1. Heard Sri V.K. Upadhyay, learned Senior Advocate assisted by Mr Ritvik Upadhya, learned counsel for the petitioner and Mr Anil Kumar Srivastava, learned counsel for the private respondents.
2. This writ petition has been filed by the petitioner which is a Public Limited Company incorporated under the Companies Act, 1956 having its registered office at Mumbai and its factory and works at Renusagar and Renukoot, District Sonebhadra.
3. The Company is engaged in the manufacturing of Aluminum and its allied products. There is a Construction Division in the said Company engaged in construction related to the manufacturing process and expansion and modification work, although the Company has averred that the Construction Division is a totally temporary division, it has been in existence since 1972 continuously till date.
4. It is the case of the petitioner that workers of different skills and experience are engaged in view of specific nature of work concerning different projects undertaken by the Construction Division. The workers for such project works are given fixed term appointment with a specific condition stipulated in the appointment letter that they are being appointed purely on a temporary basis and their services could be terminated at any time without notice and without assigning any reason. In every appointment letter, the period of expiry of appointment was specified.
5. The respondent no. 2 - Hindalco Workers Union, espoused an industrial dispute regarding termination of services of respondent nos. 3 to 14 alleging that there was a wrongful termination of engagement of respondent no. 3 w.e.f. 18.2.1987 and respondent nos. 4 to 14 w.e.f. 18.3.1987, and adjudication case no. 167 of 1988 was registered in the Labour Court, Varanasi.
6. After exchange of affidavits and also taking of statements of witnesses of the employers and the employees, the adjudication case was dismissed on 18.5.1990. The Hindalco Workers Union challenged the said Award of the Labour Court, Varanasi by filing Writ Petition No. 2958 of 1991.
7. This Court by its judgment and order dated 3.6.2006 allowed the writ petition and remanded the matter to the Labour Court for reconsideration of material evidence including the consideration of question of unfair labour practice and to pass an order afresh. The matter was transferred by the Government from Labour Court, Varanasi to Labour Court, Mirzapur and registered as adjudication case no. 119 of 2008.
8. During the course of hearing of the said case, the respondent nos. 3 to 14 moved three applications alleging that all the concerned twelve workmen had lost faith in the office bearers of the Union (the respondent no. 2) and wish to appoint their own representatives to conduct their case before the Labour Court.
9. These applications were objected to by the workers union and the employer, but were allowed by an order dated 30.1.2009. Two of the workers appeared before the Labour Court and gave statements on behalf of other ten workers. On behalf of the Company, four of its Officers appeared and gave statements with regard to nature of work carried out in Construction Division, the number of permanent workers employed in the Construction Division as well as the number of temporary workers.
10. It was alleged that the respondent nos 3 to 14 were employed in different projects of the Construction Division and when the work of construction was reduced, they were removed from service. The Construction Division carried out temporary projects of short duration not connected with the main manufacturing process and the work being temporary in nature, the employment therein was also temporary.
11. It was also alleged that the workmen had never worked for more than 240 days in the preceding calender year, and therefore the allegation that they were retrenched without following the procedure prescribed under Section 6(N) of the U.P. Industrial Disputes Act is misconceived.
12. The workmen - the respondent nos. 3 to 14 had contended before the Labour Court that they had worked continuously for several years and had produced their appointment orders / engagement orders on a year to year basis and their termination order which did not mention that they were disengaged because of completion of project, but mentioned the reasons for disengagement as reduction in construction work.
13. It has been averred by the learned counsel for the petitioner in the writ petition that while allowing the Reference by the impugned Award dated 11.10.2013, the respondent no. 1 had ignored the specific pleading on record that none of the workmen had worked in more than 240 days in the preceding year as given in their written statement. The onus of working for 240 days had not been fully discharged by the workmen and the onus was wrongly shifted upon the employers to prove otherwise.
14. It has also been alleged that automatic termination on completion of project was envisaged in the appointment letters of the respondent nos. 3 to 4, and therefore the observation of the respondent no. 1 that the disengagement of the respondent nos. 3 to 14 after fixed period of appointment for a few days, and their re-engagement again for a specific period amounted to unfair labour practice is misconceived.
15. It has been alleged that the concept of unfair labour practice is not provided under the U.P. Industrial Disputes Act, nor there was any mention of unfair labour practice in the original Reference order of the State Government dated 31.2.1988, the Labour Court had no jurisdiction to deal with the issue at all.
16. It has also been alleged that the Labour Court completely ignored the recent developments in law where the Supreme Court has held that reinstatement after a very long lapse of time from the date of termination of service should not be awarded by the Labour Court. A lump sum compensation may be given in lieu of the reinstatement.
17. It has also been averred that most of the concerned workmen had attained the age of superannuation, at the time when the Award was given, and therefore that there was no question of directing the reinstatement with 50% back wages along with interest as directed by the Labour Court in the Award impugned.
