Heard Sri Ghanshyam Dwivedi, learned counsel for the Chitrakoot Dham Division Jal Sansthan, Sri S.K. Srivastava & Sri Shree Ram Gupta, learned counsels for the workmen and the learned Standing Counsel.
The above mentioned three petitions have same set of facts though two awards of different dates are under challenge. The impugned award dated 12.12.2003 in writ petition no. 28954 of 2004 and award dated 6.11.2003 in writ petition no. 19020 of 2004 are against the petitioners Chitrakoot Dham Mandal Jal Sansthan, Karvi, Banda. The writ petition no. 37053 of 2004 has been filed by Ram Ratan, who is respondent No. 3 in Writ Petition No. 28954 of 2004, challenging operation of the award to the extent of non payment of the salary w.e.f. 1.10.1994 to 12.5.1997. Three petitions raise common question of law and have been heard together and are being disposed of by a common judgment.
The facts and circumstances given by the petitioner are that respondents-workmen raised an industrial dispute and two references were made as to whether the termination of service of workmen w.e.f. 1.10.1994 is valid and legal. In so far as Writ Petition No. 28954 of 2004 is concerned, the conciliation proceedings were initiated by the Respondent No. 3 Ram Ratan and the application was moved in the Year 1996 and the case was registered as Conciliation Application No. D-63-96. Vide order dated 9.1.1997, the delay in filing conciliation application was condoned by the Deputy Labour Commissioner, Jhansi Region, Jhansi. The above conciliation having been failed, reference was made under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') and the same was registered as Adjudication Case No. 118 of 1997.The award was made on 12.12.2003 and published on 24.4.2004.
In so far as the Writ Petition No. 19020 of 2004 is concerned, the references with regard to the Respondents- workmen was made by the State Government for adjudication and the same were registered as Adjudication Case No. 117/1997, 124/1997, 125/1997, 129/1997 and 136/97. Award in respect of the references made in Adjudication Cases mentioned above was declared by a common order passed on 6.11.2003 and published on the notice board on 13.1.2004. The reference as made by the State Government for adjudication to the labour Court was as to whether the termination of the services of the respondents- workmen w.e.f. 1.10.1994 was in accordance with law and if not to what relief/damages they are entitled to.
The workmen in pursuance of the reference made in their individual cases, filed through written statements separately and pleaded that they were appointed against the regular vacancies of Pump-Operators/Pump-Helpers/Beldars on various dates between 1989 to 1992. They were working regularly on the post on which they were appointed and there had been no complaint against them. There was some demand with regard to payment of salary raised by the respondents-workmen from the employer and as such they got annoyed and removed the respondents-workmen w.e.f. 1.10.1994 without any notice. They contended that they have worked for 240 days in one calendar year. While removing the services of workmen, the employer had not followed the provisions of the Act and their removal amounts to retrenchment. They are entitled for reinstatement with continuity of service and full back wages.
The employers in their written statements came out with the case that the respondents are not the workmen. There is no master-servant relationship between them. They were engaged through contractors and had never been in direct employment of the petitioner namely Chitrakoot Dham Mandal Jal Sansthan, Karvi, Banda as such the dispute raised is not an industrial dispute within the meaning of Section 2 (1) of the Act and the persons concerned are not the workmen within the meaning of Section 2(z) of the Act. It was further pleaded that the contractors to whom respondents-workmen were engaged have not been made party and therefore the reference is bad and wrong.
The main thrust of arguments before the labour Court was that the respondents-workmen were engaged for various works regarding the supply of drinking water and its maintenance keeping in view of the exigency of water supply, the work is taken through contractors as a stop-gap arrangement. The reason being that there was ban of the Government on new appointments. The respondents were never taken in employment by the State or by the petitioner employer. They worked with the employer on muster-roll for a short duration and the work was not of continuous nature. It was intermittent and they were engaged from time to time. In any case, the petitioner employer is not the principal employer who neither engaged them nor took any work or even paid wages and therefore, the reference itself is bad and the respondents are not entitled for any relief. In view of the pleadings, all the parties were directed to lay their evidences.
