Allahabad High Court
Pramod Kumar vs Presiding Officer, Labour Court And ... on 7 February, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) RESERVED ON 30.10.2017 DELIVERED ON 07.02.2018 Case :- WRIT - C No. - 33511 of 2012 Petitioner :- Pramod Kumar Respondent :- Presiding Officer, Labour Court And Another Counsel for Petitioner :- Jagdev Singh Counsel for Respondent :- S.S. Nigam,S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner challenging the award dated 23.02.2012 passed by the Respondent No. 1 as well as the order of dismissal dated 03.09.2004 passed by the Respondent No. 2 with a further prayer for issuance of a Mandamus to the Respondent No. 2 to pay salary and other allowances admissible to the petitioner w.e.f. 01.11.2004 along with consequential service benefits.
2. It is the case of the petitioner that he was initially appointed as a temporary ad hoc labourer in crushing season 1989-90 and was made permanent seasonal untrained labourer w.e.f. 01.01.1993. Since 1993-1994 the petitioner was entrusted with the job of weighment clerk at different out cane purchase centers of the respondent No. 2 and was given an Authority letter under Para 16-D of the U.P. Sugarcane (Regulation of Supply and Purchase) Order, 1954 (hereinafter to referred as "the Order of 1954").
3. It is the case of the petitioner that he worked regularly till the crushing season 2003-2004 as a weighment clerk and was transferred from place to place by the respondent No. 2, but was not given the admissible pay scale; nor he was issued the licence as required under Para 89 of the said Order of 1954.
4. Since the petitioner started demanding the pay scale as admissible to weighment clerks as per the Third Wage Board recommendations, the management of the respondent No. 2 got annoyed and decided to teach a lesson to the petitioner. On 15.12.2003, the weighing machine at the cane purchase center was found to be defective having a difference of 1.60 quintal per lorry and a complaint regarding the same was made in writing by the petitioner on 15.12.2003 in presence of the Assistant Manager (Purchase), Shri Jitendra Kumar. A copy of the complaint dated 15.12.2003 has been filed as Annexure - 2 to the writ petition.
5. It is the case of the petitioner that the management of the respondent No. 2 issued an undated charge sheet to the petitioner after the end of crushing season 2003-2004, showing a shortage of 1087.26 quintals of sugarcane alleging that the petitioner had purchased 49,105 quintals of sugarcane at different centers, but had only supplied 48,017.74 quintals of sugarcane to the Mill. It was alleged that the petitioner had caused financial loss to the Mill and a direction was issued asking him to submit his reply within 72 hours. This undated charge sheet was received by the petitioner on 16.06.2004 and he submitted his reply to the same on 18.06.2004 saying that the shortage could have been due to different reasons viz. drying of sugarcane due to late loading of lorries, defective weighing machine of the Mill or due to pilferage en route.
6. It is the case of the petitioner that although an explanation was submitted by the petitioner through UPC, the respondent No. 2 denied the receipt of any explanation. One Satish Chandra Sharma, Manager (Legal) was appointed as Inquiry Officer, who is alleged to have written two letters dated 19.07.2004 and 05.08.2004 informing the petitioner about the inquiry proceeding and date and time fixed therein for hearing. Since the petitioner did not receive any of the letters alleged to have been sent to him, he did not appear in the inquiry and the inquiry proceeded ex-parte and an inquiry report was submitted on 25.08.2004 on the basis of which the dismissal order dated 03.09.2004 was passed.
7. It is the case of the petitioner that the dismissal order dated 03.09.2004 was never served upon him and when he went to the Mill premises at the beginning of the crushing season 2004-2005, he was not allowed to join and therefore, he moved a representation. He received a letter dated 21.12.2004 from the respondent No. 2 directing him to deposit with the Mill Rs.583/- for the month of November, 2004 and Rs.3,498/- as arrears of the Policy premium w.e.f. May, 2004 to October, 2004, which arrears have been deposited by the Mill after making necessary deductions from the retaining allowance admissible to the petitioner as the petitioner remained absent for crushing season of 2004-05.
8. The petitioner submitted a reply to the said letter dated 21.12.2004 on 27.12.2004 stating therein that he had been continuously approaching the Mill for joining duty but was not assigned any duty at all and he had sent two letters informing the management about this also. He also informed the Mill that his retaining allowance for March, April, 2004 along with his salary, a total sum of Rs.9,672/- remained unpaid by the Mill and therefore from the same unpaid amount of salary, and Retaining allowance the adjustment of premium amount for the Insurance policy of Rs.583/- and Rs.3,498/- may be made so that his Insurance policy under Salary Saving Scheme may not lapse.
9. It has been alleged that it is only after this letter was sent by the petitioner on 27.12.2004 that he received letter dated 05.01.2005 informing him that he had been dismissed from service on 03.09.2004. After the charge sheet sent to him on 14.06.2004 to which he had not sent any reply and after Shri Satish Chandra Sharma, the Inquiry Officer has sent letters on 19.07.2004 and 05.08.2004 fixing dates and time for personal hearing in the said inquiry in which the petitioner failed to appear, the Mill had proceeded ex-parte against him on the basis of the inquiry report dated 25.08.2004 and the petitioner had been dismissed on 03.09.2004. As against the alleged shortfall of sugarcane of 1087.26 quintals the Company had proposed to recover Rs.62,628.10 from the petitioner and therefore, he was advised to deposit the same or else necessary recovery proceedings would be initiated against him in accordance with law.