18. A counter affidavit has been filed on behalf of the respondent nos. 3 to 14 wherein it has been averred that the respondent nos. 3 to 14 were engaged in the Construction Division (which is a more or less permanent division in the petitioner's Company as it is running since 1972 till date) for several years at a stretch, but artificial breaks were given. The fixed term of engagement as mentioned in the appointment letters was on a regular pay scale payable on a month to month basis. The respondent nos. 3 to 14 as well as several other persons were appointed in this manner with a view that the workmen may not get the rights and status of permanent employee.
19. In the present case, the respondent no. 1 had found all the workmen to have worked for more than 240 days in the preceding year. In the cross examination, the management witnesses Sri Chandra Kumar Srivastava and Sri S.K. Mishra had admitted that in the letter of appointment issued to the respondent nos. 3 to 14, there was no mention that they were being appointed on a particular project. No proof was filed to show that in the year 1986-1987 certain projects stood completed as a reason whereof the respondents' services were terminated. In the letter of termination, there was no mention that their services are being terminated due to completion of project work. The reason of termination was mentioned as reduction in construction work.
20. If a workman is terminated for any reason whatsoever, it would amount to retrenchment under Section 2(s) of the U.P. Industrial Disputes Act, 1947.
21. Two of the respondents, Banarasi Lal and Uma Shanker had given statements on behalf of the respondents that they remained unemployed after their wrongful termination, and therefore the Labour Court rightly allowed reinstatement with back wages.
22. It has also been averred in the counter affidavit that in Writ Petition No. 2158 of 1991, this Court had directed the Labour Court to decide the question of unfair labour practice and the direction of this Court was complied with by the respondent no. 1 in the order impugned, where it had found the termination of service of the petitioner without following the procedure prescribed under Sections 6(N), 6(P) and 6(Q) as illegal and arbitrary, and therefore set it aside.
23. With regard to the age of superannuation being reached by some workmen before the impugned order, it has been averred that the workmen are contesting their case relating to their wrongful termination of service from 1987-1988 Writ Petition No. 2158 of 1991 was allowed by this Court in 2006. The Labour Court reheard the matter and delivered the impugned Award in 2013. The present writ petition before this Court has been filed thereafter. The workmen cannot be put to a disadvantage because of the pendency of litigation.
24. In the rejoinder affidavit filed by the petitioner, it has been contended that before insertion of Section 2(A) by the U.P. Act No. 34 of 1978 an individual worker neither had any right to raise an industrial dispute nor did he have any right to approach the Labour Court. After introduction of Section 2(A) in the U.P. Industrial Disputes Act, individual workers have been given a limited right to raise the dispute individually without it being sponsored by a workers' union only in cases of discharge, dismissal, retrenchment or otherwise termination of service.
25. It has further been mentioned that the judgment and order dated 3.6.2006 by which Writ Petition No. 2158 of 1991 was allowed directing the respondent no. 1 to decide the question of unfair labour practice, is against the settled position of law that the jurisdiction of the Labour Court is confined to the Reference order only as held by the Supreme Court in Gangadhar Pillai Vs Simens Ltd. 2007 (1) SCC 533)
26. It has further been submitted that there is a specific averment in the written statement filed by the Company before the Labour Court that none of the workmen had worked for more than 240 days in the preceding year and the dates of engagement of the respondent nos. 3 to 14 had been mentioned. The onus of proof had shifted on the workmen which was not sufficiently discharged by them.
27. In two supplementary affidavits filed in 2015 and again in 2017, the petitioners have further averred that out of twelve respondents only ten had approached them by filing an application on 21.10.2013 for their re- engagement in terms of the Award. With respect to two of the workmen i.e. respondent nos. 6 & 9, there is a mention in the application dated 21.10.2013 that they were since deceased. It has been further contended that it had not come on record as to when the respondent nos. 6 to 9 had died and if they had died before the delivery of the impugned Award and were not substituted by their legal heirs and representatives, the Award being passed in favour of dead persons, i.e. respondent nos. 6 & 9, was a nullity and the Award directing the reinstatement and payment of back wages could not be given effect to.
28. The respondent nos. 3 to 14 have filed their reply to supplementary affidavits on 13.11.2017 wherein it has been mentioned that respondent no. 6 - Bihari Prasad died in 1995 and respondent no. 9 - Ram Bachan Singh died on 22.1.2013. With respect to the allegation of superannuation of respondents before the impugned Award was given, it has been averred in the supplementary counter affidavit that Banarasi Lal - the respondent no. 3 reached the age of superannuation on 13.7.2009 and Suresh Yadav - the respondent no. 7 reached the age of superannuation on 1.1.2015. With respect to other respondents, the dates mentioned in the supplementary affidavit of the petitioner relating to superannuation were otherwise correct.
29. During the course of argument, Sri V.K. Upadhyay, learned Senior Advocate assisted by Mr Ritvik Upadhya, learned counsel for the petitioner has relied upon the statement made by the petitioner in Adjudication Case No. 167 of 1988 and also in Adjudication Case No. 124 of 1988 to the effect that nature of work in Construction Division was temporary and based on projects, which were allotted to it for completion within a specified time period and even though the Construction Division itself may have existed for a long time the work in the said Division could not be said to be of permanent nature.
