At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE ARUN TANDON
For the Petitioners: S.D. Singh, Diptiman Singh, Advocates. For the Respondents: C.S.C., B.N. Singh, Anoop Trivedi, Devendra Pratap Singh, Advocates.
Arun Tandon, J.
Heard Sri S. D. Singh, Advocate on behalf of the petitioner, Sri B.N. Singh, Advocate on behalf of the workman and Standing Counsel on behalf of respondent nos. 1 and 2. Petitioner employer seeks quashing of the award of the Labour Court dated 26th July, 2011 passed in Adjudication Case No. 1 of 2009. Facts in short leading to the present writ petition are as follows:
The State Government in exercise of powers under Section 4-K of the Industrial Disputes Act, by notification dated 04.12.2008, referred the following dispute for adjudication to the Labour Court, Saharanpur:
The workman in support of his claim filed a written statement as well as reply to the statement of the employer and also appeared as witness in support of his claim. It was his categorical claim that he was employed as Seasonal Weighment Clerk in the sugar unit of petitioner employer in the crushing season 2006-07. In the crushing season 2007-08 also he was similarly engaged, but all of sudden on 20.02.2008 his services were put to an end without assigning any reason and without holding any enquiry. According to the workman, he being seasonal employee could not be so dismissed and therefore the termination being illegal he is entitled for reinstatement as a seasonal employee.
The employer in their written statement denied the relationship of master and servant between the workman and the petitioner and it was their case that the petitioner in fact was employed through a security service and he was not in actual engagement of sugar unit.
Workman, for establishing that he had actually worked in the crushing seasons 2006-07 and 2007-08 up to the date of termination, made an application for attendance register and other documents being summoned from the employers, which were in their exclusive possession. The Labour Court passed an order on the application of the workman on 04.11.2009 and required the employer to produce the attendance register etc. The petitioner employer did not produce the attendance register and other documents, on the plea that the workman is not their employee, no attendance register is available. The Labour Court vide order dated 10.12.2009 recorded that since the documents required under order dated 01.11.2009 have not been produced by the employer, an adverse inference shall be drawn against the employer.
The Labour Court, after considering the material evidence brought on record, including the written statement and the evidence of the workman as well as the written statement of the employer and the evidence of Sri Rajendra Pal Singh, Supervisor of M/s Royal Bodyguard Service, has recorded a categorical finding that the workman was in actual employment of sugar unit and he was not an employee of M/s Royal Bodyguard Service. The Labour Court has gone on to hold that since the employer deliberately did not produce the attendance register, as was asked for by the workman concerned, an adverse inference had to be drawn. It has recorded that the workman has worked in the crushing seasons 2006-07 and 2007-08 till the date of termination of his services.
The Labour Court has found that the termination of the services of the seasonal employee like the petitioner being orally is bad and has further proceeded to hold that the workman being seasonal employee had to be reinstated as seasonal employee.
Sri S. D. Singh, counsel for the petitioner employer contends that for the relief of reinstatement as seasonal employee being granted it was but necessary that the workman should have established that he had worked in the second half of the preceding crushing season in view of the Standing Orders covering the Condition of Employment of Workman in Vacuum Pan Sugar Factories in U.P. For the purpose he has relied upon the judgment of the Apex Court in the case of U.P. State Sugar Corporation Ltd. vs. Niraj Kumar & Ors.; 2009(6) ALJ 299 (paragraphs 14, 15 and 17). He submits that it was obligatory upon the workman to not only plead but have to establish that he was actually employed in the later half of the crushing season following the year when his services were terminated and in absence of any pleading/finding have been recorded by the Labour Court, the direction of reinstatement is misconceived, as no lien has arisen in favour of the workman employee. He has placed reliance upon the judgment of the Apex Court in the case of Manager, Reserve Bank of India vs. S. Mani and others; (2005) 5 SCC 100 for the proposition that for establishing violation of Section 6-N of the Industrial Disputes Act the workman has to establish that he has actually worked for 240 days. In absence of such fact having been established, termination cannot be said to be illegal.
