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M/S D.C.M. SRI RAM INDUSTRIES LTD. versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

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M/S D.C.M. Sri Ram Industries Ltd. v. State Of U.P.& Others - WRIT - C No. 28339 of 1992 [2003] RD-AH 423 (4 November 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 28339 of  1992

M/s DCM Shriram Industries Ltd. .......................Petitioner

Versus

State of U.P. and others ..................................Respondents

............

Hon'ble R.K.Agrawal, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner Shri DCM Shriram Industries Ltd., Unit Daurala Sugar Works, Daurala, District Meerut seeks a writ of certiorari quashing the Award dated 13.3.1992 passed by the Labour Court I , Meerut respondent no.2 in Adjudication Case No. 29 of 1987 which has been published on 17.7.92 filed as Annexure 20 to the writ  petition and other consequential reliefs.

Briefly stated the facts giving rise to the present writ petition are as follows:-

The petitioner is a public limited company incorporated under the provisions of the Companies Act, 1956. It has its registered office at Kanchan- Janga Building, 18 Bara Khamba Road, New Delhi. It owns a Unit at Daurala in the district of Meerut which is known as Daurala Sugar Works. It is engaged in the manufacture  and sale of crystal sugar through vacuum pan process.

The petitioner came into existence pursuant to the reconstitution of DCM Ltd. with effect from 1.4.1990. According to the petitioner respondent no.3 Raj Kumar was employed from 1.3.1986 to 31.3.1986 as a KAMDAR to do the work of seed distribution and control of pests and diseases in its cane department. However, within 10 days   itself the respondent no.3 wrote a letter to the petitioner dated  10.3.1986, by which he expressed his inability to work in the field and requested for allotment of duty in the plant failing which he be relieved. After submitting the aforementioned letter on 11.3.86 he did not report for work. It is alleged by the petitioner that the respondent no.3 did not wish to work in the fields as he had some personal problems.

The respondent no.3 raised an industrial dispute which was referred by the State Government under Section 4-K of the U.P.Industrial Disputes Act, 1947 -hereinafter referred to as the U.P.Act. The State Government referred the following dispute for adjudication to the Labour Court I , Meerut:-

"KYA SEVAYOJAKON DWARA APNE SHRAMIK RAJ KUMAR PUTTAR SRI MATHAN SINGH KAMDAR KI SEVAYEN DINANK 12.4.1986 SE SAMAPT KIYA JANA UCHIT TATHA/ATHWA VAIDHANIK HAI ? YADI NAHIN, TO SAMBANDHIT SHRAMIK KYA LABH /ANUTOSH ( RELIEF ) PANE KA ADHIKARI HAI TATHA -ANYA KIS VIVRAN SAHIT ?"

Both the petitioner and the workman filed their written statement before the Labour Court. The Labour Court framed the following issues :-

" 1. Whether the termination of services of Shri Raj Kumar Kamdar w.e.f. 12.4.1986 is not legal and proper ?