The employees in adjudication case no. 118 of 1997 moved an application namely paper no. 12-D calling upon the employer with a request to produce the documents relating to their service before the labour court. In other adjudication cases mentioned above which were decided by the award dated 6.11.2003, application 15-D was filed by the employees with the request to produce muster- roll from January, 1990 to 31st October, 1994 as also the seniority list of muster roll employees and the attendance register from January, 1994 to October, 1994. The Presiding Officer in both the cases allowed the applications and directed the employers to produce the relevant documents. In adjudication case no. 118 of 1997, the employers produced two documents alongwith list 15-B(1). Some documentary evidences were also produced by the employees. The employees themselves appeared as a witness and got their statements recorded. From the side of the employer one R.K. Singh, Assistant Engineer had got his oral statement recorded. In other adjudication cases which were decided by the award dated 6.11.2003, it has been recorded by the labour court that despite order dated 18.1.2000 passed by the presiding officer on the application No. 15-D for producing the relevant documents relating to employment of workmen, no documents were produced by them. They had not produced the muster roll and the attendance registers which obviously were in their custody. The workmen appeared in the witness box and recorded their statements apart from producing some documentary evidences. From the side of the employers Sri R.K. Singh, Assistant Engineer appeared in the witness box and recorded his statement.
The labour court after consideration of documents on record had recorded a finding of fact that the employers have failed to establish that the workmen were engaged through contractors. It has further recorded that even the name of the alleged contractors who were engaged for the purpose has not been disclosed. This apart, in the documents produced by the employer in adjudication case no. 118/97 which was numbered as Ext. W-3, at serial no.4 against Indira Nagar Tubewell No.1- name of employee Ram Ratan is mentioned. The employer's witness in the cross-examination had admitted that Ext. W-3 is the list of Pump Operators working in the office of the Jalkal Engineer, Jal Sansthan, Banda and on page no. 2 of the said list at serial no. 4 against Indira Nagar Tube Well No.-1, name of Ram Ratan has been mentioned.
The labour court has further recorded that the employers have set up a case that respondents workmen were not in their direct employment and there was no master-servant relationship between them. They were engaged through a contractor. In the circumstances, the burden to prove the said fact lay upon them. They could have produced a licence of the alleged contractor through which the workmen were alleged to have been engaged.
This apart, the muster roll, the attendance register etc. have not been produced by the employer despite order passed by the Presiding Officer, labour court in cases which were decided by the award dated 6.11.2003.
Workman Ram Ratan in adjudication case no. 118 of 1997, in his written statement had categorically submitted that he had worked for more than 240 days in each calendar year continuously for a period of two years with effect from 1.4.1992 when he was engaged for the first time. After his disengagement he was not in any gainful employment.
The statement of workmen that they had worked more than 240 days remain unrebutted as nothing has been stated by the employer in their written statement and in the rejoinder affidavits filed in both the cases. They simply raised objection that they were not principal employers and the employees were engaged by the contractor as such the dispute raised is not an industrial dispute.
Employee Ram Ratan in his statement has categorically stated that the log book is maintained at every pump where the operator is supposed to sign. Even the employer witness R.K. Singh in his cross-examination has admitted that two registers were being maintained at every tubewell, one is known as bleaching register and the other is log book. The pump operators are provided bleaching powder which is being mixed in the water supplied from the pump. The signature of the Assistant Engineer of particular region where bleaching powder is provided, is supposed to sign on the bleaching register and the pump operator has to sign in the log book at the particular pumping station which he operates. The service of the employee is computed by the said log book.