30. It is also petitioner's case that the main work of Hindalco Industries is manufacturing of Aluminium through electrolysis and other chemical processes and Construction Division was one of the Departments of Hindalco Industries Ltd., which looked after fabrication and construction work where plant modification or expansion was required to be done.
31. It is his case that as and when projects were allotted temporary engagements were done. There was some permanent skilled staff of about 150 workers in the Construction Division, whereas temporary staff was engaged, like the workmen herein, on project to project basis for specified period of time. The appointment letters of the respondent-workmen were on record, which showed that that their engagement was temporary and for specified time period from the date of joining. Hence, there termination on 18.02.1987 or 18.03.1987 was in pursuance of the terms and conditions of the appointment letter.
32. It has been pointed out from the appointment letters and termination orders filed as Annexure 2 to the writ petition that all the terms and conditions were known to the respondent-workmen and they had signed on them while being engaged.
33. It is the case of the petitioner that the workmen's case was initially sponsored by the Union in 1987 and 1988, but later on the workmen filed an application that they no-longer trusted on the office bearers of the Union and wanted to fight their own case.
34. Learned counsel for the petitioner has referred to Rule 40 of the Rules under the Industrial Disputes Act and said that the application of the workmen individually to pursue their case through their own representative, could not be allowed ignoring specific provision in the Rule that whenever the Union of workmen sponsored a case for adjudication, only the representative of the Union would represent the case of the such workmen.
35. It has been argued that the workmen conducted their case on their own, but none of them except for Banarasi Lal stated before the Labour Court that they remained unemployed after their termination and the statement of Banarasi Lal is also in an individual capacity and could not have been taken to mean that all workmen were similarly not gainfully employed, and the question of back wages could not have been decided by the Labour Court in favour of the respondent-workmen.
36. It has been pointed out that the Award was declared on 11.12.2013, by which time respondent Nos. 5 and 9 were already dead, and their legal heirs and representatives could have filed application for being represented, but they did not do so, and therefore, award is nullity insofar as the respondent Nos. 5 and 9 are concerned.
37. With respect to other workmen also, all of them retired on various dates except for two i.e. respondent Nos. 10 and 12 before the date of Award, and therefore, no reinstatement could have been done by the Labour Court.
38. Learned counsel for the petitioner has relied upon several case law to buttress his argument, namely, Shri Rameshwar Manjhi (deceased) through his son Shri Lakhiram Manjhi vs Managament of Sangramgarh Colliery and others, 1994 (1) SCC 292; V. Veeramani vs Management of Madurai District Cooperative Supply and Marketing Society Ltd. and another, 1995 Supp (3) SCC 557; Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited, 2014 (11) SCC 85 all judgments of Hon'ble Supreme Court, which have held that the onus of proof of having worked for 240 days in the preceding year lies initially upon the workman, and thereafter such onus shifts to the employer concerned. He has also relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Range Forest Officer vs. S.T. Hadimani 2002(3) SCC 25 for the said purpose.
39. Learned counsel for the petitioner has also argued that the Reference Order was for the Labour Court to adjudicate only upon the termination and its legality or validity, and did not refer to any dispute regarding "unfair labour practice" being followed by the employer.
40. On the other hand, learned counsel for the private-respondents has pointed out from the award in question that the admitted case of the employer is that the workmen were continuously employed for seven to eight years in the establishment in the Construction Division and several appointment letters and termination orders were filed to show that the workmen had continued although with artificial breaks. The Construction Division itself was permanent and when respondent workmen were engaged in the same, no mention of any project was made in the appointment letters to the effect that they were engaged in the project and would stand terminated when the project ended. This was also not the case of the employer before the Labour Court, because before the Labour Court the employers admitted that the workmen were disengaged due to reduction in work and not due to completion of project. Under section 2 (s) retrenchment has been defined and any kind of termination except for the exclusion specifically mentioned in the Act, would amount to retrenchment, and section 2(oo) (bb) of the Central Act would not apply to U.P. Industrial Disputes as has been held by the Hon'ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited (supra).
41. In Bhuvnesh Kumar Dwivedi vs Hindalco Industries Limited, the Hon'ble Supreme Court was considering a similar case relating to Construction Division of the same Establishment and Hon'ble Supreme Court found that termination orders were illegal and in violation of section 6 (N), and therefore, had directed full back wages to be given to the workmen concerned.
42. It is the case of the respondent's counsel that conditions precedent to a valid retrenchment have been given under section 6 (N), which were not followed by employers.
43. Moreover, it is the case of the respondents that the workmen had initially discharged the burden of having worked for more than 240 days in a year by filing their appointment letters and their termination orders, and employer being the custodian of documents had in its possession documentary evidence if any to the contrary, and it failed to file the same nor made any effort to show that the workmen had not worked for 240 days in a year.
44. Under the U.P. Industrial Disputes Act, under section 2 (z) exclusions in the definition of workmen have been specifically provided for and there has been no categorization of the workmen as casual, permanent, temporary, etc. and all workmen are covered there by the provisions of U.P. Industrial Disputes Act and entitled to the benefit given under the Act in case they are wrongly retrenched.
