Sangeeta Chandra, J.
1. Heard Shri Diptiman Singh for the petitioner and Shri Ajay Kumar Srivastava appearing for the respondent No. 3, workman concerned.
2. This petition has been filed challenging the Award dated 29.07.2013 passed by the Industrial Tribunal (5), Uttar Pradesh, Meerut in Adjudication Case No. 38 of 1999 in the matter of M/s. Daurala Sugar Works, Daural Vs. Vijendra Singh. The Award was published on 15.04.2014. The Industrial Tribunal, the respondent No. 2, granted relief of reinstatement of the respondent No. 3 as unskilled mazdoor on temporary basis and further directed the petitioner to conduct an examination on technical knowledge of the respondent No. 3 and thereafter provide him a permanent status in the establishment. Additionally, Rs. 2,000/- has been awarded to the workman as cost of the litigation.
3. The facts of case as evident from the pleadings on record are to the effect that the petitioner is a unit of M/s. DCM Shriram Industries Limited, New Delhi. The petitioner is engaged in the manufacture of crystal sugar through vacuum pan process. It has several units including the unit situated at Daurala, District Meerut. The nature of sugar industries being seasonal, it normally works from November to April each year and engagement of employees is governed by Standing Orders issued under Clause - B of Section 3 of the U.P. Industrial Disputes Act, 1947 . The Standing Orders governing the conditions of employment of workmen in Vacuum Pan Sugar Factories of the U.P. contain a classification of workmen as (i). Permanent, (ii). Seasonal, (iii). Temporary, (iv). Probationers, (v). Apprentices, and (vi). Substitutes.
4. Certain works in Sugar Industries are of permanent nature as they are undertaken all round the year, whereas others relate mainly to seasonal crushing season. The seasonal workmen are engaged on the basis of seniority and availability of work every season. There are certain persons who are engaged on purely temporary basis as casual labour.
5. It is the petitioner's case that the respondent No. 3 was engaged for the first time in July, 1990 for 14 days as temporary mazdoor in Electrical Department of the Sugar Factory. From time to time he kept on being engaged on purely temporary basis. The last such engagement was for a period of 15 days from 1st of December to 15th of December, 1998. However, the workman never appeared at work after 14.12.1998.
6. On 25.02.1999 the State Government referred the adjudication of the matter to the Industrial Tribunal (5), U.P. Meerut at the instance of the workman. The case was registered as Adjudication Case No. 38 of 1999. On 30.01.2002 the workman filed his written statement. He alleged that he had been engaged by the petitioner on 01.05.1989 as electrician helper and has been continuing since then up to December, 1998 although artificial breaks were given in service. In February, 1998 interviews were held in which certain other workmen were given opportunity for selection and appointment as permanent workman in the Electrical Department. However, the services of the respondent No. 3 and four others, namely, Devendra, Ran Veer, Dinesh, Kiran Pal were terminated. They made a complaint to the Assistant Labour Commissioner of their wrongful termination of service on 15.03.1998. A compromise was arrived at before the Deputy Labour Commissioner, Meerut Region, Meerut. The respondent No. 3 and four others were reinstated in terms of the compromise. The compromise/settlement was honoured by the establishment with respect to three of the such employees who were ITI passed. While two others i.e. Kiran Pal and the workman Vijendra Singh were not engaged. Kiran Pal was also later on made permanent. However, the respondent No. 3 was not given permanent status although he was engaged in September, October, 1998 and thereafter in December, 1998 for 15 days.
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the written statement, the respondent No. 3 also stated that in the reference order the date of termination as 14.12.1998 has been wrongly mentioned and it should actually be treated as 16.12.1998 as he had worked and got salary up to 15.12.1998. The Amendment Application numbered as 54 -D was allowed by the respondent No. 2 on 16.11.2012. The respondent workman in his written statement also mentioned that the work of electrician helper was of permanent nature. The establishment was giving artificial breaks to avoid the continuity in service and grant of permanent status to the workman. After the oral termination of the respondent No. 3, the establishment engaged new workers for doing the same job. Also juniors to the respondent No. 3 were granted permanent status.
