in their pleadings. The Union acting on behalf of the workmen filed their written statement dated 29.07.1987 whereas the Employers filed their written statement on 05.07.1989. The workmen filed their rejoinder statement whereas the Employers filed their rejoinder statement dated 14.04.1993, answering amendments, that were brought in by the workmen through an application dated 11.01.1993, also the basis of two separate miscellaneous cases in the adjudication case, seeking to assail the pendentilite termination of their services, in violation of Section 6-F of the Act. The Labour Court, of course, while deciding the adjudication case did not go into that part of the cause of action, that was subject matter of Misc. Case no.404 of 1987 and Misc. Case no.90 of 1991.
18. The case of the workmen before the Labour Court was to the effect that all fifteen of them were engaged with the Employers' establishment regularly for the past 6 - 7 years as Centrifugal Machine Men, during each successive season. The further case was that the workmen were arbitrarily shown by the Employers, by manipulating documents that were in their control, as daily-wagers instead of seasonal workmen. It was also pleaded that the attendance of the workmen was recorded in the Attendance Register, but their salary was paid through vouchers in an arbitrary fashion. It was pleaded that in order to avoid extending benefit of emoluments as determined by the Wage Board and other benefits admissible, the Employers in an arbitrary fashion would manipulate records relating to the workmen. It is said further in the written statement that the Employers have in their establishment twenty-three Centrifugal Machines, that run everyday in successive shifts. The twenty-three machines worked during successive shifts require after taking into reckoning the reliever workmen, a total of eight-one Centrifugal Machine Men, on a regular basis. The establishment instead retains 32 - 35 workmen as Centrifugal Machine Men on a seasonal basis. The remainder vacant posts are manned by the workmen, shown to be engaged as temporary hands on daily-wages during each season, throughout. It is also pleaded that the job of a Centrifugal Machine Man and the relative work is regular and seasonal in nature. The employment of the workmen on the said job, showing them to be temporaries is unfair labour practice. It is pleaded further that the workmen were paid salary, worked out on the basis of Rs.7.50 per day, and by manipulating records regarding rate of wages, the workmen's attendance is shown short. It is then specifically pleaded that disbursement of salary at times is not shown in the records at all as wages paid to the workmen, but shown as outgoings under other heads. It is claimed that all the workmen are entitled to be declared seasonal workmen and paid wages, according to recommendations of the Wage Board, payable to workman of that class.
19. The Employers filed their written statement traversing the workmen's case, apart from certain pleas as to maintainability of the industrial dispute, raised on behalf of the workmen by the Union which does not appear to have been pressed before the Labour Court. The Employers pleaded in paragraph 3 of the written statement that the workmen were not at all on the rolls of the Corporation at the time of its takeover, on 28.10.1984. They were temporary hands with the erstwhile Employer. At this juncture, it must be remarked that mention of the erstwhile Employer and the Corporation bears reference to the U.P. State Sugar Corporation Limited that was acquired by the State of U.P. under the provisions of the Uttar Pradesh Sugar Undertakings (Acquisition) Act, 1971 with effect from 28.10.1984.
20. It is pleaded that the workmen were employed, on occasions as temporary hands, to cope with the absence of regular hands and to meet the exigencies of extra work. It is the Employers' further case that the workmen have never worked against any vacancy and do not hold lien on any post. There are breaks in their services. It is also pleaded that the Employers have the required strength of unskilled hands and there is no vacancy. The Union has raised this industrial dispute on baseless grounds. It was also specifically pleaded that before the Conciliation Officer, the Union were seeking promotion for these workmen from temporary hands to seasonal. It is urged that promotion is an exclusive right of the Management. Casual employees have no claim to promotion. It is also said that the workmen were seeking renewal of their contract, as they were not on the rolls of the employers, when the conciliation proceedings were initiated on their behalf by the Union. The right of the workmen to be declared seasonal has been outrightly disputed.
21. The workmen in order to establish their case, made an application to the Labour Court to summon from the Employers, the Attendance Register for the crushing seasons 1980-81 to 1986-87, besides the Cashbook, ledger and vouchers for the relative period. The Labour Court has recorded for a fact that the Employers objected to this prayer. It has also been recorded that on 14.07.1988, the workmen filed an inspection note, but that too was objected to by the Employers.
22. On behalf of the Employers, all that is offered in evidence are two witnesses, that is to say, one Ramakar Prasad Pandey, Time Officer Incharge in the Employers' establishment, who deposed as EW-1 and S.N. Tripathi, Chief Chemist in their establishment, who deposed as EW-2. For the workmen, three workmen deposed, to wit, Sumeshar Tiwari, Kuber Nath and Ram Prasad Yadav, each of whom testified as DW-1, DW-2 and DW-3, respectively.
23. The Labour Court on consideration of the evidence on record has passed the impugned award, subject matter of challenge here.
24. Before this Court, Sri Nigam, learned Senior Advocate has emphatically urged that the Labour Court went utterly wrong in declaring the workmen seasonal, who were otherwise casual hands, hired during crushing seasons to cater to the additional workload as and when required. He has emphasized that they did not work against any existing vacancy, and that there were no vacancies available with the Employers' Unit, against which these persons could have been declared seasonal.
25. It has been argued that by declaring temporary hands, seasonal workmen, the Labour Court has granted the workmen promotion which is essentially a managerial function. That cannot be done under an award of the Labour Court. It has been re-emphasized by the learned Senior Advocate that the Labour Court fell in manifest error in not considering that seasonal status can be conferred depending upon the vacancies available with the Employers' Unit, and that too, after taking into account the inter se seniority of those workmen, who were retained as temporary hands on daily-wages. Also, their eligibility, qualification, skill etc. have to be appraised by the Management before taking a decision to appoint the workmen as seasonal staff against the available sanctioned strength.