10. It is the case of the petitioner that after he received the letter dated 05.01.2005 he made inquiries and also sent a letter dated 11.01.2005 praying for a copy of the dismissal order dated 03.09.2004 along with a request that the same may be recalled and he may be reinstated in service. The respondent No. 2 thereafter sent him a copy of the dismissal order dated 03.09.2004 through its letter dated 18.01.2005.
11. Aggrieved by the dismissal order dated 03.09.2004 the petitioner raised an industrial dispute which was referred by the Assistant Labour Commissioner, Bijnor to the Deputy Labour Commissioner, Moradabad Region, Moradabad who sent a letter of reference dated 21.07.2005 to the Government on the basis of which Adjudication Case No. 35 of 2008 was registered before the Labour Court, Rampur.
12. In response to the written statement submitted by the petitioner a reply was submitted by the respondent No. 2. After exchange of the affidavits the petitioner was examined and his oral statement was recorded on 18.01.2010. Shri Satish Chandra Sharma, Inquiry Officer, one Jai Prakash Sharma, Dispatch Clerk and Shri Khadak Singh, Assistant Sugarcane Manager, were examined as Employer's witnesses. The respondent No. 2 in its affidavits and in the statements made by its officers denied that the petitioner was ever engaged as unskilled seasonal labourer. It was alleged that the petitioner was engaged only as a temporary unskilled labourer and that he was not entitled to be considered as a workman of the Mill as the case purchase centers were situated in reserved/assigned areas outside the premises of the factory. Since the petitioner was working outside the premises of the factory, he could not be said to be a workman governed by the Standing Orders covering the conditions of employment of workmen in Vacuum Pan Sugar Factory in Uttar Pradesh (hereinafterto referred as "the Standing Orders"). As such the petitioner was not entitled to raise an industrial dispute. However, it was admitted by the Respondent No. 2 that the petitioner had been engaged in crushing season 2003-2004 to weigh sugarcane in the Mill's out cane purchase centers. The authority letter issued under Para - 16-D of the Purchase Order, 1954 was not denied.
13. It has been argued by the learned counsel for the petitioner that the respondent No. 1 gave a totally perverse finding in the impugned award wherein although it recorded that the respondent No. 2 had indeed engaged the petitioner as weighment clerk for crushing season 2003-2004 and, a shortage of sugarcane of 1087.26 quintals being attributed to the petitioner, he was held liable for payment of Rs.1,05,670.80 alleged to be embezzled by him, the respondent No. 1 in the award impugned held that the Standing Orders were inapplicable to the petitioner was he was not an employee of the Mill.
14. The learned counsel for the petitioner has argued that for coming to a finding that the petitioner was not an employee of the Mill and thus not a workman entitled to raise the industrial dispute, Respondent No. 1 relied on the judgment rendered by Calcutta High Court in Maya Galvanising works Vs. Amiya Singha Roy reported in 1992 (44) FLR 427. A copy of the judgment rendered by Calcutta High Court in Maya Galvanising Works has been produced before this Court to show that the said judgment was inapplicable to the facts of the case and was wrongly relied upon by the respondent No. 1.
15. Similarly, it has been argued by the learned counsel for petitioner that the respondent No. 1 gave a completely perverse finding that the U.P. Industrial Disputes Act would not apply as the petitioner was not a workman as defined under the Factories Act, 1946. It wrongly held that the petitioner being deployed as a weighment clerk in cane purchasing centers situated outside the premises of the Sugar Mill which cane purchasing centers were the property of the State Government, it could not be said the petitioner was governed by the Factories Act, 1954 or the U.P. Shops and Commercial Establishment Act, 1962. For the said finding the respondent No. 1 relied upon a judgment rendered by the Punjab and Haryana High Court reported in 1994 69 FLR 561. It was argued that the respondent No. 1 has arbitrarily rejected the claim of the petitioner on the ground that the petitioner was an unskilled labourer and since he had caused a financial loss to the Sugar Mill due to shortage of 1087.26 quintals of sugarcane being found for the crushing season 2003-2004, the respondent No. 2 rightly dismissed him from service as it had lost confidence in him.
16. The learned counsel for petitioner has also argued that the impugned award has been rendered without application of mind and is perverse as it makes observations which are completely contrary to the material on record placed by the petitioner to show that he was engaged by the Mill in the year 1993-1994 as unskilled seasonal labourer and was given retainership each year and continued to work for the Mill and was deployed as weighment clerk in the cane purchase centers run by the Mill for a period of almost ten years i.e. till the end of crushing season 2003-2004. Had the petitioner not been deployed as weighment clerk at cane purchase centers run by the Mill, then, no shortage of sugarcane of 1087.26 quintals could have been attributed to the petitioner, nor any charge sheet would have been issued to him, and not the domestic inquiry could have been conducted against him on the basis of which dismissal order dated 03.09.2004 was passed.