8. The petitioners in their preliminary objection raised more or less the same grounds regarding the establishment being seasonal and the respondent No. 3 being engaged on a purely temporary and casual basis from time to time, the last such engagement being w.e.f. 01.12.1998 up to 15.12.1998. However, the petitioners did not deny the settlement arrived at before the Deputy Labour Commissioner, Meerut Region, Meerut in between five workers and the Sugar Unit. In response to the contents of paragraph - 6 of the written statement, the establishment only mentioned that in February, 1998 few vacant posts of trainee electricians arose for which the management held written test/interview, the concerned workman neither attended the written test nor the interview as he was not ITI qualified. Later on, the workman along with four others moved an application before the Conciliation Officer through the Secretary of Indian Trade Union. He also moved an application in the office of the Deputy Labour Commissioner for re-employment.
9. Documentary evidence was led by both the sides before the Tribunal. The respondent No. 3 produced a photocopy of the proceedings before the Assistant Labour Commissioner dated 04.04.1998 and 13.01.1999, a copy of the Provident Fund Account/Pass Book and photocopy of the attendance sheet for January, 1998, March, 1998, September, October, November and December, 1998. The Employer submitted a photocopy of attendance-cum-payment sheet for the month of January, 1990, March,1990, July, 1990, September, 1990, October, 1990 and December, 1990 and photocopy of the engagement memo of the concerned mazdoor for the period 01.02.1998 to 15.12.1998, and a copy of the Bio Data Form submitted by the workman in his writing.
10. The respondent No. 2 has referred to the order of reference which related to "Whether termination of the workman Vijendra Singh son of Rishan Singh by the Employer was justified? If not, to what relief?" And then framed the issues as follows:-
(1). Whether the reference order dated 25.02.1999 is bad in law as it is in the name of the non-juristic person as alleged in para - 3 of the written statement? If so, its effect?
(2). Whether the concerned workman has abandoned his services w.e.f. 15.12.1998?, If so, its effect.
(3). Whether the concerned workman was always engaged as a temporary hand? If so, its effect.
(4). Whether the concerned workman did not work for 240 days in 12 months immediately preceding the alleged date of termination? If so, its effect?
11. Issue No. 1 related to preliminary objection regarding the maintainability of the reference being sent by the government to the respondent No. 2 in the array of the parties. It was decided against the Employer.
12. Issue No. 2 was discussed at length. The respondent No. 2 referred to the examination-in-chief of the workman and his pleading in his written statement that five workmen had been terminated from service on 31.03.1998 without any reason. The respondent No. 3 along with Devendra, Ran Veer, Kiran Pal and Dinesh filed a complaint before the Deputy Labour Commissioner. Dinesh and Ran Veer being ITI passed were re-engaged and made permanent. Kiran Pal like the respondent No. 3 was not ITI passed but he was also made permanent. The respondent No. 3 working as an electrician helper/wire-man, however, was not re-engaged or made permanent. He was given duty from time to time only. He worked till 14.12.1998. The same evening he was told orally that his services were no longer required. Since 15.12.1998 he did not attend the duty. He was given wages up to 15.12.1998.
13. The respondent No. 2 also discussed the oral statement of the Employer's witnesses and came to a conclusion that the respondent No. 3 was engaged as a temporary unskilled labour from time to time. His last such engagement was w.e.f. 1st of December, 1998 up to 15.12.1998 as per the engagement memo, a copy of which was produced by the Employer before the Tribunal. The photocopies of engagement memo and Bio Data form also showed the respondent No. 3 to be only Class - 8th passed and engaged on temporary basis. The Tribunal discussed the work being done by the respondent No. 3 which was lastly in the Boiler Department. The finding recorded with regard to the Issue No. 2 was that the respondent No. 3 was engaged as a temporary unskilled labour and that the respondent No. 3 did not himself appear to join his services again on 15.12.1998 nor thereafter and the respondent No. 3 was deemed to have abandoned his service.
14. The Issue No. 3 was also decided by the Tribunal in favour of the Employer coming to a conclusion that the respondent No. 3 was being engaged on temporary and casual basis from time to time as per the exigency of service and was never granted permanent status. The last such engagement was for 15 days w.e.f. 01.12.1998 to 15.12.1998.
15. The Issue No. 4 was also decided in favour of the Employer and engagement of respondent No. 3 for past 12 months being only 123 days was also accepted.