2. Whether the workman resigned and abandoned the services of his own ?

3. To what relief, if any, is the workman entitled ?"

In the written statement filed by the respondent no.3 it was stated that he was not taken on duty after 12.4.1986 and he has been retrenched in violation of the provisions of Section 6N of the U.P.Act. He also stated  that persons junior to him had been retained in the employment whereas his services has been terminated  in violation of the provisions of Section 6N of the U.P.Act.  In the written statement  filed by the petitioner  it was stated that the respondent no.3 was engaged in March, 1986 w.e.f. 1.3.1986 to 31.3.1986 as a temporary hand to work in the field for the work of seed distribution and control of pests  and diseases in its cane department.  However, on 11.3.1986 he abandoned his employment. It was further stated that the respondent no.3 submitted a letter on 11.3.1986 expressing his unwillingness to work in the field on account of some personal reasons and did not report for duty after 11.3.1986. However, the respondent no.3 denied the averments made in the written statement filed by the petitioner and it was stated that he was employed on regular basis. He also denied  that he had abandoned his services. According to him he had continuously worked  from 8.3.1982 to 11.3.1986. Before the Labour Court the respondent no.3 filed certain documents including a photo copy of a slip on plain paper with certain noting purporting to show that he had been working from 1.4.1986 to 11.4.1986 and also a letter dated 12.4.1986 claiming payment of wages for the period 1.3.1986 to 16.3.1986. The petitioner filed documents before the Labour Court to show that the respondent no.3 had worked only from 1.3.1986 to 11.3.1986 and engagement memo from 1.2.1986 to 28.2.1986 and 1.3.1986 to 31.3.1986 as also the record of page No.80 of the Duplicate Book of the Time Office maintained  by the Cane department to show that the respondent no.3 had actually worked from 1.3.1986 to 11.3.1986. The salary voucher  and letter dated 10.3.86 was also filed. Before the Labour Court on behalf of the petitioner Sarva Sri S.K.Sachdeva ,  S.Sen Sharma and  Mukesh Kumar gave their statements on oath whereas respondent no.3 personally appeared and gave his statement on oath. The employer's witnesses  had stated on oath that the respondent no.3 was engaged as a temporary Kamdar from 1.3.1986 to 31.3.1986 and after 11.3.1986 the respondent no.3 had not reported. The   Labour Court  on the basis  of evidence and material on record had given an Award  on 13.3.1992 holding that the services of the respondent no.3 has been terminated arbitrarily  without following the provisions of Section 6N of the U.P.Act and is entitled for reinstatement with full back wages. It has further found that the services were terminated on 12.4.1986 and  the respondent no.3 had worked in the year 1983 and 1985 also. The Award of the Labour Court is under challenge in the present writ petition

I have heard Shri Sudhir Chandra, learned Senior counsel assisted by Ms.  Bharti Sapru on behalf of the petitioner and Shri Shyam  Narayan, learned counsel appearing  for the respondent no.3.

Shri Sudhir Chandra,  learned senior counsel submitted that respondent no.3  was appointed as temporary Kamdar for a period of one month  for distributing the seed  and pesticides to farmers  as he was only engaged on 1.3.1986 till 31.3.1986. However, vide letter dated 10.3.1986 he expressed his unwillingness to work in the field and requested for assigning duty in the plant or to relieve him and after 11.3.1986 he did not report for duty. He submitted that the letter dated 10.3.1986 had been proved by two witnesses namely S.K.Sachdeva and  Mukesh Kumar and there is no question of terminating his services . He further submitted that the provisions of Section 6 N of the U.P.Act are not applicable in the present case as the respondent no.3 had not worked  continuously for a period of 240 days in a year preceding his date of retrenchment. According to him, Exhibit 21 relied upon by the Labour Court which is a document filed by respondent no.3 regarding his engagement from 1.4.1986 to 11.4.1986 is not admissible in evidence in as much as it does not bear any signature of any officer  of the petitioner's company nor it has been proved by the respondent no.3 . Further it is only a carbon copy, the original of which has not been produced by the respondentno.3. He further submitted that the resignation letter dated 10.3.1986 had been misread by the Labour Court and there is no material to show that the respondent no.3 had worked after 11.3.1986. The said letter is in the own hand writing of the respondent no.3 and the finding recorded by the Labour Court in this behalf is perverse. He further submitted that there is inherent contradiction in the case set up by the respondent no.3 as would be clear from the written statement. He has not given any proof to establish that he has been working since 8.3.1982 in the petitioner's Unit. Even in the statement on oath of the respondent no.3 given before the Labour Court there is inherent contradiction as  at one stage it has been stated that he has been removed from work in March, 1986 and thereafter at another place  he states that he has been removed in April, 1986. He thus  submitted that the Labour Court had committed manifest error of law in holding that the respondent no.3 had worked in the year 1983 and 1985 and had also worked till 12.4.1986 which is not borne out from the material on record. He relied upon a decision of the  Hon'ble Supreme Court in the case of Morinda Cooperative, Sugar Mills Ltd. Vs. Ram Kishan and others etc. JT 1995 (6) S.C. 547 wherein the Hon'ble Supreme Court  has held that cessation of work consequent  to the closure of the season does not amount to retrenchment under section 2(oo) (bb) of the Industrial Disputes Act. He further relied upon a decision of this Court in the case of Kisan Sahkari Chini Mills Ltd. Vs. Awadhesh Singh and others 1993 (67) F.L.R.  602 wherein this Court has held that if a person has not been appointed on any post temporarily or permanently  for any crushing season,  the nature of work was of casual or temporary in nature,  will not confer the  status of a seasonal workman upon that person.

