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2018 DIGILAW 2552 (ALL)

Simbhaoli Sugars Limited v. State of U. P.

2018-12-17

SUNITA AGARWAL

body2018
JUDGMENT : SUNITA AGARWAL, J. 1. Heard Sri Navin Sinha learned Senior Advocate assisted by Sri Rohan Gupta learned counsel for the petitioner and Ms. Bushra Maryam learned counsel for the respondent no. 3. 2. The present petition is directed against the award dated 29.09.2017 passed by the Industrial Tribunal (5), Meerut U.P. in Adjudication Case No.181 of 2005, published on 24.05.2018. 3. Facts in brief relevant to decide the controversy in hands are that the company namely Simbhaoli Sugars Limited is engaged in the manufacturing of white crystal sugar through vacuum pan process. The manufacturing unit of the petitioner mill operates from November to April each year. The conditions of employment of workmen in the factory is governed by the “Standing Order Governing the Conditions of Employment of Workmen in Vacuum Pan Sugar Industries in UP” (in short be referred as the “Standing Order”), which have been framed by the State Government in exercise of powers under Section 3 (B) of the U.P Industrial Disputes Act' 1947 (in short hereinafter referred as the Act' 1947). 4. The dispute herein has arisen out of the conciliation application filed by the workmen through respondent No. 3, a registered-union. The conciliation failed and the dispute was referred for adjudication as under:- ^^D;k lsok;kstdks }kjk layXu lwph esa vafdr 138 deZdkjks] ftudks Jkfed i{k ekSleh deZdkj rFkk lsok;kstd+ i{k ,oth deZdkj dh laKk ns jgk gS] dh lsok,a fnukad 21-03-2004 ls lekIr fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS \ ;fn ugh] rks lEcaf/kr deZdkj D;k fgrykHk@mi'ke ikus ds vf/kdkjh gS] fdl frfFk ls o vU; fdu fooj.kksa lfgr \** 5. The reference was answered by the Industrial Tribunal vide award dated 29.09.2017 holding that the concerned workmen were working in the establishment as seasonal workmen and they were illegally been terminated w.e.f. 21.03.2004. They were held to be entitled for reinstatement on seasonal basis. 6. The challenge to the award herein is with the assertion that the workmen concerned were working as 'substitute' workmen, engaged in order to meet the exigencies of work as per the corresponding fluctuation depending upon supply of sugarcane in a particular season. The 'substitute' workmen are engaged on Form-'I', which is the ticket for the engagement of 'substitute' workmen and Form-'B' which is the engagement memo for monthly paid workman prescribed in the Standing Order. The 'substitute' workmen are engaged on Form-'I', which is the ticket for the engagement of 'substitute' workmen and Form-'B' which is the engagement memo for monthly paid workman prescribed in the Standing Order. Whereas the seasonal employee or other permanent workmen are issued ticket under Form-'E' and Form-'D'. 7. The submission is that the concerned workman had been employed in the previous season as substitute workmen, only for few days. They had lodged false and concocted complaint, alleging the termination of their services, whereupon, an enquiry was initiated by the Sub Divisional Officer calling upon the petitioner-management vide communication dated 20.03.2004 to present themselves before him with the relevant records. The complaint dated 17.03.2004 was made by the workmen admitting that they had worked only for few days in different season. While enquiry before the Sub Divisional Officer was going on, the concerned workmen had initiated conciliation proceedings wherein the statements of both the workmen's representatives and that of the employer were recorded. Upon failure of the conciliation, the reference was made, initially only with regard to the alleged termination of services of the workman as on 21.03.2004. Further, on an amendment application filed by the petitioner-management, the reference was amended so as to include the dispute relating to nature of services of the workmen. The reference has thus been made as to whether the workmen concerned were seasonal or substitute and further whether termination of their services w.e.f 21.03.2004 was illegal. 8. In the claim petition before the tribunal, the workmen claimed themselves to be the seasonal workmen. The chart containing the list of workmen as appended with the claim petition, was a forged document as the same has been filed by the petitioner during the conciliation proceedings by concealing the portion where number of days of their working in each season was mentioned. 9. The petitioner employer, on the other hand, in their written statement filed the correct copy of the chart containing the list of the workmen, which was produced during the conciliation proceedings and the same has also been brought on record of the present petition as Annexure no.6 (page 160 to 173). The amended written statement and rejoinder statement filed by the petitioner before the tribunal appending the chart have been enclosed as Annexure no'.7' & 9' to the present petition. The amended written statement and rejoinder statement filed by the petitioner before the tribunal appending the chart have been enclosed as Annexure no'.7' & 9' to the present petition. Placing these documents, it is vehemently contended by the learned Senior Counsel appearing for the petitioner that the management took a categorical stand in the rejoinder that the chart filed as Annexure No. 1' to the written statement of the workman, is a result of forgery, suppression of information and misrepresentation of factual position. A copy of the statement prepared and submitted by the management giving details as to the date of first employment of the workmen and the total number of days employed during the season 1999-2002 to 2003-2004 has been appended alongwith rejoinder. It is contended that a categorical stand had been taken therein that the concerned workmen were engaged only as substitute for certain days during each crushing season. As a matter of fact, barring few, others were never employed rather engaged on day to day basis. The date of first engagement as indicated in the list appended with the written statement and rejoinder statement of the employer, is the date of first employment of the workmen as substitute. The petitioner has further produced the documentary evidence, Form-'I' and Form 'B', the tickets and the enrollment forms issued to each of the 138 workmen in their own handwriting. Attention of the court has been invited to the documents appended as Annexure no. 12' to the present petition to submit that the workmen were engaged in the class of 'substitute' workmen. Their services being intermittent for handful number of days during the crushing season as referred above, would disentitle them to claim of being seasonal workmen. Moreover, their engagement was on the applications moved by them from time to time. In other words, the substitute workers offered themselves for employment and on the basis of the requirements of the establishment, they were engaged. At no point of time, they were engaged as seasonal workers nor they had worked for sufficient period during any of the crushing season. 