16. However, the respondent No. 2 thereafter discussed the Case Law cited by both the parties and also the compromise/settlement arrived at on 31.03.1998 before the Deputy Labour Commissioner filed as Ext. No. 12 - B (2)/2 Ext. W-11. The respondent No. 2 mentioning the contents of the said settlement between the parties, states that it clearly mentions that the Employer shall take back all five workmen on 16.08.1998. The three workmen having ITI qualification shall be given permanent status on priority basis. The remaining two workmen shall also be regularized later on. It discussed the case of Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Limited and others, (1990) 61 FLR 203 = (1991) 1 SCC 4. It referred to the settlement arrived at under Section 18 being divided into two categories namely (i). those arrived at outside the conciliation proceedings, and (ii) those arrived at in the course of conciliation proceedings and the observation of the Supreme Court that the second one has extended application as it binds all the parties while the first binds only the parties to the agreement and the judgment of the Delhi High Court based on the said judgment which held that although a settlement may not be in the prescribed format under the Rules, yet it would be binding upon the parties. Since it had been acted upon, the doctrine of Estopple would apply. The Tribunal referred to other judgments cited by the workmen' representative relating to the duty of the Employer under the Shastri- Award; the Employer/Management was required to give notice to the workman if he absented himself from work without leave for a long period and if notice was not sent, it would not be a fit case for exercise of discretionary jurisdiction under Article 136 of the Constitution.
17. However, it held that the judgment cited by the respondent No. 3 i.e. the Regional Manager, Central Bank of India Vs. Vijay Krishna Neema,(2009) 121 FLR 559 : (2009) 5 SCC 567 does not apply to the facts of the case as it related to an employee who was working in the bank since 1973 and had gone on four days' leave in 1986 but absented himself for the period of 90 days or more. The employee had also taken a loan to buy a house from the employer. The Supreme Court came to the conclusion that the management was required to give notice to the employee before arriving at the conclusion that the employee had no intention of joining the duties. If despite service of notice the employee did not report for duty the consequences would follow.
18. The respondent No. 2 has also referred to the judgment of the Hon'ble Supreme Court in Jaswant Sugar Mills Limited, Meerut Vs. Shri Badri Prasad, AIR 1967 SC 513 being cited on behalf of the workman and referring the Industrial Employment (Standing Orders) Act 1940 and Schedule thereof. The Supreme Court had held that in sugar factories the Standing Orders define "permanent" workman. The workman being engaged on temporary basis would be considered to be entitled to permanent status if the work was of a permanent nature and lasting throughout the year.
19. The employers referred to the judgments where it had been held that the dispute before the Tribunal is limited to the points specifically referred for its adjudication and also the matters incidental thereto and that the industrial adjudicator has no power or jurisdiction to travel beyond the terms of the reference except for ancillary matters and the judgment of the Supreme Court in the State of Haryana Vs. Ramesh, (2008) 2 SCC 516, that the burden of proof lay on the workman to establish that he had worked for 240 days in the preceding 12 months, and in Junior Engineer Vs. Jal Nigam Construction Division, Mirzapur Vs. Presiding Officer, Labour Court, Varanasi and another, (2008) 116 FLR 558 wherein the Supreme Court referred to Section 2 (g) and Section 6 N of the U.P. Industrial Disputes Act and observed that the burden of proof of actual working for 240 days or more in the preceding 12 calender months, lay upon the workman.
20. The Tribunal in its award, however, came to the conclusion that on facts it may have been that the respondent No. 3 was engaged on purely temporary and casual basis from time to time and may have abandoned his service after 15.12.1998, but the employers were bound by the settlement dated 31.03.1998 before the Deputy Labour Commissioner and the fact that the part of the settlement arrived at was followed with respect to four workmen but not with respect to the respondent No. 3. It observed that it was the duty of the employer to give opportunity to the resondent No. 3 also but no reason has been assigned by the employer for not following the settlement with respect to the respondent No. 3. It referred to the judgments cited by the workmen's representative reported in (1990) 61 FLR 203: Barauni Refinery Pragatisheel Shramik Parishad and (1996) 72 FLR 801: Joint Director of Health Services, Office of Health Directorate, Health Services Pune and others Vs. Vilas Dutta Rai Pingale being applicable to the facts of the case and directed that the employer should re-engage the respondent No. 3 as a temporary casual worker and after two months of such engagement he should be given an opportunity, by taking a test of his technical knowledge, and then should grant him permanent status. The Tribunal also awarded a cost of Rs.2,000/- in the Award dated 29.07.2013.
