Rakesh Tiwari, J.
1. Heard Sri M.C. Chaturvedi, learned Counsel for the petitioner and Sri V.K. Agnihotri, learned Counsel for the respondents. Since common questions of facts and law are involved in both the writ petitions, they are being decided by this common judgment with the consent of learned Counsel for the parties.
2. The petitioner is a society registered under the provisions of U.P. Co-operative Societies Act, 1965. It is running a sugar mill in the district of Bagpat known as The Ramala Sahkari Chini Mills Ltd.'. By means of this petition, the petitioner has challenged the award dated 27.11.1997 passed by the Presiding Officer, Industrial Tribunal (V), U.P. Meerut in Adjudication case No. 10/93. The award was enforced under Section 6C of the U.P. Industrial Disputes Act, 1947 by publication on the notice board on 14.1.1998.
3. The case of the petitioner is that the respondent No. 2 was appointed on temporary basis in clerical grade HI by order dated 17.2.1980. It was clarified in the appointment letter that he will have no lien on any post. The workman absented himself from 17.2.1980 to 30.6.1980; 18.4.1981 to 24.6.1981 and 12.10.1981 to 8.5.1982 as such his services were terminated w.e.f. 8.5.1982. The workman-respondent No. 2 raised an industrial dispute challenging his order of termination which was referred to Industrial Tribunal (V), U.P., Meerut where it was registered as Adjudication Case No. 87/83. By award dated 22.5.1985, reference was decided in favour of respondent No. 2. He was reinstated in service with back wages and continuity of service by the Labour Court. Aggrieved by the award the petitioner challenged its validity in Civil Misc. Writ Petition No. 1006 of 1985. The writ petition was decided by judgment dated 5.10.1988. The writ petition was partly allowed modifying the award to the extent that the respondent was reinstated but back wages were not allowed. In compliance of the judgment dated 5.10.1988, the workman was reinstated in service w.e.f. 5.8.1988 on the same terms and conditions as mentioned in the initial appointment letter dated 17.2.1980, vide order dated 8.12.1988 which is appended as Annexure No. 1 to the counter affidavit.
4. After his reinstatement in the circumstances stated above, the respondent-workman raised another Industrial dispute before the Conciliation Officer which was registered as C.B. 100 of 1991 for making him permanent. On conciliation proceedings having failed, the State Government referred the following matter of dispute to Industrial Tribunal (V) U.P. Meerut where it was registered as Adjudication Case No. 10 of 1993 :
ING
5. On receipt of summons, the parties appeared before the Labour Court and filed their respective written statements.
6. The case of the workman before the Labour Court was that after his reinstatement in pursuance of the judgment of High Court dated 5.10.1988, sometimes, he was deputed to work in general office; sometimes in cane section and sometimes for checking of cane seeds. According to him, he was attached to one Sri Brahma Pal Singh, Assistant Accountant by order dated 22.6.1990 with whom he worked for five months but was not made permanent. His case for permanency was espoused by the Union and the reference was result of conciliation proceedings having failed as the dispute could not be resolved in the conciliation proceedings, The union in the written statement alleged that the employers did not make the workman permanent on account of unfair labour practice even though the workman had worked for about 13-14 years including his earlier service with the employers. It was further case of the workman that the duties which the workman was required to perform were of permanent nature and some workmen, junior to him had been made permanent. He claimed relief that he should also be declared permanent w.e.f. 5.10.1988.
7. The employers apart from raising a preliminary objection in their written statement, contested the case on merits. Their case was that the concerned workman was a temporary employee and was performing temporary nature of jobs; that there was no permanent post vacant in the Mills, however, the claim of the workman would be considered whenever any vacancy in which he could be appointed accrues. It was also contended that no cause of action arose on 6.10.1991 as stated in the conciliation proceedings as such no relief could be granted to the workman.
8. On the basis of pleadings of the parties, the Labour Court framed the following three additional issues :
(1) Whether the reference order is bad in law for the reasons indicated in the written statement of the employers?
(2) Whether the dispute between the parties is not an industrial dispute? If so, its effect.
(3) Whether the impugned action of the employers amounts to unfair labour practice and victimization of workman?
