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Hindalco v. Labour Court Varanasi - WRIT - C No. 2958 of 1991  RD-AH 5086 (3 March 2006)
CIVIL MISC. WRIT PETITION NO.2958 OF 1991
HINDALCO Workers Union, Sonbhadra
and others ...Petitioners
Labour Court at Varanasi and another. ............Respondents
Hon'ble Bharati Sapru, J.
This is a workmen's petition which has been filed against an award of the Labour Court dated 18.5.90 passed in Adjudication Case No.167 of 1988.
By this award, the Labour Court has rejected the claim of 12 workmen and has held that their termination made from the date indicated in the schedule appended to the order of reference to be legal. The order of reference reads as below. :-
"KYA SEWA YOJAKON DWARA SANLAGNA PARISHISHTA MEIN ULLAKHITH APANE 12 SHRAMINON KE SEWAYEN UNKE NAAM KE SAMMUKH ANKIT TITHI SE SAMAPT KIYA JANA UCHIT ATHA/ATHWA VAIDHANIK HAI? YADI NAHIN TO SAMBANDHIT SHRAMIK KIS LABH/KSHATIPOORTI PANE KE ADHIKARI HAI - TATHA ANYA KIN VIVARADON KE SATH.? "
The schedule appended to the reference mentions the date of termination in 11 cases as 18.3.87 and in one case as 18.2.87.
The facts of the case are that the respondent Company M/s.HINDALCO Limited is a huge company having a manufacturing and production side. It also has a construction division. The claim as set forth by the petitioner workmen was that year after year, the petitioners were engaged in the construction division and were given artificial breaks for a period 2-3 days and they were re-engaged again, as a result of which, seven or eight years have passed. Ultimately, their services were terminated as mentioned earlier, in the case of 11 workmen on 18.3.87 and in the case of one workman on 18.2.87.
One Ramesh Kumar Dubey was first given an appointment on 30.5.1979 and, thereafter, was given appointment letters on 2.6.1980, 4.6.1981, 5.6.1982, 8.6.1983, 11.6.1984, 15.6.1985 and 23.6.1986 and he worked continuously till his services were terminated on 17.3.87. It was the claim of the petitioner workmen that in all the years, he had worked for more than 240 days and his services had been retrenched without due compliance to the provisions of Section 6 N of the U.P.I.D. Act. All these letters of appointments by various workmen were exhibited before the Labour Court and were admitted by the employers.
Learned counsel for the petitioner argued that the award of the Labour Court is vitiated on account of the fact that the Labour Court has wrongly come to the conclusion that the workmen were engaged on a project work and their work came to an end when the project came to an end. Learned Senior Counsel Shri K.P. Agarwal has argued that the concept of project work is confined to Government establishment and cannot be extended to private organization such as the respondent company. He has argued that the petitioners were employed not against any project work, which started on a specified date or ended on a specified date, but rather they were working on the construction division of the respondent company. The construction division he stated, was continuously engaged in the work of the Company itself and was not confined to any construction of a building.
Even otherwise, he argued that it cannot be said that the workmen were engaged for a specified project as any "tenure work" must be specified. He placed before this Court the language of the appointment letter, which did not specify any particular project, against which, the petitioner workmen had been employed. He has relied on a decision of the Hon'ble Supreme Court in the case of S.M. Nilajkar and others Versus Telecom District Manager, Karnataka as reported in AIR 2003 S.C. 3553 wherein the Hon'ble Supreme Court has held that the tenure work must be specified.
Learned counsel for the petitioner argued that from the serial of appointment letters which were exhibited, it is abundantly clear that the petitioner workmen had worked for 240 days in every term that they had been engaged. The work was continuing from year to year and, in fact, most of the workmen had worked almost continuously with breaks of 3-4 days in between, for eight years.
Learned counsel for the petitioner has argued that the creation of such artificial breaks amounted to unfair labour practice and, therefore, the termination of employees was bad. Learned counsel for the petitioner has also argued that because the employers did not comply with the provisions of Section 6 N i.e., the workmen were not given any notice and any pay, it amounted to retrenchment of their services.
