JUDGMENT K. Jain, J.
1. Respondent No. 2 espousing the cause of ten workmen, namely, Rani Adhar Dixit, Sequan Dixit. Chandra Shekhar Dixit. Vijay Shankar Dixit. Ram Nakshatra Dixit, Salaraat, Indal Yadav, Mohan Dixit and Ram Dhari Yadav. raised an industrial dispute which was referred to Labour Court, Gorakhpur by Government Notification No. 1781/ Sra. Aa./36-Shram (1)/34 (Gorakhpur) /81. dated 31.3.1983. Following dispute was referred for decision by the Industrial Court, Gorakhpur :
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2. Respondent No. 2, in its written statement before the Labour Court, claimed that all the ten workmen were seasonal "Darban" and had worked for the entire crushing season without any break. They were entitled to the benefits of the standing orders but they were deprived of such benefits of the last several seasons. They claimed that they may be paid minimum wages and retaining allowances etc. like other seasonal Darbans. They further claimed that by declaring them seasonal workmen, they may be directed to be given benefits like other seasonal workmen.
3. The petitioner contested the dispute on several grounds Including that the petitioner was bound by the mandatory provisions of the G.O. No. 3158 of 15.7.1982 to fill the resulting vacancies of the retired workmen by the heirs of the retired workmen : that there was a compromise between the petitioner and the Gaon Sabha and an enquiry report dated 28.11.1977 was given by the S.D.M. whereby it was accepted that the services of the aforesaid ten workmen were those of mere casual workers and such compromise was binding upon the parties : that there was no Industrial dispute since the said workmen were not members of respondent No. 2 and respondent No. 2 could not have espoused the cause of the workmen in question.
4. Before the Labour Court, both the parties led evidence and the Labour Court recorded following findings of fact :
"That all the ten workmen were members of Azad Cheeni Mill Mazdoor Sangh, Bhatnl. district Deoria. respondent No. 2 ; that the ten workmen were continuously working since crushing season of 1967-68 : that all the ten workmen had worked for the full crushing season from 1979-80 to 1982-83 and thus they had attained the, status of seasonal workman : that the U. P. State Sugar Corporation Ltd. (petitioner) has failed to establish its case that there was a compromise as claimed by the petitioner."
The Labour Court, therefore, concluded that the non-declaration of the ten workmen as seasonal workmen and non-providing of consequential benefits was illegal. The Labour Court, therefore, decided the reference in favour of the ten workmen and directed the petitioner to reinstate the ten workmen and pay them wages and other benefits of the seasonal workmen.
5. The award dated 16.2.1987 which was published on 25.3.1987 is sought to be quashed by the present writ petition under Article 226 of the Constitution of India.
6. Shri H. S. Nigam, assisted by Sri S. S. Nigam, learned counsel for the petitioner and Sri Shyam Narain assisted by Sri Gopal Narain, learned counsel for respondent No. 2 and learned standing counsel have been heard at length.
7. It is submitted on behalf of the petitioner that the G.O. dated 15.7.1982 referred to above provided that the vacancies caused by retiring workmen shall be filled by their heirs and the directions contained in the said G.O. were mandatory which have not been considered by the Labour Court. It is further submitted that the petitioner has proved that the services of the ten workmen were those of casual worker in view of the compromise dated 28.11.1977. The Labour Court has wrongly rejected the compromise while misreading the pleadings and the evidence adduced by the petitioner and thus material irregularity has been committed. It is also submitted that the reference was not in respect of termination, hence no order/award under Section 6F of the U. P. Industrial Disputes Act could have been passed.
8. For the respondents, it is submitted that the findings of fact arrived at by the Labour Court cannot be disturbed unless shown to be perverse or based on no evidence or inadmissible evidence. It is further submitted that even the so called compromise was not produced before the Labour Court, therefore, the Labour Court rightly held that the petitioner has failed to prove the compromise.