17. Shri Shakti Swarup Nigam, learned Advocate, appearing for the respondent No. 2 has filed a counter affidavit in the aforesaid case reiterating the submissions made before the respondent No. 1 and has filed thereto a copy of the application for appointment and a medical certificate issued on 01.01.1993 to the petitioner. It has been alleged that the petitioner was appointed as a temporary unskilled labourer and on the basis of his qualifications he was deployed on the post of weighment clerk at out cane purchase centers as per Mill's requirement. In the said counter affidavit it has been alleged that the petitioner kept silent and continued to act as a weighment clerk which could be deemed to be his willingness/acquiescence to the action of the respondent No. 2.
18. It has been alleged in the counter affidavit that a temporary unskilled labourer is only doing agricultural work and therefore, is paid minimum wages as fixed by the State Government for agricultural unskilled labourer.
19. It has again been alleged in the counter affidavit that the explanation of the petitioner to the charge sheet dated 14.06.2004 was never received in the office and despite sending letters to him on 19.07.2004 and on 05.08.2004 by the Inquiry Officer, he failed to turn up and therefore, the inquiry proceeded ex-parte against him and dismissal order was rightly passed on 03.09.2004 finding the petitioner guilty of misappropriation of sugarcane of 1087.26 quintals approximately, causing a loss of Rs.1,05,67.80 to the Mill.
20. It has been argued by Shri Shakti Swarup Nigam on the basis of the said counter affidavit that from the title of the Standing Orders as "governing conditions of the employment of workmen in vacuum pan sugar factories in U.P." It clearly reflects that it applies to the workmen who are working in the sugar factory and is not applicable to the employees who are working at the sugarcane purchase centers situated outside the premises of the Mill. The petitioner being a temporary unskilled labourer, was engaged for a particular season and after the end of the season his services automatically came to an end. The petitioner was not an employee of the factory and the provisions of the U.P. Sugarcane (Regulation of Supply and Purchase) Orders, 1954 are not applicable to him as he was not a worker of the factory. Since there was a shortage of sugarcane weighed and purchased by the petitioner deployed as weighment clerk at out cane purchasing center, he was rightly dismissed and a recovery of Rs.1,05,670.80 was ordered against him.
21. Shri Shakti Swarup Nigam has defended the impugned award saying that it was rightly and legally passed and the writ petition is liable to be dismissed. He has filed written submissions in which he has relied upon the Case Laws to the effect that the Labour Court is a court of referred jurisdiction and therefore cannot travel beyond the original reference order and hence it rightly ignored the pleadings of the petitioner that he was a seasonal weighment clerk. The judgments are as follows:-
Pottery Mazdoor Panchayat Vs. The Perfect Pottery Co. Ltd. : 1979 (38) FLR 38;
Mukund Ltd. Vs. Mukund Staff & Officers Association: 2004(101) FLR 219 (SC);
Mahendra L. Jain & others Vs. Indore Development Authority and others: 2005 SCC (L & S) 154; and UPSRTC Vs. State of U.P. and others: 2006 (1) AWC 134.
22. Shri Nigam has also relied upon several judgments of the Supreme Court and of other Courts holding that seasonal workman at the end of the season stands automatically terminated and therefore, there cannot be any order of his reinstatement with the back wages. The judgment relied upon by Shri Nigam are as follows:-
(1) Morinda Cooperative Sugar Mills Versus Ram Kishan and others: 1995 (5) SCC 653;
Anil Bapurao Kanase Versus Krishna Shakari Sakhar Karkhana Ltd. and another : JT 1997 (5) SC 597;
Batala Cooperative Sugar Mills Ltd. Versus Sowaran Singh: (2005) 8 SCC 481; and Bhogpur Cooperative Sugar Mills Ltd. Versus Harmesh Kumar: (2006) 13 SCC 28.
23. Shri Nigam has also argued that the principles of Service Jurisprudence shall not apply to domestic inquiry and for the said proposition he has relied upon a Coordinate Bench decision of this Court in LD Yadav Versus Regional Manager, UPSRTC: 2003 (1) UPLBEC 57.
24. Shri Nigam has argued that since the petitioner was a seasonal unskilled labourer his terms of the engagement cannot be changed by adjudication and has relied upon a judgment rendered by me in M/s. Panki Thermal Power Station and another Vs. Presiding Officer, Industrial Tribunal III, U.P., Kanpur and another: 2017 (153) FLR 883.
25. Further, it has been submitted by Shri Nigam that even if this Court finds the impugned award to be vitiated and the dismissal order liable to be set aside, reinstatement and back wages cannot be granted automatically to the petitioner as has been held in Saryug Singh (Dead) by LRs Versus National Seeds Corporation and another: 2017 (154) FLR 419.
