Full Judgment Text
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CASE NO.:
Appeal (civil) 7981 of 2004
PETITIONER:
Batala Cooperative Sugar Mills Ltd.
RESPONDENT:
Sowaran Singh
DATE OF JUDGMENT: 07/10/2005
BENCH:
Arijit Pasayat & Dr. AR. Lakshmanan
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Appellant calls in question legality of the judgment rendered by a Division
Bench of the Punjab and Haryana High Court dismissing the writ petition
filed by the appellant and upholding the award made by the Presiding
Officer, Labour Court, Gurdaspur.
Factual background in a nutshell is as follows:
The respondent (hereinafter referred to as the ‘workman’) made a grievance
before the State Government that his services were illegally terminated by
the appellant (hereinafter referred to as the ‘employer’). Reference was
made by the State Government under Section 10(1) of the Industrial Disputes
Act, 1947 (in short the ‘Act’) for adjudication the following question:
"Whether termination of services of sh. Sowaran singh workman is justified
and in order? If not, to what relief/exact amount of compensation is he
entitled?
The case of the workman as pleaded in the demand notice was that he was
appointed by the employer w.e.f. 1.4.1986 on regular basis against the
regular post and was being paid Rs. 1200 p.m. His services were illegally
terminated by the employer on 12.2.1994 without any notice, notice pay and
retrenchment compensation. No charge-sheet was filed or enquiry held.
Though he approached the employer, but to no effect and, therefore, he had
prayed for his re-instatement with continuity of service and back wages.
The employer filed its written statement taking the stand that the
reference was factually and legally erroneous as the services of the
workman were never terminated on 12.2.1994 as alleged. In fact he had
abandoned the job. He was engaged on casual basis on daily wages for
specific period and for specific work. He was never issued any appointment
order in respect of any regular post and/or on regular basis. There was
also no vacancy at the relevant time. The Labour Court framed four issues
for adjudication which are as under:
"1. Whether the workman abandoned the job of his own accord?
2. whether the reference is not maintainable as alleged in P.O. of W/S?
3. Whether the applicant is entitled to the amount claimed in the
application?
4. Relief."
The Labour Court was of the view that though the stand of the employer was
that the respondent-workman was employed on casual basis on daily wages for
specific work and for specific period, yet evasive reply was given in
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respect of the workman’s stand that he was appointed in April 1986. It was
observed that no attendance record was produced. There was also no material
to show that the workman had left the job on his own accord and in any
event the employer had not proved that the workman had worked for less than
240 days in 12 calendar months preceding the date of termination.
Accordingly, it was held that there was violation of Section 25F of the
Act. Direction was given to re-instate the workman with 50% back wages.
The employer filed a Writ Petition which was dismissed by the impugned
order. It was held by the High Court that there was no legal or factual
infirmity in the award. It was noted that the employer had failed to
produce muster roll which was mandatorily required to be maintained under
Section 25-D of the Act.
In support of the appeal, learned counsel for the appellant submitted that
both the Labour Court and the High Court fell in grave error by acting on
factually and legally erroneous premises. The definite stand of the
appellant was that the workman was engaged on casual basis on daily wages
for specific work and for specific period. Details in this regard were
undisputedly filed. Therefore, the provisions of Section 2(oo)(bb) of the
Act are clearly applicable. In addition, the onus was wrongly placed on the
employer to prove that the workman had not worked for 240 days in 12
calendar months preceding the alleged date of termination. No material was
placed on record by the workman to establish that the workman had offered
himself for job after 12.2.1994. The award of the Labour Court does not
speak of the requirement to maintain the muster roll. This point was taken
up suo moto by the High Court without any opportunity to the appellant to
have its say.
In response, learnd counsel for the respondent submitted that in the
factual scenario as noticed by the Labour Court the award was made and the
High Court has rightly refused to interfere with it.
We find that the High Court’s judgment is unsustainable on more than one
count. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and Ors., [1995] 5
SCC 653, it was observed as follows:
"4. It would thus be clear that the respondents were not working throughout
the season. They worked during crushing seasons only. The respondents were
taken into work for the season and consequent to closure of the season,
they ceased to work.
5. The question is whether such a cessation would amount to retrenchment.
Since it is only a seasonal work, the respondents cannot be said to have
been retrenched in view of what is stated in clause (bb) of Section 2(oo)
of the Act. Under these circumstances, we are of the opinion that the view
taken by the Labour Court and the High Court is illegal. However, the
appellant is directed to maintain a register for all workmen engaged during
the seasons enumerated hereinbefore and when the new season starts the
appellant should make a publication in neighbouring places in which the
respondents normally live and if they would report for duty, the appellant
would engage them in accordance with seniority and exigency of work.’’