10. Out of 138 workmen, 5 had entered in the witness box and recorded their statement as WW-1 to WW-4. From their own statement, it is evident that they had worked for few days in one season. Their engagement was never continuous though they had termed them as artificial break. 10. Out of 138 workmen, 5 had entered in the witness box and recorded their statement as WW-1 to WW-4. From their own statement, it is evident that they had worked for few days in one season. Their engagement was never continuous though they had termed them as artificial break. In the letter of complaint dated 24.03.2004, the workmen had themselves admitted that they had worked for few days during crushing seasons. No proof of their employment such as the appointment letters, tickets and pay slips etc. had been brought on record to substantiate the nature of their employment. The inconsistency and contradiction in their claim is writ large on the face of the record, in view of their admission in the letters dated 17.03.2004 and 20.03.2004, regarding the nature of their employment. The burden of proof of the nature of employment laid upon the workmen had not been discharged. Reliance is placed upon the judgment of Apex Court in Municipal Committee Tauru Vs. Harpal Singh & another, 1998 (5) SCC 635 to submit that inconsistency in claim of a party seeking relief before the Labour Court, could not be ignored. 11. Reliance has also been placed on the pronouncement of the Apex Court in Range Foresh Officer Vs. S.T. Hadimani, 2002 3 SCC 25 , Surendra Nagar District Panchayat Vs. Dahyabhai Amarsinh, 2005 8 SCC 750 , Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jai Veer Singh, 2007 (7) SCC 748 and Pratap Pur Sugar & Industries Ltd Vs. Labour Court Gorakhpur & others, 2015 (6) ADJ 131 to substantiate that for any claim of being a seasonal workmen, the burden was upon the workmen to produce the documents relating to appointment, proof of payment of salary and retaining allowances as is admissible to seasonal workers. Filing of affidavits, being the own statement of the workmen, is not enough to discharge the said burden. No finding has been recorded by the labour court regarding the proof of days of engagement of each workman. The Industrial Tribunal had thus, committed illegality in laying burden upon the employer to show the nature of appointment of the workmen. 12. For the seasonal workman to claim engagement in the next season, it is necessary to establish that he had worked for the entire last season which is the second half of the crushing season. The Industrial Tribunal had thus, committed illegality in laying burden upon the employer to show the nature of appointment of the workmen. 12. For the seasonal workman to claim engagement in the next season, it is necessary to establish that he had worked for the entire last season which is the second half of the crushing season. There was no material on record from which the burden of proof, which was upon the workmen to establish the nature of their employment, stood discharged. As there is no finding that the condition of Clause-12 of the Standing Order of the workmen having worked during the whole of the second half of the last preceding season has been fulfilled, there was no occasion for the Industrial Tribunal to direct for re-employment of the workmen in the subsequent season. Reliance is placed upon the judgment of Apex Court in U.P. State Sugar Corporation Limited Vs. Niraj Kumar & others, 2009 (14) SCC 712 to submit that the findings to the aforesaid effect was necessary for the award of reemployment of seasonal workmen. Thus, even if, it is assumed for a moment without acceptance that these workmen were seasonal, in absence of finding regarding proof of days for which they had actually worked, the award of reemployment/reinstatement cannot be sustained. Witnesses of workmen namely WW-2 to WW-5, though asserted that the entire procedure as laid down in the Standing Order was followed for their employment, but they did not produce any documentary evidence, such as relevant enrollment form and appointment letters etc. so as to prove the nature of their engagement. 13. As far as the documents filed by the petitioner, namely Form-'A' (Enrollment Form), Form-'B' enrollment memo, Form-'I' (tickets for substitute workmen), the workmen had admitted their signature on these documents though they stated that they were made to sign on blank pages by the management. Mere submission to this effect was not sufficient to discard the documentary evidences filed by the petitioner which were proof of nature of engagement of the workmen. 14. Lastly, it is contended that the Industrial Tribunal had illegally drawn adverse inference assuming non production of records by the employer to hold the workmen being seasonal employees. Mere submission to this effect was not sufficient to discard the documentary evidences filed by the petitioner which were proof of nature of engagement of the workmen. 14. Lastly, it is contended that the Industrial Tribunal had illegally drawn adverse inference assuming non production of records by the employer to hold the workmen being seasonal employees. In so far as the finding with regard to the non production of attendance and payment register of these workmen, it is contented by the learned Senior Counsel that the order dated 17.11.2014 passed by the Industrial Tribunal was on application 54-D which was filed calling the employer to produce the register maintained at the cane purchase center of 200 contract workers, who were allegedly engaged by the petitioner-management. At no point of time, the Industrial Tribunal had summoned the records relating to engagement and employment of these workmen. The finding returned by the labour court that the management had deliberately withheld the records of engagement of these workmen, therefore, is perverse. 15. Reliance is placed upon the judgment of Apex Court in Surendra Nagar District Panchayat (supra), (emphasis made on paragraph no.18) to urge that the adverse inference drawn by the Industrial Tribunal was wholly unwarranted and illegal. 16. In the end, in a feeble submission, it is contended that the reference was made with regard to termination of service w.e.f 21.03.2004. The date and manner of termination of their services was not proved by the workman. The labour court had thus travelled beyond the reference in directing for reinstatement of the workmen by holding them seasonal workmen. 17. Ms. Bushra Maryam learned Advocate appearing for the respondent no.3, however, with reference to the finding recorded by the Industrial Tribunal submits that a categorical finding of fact has been recorded that the employer has not been able to prove that the workmen were engaged as substitute workmen, as no details with regard to leave or absence of the seasonal or permanent workmen, in whose place, the claimants workmen were engaged, has been given. 18. These workmen were admittedly engaged sometimes in the year 1995 and 1997 and 1999-2000 since they continued till the crushing year 2003-04 on seasonal basis. Only dispute has been raised with regard to the period of their working by saying that they were engaged as substitute for the aforesaid period. 