Shri Sudhir Chandra further submitted that since the findings recorded by the Labour Court are vitiated, the same can be interfered by this Court in exercise of jurisdiction under Article 226  of the Constitution of India . He relied upon a decision of the Calcutta  High Court  in the case of Swapan Das Gupta and others vs. The First Labour Court of West Bengal and others reported in 1976 Labour and Industrial Cases 202 wherein the Calcutta High Court has held that although in a proceeding under Article 226 High Court ordinarily has no jurisdiction to interfere with  the findings of fact arrived at by an Industrial Tribunal. It has power to review  findings in respect of jurisdictional facts on the basis of evidence on record. He relied upon a decision of the Hon'ble Supreme Court in the case of Mohan Lal Vs. The Management of M/s. Bharat Electronics Ltd. , AIR 1981 S.C. 1253 wherein the findings of fact recorded by the Labour Court had been interfered with by  the Hon'ble Supreme Court on the ground that the finding was wrong  and it was gross error apparent on the face of record which if not interferred with would result in miscarriage of justice.  He also relied upon the decision of this Court  in the case of V.K.Raj Industries Vs.  Labour Court (I) and others 1981 (43) F.L.R. 194 and Airtech Pvt. Ltd. Vs. State of U.P. and others 1984 (49) F.L.R. 38 and Chaturbhuj  Sharma Vs. Durga Dayal and others AIR 1976 Alld. 7 (FB) wherein similar view has been taken.

Shri Shyam Narayan learned counsel for the respondent no.3 submitted that the Labour Court  on an appreciation of evidence and materials on record  had come to the conclusion that the respondent no.3 had also worked in the year 1983 and 1985 and his services had been terminated on 12.4.1986. The termination is bad as the provisions of Section 6 N of the U.P.Act had not been  followed. There is no error in the findings of fact recorded by the Labour Court and this Court in exercise of jurisdiction under article 226 of the Constitution of India is not sitting in appeal over the award of the Labour Court and  evidence should not be reappraised. He further submitted that the resignation letter dated 10.3.1986 was not accepted  and there cannot be any acceptance  by conduct. He relied upon a decision of the Hon'ble Supreme Court in the case of Food Corporation of India Workers Union Vs. Food Corporation of India and another AIR 1996 S.C. 2412 wherein the Hon'ble Supreme Court has held that there should be only material and not evidence as required by the Evidence Act to prove the facts before the Tribunals. According to Shri Shyam Narayan there was ample material before the Labour Court to come to the conclusion that the services has been arbitrarily and illegally terminated, thus no interference is called for. He also relied upon a decision of the Hon'ble Supreme Court in the case of  Moti Ram Vs. Param Dev and another  A.I.R. 1993 SC 1662 wherein the Hon'ble Supreme Court has held that  if the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective, to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.

He further submitted that even if the services are terminated on account of abandonment it will amount to retrenchment  as held by the Hon'ble Supreme Court in the case of Punjab Land Development Reclamation Corporation Ltd. and others Vs. The Presiding Officer, Labour Court, Chandigarh and others 1990 (61) F.L.R. 73. He submitted that if a person has been engaged on work of permanent nature lasting throughout the year, he would be a permanent workman and not a temporary workman. He relied upon a decision of the Hon'ble Supreme Court in the case of Jaswant Sugar Mills Ltd. Meerut Vs. Badri Prasad and others AIR 1967 SC 513 . He also submitted that in the present case no enquiry was held  before terminating the services of the respondent no.3 and therefore the Labour Court was free to come to its own conclusion on the basis of evidence and material on record. He relied upon a decision of the Hon'ble Supreme Court in the case of Neeta Kaplish Vs. P.O.Labour Court and another 1999 (81) F.L.R. 188.

Shri Sudhir Chandra learned Senior Counsel  in his reply submitted that the Labour Court had not at all discussed the merits  of the resignation letter dated 10.3.1986 and it had culled out a new case which was not there. He further submitted that there is no finding  recorded by the Labour Court  that the respondent no.3 workman had continuously worked for a period of 240 days in a year preceding his date of  retrenchment and therefore the provisions of Section 6 N of the U.P.Act is not required to be complied with.