The position was re-iterated by a three-Judge Bench of this Court in Anil
Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and Anr., [1997] 10
SCC 599. It was noted as follows:
"The learned counsel for the appellant contends that the judgment of the
High Court of Bombay relied on in the impugned order dated 28.3.1995 in
Writ Petition No. 488 of 1994 is perhaps not applicable. Since the
appellant has worked for more than 180 days, he is to be treated as
retrenched employee and if the procedure contemplated under Section 25-F of
the Industrial Disputes Act, 1947 is applied, his retrenchment is illegal.
We find no force in this contention. In Morinda Coop. Sugar Mills Ltd. v.
Ram Kishan, in para 3, this Court has dealt with engagement of the seasonal
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workman in sugarcane crushing; in para 4 it is stated that it was not a
case of retrenchment of the workman, but of closure of the factory after
the crushing season was over. Accordingly, in para 5, it was held that it
is not ‘retrenchment’ within the meaning of Section 2(oo) of the Act. As a
consequence the appellant is not entitled to retrenchment as per clause
(bb) of Section 2(oo) of the Act. Since the present work is seasonal
business, the principles of the Act have no application. However, this
Court has directed that the respondent management should maintain a
register and engage the workmen when the season starts in the succedding
years in the order of seniority. Until all the employees whose names appear
in the list are engaged in addition to the employees who are already
working, the management should not go in for fresh engagement of new
workmen. It would be incumbent upon the respondent management to adopt such
procedure as is enumerated above.’’
Section 2 (oo) (bb) reads as follows:
‘‘(oo) "retrenchment" means the termination by the employer of the service
of a workman for any reason whatsoever, otherwise than as a punishment
inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the
contract of employment between the employer and the workman concerned
contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the workman
concerned on its expiry or of such contract being terminated under a
stipulation in that behalf contained therein’’.
The materials on record clearly establish that the engagement of the
workman was for specific period and specific work.
In view of the position as highlighted in Morinda Coop. Sugar Mills and
Anil Bapurao’s cases (supra), the relief granted to the workman by the
Labour Court and the High Court cannot be maintained.
So far as the question of onus regarding working for more than 240 days is
concerned, as observed by this court in Range Forest Officer v. S.T.
Hadimani, [2002] 3 SCC 25 the onus is on the workman. It was noted in the
said judgment as follows:
"2. In the instant case, dispute was referred to the Labour Court that the
respondent had worked for 240 days and his service had been terminated
without paying him any retrenchment compensation. The appellant herein did
not accept this and contended that the respondent had not worked for 240
days. The Tribunal vide its award dated 10.8.1998 came to the conclusion
that the service had been terminated, without giving retrenchment
compensation. In arriving at the conclusion that the respondent had worked
for 240 days the Tribunal stated that the burden was no the management to
show that there was justification in termination of the service and that
the affidavit of the workman was sufficient to prove that he had worked for
240 days in a year.
"3. For the view we are taking, it is not necessary to go into the question
as to whether the appellant is an ‘industry’ or not, though reliance is
placed on the decision of this Court in State of Gujarat v. Pratamsingh
Narsinh Parmar, [2001] (9) SCC 713. In our opinion, the Tribunal was not
right in placing the onus on the management without first determining on
the basis of cogent evidence that the respondent had worked for more than
240 days in the year preceding his termination. It was the case of the
claimant that he had so worked but this claim was so denied by the
appellant. It was then for the claimant to lead evidence to show that he
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had in fact worked for 240 days in the year preceding his termination.
Filing of an affidavit is only his own statement in his favour and that
cannot be regarded as sufficient evidence for any court or tribunal to come
to the conclusion that a workman had, in fact, worked for 240 days in a
year. No proof of receipt of salary or wages for 240 days or order or
record of appointment or engagement for this period was produced by the
workman. On this ground alone, the award is liable to be set aside.
However, Mr. Hegde, appearing for the Department states that the State is
really interested in getting the law settled and the respondent will be
given an employment on compassionate grounds on the same terms as he was
allegedly engaged prior to his termination, within two months form today.’’
The appeal, therefore, deserves to be allowed which we direct. But at the
same time as observed in paragraph 5 of Morinda Sugar Mills case (supra)
the modalities indicated shall be followed by appellant-employer. In fact
before the Labour court, it was clearly stated that the employer was
willing to offer engagement to the workmans and when necessity arises. If
there is any requirement for engagement the cases of respondent-workman
shall be considered in its proper perspective and necessary orders shall be
passed. In the ultimate, the appeal is allowed but in the circumstances,
there will be no order as to costs.