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2022 DIGILAW 998 (ALL)

Upper Doab Sugar Mills v. State of U. P.

2022-07-04

JAYANT BANERJI

body2022
JUDGMENT : Jayant Banerji, J. The first above writ petition has been filed by the employer seeking quashing of the award made by the Labour Court, Saharanpur in Adjudication Case No. 84 of 2013 which was pasted on the notice board of the Labour Court, Saharanpur on 6.1.2016. By means of the aforesaid award, the respondent No. 3-Virendra Singh (the workman) was directed to be reinstated to the post of Cane Assistant/Worker or any equivalent post from the first day of crushing season 2015-16 and from the date of reinstatement, the workman was to be paid the due wages and all benefits. 2. The second above writ petition has been filed by the workman of the first above writ petition seeking quashing of the aforesaid award made by the Labour Court, Saharanpur in Adjudication Case No. 84 of 2013 to the extent it denies the salary of the workman from the date of termination till the date of appointment. Further relief sought is for a direction commanding the respondents to pay the petitioner his regular salary. 3. The facts in brief are that Upper Doab Sugar Mills at Shamli (the Unit) and Unn Sugar Complex at Unn Block, Unn are two Sugar Units of Sir Shadi Lal Enterprises Limited, a company registered under the Companies Act which, amongst other activities, is engaged in manufacture of crystal sugar through vacuum pan process. It is a seasonal industry and normally works from November to April. In view of the different nature and requirement of works in this industry, the engagement of employees in the factory is of casual, temporary, probationers, seasonal and permanent in nature. The relationship between sugar factories and its employees is regulated and governed under the Standing Orders Governing the Conditions of Employment of Workmen in Vacuum Pan Sugar Factories of Uttar Pradesh (Standing Orders), which Standing Orders have been made and published by the Government of Uttar Pradesh in exercise of powers under clause (b) of Section 3 of U.P. Industrial Disputes Act, 1947. Given the nature of the industry, depending upon the supply of sugarcane, the number of employees and the workmen required fluctuates from year to year. As per the exigencies of work, the workmen can be transferred from one unit of the company to the another unit. 4. Given the nature of the industry, depending upon the supply of sugarcane, the number of employees and the workmen required fluctuates from year to year. As per the exigencies of work, the workmen can be transferred from one unit of the company to the another unit. 4. The workman was initially appointed as Runner (Seasonal) in a Sugar Division of a company, M/s. Monnet Industries Limited at Block Unn, on 14.5.1999. The aforesaid sugar division which was a unit of M/s. Monnet Industries Ltd. was purchased on 24.9.2007 by M/s. Sir Shadi Lal Enterprises Ltd. and the name of that unit was changed to Unn Sugar Complex, a unit of M/s. Sir Shadi Lal Enterprises Ltd. It is alleged that on 30.11.2007, the workman was granted fresh fitment and was promoted to the post of Cane Assistant by the petitioner-company and his terms and conditions remain unaltered and governed by his initial appointment letter dated 14.5.1999. Since there was a requirement of seasonal weighment clerk at the Unit from the start of the crushing season 2010-11, therefore, the workman was transferred on 14.6.2010 from Unn Sugar Complex to the Unit. It is stated in the first above writ petition that the liability of the workman for being transferred was reflected in his initial appointment letter dated 14.5.1999. The total emoluments of the workman were increased by the Unit. However, the workman instead of joining his duties at the Unit, disputed his transfer and insisted on being retained as Cane Assistant at Unn Sugar Complex by means of a communication dated 18.10.2010. A reply dated 25.10.2010 was sent to the workman stating the reason for his transfer to the Unit. The workman did not join his duties at the Unit despite the letter dated 25.10.2010. It is stated in the first above writ petition that the crushing season 2010-11 commenced on 24.11.2010 and a call letter was sent to the workman on 13.11.2010 and notice for commencing of crushing season 2010-11 was also published in the newspaper on 18.11.2010. However, the workman did not join or report for work at the Unit. Letters dated 6.12.2010 and 27.12.2010 were sent to the workman by registered post in which it was stated that since he did not join/report for work at the Unit, therefore, he lost his lien on the appointment. However, the workman did not join or report for work at the Unit. Letters dated 6.12.2010 and 27.12.2010 were sent to the workman by registered post in which it was stated that since he did not join/report for work at the Unit, therefore, he lost his lien on the appointment. Thereafter, a dispute was raised by the workman and thereafter, the Deputy Labour Commissioner, U.P. Saharanpur referred the industrial dispute for adjudication to the Labour Court. After exchange of pleadings, filing evidence and arguments, the impugned award was made. 5. In the second above writ petition, the workman has alleged violation of the principles of natural justice by the Unit by terminating his services on 6.12.2010 without affording any opportunity of hearing. It is contended that no domestic inquiry was held before terminating the services of the workman. 