1. This writ petition has been filed by petitioner Company which is a purchaser of U.P. State Sugar Corporation Limited Unit/Sugar Factory situated at Rohana Kalan, Muzaffar Nagar. The U.P. State Sugar Corporation Limited had several sugar factories including the Unit situated at Rohana Kalan. It was declared a Sick Company by the Board of Industrial and Financial Reconstruction under the Sick Industrial Companies Act in 1984.
2. The petitioner, Indian Potash Limited, took over the Sugar Unit in a slump sale agreement on 07.12.2010. In the sale deed, under Clause - 2.6, the contingent liability and legal cases pending in respect of the Unit were also transferred by the seller to the purchaser, and Indian Potash Limited therefore became liable in terms of the Award dated 26.02.2010 passed by the Respondent No. 1 in Adjudication Case No. 37 of 2006. The petitioner has therefore approached this Court challenging the Award on various grounds.
3. The case set up in the writ petition is to the effect that the Respondent No. 2 was engaged by Sugar Mill on a purely temporary ad hoc basis as a substitute Chowkidar for a short time only during the seasonal functioning of the Mill. The Respondent No. 2 never worked continuously for a whole year. He was not a regular employee of the Establishment. Therefore, his case of alleged illegal termination should not have been referred under Section 4-K of the U.P. Industrial Disputes Act, 1947 by the State Government to the Respondent No. 1 for adjudication. The Reference under Section 4-K dated 23.01.2006 was "whether the action of the Employer in terminating the service of Shri Jay Prakash, son of Ram Chandra, Security Guard, during the season of 1999 - 2000 was proper? If not, to what relief he was entitled?"
4. In the claim set by the Respondent No. 2 it had been alleged by him that he had been working for the past several years as Security Guard in the Sugar Mill and the work of Security Guard was one of the permanent nature. The Respondent No. 2, however, was orally terminated at the start of crushing season 1999-2000 without following the provisions of Section 6-N. It was also alleged by the workman that the work of Security Guard being that of permanent nature it was being taken by the Sugar Mill from other workmen who were junior to the Respondent No. 2 and thus, there was a violation of Section 6-P and 6-Q of the U.P. Industrial Disputes Act also.
5. The Employer filed its written statement on 18.07.2006 and it was stated that the engagement of the Respondent No. 2 was not on any permanent post according to the procedure prescribed for appointment of the regular employees. The engagement of Respondent No. 2 being purely ad hoc and temporary, was subject to work being available. As no work was available for him in crushing season 1999-2000, his services were terminated. The Respondent No. 2 had not completed 240 days in the preceding twelve calendar months.
6. The workman disputed such contention of the Employer and filed his replication. Oral statements of the Respondent No. 2 as well as Employer's witnesses were recorded by the Respondent No. 1 and documentary evidence filed by either side to substantiate their claim.
7. It is the case of the petitioner that services of the Respondent No. 2 were wrongly held by the Respondent No. 1 to have been illegally and arbitrarily terminated and likewise direction issued for his reinstatement with full back wages was vitiated. It has been contended that the sugar factories by their very nature of work of manufacture of sugar are run only when raw material i.e. sugarcane is available and crushing season starts from 1st of November each year and ends on 1st of April the following year. A Sugar Factory works for 180 days in a season. Therefore, the employees engaged in such Sugar Factory cannot be said to have worked for 240 days and cannot be given the protection under Section 6-N. It has also been contended that the Employer produced records to show that they maintained a seniority list of such seasonal workers being engaged on temporary basis, in which record it was evident that in the year 1997-98 the Respondent No. 2 had worked for 44 days only and in the crushing season 1998-99 he had worked for only 62 days. This record was disbelieved by the Respondent No. 1 without any basis.
8. Shri Shakti Swarup Nigam while arguing the matter had pointed out that when the writ petition was initially filed this Court had granted an interim stay of the operation of the Award impugned subject to the condition that the Respondent No. 2 shall be paid monthly wages and the petitioner would deposit 50 per cent of the back wages as directed by the Respondent No. 1 in an interest fetching account. A modification application was moved by the petitioner thereafter on 10.07.2012 in which the misrepresentation resorted to by the Respondent No. 2 with regard to his date of birth was brought to the notice of the Court. It was mentioned that in the Pariwar Register the date of birth of Respondent No. 2 has been shown as 1942. In the letter sent by Principal of Amrit Inter College, Rohana Mills, District Muzaffar Nagar the Respondent No. 2's date of birth has been shown as 01.07.1943. In the voter list of 2012 also the Respondent No. 2 had been shown as 73 years of age.