Sri B.N. Singh, Advocate in reply submits that the employer wants to improve upon his case and wants to challenge the award of the Labour Court on the facts and grounds which were not pleaded before the Labour Court. It is stated that the employer did not allege before the Labour Court either in the written statement or at the time of oral arguments that the workman was not a seasonal employee or that he had not worked in the entire crushing season 2007-08. On an application being filed by the workman for summoning the attendance register the employer fail to do so only on the pretext that the workman was not actually engaged by them and they maintained no attendance of the workman. He submits that the award of the Labour Court cannot be permitted to be challenged on the grounds that have not been raised before the Labour Court and even otherwise the adverse inference drawn against the employer cannot be faulted with. He further submits that the judgments relied upon by the counsel for the petitioner are clearly distinguishable in the facts of the case.
I have heard learned counsel for the parties and have examined the records.
It was the categorical case of the workman concerned that he had worked as Seasonal Weighment Clerk in the crushing season 2006-07 and was similarly asked to resume his duty in the crushing season 2007-08. All of sudden his services were put to an end on 20.02.2008 orally. For establishing that he had worked in the crushing season 2006-07 and 2007-08 the workman had made an application in writing for the attendance register being summoned, which was in the exclusive custody of the employer, in respect of the relevant period. The employer instead of producing the attendance register, which could demonstrate as to whether the name of the workman was included therein as seasonal employee or not, took shelter behind the plea that the workman was not employed by them and therefore no records of the attendance were maintained. This plea of the employer has not been accepted by the Labour Court after appreciating the evidence brought on record. A categorical finding in respect of the relationship of master and servant between the workman and employer has been recorded on the appreciation of the evidence on record. Such finding of the Labour Court cannot be re-appreciated by this Court under Article 226 of the Constitution of India. The finding so recorded cannot be said to be perverse or based on no evidence.
The issue which is vehemently contended before this Court by the petitioner, namely that the workman had not established that he had actually worked in the later half of the preceding crushing season i.e. 2006-07, does not appeal to the Court for the following reasons:
(a) No such plea was ever raised by the petitioner before the Labour Court either in the written statement or orally at the time of argument.
(b) The Apex Court in the case of U.P. State Sugar Corporation Limited has held that it is necessary for the workman to establish that he had actually worked in the later half of the crushing season for claiming reinstatement. The case which was up for consideration before the Apex Court was with reference to a workman who claimed to be a seasonal employee but was not invited to work at the start of new crushing season. Apex Court has held that for the relief of being re-invited to work as a seasonal employee the workman must establish that he had worked in the later half of the preceding crushing season. The facts of the said case are clearly distinguishable viz-a-viz the facts of the case in hand.
In this case the workman was invited to work as a Seasonal Weighment Clerk in the crushing season 2007-08 all of sudden his services were put to an end orally on 20.02.2008. It was not pleaded by the employers as to when the second half of the crushing season started. It was the categorical case of the workman that he had worked as Seasonal Weighment Clerk in the crushing season 2006-07 and was invited to work as Seasonal Weighment Clerk in the year 2007-08 again.
The issue as to whether the workman had actually worked in the later half of the preceding crushing season is initially an issue of fact and the relevant fact in that regard had to be disclosed by the employer for denying the relief of reinstatement as seasonal employee.
This Court may record that the employer had taken a chance before the Labour Court by taking shelter behind the pleading that there was no master and servant relationship and no documents were maintained qua the workman. Having failed on the aid score as they now wants to turn around and seek to plead a new case that the workman had not worked in the second half of the preceding crushing season. The challenge to the award of the Labou
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r Court has to be made on the pleas and grounds raised before the Labour Court and not beyond what was contended before the Labour Court. There is no illegality in the order of the Labour Court. No relief can be granted. So far as the award of back wages is concerned, counsel for the petitioner appears to be justified in contending that the Labour Court has not recorded any finding that the workman was not gainfully employed during the period he was refused work. Therefore, the payment of full back wages in the facts of the case is not justified. (Ref: General Manager, Haryana Roadways vs. Rudhan Singh; 2005(106) FLR 607). In the facts of the case I am of the opinion that interest of substantial justice would be served by modifying the award of the Labour Court, insofar it directs payment of full back wages for the period of unemployment. It is provided that the workman would be entitled to only 50% of the back wages for the period he was out of employment for all other purposes the award is affirmed. Writ petition is disposed of.