26. It has also been argued by Shri Nigam on the basis of the judgment rendered by the Hon'ble Apex Court in Depot Manager, APSRTC Versus Raghuda Shiva Sankar Prasad, 2007 (112) FLR 703 that once in departmental proceedings it is proved that theft has been committed by the workman, it amounts to misconduct and Tribunals and Courts should not substitute their subjective opinion in place of one arrived at in the domestic inquiry and on misconduct of theft having been proved, the Employer may rightly impose the punishment of dismissal as the employee loses the confidence of the Employer. Loss of confidence is the primary factor for deciding the quantum of the punishment in such cases.
27. The learned counsel for petitioner, on the other hand, has relied upon the judgment rendered by a Coordinate Bench of this Court in M/s. Triveni Engineering and Industrial Ltd. Versus State of U.P. and others, 2013 (4) ADJ 200 wherein this Court on the basis of the records had found that the respondent workman therein had worked for the entire previous crushing season as a seasonal weighment clerk in the petitioner's Unit, hence it had found the contention of the Employer that he was not in their employment as totally misconceived, and had rejected the writ petition holding that the relief of reinstatement given by the Labour Court need not be interfered with.
28. This Court after having heard the rival submissions and perusing the impugned award finds that the impugned award is based wholly upon the arguments raised by the counsel for the respondent No. 2 that the petitioner was not a workman in the Sugar Mill and thus, not governed by the Standing Orders but had been employed by the Sugar Mill as an unskilled agricultural labourer entitled to minimum wages alone. The respondent No. 1 failed to notice the relevant provisions as per the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (hereinafterto referred as "the Act of 1953") and the Purchase Rules, 1954 and the Purchase Order issued by the State of U.P. also in 1954.
29. From a perusal of the Act, 1953 it is evident that to ensure an uninterrupted and assured supply of sugarcane required for use in sugar factory and other connected matters, the said Act was enacted by the State Legislature. Under this Act restrictions are imposed not only upon cane-growers in regard to sales of their sugarcane to the occupier of the factory in areas assigned and reserved for them but also duties and liabilities have been cast upon the occupier of such factories to work in the interest of developing sugarcane growers' capacity in the areas assigned and reserved for them and the object behind the said Act is to regulate the supply and prices of the scheduled commodity/essential commodity, such as sugar; and to ensure its equitable distribution at fair prices to the public at large.
30. Under Section - 2, Definition Clause, "assigned area" and "reserved area" have been defined and "factory" has also been defined under Section 2(j) to mean any premises, including the precincts thereof wherein twenty or more workers are working or were working on any day during the preceding twelve months, and in any part of which any manufacturing process connected with the production of sugar, by means of vacuum pans is being carried on or is ordinarily carried on with the aid of mechanical power.
31. For regulating purchase and supply of sugarcane in reserved and assigned areas under the Rules of 1954 a provision has been made for opening up of out-cane purchase centres to be set up and maintained in reserved and assigned areas by the occupier of the factory and these purchasing centres have been defined under Rule 2 (f) to mean any place at which cane is purchased, supplied, delivered, weighed or paid for and includes such portion of the premises of a factory as is used for any of these purposes. The occupier has to ensure the use of proper mechanism for weighing sugarcane; and for weighment and purchase of such cane, under Rule 2 (k) "weighment clerk" has been defined as a person appointed as such by the occupier of a factory or a purchasing agent and duly licensed under Rule 89 to do any work in connection with the purchase and weighment of cane at a purchasing centre.
32. The fact that a purchasing centre can either be within the premises of factory or outside but has to be run and maintained by the occupier of the factory is evident from a perusal of Rules of 1954. Section 2(j), while defining "factory" uses word "includes" which means that it is not an exhaustive definition at all. Rather it is inclusive and therefore purchasing centres can be set up outside a factory, yet would be considered a part of the factory for the purposes of Rules of 1954. Similarly, definition of "weighment clerk" in Rule 2(k) is also not exhaustive but is inclusive and would include any person appointed by the occupier of a factory to do any work in connection with purchase and weighment of cane at the purchasing centres. However, such a person should be duly licensed under Rule 89.
33. Under Chapter VIII the Rules have been made for wieghment of cane and under Rules 33, 33A, 34, 35, 36, 37 and 38 the occupier of factory has been entrusted with duty of keeping weigh-bridges, weighing scales and weights used at out cane purchasing centres as well as in the premises of factory in perfect condition at all times, the weigh-bridge used for purchase of cane has to be tested twice daily, once before starting of weighment of cane for the day and again at midday and records have to be maintained of such tests which have to be shown on demand to the Inspector. Under Rule 38-A at every purchasing centre at least one weighment clerk shall be appointed and deputed by the occupier of a factory to do the work connected with the purchase and weighment of cane and the occupier of the factory has been cast with the liability to exercise close and strict supervision as far as possible over the work of the weighment clerk to ensure that the duties entrusted to him are carried out properly. Under Rule 38(6) no weighment clerk shall work without possessing a licence under Rule 89. Under Rule 39 the occupier has been cast with the liability to maintain adequate facilities for weighment with adequate staff, sufficient number of scales and adequate transport to the satisfaction of the Cane Commissioner with a view to avoid congestion and undue delay in weighment amongst other things. Under Rule 43 the occupier of the factory shall provide adequate labour for loading and unloading of cane at each purchasing centre.