21. In the counter affidavit filed along with the Stay Vacation Application the respondent No. 3 reiterated his contention that he was engaged firstly on 05.01.1989 on the post of electrician helper and had been working continuously since then but with artificial breaks given by the employer and that he worked till 14.12.1998 and thereafter was not permitted to work by the employer and that the Award in question is based on detailed findings of facts as well as the compromise/settlement dated 31.03.1998, and the re-engagement of the four workmen from 16.08.1998 onwards as aforesaid by the employer and discrimination with respect to the respondent No. 3, being practiced by the employers.
22. A rejoinder affidavit has been filed by the petitioners where the contents of the writ petition have been reiterated.
23. From the record of the writ petition it appears that when the same was filed, this Court stayed the operation of the impugned Award on 03.07.2014 till the next date of listing.
24. Sri Diptiman Singh, who has relied upon judgment of the Hon'ble Supreme Court in the case of Tata Iron & Steel Company Ltd. Vs. State of Jharkhand & others reported in 2014 (1) SCC 536 and Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar 2006 (111) FLR 1202 state that the Labour Court is bound to decide an adjudication case within the four corners of the Reference made to it by the State Government and in this case the Labour Court has travelled much beyond the Reference order and the Award therefore is without jurisdiction.
25. Counsel for the petitioner has also relied upon judgment in the case of Surendra Nagar District Panchayat Vs. Dahyabhai Amarsingh 2005 (8) SCC 750 that onus of proving 240 days continuous service is initially upon the workman concerned, which has to be discharged satisfactorily before an order of termination can be said to be illegal.
26. Counsel for the petitioner has relied upon internal page 9 of the award, where the issues were framed by the Labour Court and thereafter internal page 17 onwards, where finding has been given on the issues so framed. All the issues have been decided in favour of the employer and against the workman. Yet in the operative portion of the Award at page 27, the respondent no. 1 has directed for reinstatement of the workman within one month as unskilled labour and thereafter directed for holding of a test to gauge his technical skill and make provision for his permanent engagement thereafter. It has also awarded costs to the workman.
27. Sri Diptiman has pointed out that this Court in 2014 has stayed the complete award and as of now after almost 20 years of the date of initial abandonment of service by the workman in December 1998, this Court may not pass any order in favour of workman.
28. Sri Ajay Kumar Srivastava appeared for the respondent no. 3 and submitted on the basis of observations made in the Award from internal page 25 onwards that the Labour Court had found that a compromise had been entered into between the employer and the workman on 16.8.1998, which was countersigned also by the Assistant Labour Commissioner. Under the said agreement/compromise, three ITI qualified workmen were to be taken back immediately in service at the beginning of the season, whereas two untrained workman i.e. Vijendra Singh - the respondent no. 2 and one other Kiran Pal were to be given opportunity of training, and then a test was to be taken with regard to them as trainee electrician, and if they qualified in the same, they would thereafter be engaged as seasonal trained electrician. The respondent no. 2 has observed that Kiran Pal was regularised in pursuance of the said compromise, but this compromise agreement was not followed in the case of the respondent no. 3, and therefore has issued a direction as aforesaid for his reinstatement and training proficiency test and engagement as seasonal workman thereafter.
29. Sri Diptiman Singh in rejoinder has argued on the basis of judgment rendered in the case of State of Uttaranchal Vs. Jagpal Singh Tyagi reported in 2007 (115) FLR 280 that even if there was an issue with regard to non compliance of compromise agreement, then also a proper reference should have been made in this regard, which could have been decided thereafter by the respondent no. 1, which was not done.
30. In Surendranagar District Panchayat Vs. Dahiya Bai Ram Singh, (2005) 8 SCC 750 the Hon'ble Supreme Court referred to the duty of a workman to prove by evidence documentary or otherwise that he had rendered 240 days continuous service immediately preceding the termination order. If no seniority list is maintained by the employer of daily wagers in the department, no relief could be granted for non compliance with the provisions of Section 25 J and Section 25 H of the Industrial Disputes Act, 1947. The Supreme Court discussed the judgments of earlier Larger Benches and then observed in paragraph 14 that these decisions in unambiguous words laid down that Sub Sections - 1 and 2 of Section 25 B, comprehend different situation for calculation of continuous service for not less than one year, and continuous service which is less than one year but for 240 days in the twelve months preceding the date of termination, under an employer. It also referred to the judgment of the Supreme Court in Range Forest Officer Vs. ST Hadimani, (2002) 3 SCC 25 that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and to adduce evidence apart from examining himself, of receipt of salary or wages or order or record of the appointment or engagement, of his being employed as such.