Learned counsel for the respondent, on the other hand, has argued that the Labour Court is a Court of referred jurisdiction and must confine itself to the term reference made to it. He has argued that the award of the Labour Court is wholly justified and has been rightly answered by the Labour Court. He has argued that the reference itself was confined to their termination of service between the period 24.12.86 to 18.2.87 in the .case of one employee and if the employee failed to establish that he had not worked for 240 days within that specified period, even the claim as raised by him cannot be granted in his favour.
Learned counsel for the respondent has argued that the employment of the petitioners were for a fixed period and would, therefore, covered under the provisions of Section 25 FFF-2 of the Industrial Disputes Act, 1947. He has argued that the definition of continuous service as defined under the I.D. Act in Section 2 g of the Act read with Section 25 B of the Act would mean that the employee must have worked for 240 days continuously. He further specified that it would have been in terms of actual working days.
Learned counsel for the respondent has also argued that now it is well established by a series of decisions of the Hon'ble Supreme Court that the burden to prove that the workmen has worked 240 days lies on the workmen himself. He has cited Range Forest Officer Versus S.T. Hadimani (2002)3 Supreme Court Cases 25, M/s Essen Deinki Versus Rajiv Kumar as reported in JT 2002 (8)SC 471, Batala Co-op. Sugar Mills Ltd. Vs. Sowaran Singh as reported in 2005(10)SC 79, Surendranagar District Panchayat Versus Dahyabhai Amarsinh as reported in (2005)8 Supreme Court Cases 750, R.M. Yellatti Versus Assistant Executive Engineer as reported in 2006(108)FLR 213. He has also argued that it is very well established that 240 days has to be calculated in the preceding 12 calendar months as held in the case of Workmen of American Express International Banking Corporation and Management of American Express International Banking Corporation as reported in 1985(51)FLR 481. He has also argued that the workmen, in fact, has placed no material evidence to show that they have worked for 240 days and, in fact, the workmen had not raised any industrial dispute in any year to show that they had been wrongly terminated at any point of time and it was for the first time they sought the reference with regard to their termination in the year 1987.
Learned counsel for the respondent has also argued that it was also not open to the petitioner workmen to raise questions of unfair labour practice as it was not specified in the reference. He has argued that questions relating to unfair labour practice must be specifically referred to and has also argued that, in fact, the UP Act contains no provisions for raising any issues of unfair labour practice. In reply Shri K.P. Agarwal, learned counsel for the petitioner has argued that the purpose of industrial adjudication is to make an investigation of facts. He has argued that item-10 of schedule 4 specifically provides that it is an unfair labour practice to employee ''Badli' workmen or temporary workmen. Section 2 ra of the I.D. Act defines unfair Labour practice, and in that case co-relates to item No.10 of the 5th schedule is quoted below. :-
"10. To employ workmen 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 workmen."
Shri K.P. Agarwal has argued that it is
open to the Labour Court to go into the question of unfair labour practice where it is specifically raised and proved before the Labour Court. It is argued by Sri Agarwal that it has been specifically raised and proved in the present case but the Labour Court has failed to return any findings on it.
I have heard learned counsel for both
the parties. I have also perused the records. The Labour Court has recorded in paragraph-12 of the award that :-
" YAH SAHI HAI KE NEYUKTE ADHESH MEN PROJECT KA NAM DARJ NAHIN HAI PARANTU YAH TATWA SHRI S.K. TRIVEDI AUR SHRI S.K. MISHRA KE BAYAN SE SPASHT HO JATA HAI KEE IN SABHEE 12 KARMACHARIYON KA NIYOJAN EK SPECIALIST PROJECT KE LEYE KEYA GAYA THA."
Therefore, it is concluded that there work could be covered under the provisions of Section 25-FF A(2).