9. Issue Nos. 1 and 2 were not pressed by the employers, hence the Labour Court did not adjudicate upon those issues.
10. The workman in his oral statement reiterated the facts stated in his written statement and also gave earlier history of the litigation. He also alleged that the workmen, namely, S/Sri Rampal Singh, Omvir Singh, Sahdev Singh, Balbir Singh etc. who were junior to him were made permanent and he was ignored. In his cross-examination, he admitted that on 5.10.1988, he was reinstated as temporary hand and stated that he had accepted appointment in temporary capacity as he was in dire need of employment. He also stated that he did not know about the staffing pattern in the Mills.
11. On behalf of the employers, one Rishi Pal Singh appeared as witness. He stated that as a workman he was working in the Mill in temporary capacity and that there was no permanent vacancy of the post to which the workman belonged.
12. The Labour Court by the impugned award held that the workman was entitled to be made permanent w.e.f. 6.2.1991, i.e., the date when he formally approached the Union for espousing his case for permanency. The operative portion of the award is as under :
'The only point now which remains to be seen is whether impugned action of the employers amounts to unfair labour practice and victimization of the workmen. There is no dispute about the initial employment of the workmen and it is also agreed that he was reinstated w.e.f. 5.10.1988 consequent to the verdict of Hon'ble High Court and he was designated temporarily. However, the workman has contended that earlier he was made permanent, but on subsequent reinstatement, he was designated as temporary and he did not object to it as he was in dire need of employment. The workman has not filed any document to prove that he was made permanent as clerical Grade III in February 1980. I think this point is not material. What is to be seen is whether keeping him temporary for so many years is justified or not. The employers had not given any evidence regarding number of posts sanctioned and number of vacancies available, nor have they filed any staffing pattern. Against this, the workman has stated that there are permanent posts vacant in accounts section and junior to him were made permanent before him. The employers have also failed to show exactly what work of temporary nature was being taken from the workman. Against this, the workman has established that the work being taken from him is of permanent nature. The workman has put in more than 9 years of service after his reinstatement and to treat him as temporary for such a long period establishes that the employers by their act of commission and omission, have taken recourse to unfair labour practice which are harmful to the workman as he is deprived of various benefits which accrued to a permanent hand. I, therefore, hold that the workman is entitled to be made permanent w.e.f. 6.2.1991.'
13. It appears that subsequent to the award delivered in adjudication case No. 10/93, the workman moved an application under Section 6H of the U.P. Industrial Disputes Act, 1947. In pursuance of the application, notice had been issued to the petitioner for recovery of the amount due under the award. The petitioner challenged recovery proceedings in Civil Misc. Writ Petition No. 16235 of 1999 which has been connected with this writ petition by order dated 21.4.1999 and the following interim order was passed :
'...In the meantime, the operation of the impugned order dated 28.12.1998 issued by respondent No. 1, a copy of which is Annexure-2 to the writ petition, shall remain stayed provided the difference of the amount payable under the order of respondent No. 2 is deposited by the petitioner with respondent No. 1 within a period of 40 days from today. If this amount is deposited, it shall be invested by respondent No. 1 in some fixed term deposit initially for a period of one year subject to further renewal, if necessary in some nationalized Bank so that it may earn interest. This deposit shall be subject to the ultimate decision of the writ petition. In the event of failure of the petitioner to deposit the amount aforesaid within the time allowed, this stay order shall stand discharged and the recovery proceedings under the award shall revive.
21.4.1999
Sd/- O.P. Garg.'
14. At the time of admission, no interim order was granted to the petitioner in Civil Misc. Writ Petition No. 19978 of 1998. However, difference was directed to be deposited by interim order dated 21.4.1999 in the connected Writ Petition No. 16235 of 1999. The respondent workman is in employment and has been receiving salary also. The dispute involved is only with regard to grant of permanent status to him and payment of incentives, earned leave, increments etc.