45. Learned counsel for the respondents has said that the Adjudication case was initially filed by the Union and when one or two workmen appeared in the witness box to make statements in support of their case, it meant that all workmen were similarly un- employed after their illegal termination. The reference being collective in nature one of the workman's statement that he was out of employment should be read in favour of all respondent workmen.
46. It is the case of the respondents that from page 168 and 169 of the paper book, it is evident that employer's witnesses themselves stated before the Labour Court that the respondents were not daily wage workmen, but were engaged on regular scale of pay and performed work of permanent nature and Construction Division also was a permanent department of the factory. No project was mentioned in which the workmen were engaged, and therefore, it should be taken that the workmen were engaged to work in the Construction Division and to do work that was permanent in nature, but artificial breaks were created in their Service Records only to deprive them of the benefit given to permanent employees.
47. It has also been argued the Findings of fact recorded by the Labour Court could not be interfered with by this Court sitting in judicial review under Article 226 of the Constitution of India as has been held in several cases by the Supreme Court.
48. Learned counsel for the respondents has also relied upon Bhuvnesh Kumar Dwivedi vs M/s Hindalco Industries Ltd., 2014 (142) FLR 20, Jasmer Singh vs State of Haryana and another, 2015 (144) FLR 837 to argue that full back-wages ought to have been given, but the Labour Court has given only 50% of the back-wages.
49. Leaned counsel for the respondents has also relied upon Sudarshan Rajpoot vs U.P. State Road Transport Corporation; 2015 (144) FLR 7 that the termination order amounts to retrenchment and non compliance of the statutory provisions under sections 6-N, 6-P and 6-Q of the U.P. Industrial Disputes Act has rendered the order of termination void ab initio in law.
50. Learned counsel for the respondents has relied upon M/s U.P. Drugs & Pharma Co. Ltd. vs Ramanuj Yadav, 2015 (99) FLR 331, to say that if the workman is able to establish that in the one of the past several years at least he has worked for 240 days, then also he is entitled to relief of reinstatement.
51. Lastly, the learned counsel for the respondents has relied upon the judgment of a Co-ordinate Bench of this Court in U.P. Power Corporation Ltd. vs Presiding Officer, Labour Court decided on 21.01.2017.
52. Mr. V.K. Upadhyay, learned Senior Advocate while arguing the matter in rejoinder has pointed out paragraph 4 of the Claim-petition, wherein the workmen's statement that they had worked for 240 days had been specifically denied in the rejoinder statement filed by the Hindalco Industries, and yet the Labour Court did not choose to discuss the evidence with regard to workmen having worked or not for 240 days. The burden of proof was with the workmen, which they failed to discharge initially, and therefore, employer cannot be asked to discharge burden of proving the fact.
53. Mr. V.K. Upadhyaya, learned Senior Advocate has tried to distinguish the case of Bhuvnesh Kumar Dwivedi (supra) by saying that in Bhuvnesh Kumar Dwivedi the nature of work of Construction Division was not specifically pleaded nor the list of projects filed before the Labour Court, but in the case of petitioner, the list of projects was filed along with rejoinder statement of Hindalco Industries before the Labour Court, which was ignored. The list of project has also been filed as Annexure 6 to the writ petition.
54. Having heard the learned counsel for the petitioner and the learned counsel for the private respondents, this Court has perused the record as filed before the respondent no. 1 and the impugned Award dated 11.10.2013. It is evident that initially the Reference order dated 31.3.1988 had only referred the question regarding wrongful termination or otherwise of the respondent nos. 3 to 14, whose names were given in the Annexure to the said Reference order. The Reference was initially registered as adjudication case no. 167 of 1988 and it was rejected by the Labour Court, Varanasi on 18.5.1990. The respondent no. 2 filed Writ Petition No. 2958 of 1991. The judgment rendered by this Court on 3.3.2006 setting aside the initial Award of the Labour Court dated 18.5.1990 has been filed as Annexure no. 12 to the writ petition, a perusal thereof shows that this Court had considered and approved of the arguments raised by the counsel for the respondent nos. 3 to 14 that the Labour Court had wrongly come to a conclusion that the workmen were engaged on a project work and the work came to an end when the project came to an end. The workmen had been engaged and worked for more than 240 days in every such term of appointment as mentioned in the appointment letters issued from year to year for almost seven to eight years. Artificial breaks amounted to unfair labour practice, and before termination, the employers did not comply with the provisions of Section 6(N).
55. The arguments raised by the learned counsel for the Company regarding the Labour Court being a court of limited jurisdiction which must confine itself to the term of reference made to it was considered by this Court and rejected; By the observations that wrongful termination of the workmen could only be determined by the Labour Court after perusal of record to find out whether the workmen were engaged year after year with artificial breaks. The workmen had placed on record the previous letters of appointment and also their termination letters. It was observed by this Court that there was enough material to show that the employer was indulging in unfair labour practice in engaging them year after year on a fixed term basis.
56. This Court observed that the Labour Court had not returned any finding with regard to the earlier periods of engagement of the workmen and it had ignored vital evidence, therefore the Award was vitiated.