9. Respondent No. 2 through its Secretary. Surendra Pratap Narain Singh, filed counter-affidavit wherein it is specifically stated that the ten workmen had been working ever since 1967-68 throughout the season every year, yet they have not been declared seasonal workmen. It is completely false to allege that the ten workmen concerned were employed in accordance with any compromise dated 28.11.1987, no such compromise has been filed or proved before the Labour Court. It was also false to allege that the workmen concerned did not work on any sanctioned post and therefore, they had no Hen on the posts.
10. Having gone through the award carefully, I find that the findings of fact have been arrived at by the Labour Court after meticulously examining the records. viz.. attendance register, etc. of the petitioner. As regards the compromise, the finding of fact of the Labour Court is that the deed of compromise was the best evidence but the same has not been produced before the Court. Sri Dhananjai Singh, S.D.M. with whose mediation the compromise is said to have been arrived at had also not been examined. On the other hand, there is categorical denial of any such compromise by the workmen. I do not find any. error in these findings of the Labour Court which are based upon the material evidence produced before it.
11. it is well-settled that the findings of fact arrived at by the Labour Court or Labour Tribunal cannot be gone into in exercise of writ Jurisdiction. The Court exercising writ jurisdiction does not sit in appeal over the award of the Labour Court or the Labour Tribunal and the findings of fact recorded by the Labour Court are questions of fact and the evidence is not open to reappreciation so as to find out any Just cause or legal infirmity for interfering with the award of the Labour Court in exercise of powers under Article 226 of the Constitution of India.
12. Submission of the learned counsel for the petitioner is that the provisions of G.O. dated 15.7.1982. referred to above, were mandatory in nature but the same has not been looked into by the Labour Court. Copy of the written statement filed by the petitioner before the Labour Court is Annexure-4 of the writ petition. A perusal of this written statement shows that no such plea was taken before the Labour Court in written statement filed on 7.4.1984. Rejoinder statement was filed subsequently, copy whereof is contained in Annexure-6 to the writ petition. In this rejoinder statement also, there is no reference to the said G.O. Therefore, the lower court was not at all called upon to refer the G.O. In question and give a finding whether direction given in it were mandatory or not. In this writ petition, copy of the G.O. Is filed which is Annexure-3 to the writ petition. Perusal of the G.O. In question shows that a pool of workers retrenched on account of being rendered surplus, as a result of modernisation has to be made and whenever a post in the Mill falls vacant, it has to be filled in from the surplus pool or by promotion. Clause 3 provides that if an unskilled workman retires from service and no unskilled workman is available in the surplus pool, such vacant post shall be offered to the heir of the retired workman, provided he is fit for the post. In view of Clause 3 of the G.O. the heir of the retired workman can be considered for appointment only when there is no unskilled workman available in the surplus pool and can be appointed only when he is fit to be appointed on such post. It is nowhere the case of the petitioner that at the relevant point of time, there was no workman available in the pool prepared in pursuance to the G.O. dated 15.7.1982. It is also not stated that there were any heirs of the retired workmen who could have been appointed against any vacancy which 'was existing or was likely to occur. In these circumstances, there was no question of the Labour Court considering the applicability of the G.O. to the facts of the present case or for this Court to consider its applicability to the facts of the present case.
13. The main ground which is pressed before this Court by the learned counsel for the petitioner is that the reference was not regarding termination and hence no order/ award under Section 6F in this regard could have been passed. The terms of reference have already been reproduced above. It is not disputed that the ten workmen worked up to the crushing year 1982-83 which is also the finding of the Labour Court. It further appears to be the case of the parties that for the crushing year 1983-84 the aforesaid ten workmen were not given work. The reference made to the Labour Court was to the effect whether non-declaration of the ten workers as seasonal workers and non-providing of the benefits of seasonal workman to the ten workmen was proper and legal. The question raised by the learned counsel for the petitioner has to be decided in the light of the above reference. The term "workman" as defined in the Standing Orders relating to workmen in Vacuum Pan Sugar Factories in U. P. means any person (including an apprentice) employed by a factory to do any skilled, or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied. but does not include any such person : (i) who is employed mainly in a managerial or administrative capacity ; or (ii) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensum or exercise either by the nature of the duties attached to the office or by reason of the power vested in him, functions mainly of a managerial nature." The Standing Orders categorised the workmen in the following six categories :
"(i) Permanent.