The Presiding Officer of the labour court, in the case of Ram Ratan, in his award dated 12.12.2003 has recorded that the log books for the year 1992-93 and 1994-95 of Indira Nagar pumping house No.1 were to be produced by the employer. The photocopy of the log book from the year 1992 to 1995 and bleaching powder issue register 1993-94 were produced through list 15-B(1) which were neither attested by any competent officer nor contain stamp or on the proforma of the employer establishment. As such the veracity of these documents cannot be established. In so far as the case of the employer that no log book was provided to the workman Ram Ratan and bleaching powder was not issued for the Indira Nagar Pump, the labour court while considering the contention of the employer has recorded that admittedly there is system of adding bleaching powder before supply of the water the employer had failed to give any explanation as to why the same was not issued at Indira Nagar Pumping House and in case the log book was not provided to the respondent employee then to whom the same was provided and who was the pump operator at the said pumping station during the aforesaid period. Looking into facts and circumstances of the matter, the labour court had come to the conclusion and that respondent employee remained in continuous employment in the petitioner establishment with effect from 1.4.1992 till the date of his termination i.e. 1.10.1994. Provision of Section 6-N of the U.P. Industrial Disputes Act, 1947 applicable in the case of the muster roll, has not been followed by the employer, hence employee is entitled for reinstatement with effect from date of reference made by the State Government i.e. 13.5.1997. It was further held that employee is entitled for arrears of salary from 13.5.1997 till the date of reinstatement.
In the award dated 6.11.2003 passed in the adjudication case No. 117/97, 124/97, 125/97, 129/97, 136/97, the Presiding Officer of the labour court had drawn adverse inference against the employers as they withheld the documents in their possession despite order of the labour court dated 18.1.2000 for production of attendance register and muster roll for the years of employment of workmen concerned. Drawing adverse inference considering the contention of employees that they have worked for more than 240 days in each calendar year which remained unrebutted, the labour court has concluded that the employees were retrenched and the provisions of section 6-N of the Act was not followed.
Challenging the two awards passed by the labour court, the first contention of the learned counsel for the petitioner is that the labour court has travelled beyond the reference made to it and thus exceeded its jurisdiction in passing order for regularization of service of respondents workmen and directed them to pay regular salary. He vehemently argued that the labour court is a court of referred jurisdiction and as such it must have confined itself to the reference before it. The reference which were made by the State Government for adjudication to the labour court in the instant case was as to whether the services of workmen employees were terminated in accordance with law and if not to what relief they are entitled to. No reference was made as to whether the employees were entitled to regularization of their services or not and even otherwise it is not a case of the workmen that they were getting regular salary on the date of their alleged termination. While granting relief to the workmen for non-compliance of provisions of Section 6-N of the Act, it was not open for the labour court to direct for reinstatement of the employees on regular posts with regular salary.
He further submits that the case of the employees was that they were appointed on their respective posts but they themselves have admitted that their employment was not made on regular basis. Moreover, the provisions of engagement of the workmen is governed by the provisions of Section 27 of the U.P. Water Supply and Sewerage Act, 1975. Section 27 of the aforementioned act provides for criteria of posting at Jalkal Sansthan with approval of the State Government on the posts of officers and other employees and the appointment to the posts created with the approval of the State Government is to remain according to the provisions as contained in Rules framed under Section 27-A by the general or speaking order specifying the terms and condition of the appointment on such posts which shall be determined with the approval of the Government. The employees had specifically contended before the Labour Court that the Respondents-workmen were engaged through contractors on account of exigencies of service and for the fact that there was ban imposed by the State Government on regular appointment, the engagement of respondents employees could not have been regularised by the award passed by the Labour Court without consideration of the aforesaid fact and the effect as to whether there were posts available for regular employment. Employees were not engaged by following the procedure of the employment/engagement. Their engagement being contrary to recruitment rules, they cannot be said to be workmen within the meaning of Section 2 (z) of the Act.