6. Shri Diptiman Singh, learned counsel for the Unit has contended that the workman was liable to be transferred by the Management and clause (K) of the Standing Orders permits such transfer. It has been stated that in view of clause (E) of the Standing Orders where, despite notice and its publication, the workman does not join his duties within seven days of the date notified to him, he shall lose his lien on the employment. 'Workman' has been defined at serial No. 1 of clause (A) of the Standing Orders and the classification of the workman is provided in clause (B). Seasonal workman is a classification recognised in the Standing Orders and he is one who is engaged only for the crushing season. The term 'crushing season' is defined in clause (i) of Section 2 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, which is as follows : ''(i)- Crushing season means the period beginning on the 1st October in any year and ending on the 15th July next following;'' 7. The contention is that in the award, despite the transfer order dated 14.6.2010 having been held to be valid, and the order sent to workman on 6.12.2010, that he had lost his lien to the employment in terms of clause (E) of the Standing Orders, not having been set aside, and no finding with regard to the invalidity of the aforesaid order dated 6.12.2010 being made, the Labour Court has, without answering the reference, ordered reinstatement of the workman. It has been further contended that when a clear finding has been returned by the Labour Court that the workman had voluntarily not joined services, then relief for reinstatement cannot be granted to him. In support of his contentions, the learned counsel for the petitioner has relied upon the judgments of the Supreme Court in the cases of Tata Iron and Steel Company Ltd. v. State of Jharkhand and others, (2014) 1 SCC 536 ; Oshiar Prasad and others v. The Employers in relation to Management of Sudamdih Coal Washery of M/s. BCCL, Dhanbad, Jharkhand, (2015) 4 SCC 71 ; Uttar Pradesh State Sugar Corporation Ltd. v. Niraj Kumar and others, (2009) 14 SCC 712 ; Bhogpur Co-operative Sugar Mills Ltd. v. Harmesh Kumar, 2006 (111) FLR 1202 ; Addisons Paints & Chemicals Ltd. v. Workmen and another, (2001) 2 SCC 289 ; Viveka Nand Sethi v. Chairman, J& K Bank and others, (2005) 5 SCC 337 and the judgment dated 17.1.2011 passed by this Court in the matter of M/s. Pilkhani Distillery and Ehemical Works Pilkhani v. Presiding Officer, Labour Court, Meerut and others, Writ-C No. 16571 of 1995. 8. Shri Alok Kumar Srivastava, learned counsel and Shri Subhash Chandra Maurya, holding brief of Shri Vikas Gupta, learned counsel for the workman have stated that the workman was transferred from one unit to another unit only to victimise him as he had taken part in some union activities. It has been stated that the workman had no knowledge of working of a weighment clerk and as such he had written a letter dated 18.10.2010 that his services may not be altered. It was in retaliation that he was transferred from Unn to Shamli. It has also been stated that the services of the workman were illegally terminated against the provisions of the U.P. Industrial Dispute Act and without affording any opportunity of hearing and as such he was entitled to be reinstated in service. The learned counsel has referred to clause 12 of the appointment letter of the workman that appears as Annexure-2 to the first above writ petition in which it has been stated that his services are liable to be transferred to any of the Establishment of the company/any company in the Monnet Group anywhere in India at the discretion of the Management. It has been stated that the aforesaid transfer would not apply in the case where the transfer takes place between one company to another as has been done in the present case. It has been stated that the termination order dated 6.12.2010, enclosed as Annuexure-8 to the first above writ petition, has been passed without conducting any inquiry and he was entitled to work in the crushing season 2010-11 in Unn Sugar Complex and not in the Unit. The learned counsel has referred to the cross-examination of the employer's witness on behalf of the Unit to point out that the document filed in the list of documents as E-9 was the newspaper cutting for start of the crushing season 2010-11 but there was no service of the letter dated 13.11.2010 regarding the commencement of crushing season on the workman either through peon or by registered post. It has been contended that due notice/opportunity was required to be given which was not done in the case of the workman and as such the award impugned deserves to be quashed with full wages to the workman from the date of his termination. In support of his contentions, the learned counsel has relied upon the judgments in the case of Jai Bhagwan v. Management of the Ambala Central Cooperative Bank Ltd. and another, (1983) 4 SCC 611 ; Delhi Cloth and General Mills Company Ltd. v. The Workmen and others, AIR 1967 SC 469 ; D.K. Yadav v. J.M.A Industries Ltd., (1993) 3 SCC 259 ; Kundan Sugar Mill v. Ziyauddin and others, AIR 1960 SC 650 and the judgment dated 14.5.2013 in the matter of General Manager, M/s. U.P. State Sugar Corporation and another v. State of U.P. and others, 2013 (4) ESC 1993 (All). 