This Court observed thus:-
"The award of the Labour Court, has not returned any findings on this aspect of the matter. It has ignored vital evidence and it is vitiated on this account. The Hon'ble Supreme Court in the recent decision in the case of Regional Manager, S.B.I. versus Raja Ram has laid down as to what amounts to unfair labour practice and while doing so, has laid down that when an employee is appointed temporarily for a successive fixed tenures with artificial breaks in between so as to deny far as the employee the right to permanent employment, it would amount to unfair labour practice within the meaning of. Section 2(ra) of the I.D. Act. Section 2 (ra) defines "unfair labour practice" which means any of the practices specified in the Fifth Schedule of the Act, including item No.10 which has already been quoted above. The Supreme Court has also laid down that in order to come to the conclusion that the practice of the employer to create artificial breaks in the service is with the object of depriving the workmen the status of permanent workmen are questions which would have to be gone into by the Labour Court by arriving at a finding with regard to unfair labour practice.
In the present case, the Labour Court has failed to return any findings on this aspect of the matter i.e., by simply saying that it is not necessary to go into the fact that the petitioner workmen were in fact being engaged year after year on temporary basis by giving them artificial breaks.
The arguments made by the learned counsel for the petitioner Shri K.P. Agarwal have substance and are bound to be accepted by this Court. The award of the Labour Court is vitiated on account of the fact that it has failed to exercise jurisdiction vested in it by ignoring material evidence. The argument of the learned counsel for the respondent that question of unfair labour practice can not be gone into in the present question, cannot be accepted as it is very much part and parcel of any investigation, i.e., by the Industrial Labour Court to take-up all these issues. Even otherwise, the U.P. Act being silent on unfair labour practice, the provisions of Central Act will apply then, is also a established principle.
In view of the above discussions, the award of the Labour Court stands vitiated and is set aside. The matter is remanded to the Labour Court for reconsideration of material evidence on record. The matter will be re-opened before the Labour Court. Immediately upon receipt of an order of this judgment, both the parties shall be allowed opportunity to lead any additional evidence that they may want to do so.
The writ petition is allowed."
(emphasis supplied)
57. The judgment of this Court was not challenged and it attained finality after remand, additional evidence was led by the employers alone, i.e. the petitioner's Company by producing to its officers to give oral statements before the respondent no. 1. However, the mention made by the petitioner in its written statement in paragraph 7 with regard to the last date of specific employment of the respondent nos. 3 to 14 and the date of expiry of such specific employment had been found by the Labour Court to be incorrect.
58. The findings of fact recorded by the Labour Court with regard to different letters of appointment of the respondent nos. 3 to 14 issued to each of the respondents year after year for almost seven to eight years cannot be interfered with. The respondent no. 1 had considered each of the letters of appointment issued in between 1979 to 1987. The respondents individually had been engaged sometime for one year and sometime for six months, but the employer had ensured that such appointment letters were issued issued after artificial breaks in between.
59. The appointment letters issued to the respondent nos. 3 to 14 did not mention engagement on a specific project. The order of termination also did not mention the reason of termination of employment as completion of a specific project. Out of four of the employers' witnesses two of them, namely Sri S.K. Mishra and Sri Chandra Kumar Srivastava in their oral statements before the Labour Court had admitted the engagement of the respondent nos. 3 to 14 each succeeding year, although they insisted that such engagement was completely casual / temporary. It was found by the Labour Court that construction division of the petitioner's Company had continued since 1972 and was in existence at the time when the Award was delivered i.e. till October 2013.
60. The Labour Court had therefore rightly come to a conclusion that the work undertaken by the construction division was more or less that of a permanent in nature, although only some of the workmen engaged by the Company had been given permanent status. While others, like the respondent nos. 3 to 14 had been continued for years on end by giving them fixed term appointments to avoid giving them permanent status and facilities available to a permanent employee of the Company. The Labour Court has found that the respondent nos. 2 to 14 had been working continuously for past several years. In each of these years, the workmen had worked for more than 240 days although they were given artificial breaks in between.
61. This Court has also found from a perusal of the record that although the respondent nos. 3 to 14 may not have completed 240 days of working in the year immediately preceding the disengagement, it would have no effect as in the twelve calender months preceding their disengagement, they had worked for 240 days or more.
62. For this observation, this Court is placing reliance upon judgment rendered by the Hon'ble Supreme Court in M/S U.P. Drugs and Pharmaceuticals Company Ltd. Vs. Ramanuj Yadav & others 2003 (99) FLR 331. The question being considered by the Hon'ble Supreme Court was whether for reaching a finding that there was a violation of Section 6(N) read with section 2(g) of the U.P. Act, it was necessary for the workman to complete 240 days in the immediate preceding year to the disengagement, or whether the workman who had completed 240 days in the calender year preceding to the twelve months on the date of retrenchment, could be deemed to be continuous service.
63. The Supreme Court considered Section 6(N) of the U.P. Act relating to condition precedent to retrenchment of workman and it observed that there is a difference in language in the U.P. Act with the Central Legislation. Under Section 6(N), no workman employed in any industry who had been continuous service for not less than one year can be retrenched by the employer without complying with the conditions mentioned therein "continuous service" is defined in Section 2(g) of the U.P. Act, which means uninterrupted service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock out which is not due to any fault on the part of the workman and a workman who during the period of twelve calender months had actually worked in an industry for not less than 240 days shall be deemed to have been completed one year of continuous service in the industry.