Another limb of arguments on the employment before the labour Court was that respondents-employees are not workmen and burden to prove the period of working was upon the workmen and they had to lay evidences to establish that they have worked for more then 240 days in one calendar year in view of their claim of being workmen having denied by the management. In order to substantiate his arguments, learned counsel for the petitioner relied upon judgment of the Apex Court in Range Forest Officer vs. S.T. Hadimani reported in 2002(94) FLR 622. He further submits that no relief of reinstatement could be granted to respondents workmen even if it is assumed for the sake of arguments that there was non-compliance of provisions of Section 6-N of the Act for the reason that the Apex Court in catena of decisions has clearly laid down that relief for reinstatement should not be granted as a matter of course and instead, monetary compensation should be given to the workmen to meet the ends of justice. He relied upon judgments of the Apex Court in Bharat Sanchar Nigam Limited vs. Man Singh reported in 2012(1) SCC 558.
Lastly, he submitted that in any case, the respondents workmen have been engaged without following any procedure prescribed under law for appointment and without looking into the eligibility criteria for the respective posts. It is also not clear as to whether there were sanctioned posts existed at the time of appointment, no relief of regularization could be granted to the respondents workmen. The labour court has clearly erred in law in directing for reinstatement of all the respondents on regular posts with regular salary & allowance with continuity of service etc. as payable to the regular employees.
In order to substantiate his arguments he relied upon judgment in State of U.P. vs. Presiding Officer, Labour Court II, Meerut and another reported in (2003) 2 UPLBEC 1285 wherein it has been held that there must be sanctioned posts against which regularization is sought. The labour court have not given any finding regarding the eligibility of workmen for the posts or availability of the vacancies and, therefore, could not have directed for reinstatement on the regular posts that too when respondents were disengaged with effect from 1.10.1994 and they raised industrial dispute in the year 1997. No such direction could have been issued by the labour court without considering any relevant factor at such a belated stage.
Repelling the submission of the petitioner, learned counsels for the respondents workmen in both the writ petitions namely writ petition no. 28954 of 2004 and 19020 of 2004 submits that the main contention of the petitioner before the labour court was that the respondents were not employees of the petitioner instead they were engaged through contractors and they were labourers of the contractors. He further submits that the employers have failed to supply any document or even the oral evidence to substantiate their contention. Despite order passed by the court, the muster roll, attendance register relating to respondents employees which were best evidences in their possession were withheld.
The burden of proof lies upon the party who asserts the same and as the employer asserted that the respondents were not their employees, the burden to prove rest upon them. They having failed to discharge the same and the labour court was justified in drawing adverse inference against the employers for non-production of documents and further recording a finding that even from the documents produced by them regarding one of the employees namely Ram Ratan it is clear that respondents were employees of petitioner and were in direct engagement.
They further emphasized that the appointments of workmen were made against regular posts and they are entitled for regular salary and allowances being payable to the regular employees of the Jal Sansthan. The award passed by the labour court is just and legal in view of the fact that the petitioner has failed to prove the case and it was rightly held that workmen were entitled for reinstatement on regular posts with regular salary and continuity of service.
Sri Shree Ram Gupta, learned counsel for the respondent in writ petition no. 19030 of 2004 in his short written statement filed relied upon the judgment of this Court in 2007(2) ADJ 466 (Narendra Kumar vs. VIIIth Additional District Judge, Meerut and another) and 2006 (11) ADJ 393 (State Inspector of Police, Visakhapatnam vs. Surya Sankaram Karri).
Considered the submissions of counsels for both the parties and perused the record. The pleadings as has been culled out from submission of both sides i.e. employer and workmen in two writ petitions are one and the same.
The case of the employers are that the respondents have never been their employees and there was no master-servant relationship between them as they were engaged through contractors. The labour court while dealing with the said arguments thoroughly examined the oral and documentary evidences filed before it and recorded a finding that the employers have failed to establish that the engagement of respondents were through contractors.