9. A perusal of the record reveals that the industrial dispute that was referred for adjudication was as follows : ^^D;k eSllZ ljlknh yky ,.VjçkÃtst fy-A ;wfuV vij nksvkc 'kqxj fey] 'kkeyh ds lsok;kstd }kjk vius deZpkjh Jh ohjsUnz flag iq= Jh yky flag] xUuk lgk;d dh lsok;sa fnukad 06-12-2010 ls lekIr fd;k tkuk mfpr ,oa oS/kkfud gSA ;fn ugha rks lacaf/kr deZpkjh fdlh vkuqrks"k dks çkIr djus dk vf/kdkjh gS\** 10. The Labour Court, after considering the rival contentions and the evidence on record, noticed that the workman was transferred to the Unit on the post of weighment clerk but he did not join his post at the transferred place. Thereafter, for the season 2010-11, another letter dated 13.10.2010 was issued by the Unit and publication was also made, but, the workman did not join his work in the Unit. Therefore, he lost his lien on the appointment and he was accordingly informed by means of a letter dated 6.12.2010. The Labour Court held that the transfer of the workman to the Unit was valid. However, it went on to hold that the stoppage of services of the workman with effect from 6.12.2010 came under the category of gravest penalty and, therefore, his services ought not to have been stopped. It held that the workman ought not to have been promoted and could have been kept on the post of runner by the Unit. The Labour Court, accordingly, held that the workman be placed on the post of cane runner or its equivalent post in respect of the year 2015-16 and for the crushing season 2015-16, he be given wages and other benefits from the date of his assuming charge. The Labour Court also held that after his transfer, the workman had voluntarily not worked from the crushing season 2010-11 and, accordingly, no wages or other allowances or consequential benefits thereof were payable to him with effect from the crushing season 2010-11 till the date of his again assuming charge on the post. 11. The order of transfer of the workman to the Unit was upheld by the Labour Court and the finding to that effect has not been challenged by the workman before this Court. The communication dated 14.6.2010, whereby the services of the workman were transferred from Unn Sugar Complex to the Unit from the start of the crushing season 2010-11, also mentioned the designation, salary and other emoluments of the workman that were refixed. This letter is on record as Annexure-4 to the first above writ petition and the validity of this transfer has been upheld. However, the reference required adjudication of the validity of the termination of service of the workman with effect from 6.12.2010, which has evidently not been done. 12. This letter is on record as Annexure-4 to the first above writ petition and the validity of this transfer has been upheld. However, the reference required adjudication of the validity of the termination of service of the workman with effect from 6.12.2010, which has evidently not been done. 12. It is pertinent to mention here that by a letter dated 18.10.2010, the workman represented to the employer for reconsideration of the letter dated 14.6.2010 pleading his inability to function on the post of weighment clerk. By a letter dated 25.10.2010, the employer sought to allay the apprehension of the workman stating that the transfer had been made as per requirement and was based on the qualification and ability of the workman. In this letter, it was also mentioned that in case the workman finds himself unable to work on the post of weighment clerk, he would be required to work on unskilled post of peon with the employer company. Given the terms of his appointment, the finding of the Labour Court regarding the transfer of the workman being valid, cannot be faulted. 13. On record is a newspaper publication regarding start of the crushing season 2010-11 with effect from 24.11.2010 and informing of seasonal workmen to join their duties accordingly. By the letter dated 6.12.2010, the workman was informed that he had not joined duty as weighment and sheet writing clerk in the Unit till that date and 13 days had already passed and neither was there any information received from the workman. It was further mentioned in the letter that in terms of the clause (E) of the Standing Orders, the workman had lost his lien on the appointment. It was also informed that he should obtained the details of his account from the Accounts Department. By another letter dated 27.12.2010, the workman was informed about the payments due to him which were being sent by registered post. 14. At this juncture, it is pertinent to refer to the relevant Standing Order 'E', on the basis of which the workman purportedly lost his lien on the appointment, which was communicated to him by means of the letter/order dated 6.12.2010. 14. At this juncture, it is pertinent to refer to the relevant Standing Order 'E', on the basis of which the workman purportedly lost his lien on the appointment, which was communicated to him by means of the letter/order dated 6.12.2010. The Standing Order 'E' reads as follows- ''E. Closure or Re-opening of a Factory or a Department or a Section of Department of a Factory: Notice for closure and re-opening.