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Om Prakash Tiwari v. Labour Court & Another - WRIT - C No. 42883 of 1993  RD-AH 20399 (1 December 2006)
Civil Misc. Writ Petition No.42883 of 1993
Om Prakash Tewari
Labour Court & others
Hon.Shishir Kumar, J.
The present writ petition has been filed for quashing the award-dated 12.10.1993. Further issuing a writ in the nature of mandamus directing the Labour Court to re-hear the matter after giving an opportunity to the parties to bring further evidence.
The facts arising out of the present writ petition are that the petitioner alleged to be himself that he was working as seasonal employee in the employment of the respondent company and had worked there in the crushing season 1977-78, 1979-80 and 1980-81 and up to the crushing season of 1983-84 and after 1984 he was entitled to call back in the employment in the respondent company when the crushing season started on 19.12.1984. As the petitioner was not called, as such, he made an application to the State Government for reference that the action of the respondent amounts to retrenchment and no retrenchment compensation and notice have been given, therefore, the action of the respondent is bad. The State Government on the application filed by the petitioner was satisfied that an industrial dispute exists on account of wrongful termination of the petitioner's services from 19.12.1984 and in exercise of powers under Section 4-K of the Industrial Dispute Act, referred the dispute for adjudication to the Labour Court, Gorakhpur by order dated 23.12.1986.
On behalf of the petitioner, a written statement was filed and a written statement on behalf of the respondent's employer was also filed. It has been submitted on behalf of the petitioner that pleadings of the parties clearly shows that there is a dispute and termination of service of the petitioner dated 19.12.1984 is bad. It has been further submitted that the State Government in exercise of powers under Section 3 (b) of the U.P. Act has framed the standing order laying down the condition of service in all the pan vacuum mills in the State of U.P., since the sugar factories are seasonal factories during the crushing season. During the crushing season the employees are employed and only of small section continued to work through out the year. In respect of the seasonal employee there is a provision in the standing order that sometime before the crushing season is to start, all those persons who are seasonal employees are to be given notice under registered post so that they could present themselves for resuming work or after the date when the crushing season starts. In the present case the crushing season starts on 19.12.1984 but the petitioner was not called. Though the respondents have denied that the petitioner was not a seasonal employee of whole crushing season and as such, he is not entitled for any notice for resuming the work. The petitioner in order to substantiate his pleadings that he has worked from 1977 to 1984 made an application for certain documents, be summoned as these documents were exclusively in possession of the company. The various documents were produced before the Court but the attendance register for 1984 was not produced. Before the Labour Court the petitioner examined himself as witness and on behalf of the respondent company timekeeper Sri Avinash Chandra was examined. In spite of the aforesaid documents before the Labour Court, the Labour Court vide its order dated 12.10.1983 has held that order of reference is bad in law, as such, the petitioner cannot be granted any relief.
The argument raised on behalf of the petitioner is that law does not require that always a termination order must be in writing. Even if, the law required that an order of termination should be passed in writing, no employer could be prevented from terminating the services of an employee by oral order. Even non-employment would amounts to termination of service. In the present case if the petitioner was entitled to resume duty on 19.12.1984 when the crushing season starts and he was not permitted to resume duty it would amount to termination of service of the petitioner, as such, the Labour Court was not justified in holding that the services of the petitioner have not been terminated on 19.12.1984. The important factor was to be considered by the Labour Court was the date from which the workman lost employment whether it was termination of service in writing or by an oral order. The important and relevant factors to be considered by the Labour Court was cessation of employment and in the present case the cessation of employment of the employee was with effect from 19.12.1984. All the records were not permitted to be inspected by the petitioner, therefore, an adverse inference should have been drawn by the Labour Court against the respondent No.2. The case of the petitioner was that he was being paid by vouchers but no vouchers were produced before the Labour Court. The register for 1983-84 was not shown to the petitioner. In the absence of the same the petitioner could not established that he was working during the period of whole crushing season.
On the other hand, a counter affidavit has been filed. It has been submitted in the said counter affidavit that the petitioner's services had not been terminated by the respondent No.2. His last employment was during the crushing season of 1982-83 for a period of 29 days only. As the workman concerned had not worked in the season 1983-84, therefore, there was no question of termination of his services. In fact no industrial dispute could arise with effect from 19.12.1984.
The respondents have placed reliance upon a judgment of this Court reported in 1993 (67) FLR 602 Kisan Sahakari Chini Mills Ltd. and others Vs. Awadhesh Singh and others. Placing reliance upon the aforesaid judgment it has been stated that as the petitioner was not appointed on any temporary or permanent post and not for any season and not for any fixed period, therefore, cannot be treated to be as seasonal employee. Reliance has been placed upon Para 5 of the judgment. The same is being reproduced below:-
"5. In paragraph 5 of the supplementary counter-affidavit numbers of days on which the respondent has worked during the three crushing seasons, have been given according to which in the crushing season 1988-89 out of 160 working days the respondent worked for 98 days, in season 1989-90 out of 160 days he worked for 126 days and in the year 1990-91 out of 140 days he worked for 127 days. From perusal of the affidavit is filed by the parties it is apparent that the respondent was not appointed on any post temporary or permanent and his appointment was not for any of the crushing seasons. He did not work for the whole of the crushing seasons and during the days on which he worked, he worked on daily wages basis. Such an appointment runs from day to day and is not for any fixed period. His appointment was necessitated due to allotment of extra cane centers to the mills. The nature of work of the respondent was of casual and temporary nature, and as such he can utmost claim status of temporary workman on daily wages basis. Such a workman cannot be treated to be seasonal workman. Even if the work is of permanent nature and workman will be temporary workman, if engaged to fill in temporary need of extra hand."