9. It was submitted that as per the Standing Orders relating to Vacuum Pan Sugar Factory, an employee shall stand retired after completing 60 years of age and thus, the Respondent No. 2 stood superannuated in 2002 when he reached 60 years of age. However, when he filed the Adjudication Case No. 37 of 2006 the Respondent No. 2 concealed his correct age and did not inform the Respondent No. 1 about his having reached the age of superannuation in 2002 itself. Therefore, the Respondent No. 1 directed his reinstatement. The reinstatement of the Respondent No. 2 was seriously disputed by the petitioner even in the application moved under Section 6-H (1) by the Respondent No. 2 before the Deputy Labour Commissioner.
10. This Court had modified the interim order granted by it earlier on 08.08.2012 in so far as it directed the payment of monthly wages to the respondent workman, it directed that such wages need not be paid to the respondent workman. It further directed the petitioner to place before the Deputy Labour Commissioner the proof regarding the age of respondent workman.
11. In pursuance of the modified interim order dated 08.08.2012 the petitioner filed objections before the Deputy Labour Commissioner who in his order dated 07.01.2013 has found the Respondent No. 2 as having reached the age of superannuation in 2002 itself, and not being entitled to reinstatement.
12. The learned counsel for petitioner, Shri Shakti Swarup Nigam has placed reliance upon the several judgments of the Hon'ble Supreme Court wherein it has been held that the onus of proof of having worked for 240 days in the preceding twelve calender months lay upon the workman initially. Only after sufficient discharge of this responsibility, the burden of proof shifted to the employer. In this case, however, the Respondent No. 1 wrongly placed the burden of proof upon the Employer first.
13. The learned counsel for the petitioner has also placed reliance upon the judgments of the Supreme Court with regard to the sugar factories and the seasonal nature of employment in such factories. Shri Shakti Swarup Nigam has relied upon the several judgments of the Supreme Court relating to a Sugar Factory where the Hon'ble Supreme Court has observed that disengagement of workman in Sugar Factory is covered under Section 2 (o) (o) of the Central Industrial Disputes Act and no protection under Section 25-F is available to such workman. These judgements are, Bhogpur Cooperative Sugar Mills Limited Vs. Harmesh Kumar, (2006) 12 SC 28, Batala Cooperative Sugar Mills Vs. Sowaran Singh (2005) 8 SCC 481 and Anil Bapu Rao Kanse Vs. K.S.S. Ltd. And another, (1997) 10 SCC 599, Morinda Sugar Mills Limited Vs. Ram Kishan and others, (1995) 5 SCC 653.
14. The learned counsel for the petitioner has further placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Assistant Engineer Vs. Mohan Lal, (2013) 5 AWC 5156 for the proposition that the alleged illegal termination of the Respondent No. 2 was made again in 1999-2000, but he filed the Adjudication Case in 2006 alone i.e. with considerable delay. In such cases where there is a delay by the workman in approaching the Labour Court, the relief of reinstatement should not ordinarily be granted. Also, instead of full back wages, a lump sum compensation may be given to the workman which may sufficiently redress his grievance.
15. Learned counsel for the Respondent No. 2, Shri Nafees Ahmad, has placed reliance mainly upon his counter affidavit and has pointed out from the Award impugned that the Respondent No. 2 was initially engaged by the Sugar Mill in the year 1981 as Security Guard. He continued to be employed round the year from the date of his appointment up to the date of his oral termination and that he had worked for more than 240 days in each year, more specifically in the preceding 12 months, and his services could not have been terminated without following the mandatory provisions of 6-N, 6-P and 6-Q of the U.P. Industrial Disputes Act. The Respondent No. 2 had submitted sufficient documentary evidence before the Respondent No. 1 with regard to the provident fund being deducted from his account from the year 1995-96 to 1999-2000. He was a member of the workers union. He submitted the group photographs of all Security Personnel engaged by the Sugar Mill year to year. He also submitted the evidence to show that still several Security Guards were being employed by the Corporation and till date of sending of the Reference by the State Government to the Respondent No. 1 on 23.01.2006, the Respondent No. 2 had not been offered the re-engagement by the petitioner.