26. It has also been urged on a case pleaded for the first time before this Court that pending this petition, the U.P. State Sugar Corporation Ltd. has been declared sick under the SICA by the Board of Industrial and Financial Reconstruction (BIFR), vide its order dated 21.08.1995. Subsequently, the State Government have taken a decision in the year 1999, under which eleven Units of the Corporation, including the Employers, that is to say, the Unit at Munderwa, Basti, has been closed down. It has been further pleaded that from 1999, the Employers have been closed down, and no production whatsoever is undertaken there. It has been argued by Sri S.S. Nigam, learned Senior Advocate that in these circumstances, the direction to declare a workman seasonal is manifestly illegal and impossible to implement.
27. Learned Senior Counsel for the Employers has argued that rights of the workmen involved are to be determined with reference to the Standing Orders, governing the conditions of employment of workmen in Vacuum Pan Factories of Uttar Pradesh, enforced with effect from 27th September, 1988, and issued by the State Government, in exercise of their powers under Clause (b) of Section 3 of the Act.
28. In the submission of the learned Senior Counsel, there is no provision under the Standing Orders which says that a temporary hand on daily-wages who has worked for a particular number of seasons, can be declared seasonal. It is also submitted by him that there is no scheme by way of any tripartite agreement adopted by the sugar factories in Uttar Pradesh that a daily-wager who has worked in a season, would be declared seasonal workman. It is also urged that there is no Government Order issued in exercise of powers under Section 3 of the Act, entitling or requiring a daily-wager to be considered as seasonal, who has worked during a whole season, or successive seasons. It is urged also that the Labour Court did not consider the impact of the impugned award declaring the workmen seasonal, which would entitle them to wages prescribed by the Wage Board, and its resultant financial impact upon the Employers. It is in the last submitted that the Labour Court should have exercised judicial restraint in the matter, and not awarded in the manner it has done, which encroaches upon executive functions.
29. In support of his contention, learned Senior Counsel has placed reliance upon the decision of the Constitution Bench of their Lordships of the Supreme Court in Secretary, State of Karnataka vs. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753. He has, in particular, referred to paragraphs 34, 37, 38 and 40 of the report, where it has been held:
"34. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] a three-Judge Bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularised by the State. The State could not invoke its power under Article 162 of the Constitution to regularise such appointments. This Court also held that regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or any body or authority governed by a statutory Act or the rules framed thereunder. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation.
37. It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] this Court after referring to a number of prior decisions held that there was no power in the State under Article 162 of the Constitution to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularisation or appointment does not connote entitlement to further regularisation or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularisation. This view was reiterated in State of Karnataka v. KGSD Canteen Employees' Welfare Assn. [(2006) 1 SCC 567 : 2006 SCC (L&S) 158 : JT (2006) 1 SC 84]
38. In Union Public Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482 : 2006 SCC (L&S) 339 : (2006) 2 Scale 115] this Court answered the question, who was a government servant and stated: (SCC p. 490, para 12) "12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words ''employment' or ''appointment' cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (see B.S. Minhas v. Indian Statistical Institute [(1983) 4 SCC 582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363])."
40. At this stage, it is relevant to notice two aspects. In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution. The position emerging from Kesavananda Bharati [(1973) 4 SCC 225 : 1973 Supp SCR 1] was summed up by Jagannadha Rao, J. speaking for a Bench of three Judges in Indra Sawhney v. Union of India [(2000) 1 SCC 168 : 2000 SCC (L&S) 1 : 1999 Supp (5) SCR 229] . That decision also reiterated how neither Parliament nor the legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. This Court stated: (Indra Sawhney case [(2000) 1 SCC 168 : 2000 SCC (L&S) 1 : 1999 Supp (5) SCR 229], SCC p. 202, paras 64-65) "64. The preamble to the Constitution of India emphasises the principle of equality as basic to our Constitution. In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, C.J. laid stress on the basic features enumerated in the preamble to the Constitution and said that there were other basic features too which could be gathered from the constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the preamble. They specifically referred to equality (paras 520 and 535-A of SCC). Hegde & Shelat, JJ. also referred to the preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too referred to the preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature (para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J. (as he then was) (see para 2086) accepted this position.
65. What we mean to say is that Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet."
He has further placed reliance upon the decision of the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, (2007) 1 SCC 408 : (2007) 1 SCC (L&S) 270, where it has been held thus:
"40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. of Police [AIR 2005 Mad 1] and we fully agree with the views expressed therein.
47. We are of the opinion that if the court/tribunal directs that a daily-rated or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularising such an employee, which cannot be done as held by this Court in Secy., State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and other decisions of this Court.
48. In view of the above discussion, we are of the opinion that the orders of the Labour Court as well as the High Court were wholly unjustified and cannot be sustained for the reasons already mentioned above. The appeal is, therefore, allowed. The impugned judgments of the High Court and the Labour Court are set aside and the reference made to the Labour Court is answered in the negative. There shall be no order as to costs."
Sri Nigam, learned Senior Advocate has buttressed his contention further by referring to a decision of the Supreme Court in Executive Engineer, ZP Engg. Divn. v. Digambara Rao, (2004) 8 SCC 262 : 2004 SCC (L&S) 1097, where it has been held:
"20. It may not be out of place to mention that completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularisation. It is also not the case of the respondents that they were appointed in accordance with the extant rules. No direction for regularisation of their services, therefore, could be issued. (See A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : (2004) 6 Scale 350] and Pankaj Gupta v. State of J&K [(2004) 8 SCC 353 : (2004) 7 Scale 682] .) Submission of Mr Maruthi Rao to the effect that keeping in view the fact that the respondents are diploma-holders and they have crossed the age of 40 by now, this Court should not interfere with the impugned judgment is stated to be rejected."
