Moti Lal Nehru Farmers Training Institute (Cordet) Through Its Principal Vs. the Presiding Officer Labour Court and ors. - Court Judgment

Excerpt:
- - 14. the labour court though has disbelieved the ease of the employer that the workers had themselves not come on work in a concerted move, it has not given any reason for it, particularly when from the conduct of the workmen, from record it is evident that they were offered work before the conciliation officer as well as the labour court but did not join. when the worker failed to prove, by cogent evidence, continuous service:rakesh tiwari, j.1. this petition has been filed by moti lal nehru farmers training institute (cordet) phoolpur, allahabad through its principal challenging the validity and correctness of the impugned consolidated award dated 12.4.2002 passed by the presiding officer, labour court, u.p. allahabad deciding thirteen references in adudication case nos. 59/98 to 71/98. by the impugned award the labour court granted relief of reinstatement to the workmen with 25% back wages on the ground that termination of their service was illegal and in violation of the provisions of section 6-n of the u.p. industrial disputes act, 1947.2. the petitioner is a co-operative rural development trust (cordet) which is said to be a public charitable trust. its main object is to educate and train rural farmers about scientific farming in agriculture and animal husbandry without profit motive. it is a training institute.3. the dispute pertains to the training farm at phoolpur allahabad where respondent nos. 3 to 15 are claimed to be employed as casual/daily rated workers who were engaged from time to time on need basis in different works/sections, such as. agriculture farm, poultry farm, fisheries etc. it appears that their services were terminated w.e.f. 28.12.1996. the termination gave rise to an industrial dispute which was referred to the labour court allahabad for adjudication and were separately registered as adjudication case numbers 59/98 to 71 /98. 4. on receipt of summons, the petitioner submitted its written statement inter alia stating that the institute was not an industry and none of the concerned workmen had completed continuous service of one year as required under section 6-n of the u.p industrial disputes act. 1947 (hereinafter referred to as 'the act') nor they had worked for 240 days in 12 calendar months preceding the date of alleged termination.5. respondent nos. 3 to 15 in concerted move absented themselves from work w.e.f. 28.12.1996 and did not attend their duties even though their engagement was not terminated by the petitioner-institute at any point of time after 28.12.1996. respondent nos. 3 to 15 also filed their written statement of demand before the labour court, inter alia stating that they were engaged as daily rated employees and that their services had been illegally terminated w.e.f. 28.12.1996 in violation of section 6-n and 6-p of the act. documentary evidence was filed by the parties and they also adduced oral evidence in support of their case.6. counsel for the petitioner submits that the concerned workmen were admittedly daily rated employees. they had been engaged for temporary and casual work on need basis and had been paid for the days they had worked and had no right to continue or any post. they had not been appointed against any post. their services had not been retrenched as disengagement of daily wagers cannot be construed to be retrenchment. it is submitted further submitted that their services had not been terminated by the petitioner since the provisions of section 6-n read with section 2(g) of the act are not attracted. reliance in this regard has been placed by counsel for the petitioner on channe lal v. director malaria research centre and ors. - 1999 (2) lic - 2662.7. it is urged that from a combined reading of the aforesaid sections, it is clear that it has to be shown that the workman has actually worked for 12 months in a year and in these 12 months, he has not worked less than 240 days, it is emphasized that the workmen had not proved that they had been employed for continuous period of 12 months and had also actually worked for more than 240 days in those 12 months as such the findings of the labour court are perverse and untenable. it is submitted that on the one hand the labour court has not given any reason as to how it has arrived at a finding that the concerned workman had been in continuous service and had worked for more than 240 days in any of the years preceding the date of termination and on the other, the labour court has shifted the burden of proof on the petitioner institute stating that it has not been able to prove that the concerned workmen were not in continuous service and they had not worked for more than 240 days in a calendar year. it is submitted that it was essential for the labour court to have first come to a finding on the basis of material and evidence on record that the workmen had worked for more than 240 days in a calendar year preceding the date of termination and only then it could have been held that the employer had contravened the provisions of section 6-n of the act. support in this regard has been drawn from paragraphs 3 and 8 of the decision in baij nath bhattacharya v. labour court allahabad and anr.- 1995(70) f.l.r.