34. The payment of price of cane had to be ensured in the manner provided under Chapter - IX, either immediately at the time of delivery of cane at the purchasing centre to the cane-growers or his representative duly authorized by him in writing to receive payment, or to a Cane-growers' Co-operative Society and distribution of Parchos by weighment clerks have to be accurate and on the basis of such Parchos payments have to be ensured along with the payment of commission to the Cane-growers Cooperative Society and the Cane Development Council by the occupier, as expeditiously as possible, if not immediately.
35. Under Chapter - XV of the Rules, 1954 Rule 87, 88, 89 and 89-A are relevant for deciding the controversy by this Court, which are being quoted herein below :-
"87. No weighment clerk or any other person shall be employed the occupier of a factory to do any transaction for the purchase of cane including survey and preparation of lists of cane-growers or allotment and distribution of requisition slips for cane, unless he has been licensed by the Collector of the district in which such transaction takes place. The fee for each such license shall be one rupee. Where the applicant wishes to carry on such transaction in more than one district he shall apply for a licence to the Collector of any one of such districts and for endorsement thereon to the Collector of other districts making the licence valid for such districts also. Unless there are valid reasons to the contrary such endorsement shall be made without any extra charge thereof. (Subs. By Noti. No. 7297-S/XVIII-(5) ―2050-64, dated 1-2-1978.)
88. An application for a licence under Rule 87 shall be made in Form 9, Appendix III, to the Collector of the district in which the applicant wishes to carry on any transaction in connection with the purchase of cane. Such application shall be accompanied by (a) a treasury receipt showing that the licence fee prescribed under Rule 87 has been paid, (b) a nomination from the occupier of the factory concerned in Form 10, Appendix III. An application may be made jointly for more than one employee but the licence fee of one rupee shall be payable for each employee.
Provided that an occupier of a factory shall not nominate within three years of dismissal any person dismissed from the service of a Cane-growers' Co-operative Society supplying cane to the factory. (Subs. By Noti. No. 7297-S/XVIII-(5) ―2050-64, dated 1-2-1978.)
89.On receipt of any application for licence under Rule 88, the Collector may issue a licence in Form 11. Appendix III. Before granting a licence under this rule the Collector may demand a security not exceeding rupees one hundred in cash or in Government securities for the due observance of the conditions of the licence.
89-A. The licensee shall keep with him the licence granted by the Collector during the duty hours and on demand produce the same to the Inspector. (Added by Noti. No. 3095-S/XVIII-C-1723-53, dated 18th May, 1961."
36. Form 9, Form 10 and Form - 11 relating to Rule 88 and Rule 89 clearly show that an applicant for the post of weighment clerk has to make certain declaration as also the occupier of the factory. Form 11 is relatable to the Rule 89, and the licence of weighment clerk is issued to an employee of the factory of the Collector of district.
37. Under the Purchase Order 1954, Para 10 provides that the occupier of a factory has to establish a purchasing centre at a particular place, location of which can be determined by the Cane Commissioner. Under Para 12 an occupier of a factory who has to open a purchasing centre, shall send intimation thereof within twenty four hours of the start of operations to the Collector and to the Inspector within whose jurisdiction such purchasing centre is situated.
Under Para 13 it is provided that if a purchasing centre is opened with the intention of purchasing the cane for a period of less than 14 days, the occupier of a factory shall (a) affix a notice at the purchasing centre at the time of opening, showing the probable duration of the period during which purchasing centre is to remain open, and (b) at the same time send intimation of such duration to the Collector and to the Inspector within whose jurisdiction the purchasing centre is situate. Under Para 15 similar duty has been cast upon the occupier of the factory in case the purchasing centre has to be closed owing to a break down of machinery or other causes. Occupier has to give notice to the Collector and to the Inspector and in case of temporary suspension of operations of such cane purchasing centre the requisitioned cane has to be purchased from the cane grower who brought it within a period of twelve hours of the posting of notice as aforesaid.
Under Para 16 the occupier of the factory under clause - (d) thereof shall give to each person employed for making weighments, purchases or payments, a written authority to that effect; and under clause (e) the occupier shall not employ, without the permission of the Collector for making weighments, purchases or payments, any person who has been previously convicted of the breach of any provisions of the Act or Rules, or has been sentenced to imprisonment for a period exceeding six months.
Under Para 17 no person, who is not authorised as aforesaid, shall make or supervise weighments, purchases or payment at any purchasing centre on behalf of an occupier of a factory.
Under Para 18 such a person who has been employed by the occupier of a factory for making weighments, purchases, or payments, has to produce on demand the written authority given to him for the satisfaction of the inspector.
38. From a perusal of the provisions of Purchase Order, 1954, it is evident that the occupier shall exercise complete control and strict supervision in the setting up of the out-cane purchasing centres and on the employees deputed for the purpose of making weighments, purchases and payments. Not only there is a requirement of issuance of an authorization letter under Para 16 (d) but a licence also has to be issued by the Collector under Rule 89 of the Rules of 1954.