18. These workmen were admittedly engaged sometimes in the year 1995 and 1997 and 1999-2000 since they continued till the crushing year 2003-04 on seasonal basis. Only dispute has been raised with regard to the period of their working by saying that they were engaged as substitute for the aforesaid period. The workmen, on the other hand, took a categorical stand before the Industrial Tribunal that they had worked in each season from the date of their first engagement till the date of termination. The nature of their work was seasonal. They were working in the mill premises as per the direction of the employer. Though they were offered appointment by sending offer letter by the employer but at the time of their joining, the offer letter given to them was taken back. No appointment letter was ever issued by the employer. Form-A/Enrollment form was admittedly, signed by them but it was asserted that these documents were signed by the workmen under coercion. 19. With the affidavit of EW-1 (employers witness), it is contended that he admitted on affidavit that each workman concerned in the reference was employed as substitute worker in various season and the details given in the list was verified by him from the attendance and wage register and all particulars mentioned therein were correct. The records shall be made available for inspection and verification. However, no record was produced by the employer despite categorical denial by the workmen regarding the period of their working mentioned in the said list. The Industrial Tribunal, therefore, cannot be said to have erred in rejecting the period of employment during each season as mentioned in the list appended with the written statement and rejoinder statement filed by the employer. It was incumbent upon the employer to produce the attendance and wage register, allegedly maintained by them, wherein the detail of engagement of the workmen concerned had been given. Not even extract of the attendance register has been filed so as to prove the stand taken by the EW-1. No permission was sought from the tribunal to get those documents inspected by the representatives of the workmen. 20. The employers have adopted illegal practices to deny employment to the workmen. The finding of fact returned by the Industrial Tribunal, therefore, cannot be interfered. 21. Reliance has been placed upon the judgment in The Bharath Bank, Ltd, Delhi Vs. No permission was sought from the tribunal to get those documents inspected by the representatives of the workmen. 20. The employers have adopted illegal practices to deny employment to the workmen. The finding of fact returned by the Industrial Tribunal, therefore, cannot be interfered. 21. Reliance has been placed upon the judgment in The Bharath Bank, Ltd, Delhi Vs. The Employees of the Bharat Bank, Ltd, Delhi, AIR 1950 SC 188 , Workmen of Bhurkunda Colliery of Central Coalfields Ltd Vs. Bhurkunda Colliery of Central Coalfields Ltd, 2006 3 SCC 297 and Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 124 FLR 300 to submit that this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India may not interfere in the findings of fact returned by the tribunal. 22. Reliance has further been placed upon the judgment of the Apex Court in Hiralal & others Vs. Badkulal & others, AIR 1953 SC 225 and State of Maharashtra Vs. Sampatilal Nonsukh Bothara, 1992 (1) LLJ 107 to submit that the employers were under obligation to produce the records maintained by them before the tribunal. 23. Heard learned counsel for the parties and perused the record. 24. The controversy referred to the Industrial Tribunal by the reference made by the appropriate government raised two points of determination. 25. Firstly whether the workmen, who raised dispute were seasonal workmen (as asserted by them) or substitute workers (as asserted by the employer). The second is that whether the termination of their services weft 21.03.2004 was valid or not. 26. The examination into the question of termination, however, would depend on the answer to the first question, which was specific to the nature of the engagement of the workmen. 27. Before adverting to the findings returned by the Industrial Tribunal, it would be pertinent to go through the Standing Orders which provides the conditions of employment of the workmen as applicable in the petitioner establishment. Clause-B of the Standing Order provides for classification of workmen as under:- B. Classification of Workmen 1. Workmen shall be classed as- (I) Permanent (II) Seasonal, (iii)Temporary, (iv) Probationers, (v) Apprentices, and (vi) Substitutes. 28. A Seasonal Workman as defined in Sub Clause (II) of Clause B, is a workman who is engaged only for the crushing season. Clause-B of the Standing Order provides for classification of workmen as under:- B. Classification of Workmen 1. Workmen shall be classed as- (I) Permanent (II) Seasonal, (iii)Temporary, (iv) Probationers, (v) Apprentices, and (vi) Substitutes. 28. A Seasonal Workman as defined in Sub Clause (II) of Clause B, is a workman who is engaged only for the crushing season. Proviso to the said clause further states that in case, a seasonal workman is a retainer, he can be called on duty at any time in the off-season. 29. A "substitute" is defined in sub clause (1) (VI) as the workman who has been employed in place of a permanent or seasonal workman who is temporarily absent on leave or otherwise. Sub clause 2-C (ii) provides that every seasonal workman will be given a ticket as in Form "E". Whereas sub clause 2-C (vi) provides that a substitute workman will be given a ticket as in Form "I". Sub clause 2(a) states that every workman on enrollment, shall sign the enrollment Form "A". 30. Clause-D of the Standing Order cast an obligation on the employer to notify the periods and hours of working for all classes of workmen on the notice board of the factory. Sub clause 3 (a) of the Clause-D states that every workman shall be given a wage slip as in Form "J", which shall contain the information pertaining to number of working days, basic wages earned, other allowances etc. Every workman is allowed to retain the wage slip issued to him. 31. Clause-F cast an obligation on all workmen to remain present at work at the time fixed and notify to them and in case of late attendance of a workman, in the first meeting, he may be treated as absent for half day and he will be under obligation to work in the second meeting and would get his wage only for the half day, if no substitute has been appointed in his place for the whole day. 32. Clause-G of the Standing Order provides the nature of leave, the period and manner in which such leave can be granted and the consequence of absence of a workman without leave. Sub Clause (9) of Clause-G of the Standing Orders cast an obligation on the employer to maintain the records of leave in accordance with the provision of Rules framed under Section 83 of the Factories Act. 33. Sub Clause (9) of Clause-G of the Standing Orders cast an obligation on the employer to maintain the records of leave in accordance with the provision of Rules framed under Section 83 of the Factories Act. 33. Clause-K provides special conditions governing employment of seasonal workmen and states that a seasonal workman who has worked, but for illness or any other unavoidable cause, in a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season. It further provides that owing to trade reasons or any other reasons necessary for a bonafide lay-off, if it becomes necessary for a factory to do so, it may discharge a seasonal workman before the close of the season with the previous permission of the Deputy Labour Commissioner or the Regional Assistant Labour Commissioner of the area, as the case may be, after paying such compensation to the discharged workman, as may be determined by the authority granting the permission. 