Further reliance has been placed upon an authority of their Lordships of the Supreme Court in BSNL v. Bhurumal, (2014) 7 SCC 177 : 2014 (140) FLR 901 : (2014) 2 SCC (L&S) 373, where it has been held:
"34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
36. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily-wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of linemen in the Telephone Department has been drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement.
37. In Man Singh [BSNL v. Man Singh, (2012) 1 SCC 558 : (2012) 1 SCC (L&S) 207] which was also a case of BSNL, this Court had granted compensation of Rs 2 lakhs to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. The award of CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the costs of Rs 15,000 (Rupees fifteen thousand only) in this appeal."
Sri Nigam has also reposed faith in the decision of the Supreme Court in State of Uttaranchal vs. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad, (2007) 12 SCC 483 : (2008) 2 SCC (L&S) 504 : 2008 (116) FLR 987. This decision and the others referred to hereinabove, are all in support of his submission that the Labour Court could not have ordered the workmen to be treated as seasonal hands, and thus confer upon them the status of a regular employee which is a matter for the Employers to consider on the basis of availability of posts, inter se, seniority of daily-wagers and other relevant factors. Sri Nigam has referred to paragraphs 9 and 11 of the report in State of Uttaranchal vs. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad (supra), where it is held thus:
"9. In Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] the issue relating to regularisation was examined at length. It was essentially held that there was no question of any automatic regularisation.
11. It is not in dispute that some of the workmen concerned have been regularised. Before any direction for regularisation can be given, the factual position has to be noted as to whether there was any sanctioned post. Apparently, in the present case, these factual details have not been discussed by either the Labour Court or the High Court. We, therefore, remit the matter to the Tribunal to consider the factual background and to decide the matter afresh in the light of what has been stated in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and Hindustan Aeronautics case [(2007) 6 SCC 207 : (2007) 2 SCC (L&S) 441]."
Again to the same end, Sri Nigam has invoked the authority of their Lordships of the Supreme Court in Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidyalaya vs. United Trades Congress, (2008) 2 SCC 552 : (2008) 1 SCC (L&S) 504. In the said decision, it has been held by their Lordships:
"12. A feeble attempt, however, was made by the learned counsel appearing on behalf of Respondent 2 to state that he had been appointed against a permanent vacancy. In his written statement, he did not raise any such contention. It does not also appear from the records that any offer of appointment was given to him. It is inconceivable that an employee appointed on a regular basis would not be given an offer of appointment or shall not be placed on a scale of pay. We, therefore, have no hesitation in proceeding on the premise that Respondent 2 was appointed on daily wages. The Industrial Court in passing the impugned award proceeded on the premise that Respondent 2 had been working for more than 240 days continuously from the date of his engagement. It is now trite that the same by itself does not confer any right upon a workman to be regularised in service. Working for more than 240 days in a year was relevant only for the purpose of application of Section 6-N of the U.P. Industrial Disputes Act, 1947 providing for conditions precedent to retrench the workmen. It does not speak of acquisition of a right by the workman to be regularised in service.
17. The Industrial Court, therefore, in our opinion, committed a serious error in passing the impugned award. The High Court unfortunately did not pose unto itself a right question. It referred to a large number of decisions. Although most of the decisions referred to by the High Court should have been applied for upholding the contention of the appellant herein, without any deliberation thereupon, the learned Judge has proceeded to determine the question posed before it on a wholly wrong premise. As noticed hereinbefore, it relied upon Mahendra L. Jain [(2005) 1 SCC 639 : 2005 SCC (L&S) 154] which in no manner assists Respondent 2.
18. What was necessary to be considered was the nature of work undertaken by the University. It undertakes projects. For the said purpose, it may have to employ a large number of persons. Their services had to be temporary in nature. Even for that the provisions of Articles 14 and 16 are required to be complied with. In the event, the constitutional and statutory requirements are not complied with, the contract of employment would be rendered illegal."
Sri Nigam has also referred to the guidance of their Lordships of the Supreme Court in Deputy Executive Engineer vs. Kuberbhai Kanjibhai, (2019) 4 SCC 307 : 2019 (160) FLR 651, where following the authority in BSNL v. Bhurumal (supra), it was held that the workman who had put in hardly a few years as a daily-wager, or a muster roll employee in the R & B Department of the State, had no right to claim regularization. It was held that one relevant factor further was that the dispute has been raised almost 15 years after his termination from service. The decision modified the award of the Labour Court ordering the workman to be reinstated without back-wages to one awarding a sum of Rs.1 lakh in lieu of relief of reinstatement, and also his claim to back-wages.
30. Learned Counsel for the workmen, Sri Lalloo Singh, on the other hand submits that the workmen have been working for the past 6 - 7 years, antedating their illegal termination of services pending this writ petition as Centrifugal Machine Men in each crushing season, but the Management by resort to unfair labour practice, treated them as daily-wage workers. He has contended that the workmen in order to support and establish their case of regular work done during the entire crushing seasons 1980-81 to 1986-87 sought to summon the Attendance Register, the Cashbook, the Ledger and Salary Payment Vouchers for this period from the Employers. He points out that these documents could not have been in the workmen's custody, or a copy of it with them, particularly, in the background of the Employers resorting to unfair labour practice. This prayer to summon these records was objected to by the Employers, for no good reason assigned. Learned Counsel has taken the Court through the evidence of the Employers' witnesses, which he says is conspicuous about a determined effort by the Employers not to refer to any documentary record of the work done by the workmen - even that record which the Employers would have maintained showing them to be temporary hands on daily-wages. He submits that those documents would show that by the regularity of engagement during the period of each crushing season and the payment records, the workmen's case under the Standing Orders to a seasonal status would be indubitably established. Withholding of these documents and evasive answers during evidence by the Employers' witnesses about non-production and non-reference to the records, which the workmen sought to summon, furnish good reason to the Labour Court to draw those adverse inferences that it has done against the Employers.