- As far as possible, a notice will be given in advance of the approximate date of closure or re-opening of a factory or any department or section of a department or a factory except as provided in Standing Order J(1). Notice of commencement of the season. The Manager shall intimate in writing the date of commencement of the crushing season of a factory to the Labour Commissioner, the Regional Conciliation Officer of the area and to all registered trade unions of its workmen and also publish the date in the local newspapers. A copy of the general notice shall be pasted on the Notice Board. Intimation will be given by the management to each individual workman by registered post at least ten days in advance informing him of the date on which he has to report himself for duty. Such intimation may be sent through messenger to workmen available locally and an acknowledgement obtained from them in the peon book. In case the workman does not join his duties within seven days of the date notified to him he shall lose his lien on the appointment.'' The alleged loss of lien to the employment, by which a serious civil consequence visited the workman, arose where he did not join his duties within seven days of the date allegedly notified to him with regard to the date of commencement of the crushing season of the Unit. The Manager of the Unit is enjoined to intimate in writing the date of commencement of the crushing season of a factory to the Labour Commissioner, the Regional Conciliation Officer of the area and to all registered trade unions of its workmen and also publish the date in the local newspapers. The Manager of the Unit is enjoined to intimate in writing the date of commencement of the crushing season of a factory to the Labour Commissioner, the Regional Conciliation Officer of the area and to all registered trade unions of its workmen and also publish the date in the local newspapers. A copy of the general notice is also required to be pasted on the Notice Board and intimation is mandated to be given by the management to each individual workman by registered post at least ten days in advance informing him of the date on which he has to report himself for duty. Such intimation to the workmen may be sent through messenger where the workmen are available locally and acknowledgement obtained from the workmen in the peon book. That is to say, where the workmen are not available locally then the intimation of the date of the commencement of the crushing season has to be sent through registered post. 15. In his written statement, it has been categorically mentioned by the workman that the employers had, under a conspiracy, dispensed his the services in a wholly illegal manner without levelling any charge on the workman or holding a domestic inquiry and without complying with the Standing Orders. It was also stated that the employers have violated the principles of natural justice. Admittedly, the intimation allegedly sent on 13.11.2010 to the workman regarding the date of commencement of the crushing season of the Unit was filed on behalf of the Unit as 'E-8' in the list of documents filed by it and the so-called newspapers cutting of the 'Dainik Jagran' and 'Amar Ujala' for start of the crushing season 2010-11 was listed as 'E-9'. In the cross-examination of the employer's witness, Shri Umesh Kumar Kaushik, who appeared on behalf of the Unit, it appears that the newspapers in which the aforesaid intimation was published was never filed in original and thus, were not exhibited. On page No. 119 of the first writ petition, which is part of his cross-examination, the Unit's witness states that in the documents that had been filed, the originals of the newspapers had not been brought on that day. On page 122, the witness on behalf of the Unit in his cross-examination, while referring to the documents 'E-8' and 'E-9', states that no postal receipts of the documents sent by registered post had been filed. On page 122, the witness on behalf of the Unit in his cross-examination, while referring to the documents 'E-8' and 'E-9', states that no postal receipts of the documents sent by registered post had been filed. It has also been stated by that witness that service by peon book was not done. In view of the aforesaid testimony of the witness on behalf of the Unit, notice of intimation of commencement of the crushing season to the workman, prima facie, is not proved. However, it is noticed that despite the aforesaid evidence being on record, the Labour Court has not recorded any finding on the same. Further, the subsequent intimation sent by the letter dated 6.12.2010 to the workman has merely been referred by the Labour Court to be an extreme punishment, without recording any finding as to the validity of that letter dated 6.12.2010. The Labour Court has failed to advert itself to the validity of the service of the alleged notice dated 13.11.2010 as well as the newspaper publications that were filed on behalf of the Unit as documents 'E-8' and 'E-9' which were the basis of the issuance of the letter dated 6.12.2010. As such the impugned award is arbitrary and suffers from non-application of mind and the reference has not been answered in accordance with law. 16. For the reasons aforesaid, the award made by the Labour Court, Saharanpur in Adjudication Case No. 84 of 2013 which was published on 6.1.2016, cannot be sustained and is hereby quashed. The matter is remitted to the Labour Court to pass a fresh award and to answer the reference on merits on the basis of the material on record. 17. The aforesaid writ petitions are, accordingly, disposed of.