The Apex Court in the case of Devinder Singh vs. Municipal Council, Sanaur reported in (2011) 6 SCC 584 laid down the test to determine whether an employee would fall within the definition of 'workman', as contained under Section 2(s) of Industrial Disputes Act, 1947. It may be noted that the definition of workman as contained in Section 2(s) of the Central Act and under Section 2(z) of the U.P. Act are parimateria. The test laid down by the Apex Court in Devinder Singh(Supra) is as follows:-
"12. Section 2(s) contains an exhaustive definition of the term `workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term `workman'."
"13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman."
"14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of `workman'."
The Apex Court in Devinder Singh (supra) has further considered the scope of jurisdiction of High Court under Article 226 of the Constitution of India in award of the labour court, and relying upon the judgments in the case of Syed Yakoob vs. K. S. Radhakrishnan AIR 1964 SC 477; Sawarn Singh vs. State of Punjab (1976) 2 SCC 868; PGI of Medical Education and Research vs. Raj Kumar (2001) 2 SCC 54; Surya Dev Rai vs. Ram Chander Rai (2003) 6 SCC 675 and Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 had held that the High Court should inquire into the award of the labour court if any jurisdictional infirmity is found or it had come to the conclusion that the same is vitiated by any error of law apparent on the face of record. The scope of interference has been considered in paragraph 21,22 and 23 of the judgments of the Apex Court in Devendra Singh(supra).
A careful analysis of both the awards dated 12.12.2003 and 6.11.2003 reveals that the labour court has rightly held that respondents were workmen of the petitioner employer. The adverse inference was rightly drawn by the labour court in exercise of its discretionary jurisdiction in view of the peculiar facts of the case that despite order passed by the Presiding Officer relevant documents in possession of the employer were withheld. The finding of fact recorded by the labour court on the basis of oral and documentary evidence on record in this respect requires no interference by this Court in exercise of powers under Article 226 of the Constitution of India.
In so far as second submission of learned counsel for the petitioner that burden of proof of working 240 days in a calendar year was upon the workmen and they had failed to prove the same, no evidence was laid and hence relief of reinstatement could not be granted; It is trite that the burden rests upon the employees to establish that they had worked for more than 240 days in a calendar year in order to establish that there was violation of Section 6-N of the Act.
However, in the instant case, looking to the pleadings of both the parties in writ petitions no. 28954 of 2004 and 19020 of 2004, it is clear that the workmen had clearly stated in the written statements filed by them before the labour court that they had worked for more than 240 days in a calendar year. However, the said assertion made by the workmen was never denied nor replied by the employer. In fact in their written statement, rejoinder affidavit filed in labour court in all the adjudication cases much emphasis was laid on submissions that there was no master-servant relationship between them. In fact, the question of working of 240 days in one calendar year was not raised before the labour court and was not in dispute.
In view thereof, there was no occasion for the labour court to go into the said question and decide the same.
Even in the writ petitions, no ground has been taken that respondents workmen have not worked for more than 240 days. In fact, the ground taken by the petitioner in the writ petition is that despite having worked for more than 240 days, no relief of regularization can be granted to the workmen. The labour court granted the relief of reinstatement on the ground that respondent workmen had continuously worked with effect from their engagement till the date of their retrenchment and the petitioner employers had failed to prove their case. In view of above discussion it is held that this was the clear case of retrenchment and violation of Section 6-N of the Act. The relief of reinstatement granted by the labour court call for no interference in the facts and circumstances of the matter.
The contention of the employer that the relief of compensation should be granted instead of reinstatement, cannot be accepted in view of the peculiar facts and circumstances of the present matter.
However, in so far as the relief granted by the labour court for reinstatement on regular posts with regular pay scale is concerned, the same cannot be sustained as it resulted into regularization of the respondents workers on the regular posts. While granting said relief, the labour court had not adverted itself to the fact that admittedly the respondents were not engaged against sanctioned posts through the procedure prescribed under the Act and the Rules made for the purpose. The labour court has not even looked into the fact as to whether the respondents workmen were eligible for the posts and whether there was vacancy or not. Even otherwise the regularization of the workmen was not the subject matter of reference before the labour court. It is well settled that the labour court being a court of reference jurisdiction, must confine itself to the reference and it cannot travel beyond reference. In the instant case, the reference was only to the effect as to whether the employers were justified in terminating the services of the workmen with effect from 1.10.1994 and if not to what relief they are entitled to.