Having heard the learned counsel for the parties, I find that  it was the specific case of the petitioner that the respondent no.3 was engaged as a temporary Kamdar from 1.3.1986  to 31.3.1986. The respondent no.3 had submitted his resignation on 10.3.1986 which was placed before the authorities on 11.3.1986 and after 11.3.1986 he did not report for duty. Even though in the written statement filed by the respondent no.3 it has been stated by him that he had worked from 8.3.1982 till 11.4.1986 no material or documents have been placed before the Labour Court  to show that he had actually worked from 8.3.1982. The Labour Court itself had not found the respondent no.3 to have worked  continuously since 8.3.1982 to 11.4.1986. It had only found that the respondent no.3 had worked in the year 1983 and 1985 also. For claiming the protection of Section 6N of the U.P.Act it is necessary that the workman  should have been in continuous service for not less than one year under an employer. The expression  "not less than one year" has been given in Section 2(g) of the U.P.Act  which defines continuous service. According to it a workman should during  the period  of 12 calendar months has actually worked  in an Industry for not less than 240 days  shall be deemed to have completed one year continuous service in  an  Industry.

From the perusal of the written statement filed by the respondent no.3  it is seen that the respondent no.3 has stated only this much that he was employed as Kamdar since 8.3.1982 and  continued  to work upto 11.4.1986. In the written statement  filed  by the petitioner it was specifically stated that the respondent no.3 had been engaged from 1.3.1986 to 31.3.1986 and on 11.3.1986 he voluntarily abandoned his employment. In the rejoinder statement filed by the respondent No.3 it was reiterated that he had continuously worked from 8.3.1982 to 11.4.1986, which fact was specifically denied by the petitioner in the rejoinder statement. In the statement on oath given by the respondent no.3 he had admitted that  he was not given any appointment letter while giving appointment on 8.3.1982. There is no other material to show that he had worked since 1982. It is well settled that the burden of proving that a person has worked for 240 days in a year preceding his date of retrenchment  is upon the person  who is setting  up  the claim. The Hon'ble Supreme Court in the case of the Range Forest Officer Vs. S.T.Hadimani 2002 (3) S.C.C. 25 has held as follows:

"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 denied by the appellant. It was then for the claimant to lead evidence to show that he 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."

The aforesaid decision was followed by the Hon'ble Supreme Court in the case of Essen Deinki Vs. Rajiv Kumar 2002 (8) SCC ,400.

Thus in the absence of any finding that the respondent no.3 had worked for 240 days in a year preceding  the date of retrenchment, the Labour Court was not justified in holding that the provisions of Section 6 N of the U.P.Act had been violated and therefore the  retrenched workman is entitled for reinstatement. The  finding recorded by the Labour Court that the respondent no.3 has worked in the year 1983 and 1985 is  not based on any material on record and thus suffer from legal infirmity which could be interferred with by this Court in exercise of powers under Article 226 of the Constitution of India  as held by the Hon'ble Supreme Court in the case of Mohan Lal Vs. The Management of M/S Bharat Electronics Ltd.  A.I.R. 1981 SC 1253 and Chaturbhuj Sharma V/s Durga Dayal and others 1976 Alld. Page 9 (FB).  The decision  relied upon by Shri Shyam Narayan  wherein it has been held that even  the termination of services on account of abandonment of service may amount to retrenchment is well settled. However, in the fact of the present case I find that in the absence of any material to show that the respondent no.3 workman had worked for 240 days in a year preceding  his date of retrenchment, the provisions of Section 6 N of the U.P.Act are not at all attracted.

The other decision relied upon by Shri Shyam Narayan in the case of Neeta Kamlish (supra) will also not be applicable in the present case in as much as the Labour Court had committed manifest error of law in arriving  at a finding that  the provisions of Section 6 N of the U.P.Act has not been complied with, when as a matter of fact the workman respondent no.3 had failed  to establish by placing material before the Labour Court  that he had worked for more than 240 days in a year preceding his date of retrenchment.

In view of the foregoing discussions, the Award passed by the Labour Court cannot be sustained and is hereby set aside.

In the result the writ petition succeeds and is allowed.

Dt. 4.11.2003

Sh


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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