31. There is no dispute with regard to the settled position in law with regard to the onus of proof lying upon the workman initially regarding his engagement for more than 240 days in the last preceding 12 months of the calender year. However, the judgment rendered in Surendranagar District Panchayat (supra) relates to Industrial Disputes Act, 1947 and not to the U.P. Industrial Disputes Act and is also not with regard to a sugar factory. In Morinda Cooperative Sugar Mills Limited Vs. Ram Kishan and others, (1991) 71 FLR 822 it was observed by the Supreme Court as follows:-
"It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work.
The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2 (oo) of the Act. Under these circumstance, 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."
32. In a later judgment rendered by the Hon'ble Supreme Court with regard to the Bhogpur Cooperative Sugar Mills Limited Vs. Harmesh Kumar, 2006 111 FLR 1202 the Court was considering the question with regard to the applicability of Section 2 (oo) (bb) of the Central Act and observed that the appellant operated as seasonal factory. The termination of service of a worker as a result of non renewal of contract of employment on its expiry would not attract the definition of term "retrenchment". It also observed that a Labour Court derived its jurisdiction from the terms of the Reference. It ought to have exercised its jurisdiction within four corners thereof. It observed in paragraph - 6 and 7 thus:-
"6. The principal question which was referred by the State Government was as to whether the termination of services of the respondent was justified. The Labour Court was, therefore, not required to go into the question as to whether the appellant was bound to take the services of the respondent in all subsequent seasons or not."
"7. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination, in a case where he invokes the provisions of Section 25-G and 25-H thereof he may not have to establish the said fact. [See Central Bank of India vs. S. Satyam & Ors. (1996) 5 SCC 419, Samishta Dube vs. City Board, Etawah & Anr. (1999) 3 SCC 14, Regional Manager, SBI vs. Rakesh Kumar Tewari (2006) 1 SCC 530 and Jaipur Development Authority v. Ram Sahai & Anr. 8 Civil Appeal No. 4626 of 2006 decided on 31st October, 2006]."
33. In Tata Iron and Steel Company Limited Vs. State of Jharkhand and, (2014) 1 SCC 536 the Hon'ble Supreme Court had referred to the Full Bench Decision of the High Court of Delhi in Indian Tourism Development Corporation (ITDC) Vs. Delhi Admn. 1982 Lab IC 1309 (Del) and the judgments of the Supreme Court discussed therein, and approved the observation that the jurisdiction of Industrial Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and the matters incidental thereto, and it is not permissible for it to go beyond the term of reference.
34. In Express Newspaper Private Limited Vs. Workers, AIR 1963 SC 569 the Supreme Court in paragraph 19 observed thus:-
"19.......since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under section 10 is limited by S.10 (4) to the points specifically mentioned in the reference and matters incidental there to, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided..............."
35. In Sindhu Resettlement Corpn. Ltd. Vs. Industrial Tribunal of Gujarat, AIR 1968 SC 529, the Supreme Court had emphasized the importance of drafting of reference under Section 10 of the Industrial Disputes Act. Referring to the said judgment the Hon'ble Supreme Court in TISCO (supra) observed in paragraph 16 thus :-
"The Industrial Tribunal/Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject-matter of reference and cannot travel beyond the same. This is the view taken by this Court in a number of cases including in National Engg. Industries Ltd. Vs. State of Rajasthan1. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/exact nature of "dispute" between the parties."
36. Shri Diptiman Singh during the course of argument had cited State of Uttaranchal Vs. Jagpal Singh Tyagi, 2007 (115) FLR 280 where the Supreme Court has observed that in making of a reference if certain words were left out, the Tribunal should refer the matter back to the Government to rephrase the reference or to send a fresh reference which would be the subject matter of another industrial dispute. It observed in paragraph - 3 thus :-
"We find that the approach of both the Labour Court and the High Court is clearly on wrong premises. If there was dispute on the question as to whether the settlement was bona fide or was obtained by fraud, misrepresentation or concealment of facts, the same can only be the subject-matter of another industrial dispute........."
37. In view of the law cited before me and having carefully gone through the Award, this Court has to determine as to whether the observations of the respondent No. 2 with regard to the settlement in between the five workmen and the employer before the Deputy Labour Court dated 31.03.1998 could have been gone into as an ancillary issue or an incidental issue?