31. Learned Counsel for the workmen has urged that the conclusions, therefore, drawn by the Labour Court are based on oral evidence led by parties, appreciated in the context of an adverse inference and presumption, besides the overall facts, circumstances and conduct of parties. Findings of the Labour Court are pure findings of fact based on appreciation of evidence. These findings in the submission of the learned Counsel for the workmen are in no way without jurisdiction, manifestly illegal, based on irrelevant evidence or ones recorded ignoring relevant evidence. The findings also, in his submission, cannot be impeached as perverse as they are plausible conclusions drawn from the evidence on record. He submits that it is not open to this Court to interfere with such findings of fact in the absence of any demonstrable manifest illegality, lack of jurisdiction or perversity of approach. These findings, in the submission of the learned Counsel for the workmen, cannot be disturbed by this Court in exercise of its jurisdiction under Article 226 of the Constitution. In support of his contention, learned Counsel for the workmen has relied upon a decision of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation, AIR 2010 SC 1116 where the principle that this Court cannot interfere with pure findings of fact unless there is an error apparent vitiating the award of the Labour Court or some lack of jurisdiction or some manifest illegality, has been expounded. He has referred to paragraph 10 of the report in Harjinder Singh (supra), where it has been held:
"10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution -- Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477] and Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] .
In Syed Yakoob case [AIR 1964 SC 477] , this Court delineated the scope of the writ of certiorari in the following words: (AIR pp. 479-80, paras 7-8) "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1 SCR 1104] , Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398 : 1958 SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168] ).
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior court or tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
32. Learned Counsel for the workmen, Sri Lalloo Singh has further argued that the Labour Court has not committed any error of law or jurisdiction in passing the award which is based on the Standing Orders. Learned Counsel in support of his contention has placed reliance upon the decision of the Supreme Court in Bihar SRTC v. State of Bihar, AIR 1970 SC 1217 : (1970) 1 SCC 490. He has also placed reliance upon the decision of a Division Bench of this Court in Swadeshi Cotton Mills Co. Ltd. vs. Labour Court (II), 1979 All LJ 532 : (1979) 38 FLR 470. Further reliance has been placed by the learned Counsel for the workmen upon the decision of a learned Single Judge of this Court in Basti Sugar Mills Company Ltd. vs. Prem Chand, (1999) 81 FLR 312. In support of this proposition, learned Counsel for the workmen has again relied on the principles laid down by their Lordships in Harjinder Singh (supra). Support is also sought to be drawn by the learned Counsel for the workmen in aid of his contention now under consideration from the guidance of their Lordships of the Supreme Court in Devinder Singh vs. Municipal Council, Sanaur, (2011) 6 SCC 584 : AIR 2011 SC 2532.
33. Learned Counsel for the workmen has pointed out in answer to the assertion on behalf of the Employers that their Unit at Munderwa, Basti, besides others, have been closed down in the year 1999 that the said fact, though not incorrect, does not mention a supervening event that would countervail the effect of closure upon the parties' rights. He submits that in consequence of a letter no. P.C./SCC/ Pipari - Munderwa/ 855, dated 09.10.2017 written by the Managing Director, U.P. State Sugar Corporation Limited, Lucknow to the Government of U.P., the Principal Secretary to the Government in the Department of Industries has issued a memo no.1684/46-2-17-40/ 17, dated 11th January, 2018 conveying the decision of the Government to revive the closed Sugar Unit at Munderwa, Basti. Learned Counsel for the workmen, therefore, submits that the plea of closure urged for the first time before this Court, based on an event post award made by the Labour Court, would have to be considered in the changed perspective of revival of the closed unit of the Employers. A copy of the order dated 11.01.2018 issued by the Principal Secretary, Government of U.P. addressed to the Managing Director, U.P. State Sugar Corporation Limited, Lucknow is on record as Annexure SA-1 to the supplementary affidavit, dated 25th January, 2019, filed by the Employers in compliance with an order of this Court, dated 10.01.2019.
34. This Court has thoughtfully considered the very elaborate submissions advanced on behalf of both parties.
35. Under the Standing Orders, there are different categories of workmen contemplated under Clause B-1 (1) to (6). It would be profitable to refer to the definition under Clause B of the Standing Orders of three categories of these workmen, who are relevant for the purpose of adjudication of the controversy here, to wit, seasonal, temporary and probationer. A seasonal workman and the manner in which he acquires that status is defined under Clause B-1(2) of the Standing Orders:
"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."
36. A temporary workman and a probationer are defined under Clause B. 1 (3) and (4) thus:
"(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."
37. The special conditions governing appointment of seasonal workman, or so to speak, acquisition of that status by a workman, are governed by Clause K (sub-Clauses 1, 2 and 3 of the Standing Orders). Sub-Clause 4 of Clause K is not relevant to the issue in hand. Sub-Clauses 1, 2 and 3 of Clause K of the Standing Orders are extracted below:
"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."
38. The first submission urged on behalf of the Employers is that the workmen have been declared seasonal by the impugned award who were otherwise casual hands and would fall in the category of temporary workmen under the Standing Orders. This limb of the submission has been set out in all its detail, in the earlier part of this judgment. The thrust of the submission is that temporary hands could not be declared seasonal by the Labour Court in the absence of existing posts in that category, and further that doing so is to grant promotion to the workmen which is essentially a managerial function.