34. Clause-L provides the contingencies of termination of the employment of a permanent or seasonal workman. Sub clause (5) of clause-L, however, provides that unless he has qualified for getting notice under Section 6-N of the U.P. Industrial Disputes Act, 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. Sub clause 7 states that a probationer, substitute, temporary or apprentice workman may leave the service of the factory without notice, however, wages due to such workman shall be paid within two days of a demand being made by him. 35. Thus, from a careful reading of relevant clauses of the Standing Order, it is evident that the employer is under obligation to maintain the records of employment of all classes of workman, as provided in clause-B of the Standing Order. The engagement of all classes except a monthly rated workman or daily rated workman commences with the Enrollment Form-'A' as provided in the Standing Order B-2(a). Separate tickets are issued to different classes of workmen to allow them to enter inside the factory premises. These tickets bears the signature of the Manager of the factory and are provided as Form-'D' to Form-'I' in the Standing Orders. 36. Separate tickets are issued to different classes of workmen to allow them to enter inside the factory premises. These tickets bears the signature of the Manager of the factory and are provided as Form-'D' to Form-'I' in the Standing Orders. 36. In the instant case, the employers had relied on the documents appended as Annexure no.'12' to the present petition, which are engagement memo and tickets of some of the workmen as also applications moved by them to seek employment, to assert that the nature of their employment was admittedly that of substitute workmen. It is contended that tickets issued to such workmen in Form-'I' and engagement memo in Form-'B' prove that they were engaged intermittently as substitute as per the Standing Order 2-B (C) (VI), in exigency of work and their engagement was not of seasonal nature. With reference to the statement of EW-1, and the list at page no.'169' of the paper book appended with the written statement of the employer, it is vehemently contended by the learned Senior Advocate that the workmen concerned had worked in different season, as per the demand and requirements and some of them did not work at all in one or other season. Total period of engagement/employment of these workmen was not such on which, conclusion could be drawn by the Industrial Tribunal that they were seasonal workmen. 37. As far as the statement of EW-1 (witness of the employer) is concerned, his statement in paragraph no.'5' and 6' of the affidavit filed before the tribunal is relevant to be quoted here under:- “5. The management used to keep record of the attendance and payment of wages of the concerned persons in the Registers of each season. These persons used to sign on the Payment of Wages sheets against their name in lieu of having received their wages. The concerned persons were paid wages after deduction of their contribution of Provident Fund. The Company used to deposit both employer and employees' contribution with the Provident Fund authorities. 6. I have verified the List (Annexure-A) of the concerned person in the present reference from the Attendance and Payment of Wages record and Provident Fund record and find that all particulars mentioned therein including the number of days of employment of these persons as substitutes in different seasons is correct. The above said record is made available for inspection and verification.” 38. The above said record is made available for inspection and verification.” 38. A careful reading thereof indicates that the management had taken a stand that they used to keep records of attendance and payment of wages of the concerned workmen, for each season and the list brought on record of the tribunal showing the particulars of their engagement, was prepared after inspection and verification of the records before it. It was also averred that the said record would be made available for inspection and verification. From a further perusal of the documents appended as Annexure no.'12' to the present petition, it appears that different engagement memos were issued to one workman. It may be noticed that the workman namely Lekhram son of Meher Singh had been issued an engagement memo dated 16.11.1999 in Form-'B' meant for monthly paid workmen terming him as substitute workmen engaged in shift-B. Another Form-A [under Standing Order B-2(a)] was issued to him of the same date i.e. 16.11.1999 for his enrollment, which does not describe the nature of his employment in the relevant clause of the “name of the employment”. Similarly engagement memo dated 08.01.2001 (Form-B), ticket and enrollment form of the said date also show that he was though termed as substitute in the engagement memo in ticket but his nature of engagement has not been mentioned in the enrollment Form-'A' issued as per the Standing Order B-2(a). 39. It is also on record that the workman concerned had moved applications from time to time seeking employment in the factory, though terming him as substitute. There is no dispute about the fact of the date of first engagement of the workmen concerned in the factory. Most of them had been engaged as early as in the year 1995 and 1997. They had taken a categorical stand in the written statement that they had continued as seasonal workmen from the crushing season 1999-2000 till 2003-04. Their engagement was though seasonal in nature but they were termed as substitute so as to deny the benefits of the seasonal workmen. It is categorically stated in the written statement filed on behalf of the workmen that they were called for work by issuing offer letters by the employer when the season commenced. The said letter was taken from them as soon as they had joined their duties. It is categorically stated in the written statement filed on behalf of the workmen that they were called for work by issuing offer letters by the employer when the season commenced. The said letter was taken from them as soon as they had joined their duties. No appointment letter at any point of time was issued to them. They were asked to sign Form-'A' under the Standing Order B-2(a) which was meant for the seasonal employee and the said forms were kept by the employer and were in their possession. Their services were illegally terminated orally w.e.f from 21.03.2004 and they were not called for work in the next season 2004-05 despite repeated demands made by them and hence conciliation application was filed by them in the year 2004, itself. 