-14 and in paragraphs 2 and from paragraphs 2 and 3 of the decision in range forest officer v. s.t. hadimani, 2002 (94) flr 622.8. it is lastly submitted that since the petitioner had offered the same nature of temporary/casual employment to the workmen concerned depending upon availability of work at the time of conciliation proceedings, which was not accepted by them. the offer was again made before the labour court also as such the labour court has committed an illegality in reinstating them with 25% back wages.9. the ground taken by the petitioner before the labour court that petitioner is not an industry was not pressed before this court and a statement has been made by the counsel for the petitioner in the court to this effect, hence this point is not being decided.10. sri k.p. agarwal, learned senior counsel for the respondents states that as many as 27 grounds had been taken in the writ petition for assailing the impugned award which can be grouped under the following heading:(i) the petitioner is not industry within the meaning of the word in the u.p. act;(ii) the workmen were daily wagers and, therefore, they did not have a right to challenge the termination of their services on the ground that they have not continuously worked for 240 days in 12 colander months preceding the date of the termination.(iii) the petitioners had not terminated the services of 13 workmen who had absented themselves thus abandoned employment.11. since the point regarding petitioner being an industry has been given up, it is not necessary to go into that matter.12. rebutting the contention of the counsel for the petitioner that services of the 13 workmen had not been terminated, the learned senior counsel for the respondents submitted that the word used in the definition of the word 'retrenchment' is termination of service 'for any reason, whatsoever'. relying upon the judgement of the hon'ble supreme court in state bank of india v. n. sundra money- a.i.r. 1976 s.c- 1111, it is urged that it is not necessary that the employer must have issued an order of termination either in writing or orally for the workmen- i.e., the termination of service take places when the employment ceases bringing the relationship of master and servant to an end. he further submits that if conditions mentioned in section 6-n are conditions precedent and if not complied with simultaneously or as a part of the same transaction, it would be violation of the mandatory provisions and would render the termination illegal and void. it is stated that the workmen concerned had worked in the institute for 4 to 6 years as such it cannot be presumed that the work wasof casual nature. drawing support from the judgement of the apex court in state of haryana v. piara singh- a.i.r 1992 sc- 2130, it is urged that if the employment has lasted for years then it should be taken that the work which workman was performing was of permanent nature and therefore, his claim for regularization must be looked with sympathy. further reliance has been placed in state of u.p. v. rajendra singh butola- 2000 (84) flr pare-96 wherein hon'ble the supreme court has held that provisions of section 6-n of the u.p. act were equally applicable to daily wagers and as such, the argument of counsel for the petitioner that the labour court committed an error in law in awarding back wages is justified. the employers had offered to give employment to the workmen if they wanted to report for duty during conciliation proceedings is misconceived and the workmen are entitled to relief of reinstatement with continuity of service and full back wages as termination of services of the workmen has been found to be wrongful by the labour court. it is also stated that the burden is on the employer to prove that the workman was gainfully employed and not for the employee to discharge the burden of the employer in this regard. sri agarwal, learned senior counsel has placed reliance in postal seals co-operative society limited and in hindustan tin works private limited. on the basis of these decisions, it is urged that the offer of employment has been made when the case was pending before the labour court which gave the award on 12.4.2002. the termination of the services had taken place as far back as on 28.12.1996 as such, the 13 workmen could have easily been given the back wages for the period 28.12.96 to 12.4.2002 even if they did not respond to the offer of the petitioner to come back in their employment. moreover, in the facts and the circumstances of a case that the labour court/industrial tribunal has modulated the relief and it is in its discretion granted lesser than full wages. it is furtheer submitted that the high court may not interfere with the discretion exercised by the labour court.13. recently, the apex court in recently, in dgm oil & natural gas corporation ltd., and anr. v. ilias abdulrehman -(2005) 2 s.c.c-183, has held that section25-f does not apply to casual labour or temporary employee/daily wagers. the conditions precedent under section 6-n (a) and (b) are mandatory but condition laid down in sub-clause (c ) of section 6-n is only directory. hence it is totally incorrect to say that all the three conditions of section 6-n are mandatory in nature. it is not duration or the period during which a workman is employed but what is relevant for the purpose of continuous service' is actual and continuous work of 240 days in last 12 months. in the instant case, admittedly, employment of the workman was casual/temporary. they were employed from time to time, on different kind of work at different places though under the same employer. such employment cannot be said to be 'continuous service'. i am supported in my view by the decision of apex court in dgm oil & natural gas corporation ltd., and anr.