39. It is admitted by the respondent No. 2 in the written statement filed before the respondent No. 1, as also in the counter affidavit filed before this Court, that the petitioner was deployed for the weighment of cane at out cane purchasing centres of the respondent No. 2. The respondent No. 2 has not denied the issuance of an authority letter under Order 16(d) of the Cane Purchase Order either before the Labour Court or before this Court. Yet it has been submitted that the petitioner is not a workman as he was only "unskilled temporary agricultural labour" who in view of his qualifications has been deployed by the respondent No. 2 for performing such work for the crushing season 2003-2004.
40. The respondent No. 2 has tried to refer to the title of the Standing Orders saying that the Standing Orders only cover the conditions of employment of the workman in vacuum pan Sugar Factory and since the out cane purchasing centres were not situated inside the premises of the factory, but the petitioner had been employed outside the Factory, therefore, it could not be said that he was a workman governed by the Standing Orders. This convoluted logic has been accepted by the Labour Court without application of mind.
41. The cane purchasing centres set up in reserved or assigned areas by an occupier of the factory are as much a part of the manufacturing process as are the purchase centres situated within the premises of a Sugar Mill. Unless cane is purchased from a cane grower, the raw material for manufacturing of sugar from such sugar cane cannot be started. Purchase of raw material becomes part of the manufacturing process and therefore, under Rules of 1954 and under the Purchase Order, 1954, strict and complete control of the occupier of the factory has been provided for along with supervision by the inspector of Collector of the district.
42. Under the Standing Orders the definition clause A(1) defines the "workman" as under:-
"Workman" means any person (including an apprentice) employed by a factory to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, but does not include any such person : (i) who is employed mainly in a managerial or administrative capacity."
43. From a perusal of such definition itself, it is evident that the workman includes a person employed by a factory and not in a factory to do any skilled or unskilled, manual, supervisory, technical or clerical work. Exclusions have been given to such definition under sub clause (i) and (ii) thereof. The petitioner has been admitted to have been employed as an unskilled manual labour, deployed by the factory to do weighments of sugar cane in out cane purchasing centres. Hence, it can be said with no manner of doubt that the petitioner was a workman employed by the factory.
44. There is no such condition in the definition clause - A (1) that such workman should be working inside the factory. The only condition is that he should be employed by the factory to do its work. Therefore, the judgment rendered by the Calcutta High Court in Maya Galvanizing Works (supra) is clearly inapplicable and was wrongly relied upon by the respondent No. 1.
45. Similarly under the Standing Orders paragraph - B refers to the Classification of Workmen as (i) Permanent. (ii) Seasonal, (iii) Temporary, (iv) Probationers, (v) Apprentices, and (vi) Substitutes. Under Clause B-(II) a "seasonal workman" is one who is engaged only for the crushing season". Under Clause B (III) a "temporary workman" is one who is engaged for work of a temporary or casual nature or to fill in a temporary need of extra hands on permanent, seasonal or temporary posts."
46. Every workman on enrollment under para 2 (a) of Clause B of Standing Orders has to sign on enrollment Form "A". The application form of the petitioner has been filed by the respondent No. 2 as Annexure - CA - 1 to the counter affidavit which clearly shows that it is an enrollment Form - A under para 2 (a) of Clause B of the said Standing Orders. The petitioner has been medically examined and the medical certificate shows that the petitioner's date of birth is 05.08.1960 as on 26.01.1993 and the officer who has interviewed the petitioner has endorsed thereon a noting that the petitioner is class - IXth passed. His date of birth is 05.08.1960 and is engaged as unskilled Gd w.e.f. 01.01.1993.
47. The letters "Gd" have not been defined any where, but it is evident from the office order dated 01.01.1993 filed at page No. 17 of the counter affidavit that the petitioner has been engaged as a temporary unskilled labour in the cane department on minimum wages as admissible to an unskilled labour. The letters "Gd" also appears to be used for Grade. It is on the basis of the said office order it has been alleged by the respondent No. 2 before the respondent No. 1 as well as before this Court that the petitioner was engaged as a temporary skilled labour only for one season 2003-2004. Yet such a temporary unskilled labour has been deployed by the factory as weighment clerk in its cane purchase centre.
48. It is quite incomprehensible that a "temporary unskilled labour" engaged for one season only i.e. in year 2003-2004 should be entrusted with the huge responsibility of work as weighment clerk which post requires complete and strict control and supervision of the occupier of a factory and an authority letter should have been issued to such a person by the occupier of the factory in question which authority letter has been filed as Annexure - 1 to the writ petition and which has not been disputed by the respondent No. 2. The same person who has signed the endorsement made on page No. 16 of the Annexure - 1 to the counter affidavit i.e. V.P. Singh, has signed the authority letter as occupier for season 2003-2004.
49. It is submitted by the respondent No. 2 that since the petitioner did not object to being given the work of weighment and purchase of cane, it was deemed to be his willingness for the job.
