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CASE NO.: Appeal (civil)  1827 of 2005

PETITIONER: Ganga Kisan Sahkari Chini Mills Ltd

RESPONDENT: Jaivir Singh

DATE OF JUDGMENT: 24/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 1827 OF 2005 (With Civil Appeal Nos. 1828 and 1829 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      In these appeals challenge is to the order passed by a  learned Single Judge of the Allahabad High Court dismissing  the writ petitions filed by the appellants. In the writ petitions,  challenge was to the awards made by the Presiding Officer,  Labour Court (2), Meerut (hereinafter referred to as the  ’Labour Court’). By the impugned award, the Labour Court  had directed re-instatement of the respondents-workmen and  payment of back wages and retaining allowance.  The Labour  Court’s awards were in relation to the references made under  the Industrial Disputes Act, 1947 (in short the ’Act’). Reference  in all these cases related to the claim for re-instatement and  back wages to which the concerned workmen were entitled to.   The claim was founded on the basis that termination of  services in each case was illegal.            The reference reads as follows (by way of sample): "Kya Sewayojako Dwara Apne Shramik Jai  Veer Singh (Putra Shri Ram Lal), P.H. Recorder  Ki Sewae Dinank 6.3.1985 se Samapt  Kiya  Jana Uchit Tatha/Athwa Vaidhanki Hai? Yadi  Nahi, to Sambandhit Shramik Kya  Labh/Anutosh (relief) Pane Ka Adhikari Hai,  Tatha Kisi Anya Vivran Sahit?"

2.      The workmen claimed that they were permanent  appointees and the orders of termination were contrary to the  provisions of the U.P.  Standing Orders.  

3.      The appellants’ case was that it was a seasonal factory  which commenced its trial season only in the year 1984-85  and certain persons were taken as casual employees on daily  wage basis and they did not have any lien on any permanent  or seasonal post as the factory was to commence production  after the trial season 1984-85 was over after the establishment  of the sugar factory.   

4.      It was submitted that this was done to ascertain whether  the sugar factory started proper functioning of its first season  from the year 1985-86. Respondent-workman was engaged in  stop-gap arrangement only for the trial season after inviting  applications from the public at large, in which respondent

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concerned was not selected. Said respondent joined the sugar  factory on 16th November, 1984 and his services were  dispensed with on 6.3.1985 and by any stretch of imagination  he could not have completed 240 days of services in one  calendar year and as such the provisions of Section 6-N of the  Act did not apply. Concerned respondent had not filed any  appointment letter to show that his appointment was made  against any permanent post.  As noted above, the Labour  Court directed reinstatement with back wages.

5.      The award was assailed in writ petition on the grounds  that (1) the Labour Court has travelled beyond the terms of  reference by framing issue No.1 as the nature of appointment  was neither subject matter of reference nor the finding given  by it on issue No.1 was correct.  (2) There was no evidence on  record that the respondent was a workman and was entitled to  the protection under the Act. (3) There was no appointment  letter filed by the workman, which could show that respondent  was not engaged in the trial season. Though it was dis- believed by the Labour Court that appointment of the  workman was against a permanent post, yet he was granted  the relief of re-instatement with back wages and as such the  award cannot be sustained.            6.      After receiving notice from the Tahsildar asking payment  of the back wages to the concerned workmen the writ petitions  were filed. The averment was that they had not received any  order of Deputy Labour Commissioner nor any citation in  pursuance thereof. The appellant came to know for the first  time about recovery on receipt of the letter dated 15.5.1992.  The workmen disputed the stand of the employer that they  had not completed 240 days. Sugar factories are all of  seasonal nature and according to the Standing Orders  applicable in respect of sugar factories, the period of 120 days  is required. The Labour Court recorded a finding that the  workmen were appointed on the posts in the relevant season  during the period from 16.11.1984 to 5.3.1985.  

7.      With reference to U.P. Payment of Retaining Allowances  to Unskilled Seasonal Workmen of Sugar Factories Order,  1972 (in short ’Sugar Factories Order’), it was held that the  workmen were entitled to be re-instated.  The findings in this  regard recorded by the Labour Court were affirmed by the  High Court.  

8.      In support of the appeals, learned counsel for the  appellant submitted that approach of the High Court is  factually and legally wrong. Even if it is accepted that the  period is 120 days, the workmen were not entitled to any  relief. They admittedly worked for 109 days. The nature of  appointment was not the subject matter of reference and,  therefore, the conclusion of the Labour Court, as affirmed by  the High Court  that the workmen were entitled to be absorbed  on permanent basis and re-instated with back wages, was  clearly erroneous.  

9.      It was wrongly held by the High Court that it was the  employer to show the nature of appointment.   

10.     Learned counsel for the respondents in the written  submissions filed supported the orders of the Labour Court  and the High Court.  

11.     We find that the Labour Court and the High Court  have  completely lost sight of the settled position in law. In Batala

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Coop. Sugar Mills Ltd. v. Sowaran Singh (2005 (8) SCC 481)  it  was held as follows:

"8. We find that the High Court’s judgment is  unsustainable on more than one count. In  Morinda Coop. Sugar Mills Ltd. v. Ram Kishan  and Ors. (1995 (5) SCC 653) it was observed as  follows:

4. It would thus be clear that the  respondents were not working  throughout the season. They worked  during crushing seasons only. The  respondents were taken into work  for the season and consequent to  closure of the season, they ceased to  work.

5.      The question is whether such a  cessation would amount to  retrenchment. Since it is only a  seasonal work, the respondents  cannot be said to have been  retrenched in view of what is stated  in clause (bb) of Section 2(oo) of the  Act. Under these circumstances, we  are of the opinion that the view  taken by the Labour Court and the  High Court is illegal. However, the  appellant is directed to maintain a  register for all workmen engaged  during the seasons enumerated  hereinbefore and when the new  season starts the appellant should  make a publication in neighbouring  places in which the respondents  normally live and if they would  report for duty, the appellant would  engage them in accordance with  seniority and exigency of work."  

12.     It was accepted that the workmen belonged to the  seasonal category. In the claim petition and the pleadings it  was urged that they were permanent workmen.  The High  Court noted that the workmen were not permanent employees.  It was further noted that they failed to establish the nature of  their appointment. No appointment orders were filed. It came  to an abrupt conclusion that the burden of proof lay on the  employer to establish the nature of appointment. The  conclusion is clearly contrary to law.  The Labour Court found  that the workmen were appointed to posts which continued for  the whole season and they were appointed on seasonal posts.  After having arrived at this conclusion, the Labour Court held  that the workmen were entitled to be re-instated.  

13.     It is interesting to note that the High Court itself noted  that the appointment of the workmen was not permanent as  the permanent workmen have to complete their probationary  period. There was no averment that the workmen had  completed their probation period. Undisputedly, 1984-85 was  the trial season. It is to be noted that the High Court referred  to Rules 4 and 6. They read as follows:

"4.     Eligibility for retaining allowance-(i) The  above retaining allowance shall be paid to

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those unskilled seasonal workmen who have or  would have worked but, for illness or any other  run avoidable cause, in a factory during whole  of the second half of the last season preceding,  provided that labour employed by or through  contractors shall be excluded for purposes of  this order.

6.      Provision not to apply on new factories-  The provisions of this order shall not apply to  new factories commencing crushing from  1971-72 or thereafter for a period of three  seasons including the trial season."

14.     Above being the position, the orders of the Labour Court  and the High Court are set aside. The appeals are allowed with  no order as to costs.