39. To the understanding of this Court what the Employers wish to say is that by its award the Labour Court has thrust upon the Employers and introduced into their establishment casual hands as regular employees, may be seasonal. It is true that seasonal workmen under the Standing Orders would be part of the regular establishment who are called in to cater to work of a seasonal character with a right to continue during successive seasons. The impugned award would, thus, certainly have the effect of regularizing the workmen in the Employers' establishment, which the workmen claim to be their right under the Standing Orders. Reliance has been placed by Sri S.S. Nigam, learned Senior Advocate upon the decisions of their Lordships of the Supreme Court in Secretary, State of Karnataka vs. Umadevi (3) (supra), Indian Drugs & Pharmaceuticals Ltd. (supra), Executive Engineer, ZP Engg. Divn. v. Digambara Rao (supra), State of Uttaranchal vs. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad (supra), Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidyalaya (supra) and Deputy Executive Engineer vs. Kuberbhai Kanjibhai (supra), in support of his contention that in view of these consistent authorities, it is not open to the Courts to order regularization of a daily-wager or a temporary hand, not part of the regular establishment as that is the function of the Employers. Also, these authorities hold that regularization to a post under the State or the Union, cannot be done without following rules regarding recruitment involving advertisement, inviting applications from the Employment Exchange and other eligible candidates, and then a selection through the prescribed mode of test, interview etc. Any other course would violate the guarantee to all citizens of equality of opportunity in matters of employment under the State, enshrined in Article 16 of the Constitution. The decision of their Lordships in Indian Drugs & Pharmaceuticals Ltd. (supra) has been much emphasized by Sri Nigam on this point to submit that the Courts must exercise judicial restraint and not transgress into the executive or legislative domain, as held there. He has laid much emphasis on the principle exposited in the aforesaid authority which says that "Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case."
40. It would be well to remember that the decision in Secretary, State of Karnataka vs. Umadevi (3) (supra), which appears to have been followed by their Lordships in Indian Drugs & Pharmaceuticals Ltd. (supra) and State of Uttaranchal vs. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad (supra), as also in Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidyalaya (supra), lays down a principle which in its application to labour and industrial disputes determined by the Labour Court or the Industrial Tribunal, has been differentiated from service disputes, that are suited before the High Court under Article 226 of the Constitution, or before their Lordships of the Supreme Court under Article 32.
41. This distinction has been drawn by their Lordships of the Supreme Court in a later decision in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC (L&S) 513. In the said decision, their Lordships while considering the power of the Labour Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, held that the power of the Industrial and Labour Courts to take affirmative action under Section 30(1)(b) of the said Act, in case of unfair labour practice and to order regularization/ permanency, are not affected by the decision of the Constitution Bench in Secretary, State of Karnataka vs. Umadevi (3) (supra). Explaining this distinction, their Lordships in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (supra) have held:
"33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902] arising out of industrial adjudication has been considered in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] leaves no manner of doubt that what this Court was concerned in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
42. In the part of their Lordships' decision in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (supra), that follows the above adumbrated principles, the decisions of the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. (supra), Mahatma Phule Agricultural University vs. Nasik Zilla Sheth Kamgar Union, (2001) 7 SCC 346 and State of Maharashtra vs. R.S. Bhonde, (2005) 6 SCC 751 and Aravali Golf Club vs. Chander Hass, (2008) 1 SCC 683 have been considered and followed to hold that it is a trite principle that Courts cannot direct creation of posts which is an executive function, and further that permanency cannot be granted by Courts to an employee, where no post is in existence. Creation of permanent posts and appointment to them has been acknowledged to be an executive function. Thus, there appears to be no quarrel with the proposition that even a Labour Court cannot direct creation of a permanent post in an Employers' establishment, State or private. But, the Labour Court certainly would have power to direct regularization or confer regular status where the relevant Labour Act or Rules, either provide for that right, or under the said Act or Rules it is a case of unfair labour practice, which the Labour Court or Industrial Tribunal is empowered to undo.
43. The present case is not one where the Labour Court has directed creation of any permanent post or ordered the workmen to be appointed on a permanent basis, or conferred upon them permanency. All that the Labour Court has done is to direct that the workmen have to be treated as seasonal and not temporary hands. It is in this sense that the Labour Court has regularized the workmen. To invoke this power, the Labour Court has relied upon the Standing Orders, that have been framed by the State Government in exercise of powers under Clause (b) of Section 3 of the Act. The Standing Orders certainly have statutory force. Under Clause B-1 (2), a seasonal workman has been defined as one who is engaged only for the crushing season and has completed his probationary period, if any. The definition of a probationer indicates the probationary period, whether specified or unspecified, to be one month or half of the season, whichever is less, in the case of a seasonal workman. This stipulation is carried in Clause B-1(4) of the Standing Orders, read with its first proviso. The second proviso indicates that upon expiry of the probationary period where no orders are made either way, confirming or discharging a probationer, the probationer shall be deemed to be confirmed automatically.
44. The Labour Court on the evidence led before it and the adverse inferences it has drawn due to non-production of records by the Employers despite an application by the workmen in that behalf, could possibly have held that the workmen have worked with the Employers for the whole of the crushing seasons 1980-81 to 1986-87, and completed the probationary period, entitling them to the status of seasonal workmen. But, that specific finding has not been recorded. In the absence of a finding to the effect that the workmen have worked for the crushing seasons 1980-81 to 1986-87, in accordance with their case, and have completed their probationary period envisaged under Clause B-1(4) of the Standing Orders - at least a finding that all the workmen or one or more of them have been engaged for a certain crushing season and completed his/ their probationary period - the Labour Court could not have granted seasonal status to the workmen under the Standing Orders. In the absence of that finding, the impugned award is rendered manifestly illegal.
45. Since the essential finding entitling the Labour Court to pass the impugned award has not been recorded, this Court looking to the long lapse of time that parties have been litigating, with a very heavy heart, is constrained to remand the matter to the Labour Court with a direction to decide the matter afresh recording necessary findings, amongst others, on the basis of which the claimed status of the workmen as seasonal hands can alone be determined under Clause B-1(4) of the Standing Orders. This Court says that it is constrained to remand the matter for the lack of that one essential finding because it is not open to this Court, in the exercise of its jurisdiction under Article 226 of the Constitution to record that finding, which is essentially one of fact, and still more, one that has to be recorded on the basis of appreciation of facts and evidence on record.