Another judgment relied upon by the counsel for the respondents is (1995) 5 Supreme Court Cases 653 Morinda Corporation Sugar Mills Ltd. Vs. Ram Kishan and others. Placing reliance upon the aforesaid judgment the counsel for the respondents submitted that the workmen of sugar mills working during the crushing seasons only cessation of their working consequent to the closure of the seasons, held, did not amount to retrenchment. The reliance has been placed upon paras 4 and 5 of the judgment. The same is being reproduced below:-
"4. It would thus be clear that the respondents were not working through 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 neighboring places in which the respondents normally live and if they would report for duty, the appellant would engaged them in accordance with seniority and exigency of work."
Another judgment relied upon by the counsel for the respondents in (2005) 8 Supreme Court Cases 481, Batala Corporation Sugar Mills Ltd. Vs. Sowaran Singh. Reliance has been placed upon paras 4, 6, 8 and 11 of the said judgment. The same are being reproduced below:-
"4. The Labour Court was of the view that though the stand of the employer was that the respondent workman was employed on causal basis on daily wages for specific work and for a specific period, yet evasive reply was given in 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 of 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 25-F of the Act. Direction was given to reinstate the workman with 50% back wages.
6. 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 causal basis on daily wages for specific work and for a 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 a 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 motu by the High Court without any opportunity to the appellant to have its say.
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 it was observed as follows: (SCCp. 654. para 4-5).
"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 herein before and when the new season starts the appellant should make a publication in neighboring places in which the respondents normally live and if they would report for duty, the appellant would engaged them in accordance with seniority and exigency of work."
11. The materials on record clearly establish that the engagement of the workman was for a specific period and specific work."
The further reliance has been placed upon a judgment of the Apex Court reported in (2006) 1 UPLBEC 27 Kishore Chandra Vs Divisional Manager, Orrisa State Cashew Development Corporation Limited, Dhenkanal and has submitted that if a workmen has been allowed to work on various spells, denial of work beyond a particular period has held that it does not amount to retrenchment. Reliance has been placed upon pras 5 and 11 of the said judgment. The same are being reproduced below:-
"5. The High Court accepted the stand of the respondent-Corporation that the appointment of the writ petitioner (appellant herein) was on N.M.R. basis for a fixed period of time on the basis of payment at different rates. The contractual period of engagement ended on 3.5.1989 and there was no renewal thereafter. Since the engagement was for affixed period, the High Court held that the award of the Labour court was to be set aside.
11. The High Court had noted that its order would not stand in the way of Corporation considering the case of the workman for appointment. It is submitted by the learned counsel for the appellant that representation was made in this regard which has been turned down. Learned counsel for the respondent-Corporation submitted that the representation was for a permanent absorption. Since there was no post vacant, the representation was rejected. The dismissal of the present appeal shall not stand on the way of the Corporation engaging appellant taking into account his experience and while considering the appellant's case the claims of other making similar claims shall be considered in proper perspective."
Another Constitutional Bench Judgment of the Apex Court has been relied by the respondents reported in (2006) 4 Supreme Court Cases, 1 Secretary, State of Karnataka and others Vs. Uma Devi (3) and others and reliance has been placed upon paras 13, 29, 45 and 49. The same are being reproduced below:-
"13. What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to pay, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to complete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provision. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab V. Jagdip Singh. It was held therein: ( SCR pp. 971-72)
" In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status."
29. In Madhyamik Shiksha Parishad, U.P. V. Anil Kumar Mishra a three-Judge Bench of this Court held that ad hoc appointees /temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period raged form one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that the be continued or absorbed elsewhere.
45. While directing that appointments, temporary or causal, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain- not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or causally got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to valid a contractual employment of this nature on the ground that the parities were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these case, no doubt, the empo9oyees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rule or in adherence of Articles 14 and 16 of the Constitution."
In view of the aforesaid submission the respondents submits that there is no illegality in the award of the Labour Court.
I have heard learned counsel for the petitioner and learned counsel for the respondents and have perused the record.
From the perusal of the order passed by the Labour Court, it is clear that the petitioner was given a temporary employment on the post of clerk in the year 1980-81 and has worked only for 45 days and in the year 1981-82 he has worked only for 45 days and in 1982-83 he has worked only for 29 days. His engagement was purely temporary as unskilled labour. The petitioner has not worked in the season of 1983-84 and the petitioner is not a seasonal workmen, therefore, there was no occasion for calling the petitioner from the date when the crushing season starts. The relevant record was produced before the Labour Court and the Labour Court has perused the same and after perusal of the aforesaid relevant record, has come to the conclusion that as the services of the petitioner were never terminated on 19.12.1984 as such, it cannot be said that the dispute arose on 19.12.1984. There was no dispute, therefore, the reference itself is bad.
I have perused the award and the relevant documents. Admittedly, the engagement of the petitioner was temporary. There is nothing on record to show that his engagement was after following the proper procedure as provided under the law and a finding of fact has been recorded that he was not a seasonal employee, therefore, the reference is bad. I am in full agreement of the order passed by the Labour Court dated 12.10.1993.
I see no infirmity in the order. The writ petition is devoid of merits and is hereby dismissed.
There shall be no order as to costs.
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