64. The Supreme Court also considered Section 25(B) of the Central Act defining continuous service in the Central Act before its amendment, and the amendment made thereafter in the definition of "continuous service" in the Central Act in 1964.
65. The Supreme Court has observed in paragraphs 10 & 11 thus:-
"10. Under the aforesaid legislative background, the question involved is required to be considered. Section 2(g) of the UP Act does not require a workman, to avail the benefit of the deeming provision of completion of one year of continuous service in the industry, to have worked for 240 days during 'preceding' period of 12 calendar months. The word 'preceding' has been used in Section 25-B of the ID Act as incorporated in the year 1964. Section 2(g) does not use the word 'preceding'. The concept of 'preceding' was introduced in the ID Act so as to give complete and meaningful benefit of welfare legislation to the working class. The approach to be borne in mind while interpreting the welfare legislation is illustrated in Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal- cum-Labour Court, New Delhi & Anr. [(1981) 1 SCR 789] where this Court has observed that semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."
11. Learned counsel for the appellant, however, relies upon Mohand Lal Vs. Management of M/s Bharat Electronics Ltd. [(1981) 3 SCC 225]. In that case, the Court was considering the scope of Section 25-B of the ID Act. It was observed that in order to invoke the fiction enacted in clause (2)(a) of Section 25-B, it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within a period of 12 months, the workman has rendered service for a period of 240 days. It was held that if these three factors are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a), it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25-F. In Mohan Lal's case, the appellant was employed with the respondent from 8th December, 1973. His services were abruptly terminated by letter dated 12th October, 1974 w.e.f. October 19, 1974. This Court said that it is not necessary for the purpose of clause (2)(a) of Section 25-B that workman should be in service for a period of one year. It was held that if he is in service for a period of one year and that service is continuous service within the meaning of clause (1), his services would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages the situation not governed by clause (1). Clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backward and just preceding the relevant date the date of retrenchment. These were the facts under which it was held as to how the period of 240 days was to be calculated. The decision in the case of Mohan Lal does not lay down that if a workman had worked for more than 240 days in any number of years and if during the year of his termination, he had not worked for the said number of days, he would not be entitled to the benefit of Section 25-B. The question with which we are concerned was not under consideration in Mohan Lal's case. If the viewpoint propounded by the management is accepted, then in every year the workman would be required to complete more than 240 days. If in any one year the employer gives him actual work for less than 240 days, the service of the workman can be terminated without compliance of Section 6N of the UP Act, despite his having worked for number of years and for more than 240 days in each year except the last. Such an intention cannot be attributed to the UP Act. In the present case, as already noticed, the finding of the labour court is that the respondents worked for more than 240 days in each year from 1983 to 1986 but not having worked for 240 days in the year of termination, the termination was held by the labour court not to be violative of Section 6N. Reference may also be made to the decision in Ramakrishna Ramnath Vs. The Presiding Officer, Labour Court, Nagpur & Anr. [(1970) 3 SCC 67] where this Court observed that the provision requiring an enquiry to be made to find out whether the workman has actually worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment does not show that a workman, after satisfying the test, has further to show that he has worked during all the period he has been in service of the employer for 240 days in the year. The interpretation propounded for the appellant is wholly untenable. The decision in U.P. State Cooperative Land Development Bank Ltd. Vs. Taz Mulk Ansari & others 1994 Supp.(2) SCC 745] relied upon by learned counsel for the appellant has no applicability since that was a case of clause (a) of Section 6N and, therefore, Section 2(g) had no relevance."
(emphasis supplied)
66. The Supreme Court further observed that the High Court had rightly concluded that the termination of respondent was in violation of Section 6(N) read with section 2(g) of the U.P. Act.
67. With regard to the second issue raised by the learned counsel for the petitioner that since the workers union had sponsored the cause of the respondent nos. 3 to 14, the respondent no. 1 could not have passed the order dated 30.1.2009 permitting the concerned workmen to appoint their own representative; this Court had considered Section 2(A) of the U.P. Act inserted w.e.f. 1978 and Rule 14(1) of the U.P. Industrial Disputes Rules 1957. Individual workman can approach the Labour Court with his grievance regarding discharge, dismissal, retrenchment or termination done wrongly by an employer, notwithstanding that no other workman nor any union of workmen is a party to the dispute. Even in the Rules of 1957, it is left to the discretion of the party to be represented before the Labour Court or Tribunal by an Officer of the union.
68. Moreover in the written statement filed by the petitioner, the espousing of the cause of respondent nos. 3 to 14 by the respondent no. 2 was specifically objected to in paragraphs 13, 14 & 15. It was stated before the Tribunal that neither the Union had any substantive number of workmen of the Corporation as its members nor there was any complaint moved by any substantive number of workmen with respect to the grievance related to them. It had objected to small groups viz the respondent no. 2 acting as a bargaining agent for the workmen. It was the Company's case before the Tribunal that the workers' union represented a microscopic minority, and it was not the authorised agent to initiate / sponsor the adjudication case.