46. It is made open to both parties to lead such further evidence, particularly, documentary in support of their respective cases as may be advised. The Labour Court shall consider all evidence before it, including any further evidence, if led, as directed hereby, before making a fresh award. It is also made clear that all submissions advanced before this Court would remain open to the parties to urge before the Labour Court, except the one relating to lack of jurisdiction with the Labour Court to pronounce upon the workmen's case that they are seasonal workmen, and not temporary. It is also clarified that the possibility of one inference that the Labour Court could have drawn from the evidence in favour of the workmen mentioned hereinabove, shall in no way be construed as an expression of opinion on this issue. The Labour Court shall be absolutely free to draw its own conclusions on the issue, whether the workmen on the evidence on record are entitled to the status of seasonal workmen under the Standing Orders.
47. So far as Writ - C No.20684 of 2001 is concerned, the genesis of proceedings and the award there set out hereinbefore shows that it is founded on the foot of a claim by the workmen that their services were illegally terminated pending decision of Adjudication Case no.103 of 1987, in violation of Section 6-F of the Act. A perusal of the impugned award passed in this case, whereby termination of services of the workmen pending Adjudication Case no.103 of 1987 has been declared illegal and the workmen ordered to the reinstated with back-wages, is an award that proceeds on the edifice of findings and the award made in Adjudication Case no.103 of 1987, that holds the workmen to be seasonal. This award holds the workmen's services to have been terminated in violation of Clause L of the Standing Orders which require 15 days notice to be given by the Employers to the workmen who are seasonal. The findings have proceeded on the premise that the workmen are seasonal, and that premise is in turn founded on the award made the same day as the impugned award, declaring the workmen to be seasonal. Since the award passed in Adjudication Case no.103 of 1987 has been quashed by this Court with a remand of the matter to the Labour Court to record findings afresh, the impugned award is also required to be quashed with a direction to the Labour Court to determine this case afresh, which it will do bearing in mind its findings and conclusions recorded in Adjudication Case no.103 of 1987. It goes without saying that the Labour Court will hear and decide together upon this remand Misc. Case no.404 of 1987 and Misc. Case no.90 of 1991 together with Adjudication Case no.103 of 1987, all of which would be decided within a period of four months of receipt of this order by the Presiding Officer, Labour Court, U.P., Gorakhpur or its successor Court, if re-constituted.
48. In Writ - C No.4976 of 2001 upon issue of notice to the Employers and the Union on behalf of the twenty-five workmen, both sides put in their pleadings. The Union acting on behalf of the workmen filed their written statement dated 13.05.1987 whereas the Employers filed their written statement dated 05.07.1987. The Employers filed a rejoinder statement dated 22.08.1987 whereas a rejoinder statement was filed by the Union, on behalf of the workmen, dated 22.09.1987.
49. The case of the workmen before the Labour Court was that all the twenty-five workmen had been in regular engagement of the Employers as seasonal hands on the Boilers for the past 6 - 7 years. They were working regularly during each successive season. It was further pleaded that the twenty-five workmen shown in the schedule appended to the order of reference, were illegally shown in their papers by the Employers as temporary hands, engaged on daily-wages. The aforesaid character of the workmen's engagement was shown by the Employers through manipulation of their record. It was further pleaded that the workmen had their attendance marked in the Attendance Register, but salary was paid to them through vouchers, whereon endorsements were made arbitrarily. It was the workmen' further case that in accordance with their entitlement as seasonal hands, they had to be paid salary and other benefits as determined by the Wage Board, of which they were unlawfully deprived by the Employers, again by a manipulation of their record. It was specifically also pleaded that the Employers establishment has four Boilers, that have three shifts of hands to work them. Taking into account the number of men required at a time and their relief for the next shift, a total of 63 men were required to work the Boilers. The Employers had 35 - 40 men shown as seasonal hands. The other vacancies are filled in by the workmen who have in reality a seasonal engagement, but are shown as temporary hands, retained on daily-wages. The further case urged was that the work of a labourer assigned to the Boiler was regular, but seasonal in nature, and that the act of the Employers in retaining the workmen showing them to be temporary hands was clearly indicative of an unfair labour practice.
50. It was also averred in the workmen's pleading before the Labour Court that they were paid salary worked out on the basis of Rs.7.50 per day, and the Employers doing a manipulation of record by showing part of the salary paid to them expended towards other outgoings, the workmen's attendance is short counted. The workmen claimed declaration of their status as seasonal workmen with effect from the crushing season 1985-86, along with consequential benefits.
51. The Employers disputed the workmen's case and urged that no cause of action arose to them to seek this reference, and that they made no prior demand. It was pleaded that the workmen were not members of the Union and no resolution was passed so as to give rise to a valid industrial dispute at the behest of the Union, acting for their member-workmen. The Employers pleaded in paragraph 3 of the written statement that the workmen were not at all on the rolls of the Corporation at the time of its takeover on 28.01.1984. They were temporary hands with the erstwhile Employer. It must be remarked here that this plea was raised in the context of the U.P. State Sugar Corporation Limited being acquired by the State of U.P. under the provisions of the Uttar Pradesh Sugar Undertakings (Acquisition) Act, 1971 with effect from 28.10.1984.
52. It was further pleaded by the Employers that the workmen never worked against any vacancy. They hold no lien on any post. There are breaks in their service. It was also pleaded that their strength of unskilled hands is full and that the Union have raised this industrial dispute on baseless grounds. It was also pleaded that before the Conciliation Officer, the Union were seeking promotion for these workmen from temporary hands to seasonal workmen. Promotion was asserted to be an exclusive right of the Management, with a further plea that casual employees can have no claim to promotion. It is also pleaded that the workmen were asking for a renewal of their contracts as they were not on the rolls of the Employers when the Union filed conciliation proceedings. It was urged that the question of declaring these workmen seasonal does not arise, and further that the reference had become infructuous.