40. In the written statement as also in the amended written statement dated 01.12.2007 filed by the employer, though a stand has been taken that most of the persons in the list had been engaged as substitute on different occasions as per provisions of the Standing Orders, which are statutory conditions of service, and that they had no right to continue in employment and in future also as their engagement would depend on requirement of the establishment, but there is no denial of the date of initial engagement of these workmen as put by them (the workmen) in the written statement. Only submission of the employer was that the list filed with the written statement of the representatives of the workmen, is a manipulated document, in as much as, the period of their employment has been concealed therein. The admitted fact of the matter, however, are that the employers did not file extract of the attendance register and wage register maintained by them as mandated under the Standing Order in respect of these workmen to prove their stand that these workmen were employed as substitute workers, as per the Standing Order and not seasonal. The documents filed by the employer as noted herein above are not sufficient proof of the workmen being substitute. More-so, in view of the fact that the plea of the workmen being seasonal is categorical and the reference was amended to include the point of determination with regard to the nature of employment on the application of the employer. The documents filed by the employer as noted herein above are not sufficient proof of the workmen being substitute. More-so, in view of the fact that the plea of the workmen being seasonal is categorical and the reference was amended to include the point of determination with regard to the nature of employment on the application of the employer. As per clause-B(I) (VI) of the Standing Order, a substitute is a workman, who is employed in place of a permanent or seasonal workman who is temporarily absent on leave or otherwise. It has not fairly disclosed by the employer nor any evidence has been brought on record so as to prove that these workmen were engaged temporarily, in exigency on account of leave or absence of a permanent or seasonal workmen, during the period of their engagement. 41. It is further submitted by the learned Senior Advocate for the petitioner that at no point of time, the Industrial Tribunal had summoned the record pertaining to attendance and wages paid to these workmen. The records were voluminous, the employer witness (EW-1) had made a categorical statement before the tribunal that the period of the engagement given in the list filed by them, was on the perusal of the records available with the employer. There was, therefore, no occasion for the tribunal to draw adverse inference against the employer so as to hold the workmen being seasonal and not substitute. The burden was upon the workmen to prove by bringing cogent evidence on record that they were engaged as seasonal workmen and had worked during the last season so as to claim re-engagement in the subsequent season. The initial burden as laid upon the workmen has never been shifted as no evidence has been brought on record. The bald statement of the workmen being seasonal in their written statement was not sufficient to shift onus upon the employer. Reference has been made to the judgment of the Apex Court as noted herein above to urge vehemently that onus had never shifted upon the employer and the tribunal had, thus, committed illegality in drawing adverse inference against them. 42. Reference has been made to the judgment of the Apex Court as noted herein above to urge vehemently that onus had never shifted upon the employer and the tribunal had, thus, committed illegality in drawing adverse inference against them. 42. Testing this submission, noticing the stand taken by the workmen that they were engaged for a sufficient long time i.e. from the crushing season 1999-2000 till 2003-04 without giving them record of engagement and there being no specific denial of the above noted averments in the written statement filed by the employer, it cannot be said that the onus would not have shifted on the employer. Initial burden laid on the workmen was discharged with the specific averments made in the written statement as noted herein above. The stand taken by the workmen that they filled enrollment Form-'A' as per clause 2(a) of the Standing Order at the time of their engagement, is substantiated from the own documents of the employer. The Form-A/enrollment form of the workmen, which has been brought on record by the employer is proof of the correctness of the statement made in paragraph no.'12' of the written statement of the representative of the workmen. The enrollment Form-A does not indicate that the nature of their engagement was that of substitute. Mere mentioning them as substitute in the engagement Form-B and ticket (Form-I) issued to them would not be a sufficient proof of the said fact. The reference was amended on the application moved by the employer and the question of nature of employment of the workmen, whether substitute or seasonal, was specific question referred to the Industrial Tribunal for determination. 43. The employers were in possession of 'best evidence' and they were under obligation to produce the same before the tribunal so as to prove the point put by them regarding the nature of engagement of the workmen being substitute. It was the stand of the employers that these workmen were substitute and not seasonal, the burden was, therefore, upon them to prove the facts pleaded by them. This onus was not discharged by bringing 'best evidence', admittedly, in possession of the employers. In such circumstances, the Court finds that the presumption drawn by the tribunal that the employer had suppressed the documents and such documents/records, if produced, would have been unfavorable to them, cannot be said to suffer from any error of law. This onus was not discharged by bringing 'best evidence', admittedly, in possession of the employers. In such circumstances, the Court finds that the presumption drawn by the tribunal that the employer had suppressed the documents and such documents/records, if produced, would have been unfavorable to them, cannot be said to suffer from any error of law. The law permits the Court to draw such a presumption when the best evidence is kept away from the Court. This rule as provided in Section 144 (g) of the Indian Evidence Act' 1872, is evidently based on the principle that no one shall be allowed to take advantage to his own wrong. Maintaining records of employment and wages of the workmen by the employer was a mandate of the Standing Orders, which provides for the conditions of employment of different classes of workmen. 44. The employer having admitted of such records being in their possession, should not have kept the records away from the court of law as such action is against the principle of public justice, and the Court, thus can draw an inference against the party not producing the records which is the best evidence. Reference may be made to the judgment of Apex Court in Union of India Vs. Mahadeo Lal Prabhu Dayal, AIR 1965 SC 1755 , Commissioner of Income Tax, Madras Vs. Best & Company, AIR 1966 SC 1325 , and of this Court in Deputy Commissioner of Sales Tax (Law) Board of Revenue (Taxes), Ernakulam Vs. Kaycee Plantations and Cannings, Trichur, 1981 AIR (SC) 0976, L.P. Naithani Vs. Allahabad Telephones, AIR 1998 Alld. 191. 