In paragraph-13 of the award also the Labour
Court recorded that :-
"IS BAAT SE IS VAAD KE GUNO DOSH PAR KOYE PRATIKOOL PRABHAV NAHIN PADTA HAI KE YAH KARMKAR ABHINIRNAY KE SATH LAGEE PARISHISHT MEN ANKITH NIYOJAN KE TITHI KE PAHALE BHI ES PRATHISHTHAN KE CONSTRUCTION DIVISION MEN KUCH VARSHON MEM ANYA PROJECT PAR BHEE KAM KEYE THE AUR EN KEE SEWAYEN UNKE POORA HONE PAR SAMAPTH HOTI RAHI THI. ES BATH SE BHE ES ES VIVAD MEN GUNU DHOSH PAR PRATHIKOOL PRABHAV NAHIN PADTA HAI KEE EN KARMKARON NE VARTAMAN NIYOJAN SE PAHALE PICHALE VARSHOM MEN 240 DIN SE ADHIK KAM KIYA THA. YAH BHE DHYAN RAKHANE YOGYA HAI KEE KARMAKAR PAKSH NE ES BATH KA KOYEE THOS AUR VISHASNIYA SABOOT NAHIN DIYA HAI KE JISKE ADHAR PAR YAH MAN JAYE KEE VARTHAMAN NIYOJAN KE PAHALE EN KARMAKAROM NE PRATIYEK VARSH MEN 240 DIN SE ADHIK KAM KEYA THA."
These findings as recorded by the Labour Court
are wholly erroneous.
The workmen had raised a specific plea that they
had been given engagement year after year with artificial breaks. In order to prove this, the workmen had placed on record their previous letters of appointment and also the termination letters. This was the material which the workmen had placed on record to show that the employer was indulging in unfair labour practice and by way of this appointment, they were trying to show that they were entitled to the benefit of Section 6 N of the U.P.I.D. Act and they have actually put in 240 days of service in the preceding 12 calendar months.
This vital evidence was in fact, admitted to the
employer but the Labour Court has completely ignored this and has answered the reference in saying that the reference was confined to the dates in the schedule of reference as it was only the last period of engagement.
The award of the Labour Court, has not returned
any findings on this aspect of the matter. It has ignored vital evidence and it is vitiated on this account. The Hon'ble Supreme Court in the recent decision in the case of Regional Manager, S.B.I. versus Raja Ram has laid down as to what amounts to unfair labour practice and while doing so, has laid down that when an employee is appointed temporarily for a successive fixed tenures with artificial breaks in between so as to deny far as the employee the right to permanent employment, it would amount to unfair labour practice within the meaning of. Section 2(ra) of the I.D. Act. Section 2 (ra) defines "unfair labour practice" which means any of the practices specified in the Fifth Schedule of the Act, including item No.10 which has already been quoted above. The Supreme Court has also laid down that in order to come to the conclusion that the practice of the employer to create artificial breaks in the service is with the object of depriving the workmen the status of permanent workmen are questions which would have to be gone into by the Labour Court by arriving at a finding with regard to unfair labour practice.
In the present case, the Labour Court has failed to return any findings on this aspect of the matter i.e., by simply saying that it is not necessary to go into the fact that the petitioner workmen were in fact being engaged year after year on temporary basis by giving them artificial breaks.
The arguments made by the learned counsel for the
petitioner Shri K.P. Agarwal have substance and are bound to be accepted by this Court. The award of the Labour Court is vitiated on account of the fact that it has failed to exercise jurisdiction vested in it by ignoring material evidence. The argument of the learned counsel for the respondent that question of unfair labour practice can not be gone into in the present question, cannot be accepted as it is very much part and parcel of any investigation, i.e., by the Industrial Labour Court to take-up all these issues. Even otherwise, the U.P. Act being silent on unfair labour practice, the provisions of Central Act will apply then, is also a established principle.
In view of the above discussions, the award of the Labour
Court stands vitiated and is set aside. The matter is remanded to the Labour Court for reconsideration of material evidence on record. The matter will be re-opened before the Labour Court. Immediately upon receipt of an order of this judgment, both the parties shall be allowed opportunity to lead any additional evidence that they may want to do so.
The writ petition is allowed. There will be no order as to
Dated : 3.3.06
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