53. So far as the second issue referred was concerned, it was pleaded to be bad for its vagueness. It was also asserted that unless the strength of the Boiler House is determined, the second issue could not be decided. It was also pleaded that the strength of the Boiler Station in Shifts-A & B during that crushing season is full. It was then pleaded that the Labour Court would have to create a post, judge the suitability and standardize the muster of the Employers so far as the Boiler Section was concerned, if reliefs were to be granted to the workmen. This, the Employers pleaded was beyond the scope of reference. The Employers have asked the reference to be answered in their favour and the workmen's claim rejected.
54. Before the Labour Court, the Union filed an application saying that the Membership Register of the Union does not bear anyone's signatures, there is no cash receipt shown and the cashbook has not been produced. It was also urged in the application that there are entries in the Membership Register from January, 1987 to March, 1987, but not afterwards. It was urged through this application that the documents relied upon in this regard on behalf of the workmen by the Union, ought not to be accepted. The workmen made an application bearing paper no.16D with a prayer that the Attendance Register for the seasonal Boiler Hands from 1984-85 till date be summoned by the Court. A further application bearing paper no. 17D was made on behalf of the workmen that the Unit of the Employers may be inspected as much truth would be revealed before the matter was heard. In answer to this application, a reply paper no.18D was filed on behalf of the Employers. It was said that the work of Boiler Hands that the workmen were discharging is also done by other workmen. It was said in paragraph 11 of this reply that it was admitted to the Employers that these workmen were in their employment. Through an application bearing paper no. 23D, the Employers filed a document annexed as Annexure A, which shows new workmen hired during the period 1984 - 90.
55. In the oral evidence led on behalf of the Employers, an Assistant Engineer, D.R. Sharma was examined as EW-1. He deposed to the effect that there were four Boilers and that on each of these, one man was deputed at the top while two were detailed on the foot of it. According to him, an aggregate of four men were required on the top of all the Boilers combined and eight at the bottom. Thus, in three shifts, twelve men on the top and twenty-four at the foot of the four Boilers were required, making for a total of 36, and further that some of these are half shifts, which do not require a reliever. He then said that a total of 42 men are functioning who are permanent. It was testified that in special circumstances, temporary hands are engaged, some of whom are detailed to Boiler Room duties. He, however, said in his evidence that he could not say whether the twenty-five workmen here were detailed by the Time Office to the Boiler Room or not. This fact can be verified by the Time Office, and that he was not in a position to answer who were the men detailed to Boiler Room Duty during different shifts, or what their names were.
56. Another witness on behalf of the Employers was one Ramakar Pandey, who testified as EW-2. He proved Ex.6, which is the salary payment chart. He said in his examination that March, 1987 was written incorrectly there instead of April, 1987. Ten out of the twenty-five workmen were on the rolls of the Employers. Crushing season 1986-87 commenced on 21.11.1986 and ended on 28.04.1987. All the workmen were daily-wagers, who did not work the entire season. He proved Ex. E1.
57. On behalf of the workmen, Secretary of the Workmen's Union, Ram Pyarey Pandey, WW-1 was examined. He said in his evidence that after reference of the present industrial dispute was made, the services of the workmen were terminated. Thereupon, an application under Section 6-F of the Act was made. He testified also to the effect that the Employers' establishment had four Boilers. He also said in his deposition that attendance of the workmen was marked on an Attendance Register, which the Employers did not produce despite the workmen's prayer to summon it. The payment sheet alone was produced which shows short attendance.
58. The second witness examined on behalf of the workmen was Ram Nau, WW-2. He stated on oath that he had been working for a particular number of years (the figure about the number of years is illegible in the certified copy of the award). The other workmen who are party to the case had worked with him. The requirement was of 70 men, whereas there were only 30-35 on the establishment. He would be asked to sign on a paper, and was not paid any retaining allowance. According to this witness, services of 18 men were terminated.
59. The third witness examined on behalf of the workmen is one Paltu. He testified as WW-3. He asserted that he was one of the twenty-five workmen who are parties to this industrial dispute. He repeated almost the same facts as the other workmen about the number of Boilers, the requirement about the strength of men, the marking of attendance on a Register and payment of wages where signatures of workmen were secured on a loose paper with a Revenue Stamp. He further asserted that when they were not given benefits and salary as per entitlement, this case was brought by the Union. It is further said that without service of any notice or payment of retrenchment compensation, his services were dispensed with.
60. The Labour Court on an evaluation of documentary and oral evidence led on behalf of parties, particularly, the Employers, and drawing an adverse inference against the Employers on account of non-production of the Attendance Register and other records required to be maintained under the Standing Orders, answered the reference in favour of the workmen and held that all the twenty-five workmen whose names are detailed in the Schedule appended to the order of reference are entitled to be declared seasonal hands in the Employers' establishment, entitled to receive salary as per determination of the Wage Board together with other benefits, with effect from the season 1985-86.
61. Sri S.S. Nigam, learned Senior Counsel on behalf of the Employers has raised the same contentions in assail of the impugned order as those advanced in Writ - C No.4975 of 2001. Sri Lalloo Singh, learned Counsel on behalf of the workmen has defended the award, also on the similar submissions as those in the above mentioned writ petition. Learned Counsel for both sides have depended upon the same authorities as those relied in support of their various submissions in writ petition last mentioned.
62. This Court has considered the rival submissions and perused the impugned award. So far as the issue that in law it is not at all within the domain or jurisdiction of the Labour Court to have declared the workmen seasonal, the same is decided in favour of the workmen, and against the Employers for all the reasons detailed earlier in this judgment with reference to the same contention advanced in Writ - C No.4975 of 2001. It is held that it is competent for the Labour Court on evaluation of evidence before it to pronounce upon the status of the workmen as seasonal hands, if they be entitled to it under the Standing Orders.