45. In Union of India Vs. Rina Devi, AIR 2018 SC 2362 it has been held as under:- “........Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.” 46. The submissions that records were not summoned by the Industrial Tribunal, so it could not have drawn adverse inference so as to raise presumption of suppression of best evidence by the employer, is not acceptable for the reasoning given herein above. 47. The legal position in this regard will stand explained accordingly.” 46. The submissions that records were not summoned by the Industrial Tribunal, so it could not have drawn adverse inference so as to raise presumption of suppression of best evidence by the employer, is not acceptable for the reasoning given herein above. 47. There is one more aspect of the matter, the initial onus, though was on the workmen to establish that they were engaged continuously from one crushing season to another crushing season, but the onus looses its important when the parties have led evidence. The burden laid on the workmen to establish the factum of their engagement in the establishment was, thus, discharged. The evidence filed by the employer to prove their stand of the workmen being substitute and not seasonal, are not sufficient proof of the said fact. The reference answered by the tribunal, in favour of the workmen being seasonal, cannot be said to be wrong, in as much as, the employers have failed to prove that the workmen were substitute and not seasonal. From this angle also, no infirmity can be attached to the conclusion drawn by the labour court. 48. The judgments relied upon by the learned counsel for the petitioner on the points of burden of proof are, thus, distinguishable in the facts and circumstances of the present case. 49. In Pratap Pur Sugar & Industrial Ltd. Vs. Labour Court Gorakhpur & others, 2015 6 ADJ 131 , relied by the employer, the workman claimed to have been appointed as a seasonal workman in the crushing season 1969-70 and continued to work as such from crushing 1969-70 to 1977-78. Whereas there was a categorical denial by the employer of engagement of the workmen and only admission was that the workmen had worked for 2-3 months in the crushing season 1969-70. This Court, therefore, had inferred that at the best, engagement of the workmen during the season 1969-70 could be accepted. No conclusion could be drawn regarding his employment as a seasonal employee in the crushing season 1979-80 so as to held him entitled to be called at the start of fresh season. 50. Similarly in U.P. State Sugar Corporation Limited (supra), the facts were that the workman had worked for a short period from 01.01.1997 to 15.04.1997. No conclusion could be drawn regarding his employment as a seasonal employee in the crushing season 1979-80 so as to held him entitled to be called at the start of fresh season. 50. Similarly in U.P. State Sugar Corporation Limited (supra), the facts were that the workman had worked for a short period from 01.01.1997 to 15.04.1997. The workman though claimed continuance in the next crushing season, however, no record has been placed that he had offered himself for job and that he had worked in the previous full crushing season or in the whole of the second half of the last preceding season. In view of the said admitted facts, that have come up on record, the Apex Court has drawn the conclusion that the workmen have no right to be re-employed in the succeeding crushing season. 51. The facts of the instant case, however, are different in as much as, there is no categorical denial of the employer in the written statement regarding the submissions of the workmen of being engaged from season after season, rather they had admitted that these workmen were initially engaged somewhere in the year 1995 and had worked from the crushing season 1999-2000 till 2003-04. The dispute arose when these workmen were not offered employment in the next crushing season 2004-05. In the conciliation application, specific stand was taken by the workmen that they were replaced by 200 contract employees engaged by the workmen in the crushing season 2004-05. When these facts was denied by the employer, the workmen filed application 54-D to summon the documents pertaining to record of employment of 200 contract employees. The employers refused to produce any record despite a categorical order passed by the tribunal dated 17.11.2014 with the assertion that as no contract engagement has been made, there was no question of production of any record. At this stage, it was incumbent on the employer to produce the attendance and wage register of the workmen and if the documents were voluminous, at least, extract thereof so as to prove their stand of the workmen being substitute. 52. At this stage, it was incumbent on the employer to produce the attendance and wage register of the workmen and if the documents were voluminous, at least, extract thereof so as to prove their stand of the workmen being substitute. 52. All other judgments relied upon by the learned Senior Counsel for the petitioner on the points of burden of proof do not deserves any deliberation as those matters pertain to the requirements of the proof of 240 days of working so as to attract the provisions of 25-F of the Act' 1947. In all such matters, the Apex Court has found that the workmen did not file any evidence to prove that he had worked for more than 240 days in the year preceding his termination. The affidavit filed by the workmen cannot be regarded as sufficient evidence as no proof of receipt of salary or wages for 240 days or record of appointment or engagement for the said period was produced. The ratio of the said judgement, would not apply in the facts and circumstances of the present case, wherein repeated engagement of the workmen from season after season, was admitted to the employer and the dispute primarily was with regard to the nature of their engagement, on the plea of the employer. 53. Further, the contention of the petitioner that there was an admission in the letters written by the workmen of them being substitute workers, is also of no benefit, in view of the categorical statement of the workmen in the written statement filed before the Industrial Tribunal. The plea of inconsistency in the claim before the tribunal on that basis, is not acceptable. Mere admission that the engagement memo and the tickets were signed by the workmen is not sufficient proof of the nature of their employment, more-so in view of the specific contention of the workmen that they were engaged season after season and had worked for sufficient long time but were illegally shown as substitute so as to deny the benefits of the seasonal employees. 54. Thus, the submission of learned counsel for the respondent-workmen based on the judgment of the Apex Court in Hiralal & others (Supra) and State of Maharashtra (supra), deserves to be accepted for the reasoning given above. 55. There is one more aspect of the present dispute. 54. Thus, the submission of learned counsel for the respondent-workmen based on the judgment of the Apex Court in Hiralal & others (Supra) and State of Maharashtra (supra), deserves to be accepted for the reasoning given above. 