At this stage, Section 27 of the U.P. Water Supply and Sewerage Act, 1975 which deals with the appointment, creation of posts and appointment in Jal Sansthan, is quoted below for convenience and perusal:-
"27. Creation of posts and appointment of employees.-
(1) The Jal Sansthan may, with the previous approval of the State Government, create such posts of officers and other employees and with such designations as it considers necessary for the efficient performance of its function.
(2) The appointments to the posts, referred to in sub-section (1), shall be made by the Jal Sansthan on such terms and conditions as it thinks fit:
Provided that the appointment on such posts as the State Government may, by rules framed under Section 27-A or by general or special order, specify shall be made and the terms and conditions of appointment on such posts shall be determined with the approval of the Government.
(3) Subject to general control and directions of the Chairman, the supervision and control over all employees of the Jal Sansthan shall be vested in the General Manager.) It is well settled that relief of regularization can be granted when there are no rules in this regard. The respondents workmen were not appointed against the sanctioned posts and moreover in absence of any rule for regularization, the relief of appointment on regular salary as granted by the labour court was beyond its jurisdiction. Awards of the labour court are ex-facie erroneous and contrary to settled law to this extent.
In view of the above, direction issued by the labour court to the extent of granting reinstatement on regular posts with regular salary is hereby set aside.
It has come up in the rejoinder affidavit filed on behalf of the employer that the respondents are getting the wages in accordance with the prescribed rate. It is, therefore, provided that the respondents workmen would be reinstated on the same status as was prior to the date of their termination and would be entitled for the wages as is admissible to them under the prescribed rates according to their status.
In so far as the grant of back wages is concerned, no interference is called for in the discretion exercised by the labour court. However, the calculation of back wages shall be made on the prescribed wages admissible to them according to their status as held above.
It may be noted that in writ petition no. 19020 of 2004, while granting the interim relief on 17.5.2004, the award has been stayed in so far as it relates to regularization of the respondents and payment of salary as being paid to the regular employees. However, the reinstatement and payment of back wages have not been stayed.
In writ petition no. 28954 of 2004, the operation of award dated 12.12.2003 was stayed by this Court on 30.7.2004 subject to reinstatement of the respondent workmen and payment of regular wages continuously. This court had further directed that the amount of award be deposited by the employer and half of the same shall be permitted to be withdrawn by the respondent workman. The said direction was given as an interim measure by this Court subject to final decision of the writ petition.
It is, therefore, directed that payment, if any, in excess has already been made to the respondent workmen in both the writ petitions, the same shall be adjusted as against the future wages to be drawn by him. However, no coercive measure shall be adopted for realization of excess amount, if any, paid to the workmen under the interim order passed by this Court. In the eventuality the amount cannot be adjusted, the same should not be realized by adopting any coercive measure against the respondents workmen. In the result, both the writ petitions no.28954 of 2004 and 19020 of 2004 are allowed in part with modification in the award to the extent of directions given above.
In so far as writ petition no. 37053 of 2004 filed by Ram Ratan, respondent no.3 in writ petition no. 28954 of 2004 is concerned, the relief sought in the said writ petition for payment of salary to the employees with effect from 1.10.1994 to 12.5.1997 cannot be granted in view of the above discussion and the fact that the respondent workmen had raised industrial dispute with delay after a period of more than one year ten months as is apparent from order dated 9.1.1997 passed by the conciliation officer. The writ petition No. 37053 of 2004 being devoid of merits is dismissed accordingly.
Order Date :- 2.11.2012 P.P.