(ii) Seasonal,
(iii) Temporary,
(iv) Probationers,
(v) Apprentices, and
(vi) Substitutes."
14. According to the Standing Orders, a seasonal workman is one who is engaged only for crushing season. It is provided by the proviso that if he is a retainer, he shall be liable to be called on duty at any time in the off-season and if he refuses to join or does not Join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period of his absence. Standing Order 'K' provides for special conditions governing employment of seasonal workmen. Sub-clauses 1, 2 and 3 of Clause K of the Standing Orders read as follows :
"1. A seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season.
Explanation.--Unauthorised absence during the second half of the last preceding season of a workman has not been validly dismissed under these Standing Orders and of a workman who has been re-employed by the management in the current season, shall be deemed to have been condoned by the management.
2. Every seasonal workman who worked during the last season will be put on his old Job whether he was in the "R" shift or in any of the usual shifts.
However, if the exigencies of work so require, the management may transfer a workman from one job to another or from one shift to another, including the "R" shift, so however, that the number of workmen so transferred does not exceed five per cent of total number of the employees of the factory and that the wages and status of such workmen is not affected in any way.
3. Where owing to trade reasons or other reasons necessary for a bona fide lay-off, as given in Standing Order J. It becomes necessary for a factory so to do. It may discharge seasonal workmen before the close of the season with the previous permission of the State Labour Commissioner, or if he so directs, of a Deputy Labour Commissioner or the Regional Assistant Labour Commissioner of the area and after paying such compensation to the discharged workmen, as may be determined by the authority granting the permission."
15. From bare perusal of the definition of the seasonal workman as provided in Clause B (ii) to the Standing Orders, it is abundantly clear that a seasonal workman is one who is engaged only for the crushing season. The finding of the Labour Court is that all the aforesaid ten workmen were being regularly engaged during the crushing season 1979-80 to 1982-83. Clause K-I as reproduced above specifically provides that where the workman has worked under a factory during the whole of the second half of the last preceding crushing season, he will be employed by the factory in the current season and sub-clause (2) of Clause K provides that every seasonal workman who worked during the last season will be put on his old Job whether he was in the "R" shift or in any of the usual shifts. These are some of the benefits which are available to the seasonal workman. Finding of the Labour Court is that all the ten workmen had worked for the whole term during the last preceding crushing season. In view of the definition of the "seasonal workman", the affected ten workmen, who according to the findings of the Labour Court had worked for whole of the crushing season shall be seasonal workmen. In view of Clause K-l and 2 of the Standing Orders, every seasonal worker who has worked under the factory during the whole of the second half of the last preceding season has got to be employed in the factory in the current season and has to be put on his old job. The consequence, therefore, would be that once it is found that a workman is employed in any crushing season and he has worked in the whole of the second half in the last preceding season, he would have a lien on his job and is entitled to be employed in the current crushing season and in case he has worked during whole of the last preceding season, he will be put on the same job on which he had worked in the last preceding season. The ten workmen having been found to have worked for the whole of the last crushing season 1982-83, they were entitled to be re-employed in the next crushing season, i.e., crushing season of 1983-84 unless for some valid reasons, their services were terminated in accordance with law. It is not the case of the petitioner that services of the ten workmen were terminated on ground of genuine retrenchment, infirmity and disability or misconduct as is provided in Clause L of the Standing Orders. Since the services were not terminated in accordance with the Standing Orders and since the workmen were entitled to be re-employed by the factory in the current crushing season of 1983-84 and they were illegally not so appointed, the question referred for decision of the Tribunal would cover the question of their non-employment also during crushing season of 1983-84 and subsequent crushing season.