55. There is one more aspect of the present dispute. The labour laws being beneficial pieces of legislation are to be interpreted in favour of beneficiaries. The Apex Court in S.M. Nilajkar & others Vs. Telecom District Manager, Karnataka, 2003 (4) SCC 27 has held that in case of any doubt or where it is possible to take two views, the Court would lean in favour of the weaker section i.e. the workmen. This view taken by the Apex Court has been affirmed in a later judgment in Workmen of Bhurkunda Colliery (supra) wherein the Apex Court has considered the object of industrial and labour laws and it was held that the main object of enacting industrial and labour laws is to ensure peace and harmony between the employers and the employees in the larger interest of the society. The industrial growth leading to economic prosperity largely depends on happy and healthy relationship between employers and employees. 56. The social and economic upliftment of the labour is absolutely imperative for securing industrial peace. Security of tenure is essential for an employee so that he can give his best to the job. It was then observed that it is the bounden duty of the Court to give expression to the legislative intention for creating a healthy environment leading to proper understanding and cooperation and in true sense a partnership between the employer-employees in case of industrial disputes. Noticing the report of the National Commission on Labour published by Ministry of Labour, Employment and Rehabilitation in 1969, it has been held in paragraph no.18 to 21 as under:- “18. It is also our bounded duty to give expression to the legislative intention for creating a healthy environment leading to proper understanding and cooperation and in true sense a partnership between the employers and the employees in cases of industrial disputes. 19. The report of the National Commission of Labour published by Ministry of Labour, Employment and Rehabilitation in 1969 has dealt with the aspect of industrial peace and harmony. 19. The report of the National Commission of Labour published by Ministry of Labour, Employment and Rehabilitation in 1969 has dealt with the aspect of industrial peace and harmony. It will be appropriate to recapitulate some aspects of that report: According to the philosophy of the First Five Year Plan, peace in industry “has a great significance as a force for world peace if we consider the wider implications of the question. The answer to class antagonisms and world conflicts will arrive soon if we succeed in discovering a sound basis for human relations in industry. Economic progress is also bound up with industrial peace. Industrial relations are, therefore, not a matter between employers and employees alone, but a vital concern of the community which may be expressed in measures for the protection of its larger interests. A quest for industrial harmony is indispensable when a country plans to make economic progress. It may sound platitudinous but it is nevertheless true that no nation can hope to survive in the modern technological age, much less become strong, great and prosperous, unless it is wedded to industrial development and technological advance. Economic progress is bound up with industrial harmony for the simple reason that industrial harmony inevitably leads to more cooperation between employers and employees, which results in more productivity and thereby contributes to allround prosperity of the country. Healthy industrial relations, on which industrial harmony is founded, cannot therefore be regarded as a matter in which only the employers and employees are concerned; it is of vital significance to the community as a whole. That is how the concept of industrial harmony involves the cooperation not only of the employers and the employees, but also of the community at large. This cooperation stipulates that employees and employers recognise that though they are fully justified in safeguarding their respective rights and interests, they must also bear in mind the interests of the community. In other words, both employers and employees should recognise that as citizens they ought not to forget the interests of the community. If this be the true scope of the concept of industrial harmony, it follows that industrial harmony should and ought to emphasise the importance of raising productivity, because the resulting accelerated rate of growth will lead to the good of the community as a whole. If this be the true scope of the concept of industrial harmony, it follows that industrial harmony should and ought to emphasise the importance of raising productivity, because the resulting accelerated rate of growth will lead to the good of the community as a whole. That, we consider, is the true significance of the doctrine of industrial harmony in its three dimensional aspect. It is plain that in order to create a proper climate for industrial harmony and to cultivate proper attitudes in the minds of the employees and the employers alike, it is essential that employees must be well organized and trade unionism must become strong. Employers must be progressive and must recognize whole heartedly the validity of the doctrine that they and their employers are partners in the adventure of the growth of the industrial life of the country. The history of the trade union movement in the world shows that healthy and proper attitudes are not easily born and the trade union movement does not become strong without resistance from the employers, and such resistance leads to a long and bitter strife. Quest for industrial harmony has thus been sometimes stalled or delayed or frustrated by struggles between the employers and the employees. The growth of industrial jurisprudence in India, subsequent to 1950, bears close resemblance to the growth of Constitutional Law in relation to the fundamental rights guaranteed to the citizens. The industrial jurisprudence, likewise, seeks to evolve a rational synthesis between the conflicting scheme of the employers and employees. In finding out solutions to industrial disputes great care is always taken, as it ought to be, to see that the settlement of industrial disputes does not go against the interests of the community as a whole. In the decision of major industrial disputes, three facts are thus involved. The interests of the employees which have received constitutional guarantees under the Directive Principles, the interests of the employers which have received a guarantee under Article 19 and other Articles of Part III, and the interests of the community at large which are so important in a Welfare State. It is on these lines that industrial jurisprudence has developed during the last few decades in our country. 20. It is on these lines that industrial jurisprudence has developed during the last few decades in our country. 20. When we modulate our thinking process and attitude according to the underlying philosophy of Industrial and Labour jurisprudence and apply the laws meant for industrial peace and harmony, then the conclusion becomes irresistible that the employees who have been working since 1973-74 required to be regularized as expeditiously as possible. 