38. Section 10(4) of the Industrial Disputes Act provides that when a reference is made to the Industrial Tribunal or Labour Court by the appropriate Government, the Court can decide the reference as also issues incidental thereto. In Jai Bhagwan Vs. Management of Ambala Central Cooperative Bank, (1983) 4 SCC 611 a three Judges' Bench of Hon'ble Supreme Court has observed while referring to Section 10 and the reference made thereunder that when a reference is made to the Industrial Tribunal, the dispute has to be duly resolved by it. It must apply its mind to the issues involved and cannot shirk from its responsibilities.
39. In Agra Electric Supply Company Limited, Agra Vs. Workman, (1983) 1 SCC 436 the Supreme Court observed that, "It is plain that industrial jurisprudence is an alloy of law and social justice, and one cannot be too pedantic in considering the terms of a reference respecting a dispute for industrial adjudication. Liberally viewed, we are left with the impression that that the Tribunal's construction of the terms of reference is correct."
40. The Court was considering the case of workmen who were prematurely retired before their age of superannuation. The Tribunal was referred the questions "Was the retirement of the workmen legal and justified? If not, what compensation was payable to them?
41. The Supreme Court observed that the first limb of reference contained the pregnant impression "justified". It is one thing to say, speaking in terms of industrial jurisprudence that an action is legal. It is another thing to say that it is justified. When the reference is comprehensive enough to cover both these concepts, it is within the jurisdiction of tribunal to investigate into whether the retirement is legal and, if legal, whether it is also justified. In ordinary law of contracts, when a thing done is legal there is an end of the matter but in industrial law the rigid rules of contract do not govern the situation and an amount of flexibility in the exercise of powers taking liberties with strict rights of parties is permitted to Tribunals.
42. The Supreme Court has further observed as thus: "....This approach is informed by social justice, and it is not for us to fault the Tribunal when it makes a direction for payment of gratuity."
43. The reference made to the respondent No. 2 in this case was "Whether termination of the workman Vijendra Singh son of Rishan Singh by the Employer was justified? If not, to what relief?
44. The Tribunal while considering the terms of engagement of respondent No. 3 to determine whether his termination was justified rightly looked into the settlement dated 31.03.1998 to determine his terms of engagement.
45. This Court is of the considered opinion that the settlement dated 31.03.1998 was not denied by the Employer at any stage. It referred to the same being complied with for three workmen who were ITI passed. Even the fact of re-engagement of Kiran Pal an identically situated workman as the respondent No. 3 and grant of permanent status to him thereafter, has not been denied by the Employer before the Tribunal. The pleadings before the Tribunal as well as documentary evidence in the form of application by five workmen, and settlement arrived at later on, were both on record as discussed in the Award dated 29.07.2013. The settlement being a part of the terms of the engagement of the respondent No. 3 by the Employer, was an issue incidental to or an ancillary issue, which would have had a determining effect on the conclusion arrived at by the Tribunal with respect to the reference made to it by the Government. The Employer had agreed before the Deputy Labour Commissioner for taking back the five workmen w.e.f. 16.08.1998. There was documentary evidence filed in the form of attendance sheet showing the respondent No. 3's re-engagement in August, September, October, November, 1998. In December, 1998, no doubt the respondent No. 3 was engaged as per his engagement memo w.e.f. 01.12.1998 to 15.12.1998, but Kiran Pal a similarly situated non ITI trained workman was also continuing, whereas the respondent No. 3 was given engagement of only 15 days by the Employer.
46. On admitted facts in the pleadings before the Tribunal it has also come out that the petitioner is a seasonal industry working for 180 days in a year. The respondent No. 3 had worked for 123 days in the preceding 12 months as per the chart submitted by the Employer which has been referred to by the Tribunal. From the chart that has been referred to in the Award dated 29.07.2013, it is evident that the respondent No. 3 did work in January, February, March, 1998. He did not work for four months from April to July, 1998. This can be considered to be off season for seasonal sugar Unit. The respondent No. 3 was re-engaged in September, 1998 and continued to work till Deceber, 1998. It has also come on record on the basis of evidence/oral statement of the Employer's witness that the respondent No. 3 was engaged in Boiler Department. The work in Boiler Department continues more or less throughout the year although on reduced strength of the workmen. It can therefore be safely presumed that the work for which the respondent No. 3 was engaged was more or less of a permanent nature.
