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Allahabad High Court · body

2023 DIGILAW 1985 (ALL)

U. P. State Sugar Corp. v. Dhirendra Kumar Singh

2023-08-18

IRSHAD ALI

body2023
JUDGMENT : 1. Heard Shri P.K. Sinha, learned counsel for the petitioners and Shri P.N. Singh, learned counsel for the respondents. 2. By means of the present writ petition, the petitioners have prayed for the following reliefs: (i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned award dated 21.4.2004 passed by the opposite party no.2 as contained in Annexure No. 1 to this writ petition. (ii) Issue a writ order or direction in the nature of Mandamus restraining the respondents in any manner from executing, implementing the impugned award as contained in Annexure-1 to this writ petition. (iii) Pass such other orders or directions which this Hon’ble Court deem fit and proper in the circumstances of the case in favour of the petitioners. (iv) Allow the writ petition with cost in favour of the petitioners. 3. Facts of the case are that the U.P. State Suger Corporation is a company registered under Section 617 of the Company’s Act and the same has its various industrial units located in various parts of the State of U.P. manufacturing sugar by vacuum pan process. The petitioner no.1 is one of such industrial units of petitioner no.2 situated at Kasba Jarwal Road, Bahraich manufacturing sugar by vacuum pan process. The petitioners are public sector holding companies of the State of U.P. The opposite party no.1 raised an industrial dispute before the authority designated under the U.P. Industrial Disputes Act, 1947 that his services have been illegally and arbitrarily terminated with effect from 14.11.1994 from the services of the petitioner no.1 where he was working in the factory as Magmaman. The State Government referred the matter for adjudication to the opposite party no.2 where the same was registered as Adjudication Case No.13 of 1996. Opposite party no.1 filed written statement before the opposite party no.2 wherein the opposite party no.1 claimed the declaration and cancellation of oral termination of the services of the opposite party no.1 with effect from 14.11.1994 and further sought a declaration that opposite party no.1 be declared to be continuing as working on the post of Magmaman continuously since 14.11.1994 and further that the opposite party no.1 may be declared as permanent seasonal Magmaman. Petitioner no.1 also filed the written statement before opposite party no.2 on 9.8.1996 wherein it has been stated that opposite party no.1 is not entitled for any notice in view of Standing Order L-3 nor he was required to be paid salary in view of notice. It has also been stated that the petitioners were entitled to engage persons on daily wage basis and opposite party no.1 has not completed 240 days. Rejoinder reply was filed by opposite party no.1 wherein he has reiterated his allegation as made in the written statement. On behalf of opposite party no.1, opposite party no.1 examined himself and on behalf of petitioner no.1 the time keeper Sri Nand Kishore was examined. The matter was heard by the opposite party no.2 but failed to appreciate the true facts as stated by the parties. The opposite party no.2 failed to appreciate that the terms and conditions of employment of workman in the Sugar Industry manufacturing sugar by Vacuum Pan Process is governed by the Standing Order issued under Section 3b of the U.P. Industrial Disputes Act, 1947 but the opposite party no.2 in most illegal and arbitrary manner passed the impugned award against the petitioners. Hence this writ petition. 4. Learned counsel for the petitioners submitted that opposite party no.2 altogether failed to appreciate the fact that under Standing Order as applicable to the Vacuum Pan Industries there is no provision for conversion of status of workman. He next submitted that opposite party no.2 also failed to appreciate that once a workman is engaged as casual or permanent he has to continue with the said status till employer changes his status in its own discretion. 5. Learned counsel for the petitioners next submitted that opposite party no.2 exceeded his jurisdiction in treating the declaring the opposite party no.1 as Seasonal Workman although the opposite party no.1 himself admitted that he was daily wager engaged on availability of work. 6. Learned counsel for the petitioner next submitted that opposite party no.2 failed to appreciate that no notice is required to be given for terminating the services of the casual workman until the workman qualifies to be entitled to get a notice under Section 6-N of the U.P. Industrial Disputes Act. 7. 6. Learned counsel for the petitioner next submitted that opposite party no.2 failed to appreciate that no notice is required to be given for terminating the services of the casual workman until the workman qualifies to be entitled to get a notice under Section 6-N of the U.P. Industrial Disputes Act. 7. Learned counsel for the petitioner next submitted that opposite party no.2 failed to appreciate the relevant facts that opposite party no.1 was not getting the retaining allowance nor he was ever claimed for the same and as such, he was not a Seasonal Workman. 8. Learned counsel for the petitioner next submitted that opposite party no.2 also failed to appreciate that in the beginning of the season notice is always sent to all the Seasonal Workmen of the factory which opposite party no.1 has specifically admitted in his statement that same has not been sent to him and as such, the inference of opposite party no.1 being a Seasonal Workman by the opposite party no.2 is conjectures, illegal and without any evidence on the basis of which the opposite party no.1 could have been declared Seasonal Workman. 9. Learned counsel for the petitioner lastly submitted that opposite party no.1 has nowhere stated that he has worked during off after March, 1994 to 14.11.1994 and as such, the finding to the effect that services of the respondent no.1 were terminated on 14.11.1994 is illegal and arbitrary. 