69. The respondent workmen by three applications had requested for them being allowed representation by their own representative as they had lost their trust in the office bearers of the respondent no. 2. The respondent no. 1 had rightly allowed such application by its order dated 30.1.2009 finding that the dispute was with regard to the wrongful retrenchment / termination from service of the respondent nos. 3 to 14 which they could individually pursue before the Labour Court in terms of Section 2(A) of the U.P. Industrial Dispute Act.
70. With regard to the findings of fact recorded by the respondent no. 1, this Court exercises a very limited jurisdiction. In Harjinder Singh Vs. Punjab State Warehousing Corporation 2010 (3) SCC 192, the Supreme Court had observed in paragraph 17 thus:-
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty- bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43- A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago.
"10. ... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State."
71. The judgment rendered by the Supreme Court in Harjinder Singh (supra) has been later reiterated by the Supreme Court. The Labour Court having recorded a finding of fact that the respondent nos. 3 to 14 having been engaged every year on a fixed term basis continuously for seven to eight years shall be deemed to be in continuous service rightly allowed the Reference.
72. Bhuvnesh Kumar Dwivedi Vs. M/S Hindalco Industries Limited 2014 (142) FLR 20 has been relied upon both by the petitioners and by the private respondents, and hence this Court has carefully perused the aforecited judgments. The appellant therein was engaged as a labour Supervisor in the construction division in 1992 and was disengaged in 1998. Every year a fresh appointment letter was issued to him reappointing him for doing the same work in the same department in construction division with marginal increase of salary and dearness allowance per month.
73. The Supreme Court found that there were several such workmen employed by the respondent industry who were deprived of the benefit of permanent appointment by being kept on temporary basis or on a contract basis.
74. The Hon'ble Supreme Court found that the construction division of the employer had been in existence ever since the beginning of its establishment and thousands of workmen were employed in the said division in the aforesaid manner and very few of them were made permanent. This was the regular and established practice in the Company.
75. The Supreme Court also observed that it amounted to improper and unfair labour practice, as mentioned (v) under Section 2(r)(a) of the Central Act.
76. The Supreme Court found the appellant workman as covered under the definition of workman under Section 2(s) of the Industrial Disputes Act, and the termination of contract a clear case of retrenchment in violation of Section 6(H) of the U.P. Industrial Dispute Act.
77. The Hon'ble Supreme Court framed the questions for consideration under paragraph 15 thus:-
"15. With reference to the above legal contentions the following points would arise for our consideration :-
1) Whether the exercise of power by the High Court under Articles 226 and 227 of the Constitution and setting aside the award of reinstatement, back wages and other consequential reliefs and awarding Rs.1,00,000/- towards damages is legal and valid?
2) Whether the concurrent finding recorded by the Labour Court and High Court on the question of termination of services of the workman holding that the case of retrenchment falls under Section 6-N of the U.P. I.D. Act is void ab initio and not accepting the legal plea that the case falls under Section 2 (oo) (bb) of the Act is correct, legal and valid?
3) Whether the workman is entitled for reinstatement with full back wages and other consequential reliefs ?
4) What Award?"
78 The limits of jurisdiction exercises by the High Court under Article 226 & 227 of the Constitution were discussed and in paragraph 18 it was observed thus:-
"18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant."
79. Under the Central Act, Section 2(oo) (bb) referred to termination of service of the workman as a result of non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.
80. It was argued by the Company that there was a contract of employment which stipulated a condition of service of the workman is being engaged for a fixed term which was liable to be terminated without assigning reason.
81. The Supreme Court held while placing reliance upon State U.P. State Sugar Corporation Ltd Vs. Om Prakash Upadhyay 2002 (10) SCC 89 that Section 2(oo)(bb) of the Central Act will not be attracted in the case of Hindalco and the provisions of Section 6(N) of the U.P. Industrial Disputes Act was required to be fulfilled mandatorily by the Company to retrench its workmen.
82. The Supreme Court also rejected the respondent's contention that the appellant was a temporary worker. It observed that the appellant's service had been terminated several times and he was subsequently employed again till his service was finally terminated in 1998. There were several periods of engagement by separate contract in between 1992 to 1998. The period of service extended to four to six years save the artificial breaks made by the respondents with ulterior motive to retain the appellant as a temporary worker and deprive the appellant of his statutory rights and of permanent workers status.
83. The Supreme Court observed in paragraphs 23, 24, 25 & 26 thus:-
"23. Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates ''unfair labour practice as defined under Section 2(ra) of the I.D. Act, which is not permissible in view of Sections 25T and 25U of the I.D. Act read with entry at Serial No. 10 in the Vth Schedule to the I.D. Act regarding unfair labour practices. Section 2 (ra) reads thus:
"unfair labour practice" means any of the practices mentioned in the Vth Schedule.