47. In Jaswant Sugar Mills Limited, Meerut Vs. Shri Badri Prasad and others, AIR 1967 SC 513 the Supreme Court has observed in paragraphs - 4, 5 and 6 thus:-
"4. Reading the three definitions together it is abundantly clear that while a seasonal workman is engaged in a job which lasts during the crushing season only, a temporary workman may be engaged either for work of a temporary or casual nature or work of a permanent nature; but a permanent workman is one who is engaged on a permanent nature of work only. The distinction between a permanent workman engaged on work of a permanent nature and a temporary workman engaged on work of a permanent nature is in the fact that a temporary workman is engaged to fill in a temporary need of extra hands of permanent jobs. In this background it becomes clear that the words 'engaged on a permanent nature of work throughout the year" were intended to mean "engaged on a permanent nature of work lasting throughout the year" and not "engaged throughout the year on a permanent nature of work." When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need. It will be unreasonable to think that the Standing Orders left a loop-hole for the employer to prevent a person engaged on a work of permanent nature which lasts throughout the year, from becoming permanent by the device of discharging him from time to time. By such a device it would be possible for the employer to prevent any workman from becoming permanent, even though the work on which he is engaged lasts throughout the year and is in its nature permanent. That could not have been the intention when the Standing Orders were framed. It stands much more to reason that in speaking of a workman being engaged on a permanent nature of work throughout the year, those who framed the Standing Orders proceeded on the assumption that if the work of a permanent nature lasts throughout the year a workman who has completed his probationary period, if any, will continue to be engaged in that work. We are, therefore, of opinion that the Appellate Tribunal was right in thinking that to be a permanent workman within the definition it is not necessary that the workman should be engaged throughout the year. What is necessary is that the work on which he is engaged is of a permanent nature and lasts throughout the year.
5. What, however, of a workman who is engaged on work of a permanent nature which lasts throughout the year but his own engagement is only to fill in a temporary need of extra hands ? It is clear that such a workman falls clearly within the definition of a temporary workman which has been set out above, though at the same time he may fall within the definition of a permanent workman. As, however, such a man falls within the narrower and special category of temporary workman it will not be reasonable to hold that he was sought to be included within the definition of a permanent workman in the Standing Orders. The proper construction of the definition of a permanent workman therefore is: A workman engaged on a work of permanent nature which lasts throughout the year and who has completed his probationary period, if any, not being one engaged to fill in a temporary need of extra hands on permanent jobs, e.g., in leave vacancies. It is not disputed before us that on the facts found all the 11 workmen satisfy this test. The conclusion of the Labour Appellate Tribunal that these 11 are all permanent workmen is therefore correct.
6. As regards their claim for back wages the position was that there was no evidence on either side that for the period during which they were not employed by the company they found employment elsewhere. The Appellate Tribunal rightly pointed out, however, that usually workmen in sugar factories are employed in agricultural operations for portions of off-season. Having regard to this it ordered the payment of 50 per cent of their wages for the period of their enforced unemployment by the company till their reinstatement. We do not see any justification to interfere with this order."
48. The Tribunal has found from the evidence on record including the statements of Employer's witnesses that the respondent No. 3 was initially engaged as a helper to electrician working in the Electrical Department. At the time of his disengagement, however, he was found to have been working in the Boiler Department. The Tribunal has also found on evidence that the Boiler Department continued to function all the year round although with some less staff in the off-season.
49. In view of the law settled by the Hon'ble Supreme Court in Jaswant Sugar Mills Limited Meerut (supra) this Court finds that the respondent No. 3 ought to have been engaged on the terms as mentioned in the settlement dated 31.03.1998 entered into between the parties. However, the petitioner did not respect the terms of the settlement and engaged the respondent No. 3 for a short periods of times of 15 days at a stretch so as to avoid the liability of making him permanent in future. An identically situated workman, namely Kiran Pal, was continued on his re-engagement and eventually granted permanent status. This fact was not denied by the Employer before the Tribunal.
50. This Court therefore does not find any error in the Award dated 29.07.2013 to show interference in extraordinary jurisdiction exercised by it under Article 226 of the Constitution of India. The respondent No. 2 has granted the relief of reinstatement of the respondent No. 3 only as unskilled mazdoor on temporary basis and further directed the petitioner to provide him permanent status in the Establishment only after conducting an examination on technical knowledge of the respondent No. 3.
51. The writ petition is dismissed.