Sahkari Chini Mills Ltd Vs. Jaivir Singh  Insc 972 (24 September 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 1827 OF 2005 (With Civil Appeal Nos. 1828 and 1829 of 2005) Dr.
ARIJIT PASAYAT, J.
these appeals challenge is to the order passed by a learned Single Judge of the
Allahabad High Court dismissing the writ petitions filed by the appellants. In
the writ petitions, challenge was to the awards made by the Presiding Officer, Labour Court (2), Meerut (hereinafter referred to as the 'Labour Court'). By the impugned award, the Labour Court had directed re-instatement of the
respondents-workmen and payment of back wages and retaining allowance. The Labour Court's awards were in relation to the
references made under the Industrial Disputes Act, 1947 (in short the 'Act').
Reference in all these cases related to the claim for re-instatement and back
wages to which the concerned workmen were entitled to.
claim was founded on the basis that termination of services in each case was
reference reads as follows (by way of sample):
Sewayojako Dwara Apne Shramik Jai Veer Singh (Putra Shri Ram Lal), P.H.
Recorder Ki Sewae Dinank 6.3.1985 se Samapt Kiya Jana Uchit Tatha/Athwa Vaidhanki
Hai? Yadi Nahi, to Sambandhit Shramik Kya Labh/Anutosh (relief) Pane Ka Adhikari
Hai, Tatha Kisi Anya Vivran Sahit?"
workmen claimed that they were permanent appointees and the orders of
termination were contrary to the provisions of the U.P. Standing Orders.
appellants' case was that it was a seasonal factory which commenced its trial
season only in the year 1984-85 and certain persons were taken as casual
employees on daily wage basis and they did not have any lien on any permanent
or seasonal post as the factory was to commence production after the trial
season 1984-85 was over after the establishment of the sugar factory.
was submitted that this was done to ascertain whether the sugar factory started
proper functioning of its first season from the year 1985-86.
Respondent-workman was engaged in stop-gap arrangement only for the trial
season after inviting applications from the public at large, in which
respondent concerned was not selected. Said respondent joined the sugar factory
on 16th November, 1984 and his services were dispensed with on 6.3.1985 and by
any stretch of imagination he could not have completed 240 days of services in
one calendar year and as such the provisions of Section 6-N of the Act did not
apply. Concerned respondent had not filed any appointment letter to show that
his appointment was made against any permanent post. As noted above, the Labour Court directed reinstatement with back
award was assailed in writ petition on the grounds that
Labour Court has travelled beyond the terms of
reference by framing issue No.1 as the nature of appointment was neither
subject matter of reference nor the finding given by it on issue No.1 was
There was no evidence on record that the respondent was a workman and was
entitled to the protection under the Act.
There was no appointment letter filed by the workman, which could show that
respondent was not engaged in the trial season. Though it was dis- believed by
the Labour Court that appointment of the workman was
against a permanent post, yet he was granted the relief of re-instatement with
back wages and as such the award cannot be sustained.
After receiving notice from the Tahsildar asking payment of the back wages to
the concerned workmen the writ petitions were filed. The averment was that they
had not received any order of Deputy Labour Commissioner nor any citation in
pursuance thereof. The appellant came to know for the first time about recovery
on receipt of the letter dated 15.5.1992.
workmen disputed the stand of the employer that they had not completed 240
days. Sugar factories are all of seasonal nature and according to the Standing
Orders applicable in respect of sugar factories, the period of 120 days is
required. The Labour
Court recorded a
finding that the workmen were appointed on the posts in the relevant season
during the period from 16.11.1984 to 5.3.1985.
With reference to U.P. Payment of Retaining Allowances to Unskilled Seasonal
Workmen of Sugar Factories Order, 1972 (in short 'Sugar Factories Order'), it
was held that the workmen were entitled to be re-instated. The findings in this
regard recorded by the Labour
Court were affirmed
by the High Court.
support of the appeals, learned counsel for the appellant submitted that
approach of the High Court is factually and legally wrong. Even if it is
accepted that the period is 120 days, the workmen were not entitled to any
relief. They admittedly worked for 109 days. The nature of appointment was not
the subject matter of reference and, therefore, the conclusion of the Labour Court, as affirmed by the High Court that
the workmen were entitled to be absorbed on permanent basis and re-instated
with back wages, was clearly erroneous.
was wrongly held by the High Court that it was the employer to show the nature
Learned counsel for the respondents in the written submissions filed supported
the orders of the Labour
Court and the High
find that the Labour
Court and the High
Court have completely lost sight of the settled position in law. In Batala
Coop. Sugar Mills Ltd. v. Sowaran Singh (2005 (8) SCC 481) it was held as
We find that the High Court's judgment is unsustainable on more than one count.
In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and Ors. (1995 (5) SCC 653) it
was observed as follows:
would thus be clear that the respondents were not working throughout the
season. They worked during crushing seasons only. The respondents were taken
into work for the season and consequent to closure of the season, they ceased
question is whether such a cessation would amount to retrenchment. Since it is
only a seasonal work, the respondents cannot be said to have been retrenched in
view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these
circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal.
However, the appellant is directed to maintain a register for all workmen
engaged during the seasons enumerated hereinbefore and when the new season
starts the appellant should make a publication in neighbouring places in which
the respondents normally live and if they would report for duty, the appellant
would engage them in accordance with seniority and exigency of work."
was accepted that the workmen belonged to the seasonal category. In the claim
petition and the pleadings it was urged that they were permanent workmen. The
High Court noted that the workmen were not permanent employees.
further noted that they failed to establish the nature of their appointment. No
appointment orders were filed. It came to an abrupt conclusion that the burden
of proof lay on the employer to establish the nature of appointment. The
conclusion is clearly contrary to law. The Labour Court found that the workmen were appointed to posts which
continued for the whole season and they were appointed on seasonal posts.
having arrived at this conclusion, the Labour Court held that the workmen were entitled to be re-instated.
is interesting to note that the High Court itself noted that the appointment of
the workmen was not permanent as the permanent workmen have to complete their
probationary period. There was no averment that the workmen had completed their
probation period. Undisputedly, 1984-85 was the trial season. It is to be noted
that the High Court referred to Rules 4 and 6. They read as follows:
Eligibility for retaining allowance-(i) The above retaining allowance shall be
paid to those unskilled seasonal workmen who have or would have worked but, for
illness or any other run avoidable cause, in a factory during whole of the
second half of the last season preceding, provided that labour employed by or
through contractors shall be excluded for purposes of this order.
Provision not to apply on new factories- The provisions of this order shall not
apply to new factories commencing crushing from 1971-72 or thereafter for a
period of three seasons including the trial season."
Above being the position, the orders of the Labour Court and the High Court are set aside. The appeals are allowed
with no order as to costs.