16. Several passages from the Award impugned have been read out by the learned counsel for the Respondent No. 2 and it has been submitted that Shri Pramod Kumar, the Employer's witness, had submitted that he had seen the record relating to the engagement of the workman and from the record he had deposed that the workman had not worked for more than 240 days in the year 1998-99 or even before that. However, the record that was produced before the Respondent No. 1 had been destroyed by termites and the same Employer's witness had clearly stated that he could not read what was written in the said record as it was so badly termite ridden. Yet, on the basis of the same record, the Employer's witness had alleged that the Respondent No. 2 had not worked for 240 days in the preceding calender months. The Employer's witness had also deposed that the work of Security of premises of the Mill was available all the year round, and there were still certain employees engaged for doing the security work by the Mill.
17. The learned counsel for the Respondent No. 2 has also pointed out that the supplementary affidavit filed later on by the petitioner cannot be relied upon as the documents that the petitioner is now relying upon were never produced before the Respondent No. 1 as proof of superannuation of Respondent No. 2. Also, the order of Deputy Labour Commissioner on which reliance was placed was passed on 07.01.2013 and could not be looked into now by this Court, to believe the submission of the Employer that the Respondent No. 2 was already 60 years of age in 2002 and could not have filed the Adjudication Case in 2006 and could not have been directed to be reinstated by the impugned Award.
18. Having heard the learned counsel for the parties, this Court has perused the list of the documentary evidence filed before the Respondent No. 1 by the Employer and the Respondent No. 2. It is evident that the workers' union of the Sugar Mill had approached this Court by filing a writ petition No. 7203 of 1997 which was disposed of by this Court on 04.03.1997 with a direction to the erstwhile General Manager of Rohana Kalan Sugar Unit of the U.P. State Sugar Corporation Limited, District Muzaffar Nagar, that they should maintain the chart containing the names of seasonal employees strictly in accordance with the criteria of length of service to their credit by mentioning the date of their initial engagement. If any work of a temporary nature is required by the Sugar Unit to be done, the same shall be got executed by giving an opportunity to the persons whose names occurred on the chart so maintained in the order of seniority. A list of workers was maintained thereafter by the Sugar Unit concerned.
19. In the Award impugned the Respondent No. 1 has specifically referred to the oral statement of the Employer's witness that the record was termite ridden and destroyed and therefore, he could not read the same before the Labour Court. But at the same time from the said record a written statement had been filed by the Employer and there was an insistence that the workman had worked for only 44 days in year 1997-98.
20. The Respondent No. 1 has further referred to the documentary evidence filed by the Respondent No. 2 to show that he was a member of Employees Provident Fund and that he had worked for several seasons as Security Guard in the Sugar Mill. He was not treated as a temporary employee under the Standing Orders because under the Standing Orders regarding to Vacuum Pan Sugar Factory, all temporary employees are issued a ticket containing several details in regard to the workman. The temporary engagement order of such temporary employees is issued in the Prescribed Form - A, where the date of engagement and date of termination of employment is clearly mentioned. In the case of Respondent No. 2 no such documentary evidence was produced.
21. The Respondent No. 1 has placed reliance on the observations of the Hon'ble Supreme Court in Jaswant Sugar Mill Limited, Meerut Vs. Badri Prasad, AIR 1999 SC 513, which are to the effect that "......When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need.........."
22. The Employer had filed no documentary evidence to substantiate their claim that the Respondent No. 2 was engaged on a purely temporary and ad hoc basis as a substitute Security Guard in place of regular Security Guard as and when need arose.
23. The Respondent No. 2, on the other hand, had produced sufficient documentary evidence in the form of orders issued by the Security Incharge on various dates in the past, assigning the Respondent No. 2 his duty at various places in the premises of the Sugar Mill.
24. Having examined all documentary evidence and the oral statements of the Employer's witness and compared it against the statement made on oath by the Respondent No. 2, the Respondent No. 1 has come to a valid conclusion that the service of the Respondent No. 2 had been terminated is violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act.