21. Both employers and employees have their respective obligations. They must have the appreciation of each other’s responsibilities, duties and obligations. The Trade Union and Labour Union should understand and appreciate the fact that Labour is not a commodity nor is it a mere supply of Labour force at the management's disposal. Essentially, Labour is the real basis that underlines the production of goods and services. Through the work should the human personality and its sense of responsibility be able to unfold, management should appreciate this and always attribute its success to the trained and effective labour force. It must be understood by all concerns that both the employees and employers are vital for any industry and unless there is proper coordination, a smooth functioning of any industry would be difficult.” 57. In a later judgment in Harjinder Singh (supra), the Apex Court has reminded the object of the industrial disputes Act and other similar legislation with the observations that while exercising jurisdiction under Article 226/ or 227 of the Constitution in the matters of interference in the award of reinstatement passed by the labour court, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. (underline by me). 58. (underline by me). 58. Laying emphasis on the judgments of the Apex Court on the concept of social and economic justice being significant to the ideal of welfare state in State of Mysore Vs. Workers of Gold Mines, AIR 1958 SC 923 , Y.A. Mamarde Vs. Authority under the Minimum Wages Act, 1972 (2) SCC 108 , The Manager, Government Branch Press & another Vs. D.B. Belliappa, 1979 (1) SCC 447 M/s Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court Meerut & others, 1984 (1) SCC 1 , LIC of India & another Vs. Consumer Education & Research Centre & others, 1995 (5) SCC 1982, and Ramon Services Pvt. Ltd. Vs. Subhash Kapoor & others, 2001 (1) SCC 118 , it was held that in a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. There has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations with globalization and liberalization and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. But the courts cannot be unmindful of the accountability of the wrong doer and indirectly punish the tiny beneficiary of the wrong ignoring the fact that he/they may have continued in the employment for years together and has not received his/their dues. The approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer -public or private. The observations in paragraph nos. 19 and 23 of Harjinder Singh (supra), are extracted herein under:- “19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States. 23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating bylanes and sidelanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer public or private.” 59. In his concurring judgment in Harjinder Singh (supra) Justice Ashok Kumar Ganguli has said that the Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so, the Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate. The Judges are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. Any attempt to dilute the constitutional imperatives in order to promote the so called trends of "Globalization", may result in precarious consequences. Judges' duty is to uphold the constitutional focus on social justice without being in any way misled by the glitz and glare of globalization. The observations in LIC of India (supra) as noted in Harjinder Singh (supra), are also relevant to be extracted hereunder:- “49. The authorities or a private persons or industry are bound by the directives contained in part IV, Part III and the Preamble of the Constitution. The observations in LIC of India (supra) as noted in Harjinder Singh (supra), are also relevant to be extracted hereunder:- “49. The authorities or a private persons or industry are bound by the directives contained in part IV, Part III and the Preamble of the Constitution. It would thus be clear that the right to carry on trade is subject to the directives containing the Constitution the Universal Declaration of Human Rights, European Convention of Social Economic and Cultural right and the Convention on Right to development for socioeconomic justice. Social security is a facet of socioeconomic justice to the people and a means to livelihood.” 60. Having noticed the said position pertaining to interpretation of the labour laws, the last question which arises for consideration is whether the finding of fact recorded by the tribunal can be interfered within the scope of judicial review under Article 226 of the Constitution of India. The Apex Court has laid down the law for exercise of jurisdiction by the High Court under Article 226/227 of the Constitution in Syed Yakoob vs K.S. Radhakrishnan & Others, 1964 AIR SC 477 and Surya Dev Rai Vs. Ram Chander Rai & others, 2003 (6) SCC 675 and said that the findings of fact recorded by the tribunal can be interfered, in a case where tribunal had erroneously refused to admit admissible evidence and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if the finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. However, the Court must bear in mind that a finding of fact recorded by the tribunal cannot be challenged in a proceeding for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal and the said point cannot be agitated before the writ court. Meaning thereby, if two views are possible on the same sets of evidence, the writ court would lean in favour of the view taken by the tribunal to return the findings of facts on the evidence before it. 61. Meaning thereby, if two views are possible on the same sets of evidence, the writ court would lean in favour of the view taken by the tribunal to return the findings of facts on the evidence before it. 61. The Industrial Tribunal, in the instant case, has recorded a categorical finding of fact that as per the Standing Order, the employers were under obligation to maintain the register of substitute workers to record the details of their engagement, as per the exigency of work. Thus, registers were admittedly, available with the employers but were deliberately withheld from the Court. The adverse inference drawn by the labour court that in case those documents would have been produced before it, would be unfavourable to the employer and as such they had deliberately withheld it, cannot be said be a perverse finding. 62. For the discussion made above, no inference, is warranted in exercise of judicial review under Article 226 of the Constitution of India. 63. From all angles, the award passed by the Industrial Tribunal does not find any interference. 64. Lastly, taking clue from the directions of the Apex Court in Morinda Corporation Sugar Mills Ltd. Vs. Ram Kishan & others, 1995 (5) SCC 653 , the petitioner-employer herein is directed to maintain a register for all workmen noticing that the nature of the employment of the workmen was for seasonal work. It is further directed that the petitioner-employer shall intimate all the workmen when the new season starts and if they would report for duty, the petitioner would engage them in accordance with their seniority and exigency of service. 65. With the above, the writ petition is dismissed. 66. No order as to costs.