Pratap Pur Sugar and Industries Ltd. Vs. The Labour Court Gorakhpur and Others - Court Judgment

Ashwani Kumar Mishra, J.

1. Consequent upon a reference made to it, under section 4(k) of the U.P. Industrial Disputes Act, 1947, labour court has found that non-engagement of respondent-workman at the start of crushing season 1980-81 w.e.f. 1.12.1980 was illegal and unjustified, and as such, workman has been held entitled to reinstatement along with entire back wages, and reference has been answered accordingly. Thus aggrieved with the award dated 27.2.1985, in adjudication case no.15 of 1982, petitioner-employer has filed present writ petition.

2. Petitioner-employer M/s Pratappur Sugar Pvt. Ltd. is a company, registered under the Indian Companies Act, which is running a sugar mill at Pratappur, District Deoria. During pendency of this writ petition, name of petitioner company has been changed to Bajaj Hindustan Sugar Mill Industries Ltd., Sugar Unit Pratappur, Deoria, and an amendment in the array of parties has also been allowed.

3. For running of the sugar mill, petitioner-employers engages workman. Service conditions of workmen thus engaged are governed by standing orders issued under section 3(b) of the U.P. Industrial Disputes Act, 1947. Respondent-workman herein alleged that he had been engaged as a seasonal kamdar in the petitioner's establishment during cane crushing season 1969-70 and he worked continuously till 1979-80. In the written statement workman alleged that number of other employees similar to respondent-workman have already been reinstated pursuant to an award in adjudication case no.46 of 1971, and as such, he is also liable to be reinstated. He further stated that since crushing season 1978-79, he was engaged as checker and worked as such till the end of season 1979-80, at the check post, and that his services were always satisfactory. According to respondent-workman, as he had worked for the entire cane crushing season 1979-80, and as such, he was entitled to be called at the start of fresh crushing season 1980-81 on the same post, but this was not done. According to respondent-workman, cane crushing season 1980-81 commenced w.e.f. 1.12.1980 and as he was was allowed to resume work, as such, non-calling of workman at the start of fresh season 1980-81 w.e.f. 1.12.1980 amounted to an illegal termination and he was entitled to be reinstated along with continuity of service and seniority etc. Dispute was, consequently, referred under section 4(k) of the Act on the question as to whether termination of workman w.e.f. 1.12.1980 was legal or not?

4.On behalf of petitioner-employer a preliminary objection was raised with regard to maintainability of reference on the ground that alleged workman was not an employee of the company, and as such, no industrial dispute had come into existence and the reference itself was bad. Written statement and rejoinder statement were exchanged. Oral and documentary evidence were also led by the parties and ultimately, labour court vide its award, under challenge, has allowed the claim of respondent workman, by granting him relief of reinstatement along with back wages, on the ground that refusal of employer to engage workman at the start of fresh crushing season 1980-81 was bad in law.

5. Learned counsel for the petitioner-employer submits that labour court has in fact, by the composite award in question, decided similar claim of three workmen, and on the same basis and similar evidence, claim of other two workers has been rejected, whereas different criteria has been adopted for the respondent-workman herein. Submission is that all three workers had claimed that documents, which were basis of their claim and were being filed by them, had been found lying in the canteen situated beyond the factory premises, and in respect of two other reference cases, labour court disbelieved the claim of those workers of having found such documents in the canteen, but in respect of present workman, documents produced with similar story has been relied upon, and therefore, the labour court was inconsistent and arbitrarily adjudicated cases by adopting two different yardsticks. Petitioner-employer contends that onus was upon respondent-workman to establish that he had been appointed and employed, as seasonal employee, as alleged by him, but the respondent-workman had failed to discharge such burden, but the labour court has erroneously shifted such burden upon the petitioner-employer, against the settled principle of law.

6. Learned counsel for the respondent-workman, on the other hand, submits that there was sufficient evidence and material on record before the labour court to take different view in the matter of respondent-workman, as facts in the instant case were separate and distinct. Contention is that petitioner-employer's witness had himself gone against employer's stand, which rendered the stand of petitioner-employer unreliable. Submission is that petitioner-employer have resorted to unfair labour practice and the finding returned by the labour court on the basis of material available on record, requires no interference.