50. From the documentary evidence on record filed before the Labour Court as well as before this Court in writ petition it is evident that the petitioner was given the retainership and had also subscribed to an insurance policy scheme referred to as Salary Saving Scheme in which premium of Rs.583/- per month was being deducted from the salary of petitioner by the respondent No. 2.
51. The respondent No. 2's letter dated 21.12.2004 filed as Annexure by the petitioner in this writ petition, which has not been denied by the respondent No. 2 either before the Labour Court or before this Court, shows that Rs.583/- each month was in arrears since May, 2004 to October, 2004, thus, a total of Rs.3,498/- was deposited by the Mill making deductions from the retainership of the petitioner. Such deductions from the retainership of the petitioner could only have been made in case the petitioner was engaged as a seasonal workman and not as a temporary workman. It stands to reason that when the petitioner was disengaged on 03.09.2004 and was not assigned duty in November, 2004, then, Rs.583/- would become impossible to be deducted from the salary of petitioner in November, 2004 and thus, the letter dated 21.12.2004 was issued to the petitioner.
52. A seasonal workman may be skilled or unskilled yet he is a workman governed by the Standing Orders. From the facts as are evident from a perusal of the documentary evidence filed before the Labour Court by the petitioner, it may be true that the petitioner may have been initially engaged as a temporary unskilled labour, but later on graduated to become a seasonal unskilled workman and because of his being educated up to class - IX he was being assigned the duty of weighment clerk and authority letter was issued to him in 2003-2004 by the respondent No. 2.
53. The respondent No. 2 had devised a novel method of taking work of weighment clerk without paying wages as determined by the Wage Board for such weighment clerk. Under Wage Board Recommendations a weighment clerk has to be either High School or Intermediate passed and has to be considered as belonging to clerical grade - IV, as he is responsible for correct weighments of cane according to Cane Rules and keeping record of the same and also works incidental thereto. The recommendations of the U.P. Sugar Wage Board 1991 were not followed in assigning petitioner the duty of weighment clerk to the petitioner to wriggle out of the responsibility of making payments as recommended by such Wage Board of the salary of clerical grade - IV. The occupier knowingly engaged the petitioner who was not educationally qualified being only Class - IXth passed and deployed him for making weighment of cane at various cane purchasing centres and issued authority letter to him also in this regard, to avoid the responsibility of making application for issuance of licence by the Collector under Rule 89 and for payment of licence fee as well as for performing all other duties and responsibilities cast upon the occupier of a factory under Rules, 1954 and the Purchase Order, 1954.
54. It is settled law that no person can be allowed to take advantage of his own wrong. The occupier knowing the educational qualification and the ineligibility of the petitioner for the job of weighment clerk still assigned him the duty of weighment clerk and treated his silence as deemed willingness. There cannot be any "acquiescence" or "waiver" in such cases as the Hon'ble Supreme Court several decades ago has observed in the judgment rendered in Central Inland Water Supply Board Versus Brojo Nath Ganguly and another: AIR 1986 SC 1571 = 1986 (3) SCC 156 thus:-
"The Employer being in a superior bargaining position could set out the terms and conditions which were completely unseasonable and yet an unemployed person may agree to such conditions because of gross inequality of bargaining power............"
55. From the application form it is evident that the petitioner had stated that seven persons were dependent upon him and had also clearly stated his educational qualifications and his date of birth as per his educational record as 05.07.1964. He had annexed his Junior High School Class - VIIIth mark sheet and certificate and therefore, the respondent No. 2 had sufficient evidence of his date of birth, yet on the basis of the medical examination his date of birth was changed arbitrarily to 05.08.1960. The Junior High School certificate annexed to such application has not been filed along with this application form along with annexure - CA - 1 for obvious reasons by the respondent No. 2.
56. Under the Standing Orders paragraph - K provides the special conditions governing the employment of seasonal workman and refers to the fact that a person who has worked under a factory during the whole of the second half of the last preceding season should be employed by the factory in the current season subject to certain conditions as specified under paragraph - K. Under the U.P. Payment of Retainer Allowance to unskilled seasonal workmen of Sugar Factory Order 1972 retaining allowance is payable to seasonal workmen during the off season when there is no work for them. It is the admitted case of the respondent No. 2 that Rs.3,894/- due as monthly premium of LIC policy under Salary Saving Scheme was paid by the respondent No. 2 and therefore, a direction was issued to the petitioner to deposit the said amount of Rs.3,894/- in the account of the Mill.
57. It is evident that the petitioner was employed as a seasonal unskilled workman. Also from the facts as evident from the statements of the Inquiry Officer Shri S.C. Sharma and one Khadak Singh who appeared on behalf of the Employer before the Labour Court in their oral deposition before the Labour Court, the Inquiry Officer had stated that the charge sheet was sent which was not replied to by the workman and thereafter, letters were sent fixing dates for personal hearing which were also not replied to. The inquiry report was submitted on 25.08.2004 on the basis of the prosecution witness Khadak Singh's statement before the Inquiry Officer. The Inquiry Officer before the Labour Court had deposed that he was the complainant and had signed the complaint filed as Exhibit - E.14 showing a shortfall of 1087.26 quintals of sugarcane. The Inquiry Officer also admitted that Khadak Singh was the Presenting Officer on behalf of the Employer before the Inquiry Officer in the domestic inquiry. However, before the respondent No. 1 he tried to wriggle out of the said situation of being complainant as well as the Presenting Officer by saying that one Anil Kumar Agrawal had filed the complaint of shortfall 1087.26 quintals of sugarcane but admitted Anil Kumar Agrawal was not examined by the Inquiry Officer at any stage. Khadak Singh alone has been examined by the Inquiry Officer, whereas he was also Presenting Officer of the Employer in the domestic inquiry.
