Full Judgment Text
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CASE NO.:
Appeal (civil) 1827 of 2005
PETITIONER:
Ganga Kisan Sahkari Chini Mills Ltd
RESPONDENT:
Jaivir Singh
DATE OF JUDGMENT: 24/09/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1827 OF 2005
(With Civil Appeal Nos. 1828 and 1829 of 2005)
Dr. ARIJIT PASAYAT, J.
1. In these appeals challenge is to the order passed by a
learned Single Judge of the Allahabad High Court dismissing
the writ petitions filed by the appellants. In the writ petitions,
challenge was to the awards made by the Presiding Officer,
Labour Court (2), Meerut (hereinafter referred to as the
’Labour Court’). By the impugned award, the Labour Court
had directed re-instatement of the respondents-workmen and
payment of back wages and retaining allowance. The Labour
Court’s awards were in relation to the references made under
the Industrial Disputes Act, 1947 (in short the ’Act’). Reference
in all these cases related to the claim for re-instatement and
back wages to which the concerned workmen were entitled to.
The claim was founded on the basis that termination of
services in each case was illegal.
The reference reads as follows (by way of sample):
"Kya Sewayojako Dwara Apne Shramik Jai
Veer Singh (Putra Shri Ram Lal), P.H. Recorder
Ki Sewae Dinank 6.3.1985 se Samapt Kiya
Jana Uchit Tatha/Athwa Vaidhanki Hai? Yadi
Nahi, to Sambandhit Shramik Kya
Labh/Anutosh (relief) Pane Ka Adhikari Hai,
Tatha Kisi Anya Vivran Sahit?"
2. The workmen claimed that they were permanent
appointees and the orders of termination were contrary to the
provisions of the U.P. Standing Orders.
3. The appellants’ case was that it was a seasonal factory
which commenced its trial season only in the year 1984-85
and certain persons were taken as casual employees on daily
wage basis and they did not have any lien on any permanent
or seasonal post as the factory was to commence production
after the trial season 1984-85 was over after the establishment
of the sugar factory.
4. It was submitted that this was done to ascertain whether
the sugar factory started proper functioning of its first season
from the year 1985-86. Respondent-workman was engaged in
stop-gap arrangement only for the trial season after inviting
applications from the public at large, in which respondent
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concerned was not selected. Said respondent joined the sugar
factory on 16th November, 1984 and his services were
dispensed with on 6.3.1985 and by any stretch of imagination
he could not have completed 240 days of services in one
calendar year and as such the provisions of Section 6-N of the
Act did not apply. Concerned respondent had not filed any
appointment letter to show that his appointment was made
against any permanent post. As noted above, the Labour
Court directed reinstatement with back wages.
5. The award was assailed in writ petition on the grounds
that (1) the Labour Court has travelled beyond the terms of
reference by framing issue No.1 as the nature of appointment
was neither subject matter of reference nor the finding given
by it on issue No.1 was correct. (2) There was no evidence on
record that the respondent was a workman and was entitled to
the protection under the Act. (3) There was no appointment
letter filed by the workman, which could show that respondent
was not engaged in the trial season. Though it was dis-
believed by the Labour Court that appointment of the
workman was against a permanent post, yet he was granted
the relief of re-instatement with back wages and as such the
award cannot be sustained.
6. After receiving notice from the Tahsildar asking payment
of the back wages to the concerned workmen the writ petitions
were filed. The averment was that they had not received any
order of Deputy Labour Commissioner nor any citation in
pursuance thereof. The appellant came to know for the first
time about recovery on receipt of the letter dated 15.5.1992.
The workmen disputed the stand of the employer that they
had not completed 240 days. Sugar factories are all of
seasonal nature and according to the Standing Orders
applicable in respect of sugar factories, the period of 120 days
is required. The Labour Court recorded a finding that the
workmen were appointed on the posts in the relevant season
during the period from 16.11.1984 to 5.3.1985.
7. With reference to U.P. Payment of Retaining Allowances
to Unskilled Seasonal Workmen of Sugar Factories Order,
1972 (in short ’Sugar Factories Order’), it was held that the
workmen were entitled to be re-instated. The findings in this
regard recorded by the Labour Court were affirmed by the
High Court.
8. In support of the appeals, learned counsel for the
appellant submitted that approach of the High Court is
factually and legally wrong. Even if it is accepted that the
period is 120 days, the workmen were not entitled to any
relief. They admittedly worked for 109 days. The nature of
appointment was not the subject matter of reference and,
therefore, the conclusion of the Labour Court, as affirmed by
the High Court that the workmen were entitled to be absorbed
on permanent basis and re-instated with back wages, was
clearly erroneous.
9. It was wrongly held by the High Court that it was the
employer to show the nature of appointment.
10. Learned counsel for the respondents in the written
submissions filed supported the orders of the Labour Court
and the High Court.
11. We find that the Labour Court and the High Court have
completely lost sight of the settled position in law. In Batala
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Coop. Sugar Mills Ltd. v. Sowaran Singh (2005 (8) SCC 481) it
was held as follows:
"8. 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."
12. It was accepted that the workmen belonged to the
seasonal category. In the claim petition and the pleadings it
was urged that they were permanent workmen. The High
Court noted that the workmen were not permanent employees.
It was further noted that they failed to establish the nature of
their appointment. No appointment orders were filed. It came
to an abrupt conclusion that the burden of proof lay on the
employer to establish the nature of appointment. The
conclusion is clearly contrary to law. The Labour Court found
that the workmen were appointed to posts which continued for
the whole season and they were appointed on seasonal posts.
After having arrived at this conclusion, the Labour Court held
that the workmen were entitled to be re-instated.
13. It is interesting to note that the High Court itself noted
that the appointment of the workmen was not permanent as
the permanent workmen have to complete their probationary
period. There was no averment that the workmen had
completed their probation period. Undisputedly, 1984-85 was
the trial season. It is to be noted that the High Court referred
to Rules 4 and 6. They read as follows:
"4. Eligibility for retaining allowance-(i) The
above retaining allowance shall be paid to
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those unskilled seasonal workmen who have or
would have worked but, for illness or any other
run avoidable cause, in a factory during whole
of the second half of the last season preceding,
provided that labour employed by or through
contractors shall be excluded for purposes of
this order.
6. Provision not to apply on new factories-
The provisions of this order shall not apply to
new factories commencing crushing from
1971-72 or thereafter for a period of three
seasons including the trial season."
14. Above being the position, the orders of the Labour Court
and the High Court are set aside. The appeals are allowed with
no order as to costs.