63. In order to judge the entitlement of the workmen to be declared seasonal under the Standing Orders, the Labour Court was required to examine whether on the evidence before it, the workmen or one or more of them fulfill the requirements of being seasonal hand(s) as defined under Clause B-1(2) of the Standing Orders. It would also have to be determined whether the requirement of probation envisaged under Clause B-1(4) are fulfilled on the evidence before the Labour Court in case of each of the workmen, and if all of them were entitled to the status of seasonal employees. These Clauses of the Standing Orders have been referred to about the same issue in this judgment while deciding that issue in Writ - C No.4975 of 2001. As such, a mention of the requirements of those Standing Orders in greater detail here, or their reproduction is not needed.
64. The Labour Court on the evidence led before it and the adverse inferences it has drawn due to non-production of records by the Employers, despite an application by the workmen in that behalf, could possibly have held that the workmen have worked with the Employers for the whole of the crushing seasons 1985-86 and 1986-87, and completed the probationary period, entitling them to the status of seasonal workmen. But, that specific finding has not been recorded. In the absence of a finding to the effect that the workmen have worked for the crushing seasons 1985-86 to 1986-87 in accordance with their case, and have completed their probationary period envisaged under Clause B-1(4) of the Standing Orders - at least a finding that all the workmen or one or more of them have been engaged for a certain crushing season and completed his/ their probationary period - the Labour Court could not have granted seasonal status to the workmen under the Standing Orders. In the absence of that finding, the impugned award is rendered manifestly illegal.
65. So far as Writ - C No.20683 of 2001 is concerned, the genesis of proceedings and the award there set out hereinbefore shows that it is founded on the foot of a claim by the workmen that their services were illegally terminated pending decision of Adjudication Case no.118 of 1987, in violation of Section 6-F of the Act. The Labour Court has awarded that the act of the Employers in terminating the services of the workmen is illegal and improper, and that by way of relief the workmen were entitled to be reinstated to the same post, on which they were working along with all consequential benefits. This relief has been granted to the workmen by the Labour Court on ground of violation of the provisions of Section 6-E(1) and (2) of the Act, inasmuch as, the Labour Court has found that services of the workmen have been terminated during the pendency of the industrial dispute before it, without Employers seeking its permission under the proviso to Section 6-E(2)(b). A reading of the provisions of Section 6-E and F of the Act shows that prima facie the Labour Court is right in holding the termination to be bad in consequence of violation of Section 6-E. However, even if the award were to be upheld or modified, much would depend about the relief to be granted to the workmen on the decision of the issue whether the workmen are entitled to be declared seasonal or they are ultimately held to be temporary hands. The said issue is to be determined after remand, by the Labour Court afresh, in view of the judgment and order of date passed in Writ - C No.4976 of 2001. It would, therefore, be appropriate that this matter may come up after the Labour Court makes its award, in compliance with the order of remand passed in Writ - C No.4976 of 2001.
66. Writ - C No.20683 of 2001 shall be listed after the Labour Court makes its award afresh in Adjudication Case no.118 of 1987.
67. In the result, Writ - C No.4975 of 2001 is allowed in part and the impugned award dated 11.08.1999 passed by the Presiding Officer, Labour Court, U.P., Gorakhpur, in Adjudication Case no.103 of 1987 is hereby quashed. The said Adjudication Case shall stand restored to the file of the Presiding Officer, Labour Court, U.P., Gorakhpur, or whichever Labour Court is now competent to deal with this Adjudication Case, with a direction that the Labour Court concerned shall decide the Adjudication Case afresh within a period of four months of receipt of this order by the Presiding Officer, Labour Court, U.P., Gorakhpur, or its successor Court, if reconstituted. In making its fresh award, the Labour Court shall bear in mind what has been held by this Court in this judgment in so far as it relates to Writ - C No.4975 of 2001.
68. Writ - C No.20684 of 2001 is allowed in part and the impugned award dated 13.08.1999 passed in Misc. Case no.404 of 1987 and Misc. Case no.90 of 1991 (relating to Adjudication Case no.103 of 1987) is hereby quashed with a remand of the matter to the Presiding Officer, Labour Court, U.P., Gorakhpur or its successor Court, if reconstituted to hear and decide Misc. Case no.404 of 1987 and Misc. Case no.90 of 1991, together with Adjudication Case no.103 of 1987, which it shall do bearing in mind its findings and conclusions recorded in Adjudication Case no.103 of 1987 within the same period of time as directed in Writ - C No.4975 of 2001.
69. Writ - C No.4976 of 2001 is allowed in part and the impugned award dated 11.08.1999 passed in Adjudication Case no.118 of 1987 passed by the Presiding Officer, Labour Court, U.P., Gorakhpur, is hereby quashed. The said Adjudication Case shall stand restored to the file of the Presiding Officer, Labour Court, U.P., Gorakhpur, or whichever Labour Court is now competent to deal with this Adjudication Case, with a direction that the Labour Court concerned shall decide the Adjudication Case afresh within a period of four months of receipt of this order by the Presiding Officer, Labour Court, U.P., Gorakhpur, or its successor Court, if reconstituted. In making its fresh award, the Labour Court shall bear in mind what has been held by this Court in this judgment in so far as it relates to Writ - C No.4975 of 2001.
70. Writ - C No.20683 of 2001 shall be listed before the appropriate Bench after the decision of Adjudication Case no.118 of 1987 afresh, in terms of the judgment and order passed today in Writ - C No.4976 of 2001.
71. There shall be no order as to costs in any of writ petitions decided today.
Order Date :- 03.01.2020 Anoop