10. Per contra, learned counsel for the opposite parties submitted that prior to passing of the termination order dated 14.11.1994 neither notice nor salary of one month’s period has been given, therefore award passed by the Labour Court in favour of respondent no.1 is just and proper and is not required to be interfered with. 11. Learned counsel for the respondent no.1 next submitted that the Labour Court has not committed any error of law or jurisdiction in passing the award which is based on the Standing Orders. 12. I have considered the submissions advanced by learned counsel for the parties as well as law report cited by learned counsel for the petitioner. 13. Learned counsel for the petitioner has relied upon the judgment in the case of U.P. State Sugar and Cane Development Corporation Limited (supra), operative portion of which is extracted hereinbelow: "22. 12. I have considered the submissions advanced by learned counsel for the parties as well as law report cited by learned counsel for the petitioner. 13. Learned counsel for the petitioner has relied upon the judgment in the case of U.P. State Sugar and Cane Development Corporation Limited (supra), operative portion of which is extracted hereinbelow: "22. From the facts as set out hereinabove and the submissions made by the respective parties, we are left to decide the question as to whether even in the light of the Tribunal’s finding that the work performed by Respondents 2-15 was of a permanent nature on account whereof their services were required throughout the year, it could have declared the said workmen to be permanent or whether such declaration amounted to usurpation of the management’s functions which were beyond its powers. 23. That there are different categories of workers employed in the sugar industries, and, in particular, during the crushing season, is not disputed by any of the parties. It is not denied that part from the permanent workmen, the other categories of workmen are employed during the crushing season which begins in the month of October in a given year and continues till the month of April of the following year. It is the period during which the sugarcane crop is harvested, and, thereafter, transported to different mills where they are crushed for production of sugar. Admittedly, as will appear from Standing Order 2, a muster roll of all employees, who are not permanent, is maintained by the different sugar mills and at the beginning of the crushing season the seasonal labour who had worked during the previous crushing season are asked to join their duties for the crushing season in their old jobs. It is also not denied that the pay scales of the different categories of workmen are different. 24. It has been submitted on behalf of the appellant that even when the seasonal workmen are employed during the off season, they are paid the same wages as are paid to them during the crushing season, which is one of the basic distinctions between them and the permanent workmen who are on the rolls of the sugar mills. 25. 24. It has been submitted on behalf of the appellant that even when the seasonal workmen are employed during the off season, they are paid the same wages as are paid to them during the crushing season, which is one of the basic distinctions between them and the permanent workmen who are on the rolls of the sugar mills. 25. It is also an admitted position that in terms of the policy followed by the sugar mills, promotions are given from one category to the next higher category depending on the number of vacancies as are available at a given point of time. Even in the instant case, of the 39 workmen referred to in the terms of reference, 13 had been made permanent by the appellant which supports the case of the appellant that promotion is given from one category to the higher categories as and when vacancies are available and that such function was clearly a managerial function which could not have been discharged by the Labour Court. 26. We are in the agreement with the views expressed by the Constitution Bench of this Court in Brooke Bond case as also those of the three-Judge Bench in hindustan Lever Ltd. In our view, this is not a case of fitment depending on the nature of the work performed, but a case of promotion as and when vacancies are available. Both the Labour court as well as Hon’ble Court do not appear to have considered this aspect of the matter with the attention it deserved and proceeded on the basis that this was a case where respondents 2-15 had been denied their right to be categorised as permanent workmen on account of the nature of the work performed by them throughout the year. The High Court has, in fact, merely relied on the findings of the Labour Court without independently applying its mind to the said respect of the matter." 14. Perusal of the above-extracted order reveals that promotion is given from one category to the higher categories as and when vacancies are available and that such function was clearly a managerial function which could not have been discharged by the Labour court. 15. Perusal of the above-extracted order reveals that promotion is given from one category to the higher categories as and when vacancies are available and that such function was clearly a managerial function which could not have been discharged by the Labour court. 15. In the case in hands, the opposite party no.1 raised an industrial dispute on the ground that his services have been illegally and arbitrarily terminated with effect from 14.11.1994 from the services of the petitioner no.1 where he was working in the factory as Magmaman. State Government referred the matter to opposite party no.2 where the same was registered as Adjudication Case No.13 of 1996 in which the opposite party no.2 has been pleased to declare that the opposite party no.1 is entitled to get the benefits of retrenched workman under Section 6-N of the U.P. Industrial Disputes Act, 1947. 16. I have examined the material on record in the light of the law report cited by learned counsel for the petitioner. 