15. The learned Counsel for the petitioner states that the award of the Labour Court is illegal and that it has committed an illegality apparent on the face of record in holding that there was no dispute about the initial appointment of the workman. He submits that the workman had come with a case in his written statement before the Labour Court that he was appointed on a permanent post. This was also stated by him in his evidence. However, in his cross-examination, the truth came out that he was only a temporary hand. This position is also clear from the initial appointment letter of the respondent-workman dated 7.2.1980 (Annexure-1 to the Rejoinder Affidavit) itself. Hence, the finding of the Labour Court that there was no dispute about his initial appointment is wholly incorrect and against the material available on record. The workman was, therefore, rightly re-appointed as temporary hand after the judgment rendered by this Court w.e.f. 5.10.1988 as he was working as a temporary hand earlier. The award is further assailed on the ground that the workman admittedly did not file any document to the effect that he was made permanent in clerical Grade III in February, 1980 as claimed by him but the Labour Court has brushed aside this material fact in spite of noting it by stating that 'this point is not material and it has to be seen as to whether keeping him temporary for so many years is justified or not?' According to the submission made by learned Counsel for the petitioner, this approach of the Labour Court was misconceived and beyond the scope of reference. It is lastly submitted that the Labour Court has committed an error in law apparent on the face of record in placing burden of proof on the employers holding that employers have not led evidence regarding number of sanctioned post and number of vacancies available nor they have filed any staffing pattern. The Labour Court has just noted the contention of the workman that there are permanent posts in Account Section and juniors to him were made permanent. It is contended that the Labour Court has committed gross illegality in holding that the employers failed to show that what type of temporary nature of work was being taken from the workman as the workman has established that duties being performed by him were of permanent nature.
16. Law has been firmly settled by the Apex Court that the burden of proof is to be discharged by the party raising the dispute and claiming relief. Reference in this regard may be made to Shankar Chaudhary v. Britannia Biscuits Co. Ltd., 1979 (3) FLR 70, Range Forest Officer v. S.T. Hadimani, 2002 (94) FLR 622 and also to the judgment of this Court in Meritech India Ltd. v. State of U.P. and Ors., 1996 FLR 2004, in which referring the judgments of V.K. Raj Industries v. Labour Court and Ors., 1979 (39) FLR 70 and Airtech Private Limited v. State of U.P. and Ors., 1984 (49) FLR 38, it has been held as 'under :
'Section 5-C (1) of the Act provides that subject to any rules that may be made in this behalf, a Labour Court shall follow such procedure as it may think fit. It is, therefore, clear that the discretion of the Court is not absolute. It is circumscribed by Rules, if any. We have, therefore, to look to the U.P. Industrial Disputes Rules of 1957. Rule 12 provides that where the State Government refers an industrial dispute for adjudication to a Labour Court within two weeks of the date of receipt of the order of reference, the workmen and the employers involved in the dispute shall file before the Labour Court a statement of the demands relating to the issues as are included in the order of reference. Sub-rule (8) provides that the written statement filed by the Union of the workman shall state the grounds upon which the claim of the concerned workmen is based and the written statement shall be accompanied by an affidavit in which the statement contained in the written statement should be sworn to. Sub-rule (9) states that if the statement accompanied by the affidavit of the Union or the workman is not repudiated by the employer, the Labour Court shall presume the contents of the affidavit to be true and make an award accepting the case stated in the written statement.
From a combined reading of Section 5-C (1) and the aforementioned sub-rules of Rule 12 it is apparent that it is imperative upon a workman to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence. If the employer does not care to controvert the averments made in the affidavit nothing further need be proved or done by the workman. The Labour Court is duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit as correct. These provisions indicate that the burden of proving the case referred to the Labour Court for adjudication by the State Government lies on the workman.
The distinction between a burden to proof and the onus of proof is well known. It is trite that the burden of proof never shifts. It is the onus which keeps on shifting from stage to stage. The Labour Court patently erred in holding that keeping in view the terms of the reference made by the State Government the burden of proof lay upon the employer.
The matter can be looked at from another angle, which party will fall if the evidence is not led before the Labour Court in proceedings in a reference made to it for adjudication by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workman and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the Court against the workman. In such a situation it is not necessary for the employers to lead any evidence at all. This matter was dealt with by the Apex Court in Shankar Chaudhary v. Britannia Biscuits Co. Ltd., 1979 (3) FLR 70. In paragraph 30 the Court held that the Labour Court or the Industrial Tribunal have all the trappings of a Court. In paragraph 31 it held that any party appearing before a Labour Court or Industrial Tribunal must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. It must seek an opportunity to lead evidence.'