(supra) wherein the apex court considered the scope of continous service under an employer and following the decision in indian cable co. ltd. v. workman- (1962)1 llj-409 : 1962 supp. (3) scr-589 held that employment in different departments are distinct 'employments'. it further held in paragraphs 4 and 8 of the report that since respondent had worked in different departments of the appellant in broken periods at different places of employment, it is not 'continuous employment' and broken periods cannot be added to make 240 days. it is the nature of appointment that is relevant and even otherwise, a person can be given temporary and casual appointment against a post of permanent nature.14. the labour court though has disbelieved the ease of the employer that the workers had themselves not come on work in a concerted move, it has not given any reason for it, particularly when from the conduct of the workmen, from record it is evident that they were offered work before the conciliation officer as well as the labour court but did not join. therefore, it can also be firmly said that the workmen are not entitled to any back wages.15. it has consistently now been held by the court that the burden of proof is on the employee who claims relief. in spite of having been granted opportunity to discharge their burden of proof by secondary evidence, it was not discharged by them. it is admitted to the parties that the workmen were daily wagers. it is the nature of appointment that is of essence and not the mode of payment. the contention of sri k.p. agarwal, learned senior counsel that from the mode of payment at daily rate of wages, appointment on beginning of each day upto the end of each day cannot be inferred in fact supports the case of the employers.16. the award is based on surmises and conjectures. it is based on hypothesis that after working for some time it would be natural for the workmen to have legitimate expectation to be regularized. admittedly, they were not appointed against a post hence, legitimate expectation would not be applicable as they from the very beginning kenew that their engagement was not for a short while. the labour court has without any evidence or basis has, on aforesaid surmise, concluded that they must have without any dispute completed 240 days of continuous service and as provisions of section 6-n have not been complied with their termination is illegal. such conclusion without any basis cannot be sustained as it was disputed by the employers that the workmen had not worked continuously for 240 days in any year preceding the date of their disengagement.17. in case termination of a daily wager is found to be illegal, he can be compensated but a daily wager cannot be given continuity of service or back wages for continuity of service.18. it appears from the award that the workman had made an application before the labour court for summoning certain documents said to be in possession of the employers such as attendance register, payment of wages register and e.p.f. register. the employer did not file these documents on the ground that the aforesaid documents in respect of daily wage employees is not available/maintained and all other documents in their possession have been submitted before the labour court. thereafter, the labour court gave opportunity to the workmen to submit secondary evidence.19. it also appears from record that payment sheets, muster roll etc., were filed and exhibited by the employers before the labour court. insofar as e.p.f. deduction is concerned, it is deducted in respect of every eligible employee whether permanent, temporary or a daily wager. it is not a document from which nature of appointment is ascertained.20. recently in the case of dhampur sugar mills v. bhola singh (2005)2 s.c.c-470 it has been held by apex court that section 25f and section 25n of the industrial disputes act are not applicable to casual labour/temporary employees/daily wagers employed under a scheme. when the worker failed to prove, by cogent evidence, continuous service: of 240 days in a year he was not entitled to any relief. burden of proving 240 days was on worker. the labour court wrongly shifted burden on employer as held in range forest officer's case (supra) and essen deinki v. rajiv kumar- 2002(95) f.l.r.-949 that it is for the workers to prove that they have continuously worked for more than 240 days in a calendar year.21. in view of above, i allow the writ petition and quash the award dated 12.4.2002 passed by the labour court, allahabad in adjudicate case nos. 59/98 to 71/98. since, the workers were daily wagers and employers have offered them work and are working in terms of interim order dated 19.12.2002, they will be retained in service as daily wagers subject to availability of work and can be terminal in accordance with law. no order as to costs.