7. Having considered the submission of learned counsel appearing for the parties, and upon perusal of materials available on record, this court finds that petitioner-employer is running a sugar factory by vacuum pan process, wherein services of workers employed were to be governed by the provisions of standing orders framed under section 3(b) of the Act.

"Workman" has been defined under clause (A) of the standing orders as under:-

"1. "Workman" means any person (including an apprentice) employed by a factory to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied but does not include any such person:

(i) who is employed mainly in a managerial or administrative capacity; or

(ii) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensum or exercises either by the nature of the duties attached to the office or by reason of the power vested in him, functions mainly of a managerial nature."

"Workmen" have further been classified in clause 'B' in following categories:-

"(i) Permanent,

(ii) Seasonal,

(iii) Temporary,

(iv) Probationers,

(v) Apprentice, and

(vi) Substitutes"

A "Seasonal Workman" has been defined as under:-

"(ii) A "seasonal workman" is one who is engaged only for the crushing season:

Provided that if he is a retainer, he shall be liable to be called on duty at any time in the off-season and if he refuses to join or does not join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period of his absence."

By virtue of clause 'K' of the standing orders, special conditions in respect of employment of seasonal employees have been laid down. Clause (K)(1) of the standing orders is reproduced:-

"(K)(1) - A seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season.

Explanation.- Unauthorized absence during the second half of the last preceding season of a workman has not been validly dismissed under these Standing Orders and of a workman who has been re-employed by the management in the current season, shall be deemed to have been condoned by the management.

Similarly, clause 'L' of the standing orders provides for termination of workman, which in respect of permanent or seasonal workman, can be either as (a) genuine retrenchment, or (b) infirmity and disability or (c) misconduct.

Clause (L)(3) and (L)(5), which deals with termination of temporary workman is also reproduced:-

"(L)(3)- No notice will be necessary for termination of service, of temporary/casual workman at the end of the period for which he was engaged.

(L)(5)- Unless he has qualified for getting notice under section 6-N of the U.P. Industrial Disputes Act, 1947, the employment of a probationer, substitute, temporary or apprentice workman may be terminated by the Manager without any notice or any payment in lieu of notice.

8.In the facts of the present case, respondent-workman has alleged that he had been appointed, as a seasonal employee, in the season 1969-70 and that he continued to work as seasonal kamdar from 1969-70 to 1977-78, whereafter he was engaged as cane checker and deputed to work at the check post during season 1978-79 to 1979-80, and at the start of fresh season he was not engaged, which amounted to violation of clause 'K' of the standing orders. In order to adjudicate the issue, it has to be seen as to whether respondent was a seasonal workman, and was thus entitled to protection of clause 'K'.

9.Petitioner-employer's in the written statement have denied having employed the respondent-workman in the factory. However, its witness, Sri Brij Nandan Pandey in his oral testimony before the labour court admitted that respondent-workman was engaged for 2-3 months during cane crushing season 1969-70 as a temporary employee and he was also paid bonus.

10.Although respondent-workman has claimed to have been appointed as kamdar in season 1969-70, but there exists no appointment letter on record in favour of respondent-workman. No service book, P.F. Form, proof of paying salary or retaining allowance, or any other similar evidence to support the employment as seasonal employee, has been brought on record. Labour court, however, has essentially held respondent-workman to be a seasonal employee on account of the admission of employer's witness and upon documents, which have been filed by the respondent-workman and have been exhibited as E.W.-6 to 9. It has to be seen as to whether on the strength of aforesaid, a finding could be returned by the labour court that respondent-workman was a seasonal employee of the factory, so as to be entitled for being called at the start of season by virtue of clause 'K' of the standing orders.

11.Sri Shyam Narain, learned counsel for respondent-workman submits that employer could be permitted to lead evidence only in respect of what has been pleaded by it, and not otherwise. Reliance has been placed upon following observation of Privy Council in Siddik Mahomed Shah v. Mt. Saran and others: AIR 1930 PC 57 (1):-

"Secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put for ward."