17. In the instant case, the workman had raised the dispute and claimed relief of permanency. It was for workman to have proved the staffing pattern and that sanctioned posts/vacancies were available on which he could be appointed. Until and unless the workman discharges the burden of proof, the onus cannot shift on the employers. Merely saying that permanent posts were available in Accounts Section, does not amount to discharge of burden of proof regarding staffing pattern and sanctioned/vacant posts available in the mill for appointment of the respondent-workman. In so far as question of appointment of juniors are concerned, a bare perusal of Annexure RA-2 to the Rejoinder Affidavit clearly reveals that an advertisement was issued in Hindi newspaper, namely, Dainik Jagran on 9.10.1986 (during the pendency of writ petition) for filling up permanent vacancies in the mills in which employees who were already working in the mill could also apply.
18. Learned Counsel for the petitioner states that S/Sri Rampal Singh, Omvir Singh, Sahdev Singh, Balbir Singh etc. applied and on their selection, were offered appointment on permanent posts. The respondent-workman had not applied as the writ petition was already pending which was decided on 5.10.1988. Hence he cannot claim discriminatory treatment. It is submitted that the workman should also have applied in pursuance of the above advertisement for appointment against the permanent post as he was a temporary employee. The concerned workman could not have been given award in his favour on the ground that juniors to him had been regularised in service as they had not been regularised, but appointed through direct recruitment process. They had come through open selection in pursuance of the aforesaid advertisement.
19. It is evident from the admitted facts by the workman himself that he had worked in general office where the work of receipt and despatch was given to him. After 2-3 months, he was transferred to Cane Department for seed checking. Similarly, he was transferred to Accounts Department etc. This itself established that the nature of job which the respondent-workman was performing was of temporary nature and that he was not working against any permanent post. Under the notified Standing Orders, notified under Section 3 (b) of the U.P. Industrial Disputes Act, applicable to employees of sugar factories where sugarcane is processed by vacuum pan process, workmen have been classified. Permanent and temporary workman has been defined in the Standing Orders as under :
'(1) A 'permanent workman' is one who is engaged on work a permanent nature, lasting throughout the year and has completed his probationary period:
Provided that the workmen who are already permanent in terms of second proviso to Standing Orders (B) (1) (I) of the Standing Orders enforced under G.O. No. 2124 (ST) (iv)/XVIII, dated October 1, 1951, will ipso facto be covered by the above definition of 'permanent workman'.
(II) ...
(III) A 'temporary workman' is one who is engaged for work of a temporary or casual nature or to fill in a temporary need of extra hands on permanent, seasonal or temporary posts.'
20. It is also apparent from the definitions quoted above that against permanent nature of work a temporary employee can be engaged. Even according to the appointment letter of the petitioner, he was appointed on temporary basis and never on probation. It is not nature of job which is material but the nature of appointment, which is material in sugar industry. A permanent employee is given ticket in Form 'D' whereas a temporary employee is given ticket in Form 'F'. If a temporary workman performs some permanent nature of job for sometime, he cannot claim himself to be a permanent workman. The duties performed by the respondent-workman were temporary, in nature as appears from the evidence of the workman himself. It appears that the Labour Court has been swayed away by the fact that he had worked for about 9 years ('rather in 9 seasons and that too not for the whole of it') out of which he was absent and was not in service from 8.5.1982 to 5.10.1988. Therefore, it cannot be said that the petitioner took recourse to unfair labour practice in not regularising the services of the respondent-workman, particularly in view of the fact that the employers had come out with a case that they will regularise the workman on the basis of seniority-cum-merit at the earliest availability of vacancy on which he could be appointed. On the contrary, the workman had utterly failed to discharge his burden of proof that any permanent vacancy existed or was available against which he could have been appointed. He did not even prove how S/Sri Ram Pal Singh, Omvir Singh, Balbir Singh and others whose names he had taken in the evidence were junior to him and on which post they had been regularised. The workman had not filed any documentary evidence to this effect and had not discharged his burden of proof as such onus could not have shifted upon the petitioner. There is clear illegality apparent on face of record.
21. For the reasons stated above, the impugned award of the Labour Court cannot be sustained in law and it deserves to be quashed.
22. The writ petitions succeed and are allowed. The impugned award dated 27.11.1997 in Adjudication Case No. 10/93 impugned in Writ Petition No. 19978 of 1998 is hereby quashed and the matter is remanded back to the Presiding Officer, Industrial Tribunal (V), U.P. Meerut for deciding the dispute afresh, in accordance with law in light of observations made above within a period of six months. The impugned notice in Writ Petition No. 16235 of 1999 is also quashed. The parties shall bear their own costs.