17. The opposite party no.1 has not completed 240 days and he was not a seasonal workman as have been averred in the written statement filed by the petitioner no.1. Working for more than 240 days in a year was relevant only for the purpose of application of Section 6-N of the U.P. Industrial Disputes, 1947 providing for conditions precedent to workman to retrench the workman. It does not speak of acquisition of a right by the workman to be regularized in service. In this view of the matter, Labour Court while passing the impugned award, has not considered this aspect that the opposite party no.1 has not completed 240 days’ working in a year. 18. It is not denied that part from the permanent workmen, the other categories of workmen are employed during the crushing season which begins in the month of October in a given year and continues till the month of April of the following year. It is the period during which the sugarcane crop is harvested, and, therefore, transported to different mills where they are crushed for production of sugar. 19. It is the period during which the sugarcane crop is harvested, and, therefore, transported to different mills where they are crushed for production of sugar. 19. Admittedly, as will appear from Standing Order 2, a muster roll of all employees, who are not permanent, is maintained by the different sugar mills and at the beginning of the crushing season the seasonal labour who had working during the previous crushing season are asked to join their duties for the crushing season in their old jobs. It is also not denied that the pay scale of the different categories of workmen are different. 20. Even when the seasonal workmen are employed during the off season, they are paid the same wages as are paid to them during the crushing season, which is one of the basic distinctions between them and the permanent workmen who are on the rolls of the sugar mills. 21. It is also admitted position that in terms of the policy followed by the sugar mills, promotions are given from one category to next higher category depending on the number of vacancies as available at a given point of time. The promotion is given from one category to the higher categories as and when vacancies are available and that such function was clearly a managerial function which could not have been discharged by the Labour Court. In this view of the matter, the Labour has committed grave illegality in declaring the respondent no.1 as Seasonal Workman, although the respondent no.1 himself admitted that he was daily wager engaged on availability of work. 22. In order to judge the entitlement of the workmen to be declared seasonal under the Standing Orders, the Labour Court was required to examine whether on the evidence before it, the workmen or one or more of them fulfill the requirements of being seasonal hand(s) as defined under Clause B-1(2) of the Standing Orders. It would also have to be determined whether the requirement of probation envisaged under Clause B-1(4) are fulfilled on the evidence before the Labour Court in case of workman, and if he was entitled to the status of seasonal employee. 23. It would also have to be determined whether the requirement of probation envisaged under Clause B-1(4) are fulfilled on the evidence before the Labour Court in case of workman, and if he was entitled to the status of seasonal employee. 23. The Labour Court on the evidence led before it and the adverse inference it has drawn due to non-production of record by the employer, despite an application by the workmen in that behalf, could possibly have held that the workmen have worked with the employer for the whole of the crushing seasons and completed the probationary period, entitling him to the status of seasonal workmen. But, that specific finding has not been recorded. In the absence of a finding to the effect that the workman has worked for the crushing seasons in accordance with his case and has completed his probation period envisaged under Clause B-1(4) of the Standing Orders-at least a finding that the workman has been engaged for a certain crushing season and completed his probationary period-the Labour Court could not have granted seasonal status to the workman under the Standing Orders. In absence of that finding, the impugned award is rendered manifestly illegal. 24. Thus, the findings in the impugned award are not based on any legal evidence and also not supported by valid reasons. Principles laid down in the aforesaid judgment clearly apply on the facts of the present case. 25. Considering in totalities of facts and circumstances of the case, this writ petition is allowed. Award dated 21.4.2004 passed by the opposite party no.2 (Annexure-1 to this writ petition) is hereby quashed, remanding the matter to the opposite party no.2 to decide the case afresh in accordance with law and in the light of the observations made in the body of this judgment, as expeditiously as possible preferably within a period of six months from the date a certified copy of this judgment is filed by the petitioners before him. 26. It is made open to both the parties to lead such further evidence, particularly, documentary in support of their respective cases, as may be advised. The Labour Court shall consider all evidence before it including any further evidence, if led, as directed hereby, before making a fresh award. 26. It is made open to both the parties to lead such further evidence, particularly, documentary in support of their respective cases, as may be advised. The Labour Court shall consider all evidence before it including any further evidence, if led, as directed hereby, before making a fresh award. It is also made clear that all submissions advanced before this Court would remain open to the parties to urge before the Labour Court, except the one relating to lack of jurisdiction with the Labour Court to pronounce upon the workmen’s case that he is seasonal workman, and not temporary. It is also clarified that the possibility of one inference that the Labour could have drawn from the evidence in favour of workman mentioned hereinabove, shall in no way be construed as an expression of opinion on this issue. The Labour Court shall be absolutely free to draw its own conclusions on the issue, whether the workmen on the evidence on record is entitled to the status of seasonal workmen under the Standing Orders. 27. There shall be no order as to costs in any of writ petitions decided today.