Further, Entry 10 of Vth Schedule reads as under:
"5. To discharge or dismiss workmen-
(10). To employ workmen as ''badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
24. The respondent, in order to mitigate its conduct towards the appellant has claimed that the appellant was appointed solely on contract basis, and his service has been terminated in the manner permissible under Section 2 (oo) (bb) of the I.D. Act. However, we shall not accept this contention of the respondent for the following reasons:-
(i) Firstly, the respondent has not produced any material evidence on record before the Labour Court to prove that it meets all the required criteria under the Contract Labour (Regulation and Abolition) Act, 1970, to be eligible to employ employees on contractual basis which includes license number etc.
(ii) Secondly, the respondent could not produce any material evidence on record before the Labour Court to show that the appellant was employed for any particular project(s) on the completion of which his service has been terminated through non-renewal of his contract of employment.
25. Therefore, we deem it fit to construe that the appellant has rendered continuous service for six continuous years (save the artificially imposed break) as provided under Section 25B of the I.D. Act and can therefore be subjected to retrenchment only through the procedure mentioned in the I.D. Act or the state Act in pari materia.
26. Therefore, we answer the point No. 2 in favour of the appellant holding that the Labour Court was correct in holding that the action of the respondent/employer is a clear case of retrenchment of the appellant, which action requires to comply with the mandatory requirement of the provision of Section 6-N of the U.P. I.D. Act. Undisputedly, the same has not been complied with and therefore, the order of retrenchment has rendered void ab initio in law."
(emphasis supplied)
84. With regard to arguments raised by the learned counsel for the petitioner's Company that reinstatement could not have been ordered by the Labour Court in the Award impugned as several of the workmen had reached the age of superannuation, reliance has been placed by the learned counsel for the respondents in the supplementary affidavit filed by him on 13.11.2017. The date of superannuation of the respondents have been given in a table annexed to a supplementary affidavit filed by the petitioners. Such table is being reproduced herein below:-
List of workmen in Adjudication Case No. 119 of 2008 (Old No. 167 of 1988) Sr. No. Name of workman Fathers Name Badge No. Date of termination Date of Birth Date of Superan-nuation 1 Kailash Kumar Gupta Narain Gupta ZF 00554 18.2.1987 1.5.1951 31.1.2009 2 Banarsi Lal Ganga Lal ZF 00459 18.3.1987 2009 3 Uma Shankar Shyam Sunder Prasad ZF 00445 18.3.1987 7.1.1954 30.6.2012 4 Bihari Prasad Shiv Narain ZP00383 /ZS 00383 18.3.1987 4.1.1938 31.3.1996 5 Suresh Yadav Jokhu Yadav ZF00458 18.3.1987 2015 6 Anil Kumar Tripathi Raj Kishore Tripathi ZF 00444 18.3.1987 7.1.1958 30.6.2016 7 Ram Bachan Singh Gudri Singh ZF 00449 18.3.1987 10.11.1951 31.10.2009 8 Raj Dev Mishra Chandra Deep Mishra ZF 00446 18.3.1987 1.2.1953 31.1.2011 9 Sheetla Prasad Ram Pyare Tiwari ZM 00331 18.3.1987 3.10.1943 31.3.2001 10 Virendra Kumar Verma Roshan Verma ZF 00457 18.3.1987 2.5.1962 28.2.2020 11 Ramesh Kumar Dubey Shiv Dutt Dubey ZM000329 18.3.1987 15.7.1954 31.7.2012 12 Chandra Mohan Durga Dutt ZQ000371 18.3.1987 2.3.1962 28.2.2020
85. The respondents have brought on record the date of superannuation of Banarasi Lal as 13.7.2009 and Suresh Yadav as 1.1.2015.
86. A perusal of the aforesaid table would show that seven of the respondents had reached the age of superannuation before the Award was delivered on 11.10.2013. One respondent - Anil Kumar Tripathi reached the age of superannuation during the pendency of the writ petition and two of them are yet to attain the age of superannuation. Two of the respondents died before the Award impugned was delivered on 11.10.2013, their legal heirs have not been brought on record before the Labour Court. Therefore it has been averred by the petitioner that no benefit can be derived by their legal heirs and representatives and the Award. However, this Court finds that with respect to the dead respondents i.e. Bihari Prasad and Ram Bachan Singh the Award would not become a nullity, but the legal heirs and representatives of respondent nos. 6 & 9 will get the benefits only till the date of death of such respondents and also get all retiral benefits, like gratuity etc.
87. This Court has to consider the relief of reinstatement in the light of facts brought on record by means of subsequent affidavit by the petitioners and the respondent nos. 3 to 14.
88. The Award is modified only to the extent that the petitioner shall reinstate Sri Virendra Kumar Verma and Sri Chandra Mohan with immediate effect and pay them salary and other dues as admissible to them month to month along with back wages as awarded by the Labour Court.
89. With respect to respondents who have already reached the age of superannuation or are dead, the petitioners shall calculate their dues and pay them forthwith accordingly, including all benefits as admissible to regular workmen along with interest at the rate of 9% from the date it became due till the date of actual payment.
90 The writ petition is dismissed subject to the aforesaid modification of the Award dated 11.10.2013.
Order Date :- 30.7.2018 Arif