12.It is true that in the written statement there was blanket denial of engagement of respondent, but only this much was admitted that respondent-workman had worked for 2-3 months in the crushing season 1969-70, as temporary employee, and he was paid bonus for such period. Even if this testimony is relied upon, a conclusion cannot be drawn that respondent-workman was employed as a seasonal employee or that he had worked for the entire crushing season 1979-80, so as to be entitled to be called at the start of fresh season. At best, engagement of workman during the season 1969-70 could be inferred. So far as the other documentary evidence led on behalf of respondent-workman, which have been produced as E.W.-6 to E.W.-9, is concerned, it would be appropriate to observe that individual, or cumulatively, all such documents cannot reasonably lead to a conclusion that respondent-workman had been appointed/engaged as a seasonal employee, as has been claimed.

13.Labour court for the purposes of award in favour of respondent-workman has relied upon documents, which are alleged to have been found lying in canteen, situated outside the factory premises. These documents have been brought on record of the writ petition as Annexure- 13 to 16. Perusal of these documents clearly goes to show that they are neither appointment letters nor are documents showing payment of salary or retaining amount to the respondent-workman, service book or any other document, which could demonstrate that respondent-workman was employed as a seasonal employee in the factory. Exhibit W.-6 filed on behalf of respondent-workman has been enclosed as Annexure-13 to the writ petition, which is merely an order intimating Ravindra Dubey, Ramayan Dubey and Remeshwar Tiwari, regarding list of villages falling in Misrauli Line. This order was not marked to respondent-workman Madan Mohan Mishra, but at the bottom of this letter signatures of respondent-workman are found. Similarly, Exhibit W.-7 is a note of Shivji Prasad Dubey, yard foreman to the check-post, which also proves nothing in respect of employment or status of workman. Exhibit W.-8 is a duty chart and contains details of token number, ticket number supplied, date and name of farmer and name of co-operative societies, which contains signatures of Sri Shamsam Ali. According to evidence of witness, this document was given to him by Sri Ram Vilash, who was working as clerk and responsible for noting down these details, and on the very bottom, signatures of the respondent-workman is found. Exhibit W.-9 is a document showing that in the absence of cane, the vehicle be weighed on the basis of cane parchi. A clear suggestion has been given, in cross examination of workman, by the employer, that upon these documents, name/signatures of respondent-workman had been subsequently added. Suggestion was also given of these documents having been unauthorizedly removed from the factory.

14.The documents Exhibit W.-6 to 9 are all stated to have been found in the canteen. Labour court has disbelieved the similar case, set up by other two workmen on the ground that story of documents lying in canteen was not probable or reliable, and a contradictory view was not possible in present case, particularly, when the signatures of workman were at the bottom of documents clearly suggesting a subsequent addition. Evidence led clearly supported the plea, set up by the employer, that these documents were not reliable. Moreover, these documents in no way proved the case of respondent-workman that he had been engaged as a seasonal employee, or that he had worked for the last ten seasons. Just on the strength of these documents, genuineness and source of procurement was itself highly doubtful, a finding could not be returned that respondent-workman had been engaged as a seasonal employee since 1969-70 to 1979-80 or that he had worked for the entire second half of crushing season 1979-80. This court finds substance in the contention advanced by learned counsel for the employer that award of labour court was self-contradictory, and there was no justification for the labour court to have accepted some of those documents, allegedly found at the canteen situated outside the factory, after having refused to rely upon similar documents produced at the instance of other two workmen.

15.Onus to establish that respondent-workman had been engaged as a seasonal employee, and that he had worked during season 1969-70 to 1979-80 was upon worker. Law in this regard has been settled in Range Forest Officer v. S.T. Hadiman: (2002) 3 SCC 25 and Batala Cooperation Suger Mills Ltd. v. Sowaran Singh: (2005) 8 SCC 481.

16.In Uttar Pradesh State Sugar Corporation Ltd. v. Niraj Kumar and others: (2009) 14 SCC 712, a dispute arising out of standing orders, in respect of employees of vacuum pan process in the State of U.P., particularly, in the context of seasonal employees of the sugar mill, it was observed as under in Para 16 and 17 of the judgment:-

"16. The Standing Orders contemplate lien of a seasonal workman in the succeeding crushing season if he has worked in the previous full crushing season or in the whole second half of that crushing season. It is true that `second half of the crushing season' is not defined in the Standing Orders but in absence thereof an ordinary meaning of the expression "second half of the crushing season" has to be given and that would mean the crushing season be divided into two parts and later part of the crushing season would be second half of the season.