25. However, this Court having been informed by the correct state of affairs with regard to the age of superannuation of the Respondent No. 2, and of the law as settled by the Hon'ble supreme Court in the judgments relied upon by the learned counsel for petitioner, finds that the relief of reinstatement could not have been granted by the Respondent No. 1 with full back wages. To come to this conclusion this Court places reliance upon the judgments rendered by the Hon'ble Supreme Court in the following cases:-
Nagar Mahapalika Vs. State of U.P. and others, (2006) 5 SCC 127;
Municipal Council Sujanpur Vs. Surinder Kumar, (2006) 5 SCC 173;
Haryana State Electronics Development Corporation Ltd. Vs. Mamni, (2006) 9 SCC 434;
Uttranchal Forest Development Corporation Vs. M.C. Joshi, (2007) 9 SCC 353;
Ghaziabad Development Authority and another Vs. Asok Kumar and another, (2008) 4 SCC 261;
Telecom District Manager and others Vs. Keshab Deb, (2008) 8 SCC 402;
Jagveer Singh Vs. Haryana State Agricultural Marketing Board, (2009) 15 SCC 327; and Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh, (2013) 5 SCC 136;
26. In Assistant Engineer Rajasthan Development Corporation and another (supra) the Supreme Court had after referring to the aforecited decisions and binding precedents, had reiterated the principle that the exercise of judicial discretion by the Labour Court in a matter where termination of the workman is held to be illegal being in violation of Section 25 F observed, "The Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, ground on which termination has been set aside and the delay in raising the industrial dispute before grant of relief ............".
27. Shri Shakti Swarup Nigam had raised the issue of delay in raising the claim by Respondent No. 2 at the time of the arguments of the writ petition and referred to the judgment rendered in Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal reported in (2013) 14 SCC 543 where the Supreme Court has observed that the judgment rendered in Ajaib Singh Vs. Sirhind Cooperative Marketing Cum Processing Service Society Ltd. & another, (1999) 6 SCC 82 had been limited to the facts of that case.
28. The Hon'ble Supreme Court placing reliance upon the judgment rendered in Balbir Singh Vs. Punjab Roadways, (2001) 1 SCC 133 had further observed "Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially". The Supreme Court further observed in Mohan Lal (supra) thus :-
"We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act, but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed."
29. Learned counsel for the petitioner has also placed reliance upon the observations made by the Hon'ble Supreme Court in the case of Morinda Cooperative Sugar Mills Vs. Ram Kishan, (1995) 5 SCC 653, later on relied upon by the Hon'ble Supreme Court in the judgment relied upon by the workmen of Sugar Factory like Anil Bapurao Kanase Vs. KSSK Limited and another, (1997) 10 SCC 599, Batala Cooperative Sugar Mills Ltd. Vs. Sowaran Singh, (2005) 8 SCC 481, and Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar, (2006) 13 SCC 28.
30. On the careful examination of all four judgements this Court finds that the Hon'ble Supreme Court has repeatedly observed that a list of all workmen, clearly mentioning the initial date of their engagement, should be maintained by such Sugar Factories and re-employment should be offered to all such workmen who were working in earlier crushing season first by publishing suitable advertisement at the start of the crushing season.
31. In the case of Rohana Kalan Sugar Unit a specific direction was issued by this Court on 04.03.1997 in writ petition No. 7302 of 1997 filed by several of its workmen for maintaining such seniority list. The Employer's witness had admitted to such seniority list being maintained by the Sugar Unit before the Respondent No. 1. The name of Respondent No. 2 was also mentioned at Serial No. 8 of the List of the workmen containing 361 names. If this list was maintained in pursuance of the order passed by this Court on 04.03.1997 in aforesaid writ petition, it is evident that the name of the Respondent No. 2 was higher up in the List than the several other workmen. The logical inference drawn would be that the Respondent - workman was clearly engaged much before such workmen whose names were shown below him and the conclusion drawn by the Respondent No. 1 regarding the initial date of engagement of the Respondent No. 2, since 1981 cannot be rejected as arbitrary.
32. Since the Respondent No. 2 has reached the age of superannuation, his reinstatement however should not have been ordered, and looking into the seasonal character of the Sugar Mill the full back wages could not have been allowed.
33. In view of the law settled by the Hon'ble Supreme Court in Assistant Engineer Vs. Mohan Lal (supra) this Court feels it appropriate to modify the impugned Award dated 26.02.2010 as published on 03.04.2012, in the Adjudication Case No. 37 of 2006, by directing the petitioner to pay a lump sum amount of Rs. 5 lacs to the Respondent No. 2.
34. The petitioners are directed to make such payment within a period of three months from the date of production of a certified copy of this judgment before them. In case of failure to make such payment, the Respondent No. 2 shall be entitled to interest at the rate of 9 per cent per annum from the date of this order till the date of actual payment.
35. The writ petition is disposed off.
Order Date:- 20.08.2018 LBY