58. It is, therefore, evident from a perusal of the statements recorded of SC Sharma, Inquiry Officer, and Khadak Singh, the complainant, by the respondent No. 1 (filed along with the counter affidavit as Annexure - CA 2 by the respondent No. 2) that the inquiry was conducted without following basic principles of natural justice as no one can be a judge of his own cause.
59. No doubt strict principles of Evidence Act are not applicable to a domestic inquiry, yet it is settled law that fairness of procedure has to be followed in such domestic inquiry. It is evident from the facts as mentioned in the oral statements of the Inquiry Officer and that of Khadak Singh, the Presenting Officer and the complainant that the procedure followed in the inquiry proceedings was not fair to say the least.
60. Moreover, the termination of the employment of the petitioner has been done under paragraph - L and M of the Standing Orders. Paragraph - L says tunder Clause (1) that employment of a workman permanent or seasonal may be terminated in the cases of genuine retrenchment, infirmity or disability or due to misconduct. Under paragraph - M (c) dismissal of a workman may be resorted to in case of theft, fraud or dishonesty in connection with the factory's business or property or the property belonging to workmen, cane-growers and the factory contractors. It is in exercise of power under paragraph - M (1) (c), the respondent No. 2 has passed the order of dismissal alleging loss of confidence due to shortfall of sugarcane weighed by the petitioner at the cane purchasing centre and found less on entering the factory premises. The fact that domestic inquiry was held in accordance with the Standing Orders goes to show that the petitioner was a seasonal unskilled workman and argument of the respondent No. 2 before the Labour Court that the petitioner was an "unskilled temporary labour" doing agricultural labour work could not have been accepted by the Labour Court.
61. The submission of the counsel for respondent No. 2 is that since the Reference Order referred to him as "Akushal Shramik" the Labour Court rightly ignored the pleadings of the petitioner that he was engaged as weighment clerk, and that the Labour Court being a Court of Referred Jurisdiction cannot travel beyond the Reference Order, cannot be accepted and only deserves to be rejected. No doubt the Labour Court cannot travel beyond the Reference Order but the very mention of words "Akushal Shramik" does not preclude the Labour Court from examining whether the petitioner was a seasonal unskilled labour or a temporary unskilled labour. In case the petitioner was only a temporary unskilled labour, then, his rights and liabilities would have been completely different and if he was engaged as a seasonal unskilled labour, then, his rights and liabilities would have been different. The award impugned suffers from complete non application of mind and the findings recorded by the Labour Court being completely contrary to the documentary and oral evidence cannot but be held to be perverse and thus set aside.
62. The submissions of the learned counsel for the respondent No. 2 that even if the petitioner was found to be wrongly dismissed by this Court and the impugned award being liable to be set aside, this Court should not direct the reinstatement of the petitioner along with back wages as the petitioner can only be said to be a seasonal workman and having reached the age of fifty seven years as on today, no reinstatement could be ordered. In such a case where this Court is of the view that the petitioner was wrongly dismissed from service in a domestic inquiry which was held in complete violation of rules of fair procedure and the principles of natural justice, the dismissal order dated 03.09.2004 is liable to be set aside and once dismissal order is set aside, this Court has discretion either to direct reinstatement with back wages as has been held by the Supreme Court in the case of Bhuvnesh Kumar Dwivedi Versus Hindolco Industries Limited: AIR 2014 SC 2258 or this Court may consider it a case fit for giving compensation in lieu of reinstatement as held by the Hon'ble Supreme Court in General Secretary, Coal Washeries Workers Union Vs. Employers in relation to the Management of Dugda Washery of M/s BCCL: AIR 2016 SC 4441.
63. As early as in 1967, the Apex Court in the case of Hindustan Antibiotics Ltd. Versus Workmen (AIR 1967 SC 948) observed that the social and economic upliftment of the labour is absolutely imperative for securing industrial peace. Security of tenure is essential for an employee so that he can give his best to the job. This object can be attained by regularization of the employees within a reasonable period.
64. In this case, since the petitioner has already reached the age of 57 years. An order of reinstatement with back wages may not be equitable as the petitioner did not work w.e.f. 03.09.2004. Also there are no pleadings to the effect that the petitioner was not gainfully employed for the period he remained out of job on record. The petitioner, however, can be compensated in lieu of reinstatement.
65. As such this Court directs the payment of Rs. 5,00,000/- (Five Lakhs of Rupees) as compensation and the writ petition is disposed off with this direction.
Order Date :- 07.02.2018 LBY