17. To be entitled for re-employment in the succeeding crushing season, a seasonal workman has to show that he worked in the previous full crushing season or in whole of the second half of the last preceding year. Merely because workman has worked during the part of the previous crushing season, he does not become entitled for re-employment in the succeeding season. If a claim of re-employment is based on engagement in the second half of season, such engagement has to be for full second half of the season i.e. until the end of that season."

17.It is undisputed that onus was upon the workman to prove that he had been employed as a seasonal employee and that he worked continuously from season 1969-70 to 1979-80. Mere statement of employer's witness, admitting engagement of workman, as temporary employee, for 2-3 months during season 1969-70 and payment of bonus for season in the year 1970, would not lead to an inference that respondent-workman was employed throughout as a seasonal employee from 1969-70 to 1979-80, or that he had worked as such in season 1979-80 in order to be called at start of next season. The limited admission was only with regard to engagement of respondent-workman as temporary employee in the season 1969-70. According to standing orders, if a temporary employee is discharged, unless he has worked for 240 days, and consequently, he is entitled under section 6(N) of the Act, he is not entitled for any benefit under the standing orders.

18.Before the workman is held entitled to any benefit under clause 'K' of standing orders, a finding would have to be returned that necessary ingredients to attract such provision exits on facts. It would otherwise be difficult to imagine that though workman had continuously worked for ten seasons as seasonal employee, yet, he was not issued any appointment letter, service book, provident fund number, salary slip, retaining allowance or other such records.

19.Learned counsel for the respondent-workman has lastly submitted that award is correct, as despite a direction to management to produce check-post register for the year 1979-80, it was not produced and in case such a register would have been produced, claim of respondent-workman could be established.

20.In reply to it, Sri Diptiman Singh, learned counsel for the employer, has invited attention of court to an affidavit of Madan Mohan Sharma, who appeared as a management witness, and stated that respondent-workman has never appeared before him to receive payment during season 1969-70 to 1979-80. It has been stated that respondent-workman was engaged as temporary kamdar w.e.f. 1.1.1970 to 20.4.1970 and that he had produced attendance cum payment receipt register of the employer during season 1979-80 along with details of temporary employees. Attendance register which had already been filed in adjudication case no.30 of 1981, which is still available on record of the labour court. It was also stated that there was no separate register for attendance and payment in the factory. Learned counsel for the employer submits that relevant register, which has been summoned, was available before the labour court in adjudication case no.30 of 1981, and therefore, it was not possible for the management to have produced the same in the present case. Averment made in para 43 of the writ petition in this regard, has been met with wholly evasive reply in para 4 of the counter affidavit. In view of the specific stand taken in this regard, which has not been controverted, I find that labour court was not justified in drawing an adverse inference against the employer, on account of having not produced the relevant register.

21.In the factual matrix of the present case, observation of the Apex Court in Surendranagar District Panchayat v. Dahyabhai Amarsinh: (2005) 8 SCC 750, in para 16 to 18 would be apposite and reproduced:-

"16. In Range Forest Officer vs. S.T. Hadimani, (2002) 3 S.C.C. 25 - (At Page 26, Para 3), this Court held that:

"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."

17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan and Another, (2004) 8 S.C.C. 161, Municipal Corporation, Faridabad vs. Siri Niwas, (2004) 8 S.C.C. 195 and M.P. Electricity Board vs. Hariram, (2004) 8 S.C.C. 246, this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.

18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."

22. In view of the discussions and observations, aforesaid, I find that the findings returned by the labour court that respondent-workman was engaged as seasonal employee from 1969-70 to 1979-80 or that he had worked for the entire second half of previous crushing season, so as to be entitled to be called at the start of fresh season, by virtue of clause 'K' of the standing orders, are based upon no legally admissible evidence, and are wholly perverse and erroneous. In such view of the matter, award of the labour court cannot be sustained.

23. Accordingly, the present writ petition succeeds and is allowed. Award of the labour court in Adjudication Case No.15 of 1982 is set aside.

24. However, no order is passed as to costs.