16. In Basti Sugar Mills Company Ltd. v. Prem Chand and others. 1999 (81) FLR 312, this Court held that "on the finding recorded by the Labour Court that the respondent workmen had worked for whole of the crushing season 1982-83, he earned a right to be re-employed by the employer in the succeeding crushing season, i.e., 1983-84. The Labour Court was Justified in holding that the respondent workman was illegally kept off his duties in the crushing season 1983-84 and the employer cannot prevent the respondent workman to keep at his duties in the factory as a seasonal employee in the succeeding/subsequent crushing seasons on the pretext that his right to re-employment in any crushing season is dependent on fulfilment of the condition that he had worked under the factory "during the whole of the second half of the last preceding season" which condition cannot be said to have been fulfilled in the present case at least in respect of the crushing seasons falling after 1983-84 for the principle well settled is that no man can take advantage of his own wrong which flows from the maxim Null us Commodium Capere Potest De injuria Sua Propria. It was a wrongful act on the part of the employer to deny the employment to the respondent workman in the crushing season 1983-84 and such a wrongful act cannot be allowed to conduce to the advantage of the employer who committed it ."
17. Learned counsel for the petitioner has made reference to the cases of Kisan Sahkari Chini Mills Ltd. Ghosi and others v. Awadhesh Singh, 1994 Lab 1C 623 (DB) ; Executive Engineer (State of Karnataka) v. K. Somasetty and others, (1997) 5 SCC 434 and Stale of U. P. and others v. U. P. Madhyemik Shiksha Parishad Shramik Sangh and another, (1996) 7 SCC 34. In the first case of Kisan Sahkari Chini Mills Ltd. (supra), from the facts of the case it appears that the respondent Awadhesh Stngh straightaway filed the writ petition under Article 226 of the Constitution of India claiming that even though he was appointed on daily wages basis, he worked for whole of the crushing season 1988-89 and he continued to work in that capacity in subsequent season up to 1990-91 but thereafter, when the Mill reopened, he was not called to join his duties. It was claimed that the petitioner was a seasonal workman and was entitled to resume his duties and he also claimed wages/salary from 8.11.1991. The writ petition was allowed by a single Judge of this Court. However, on appeal being filed by the Kisan Sahkari Chini Mills Ltd., a Division Bench of this Court held that "before a workman can be declared as seasonal, he must be engaged for the crushing seasons. The appointment of the respondent was not for the crushing season but was on dally wages basis without reference to any fixed period. Such an appointment cannot be treated to be appointment for the crushing season. Merely because the nature of work of a dally wager is not of casual nature, he cannot be treated to be seasonal workman. A dally wage cannot be declared to be seasonal workman because he has worked for substantive part in more than one crushing season. Such a workman may at the most be treated as temporary workman unless his appointment is referable to crushing season and he has worked in that season." it was also held by the Court that "normally the controversy of the nature which is involved in the instant case should be decided by the Labour Court Industrial Tribunal. Writ jurisdiction is not appropriate forum for resolving such a dispute. We would have dismissed the writ petition on the ground of alternative remedy before the labour Court, but as the learned single Judge has entertained the writ petition and decided on merit, we are also disposing of the appeal on merits." Thus, in the aforesaid case, admitted facts as well as finding of facts was that the appointment of the petitioner was as a dally wager and not for the crushing season. In the Instant case, the finding of the Labour Court is not that the ten workmen were appointed on daily wages. Therefore, the decision in Kisan Sahkari Chini Mills Ltd., is not applicable to the facts of the present case.
18. The other two decisions in Executive Engineer (State of Karnataka) v. K. Somasetty and others (supra) and State of U. P. and others v. U. P. Madhyamik Shiksha Parishad Shramik Sangh and another (supra) also, the petitioners employed were daily wagers. In the first case the Hon'ble Supreme Court held that the appellant who was discharged from the work on the closure of the project was appointed on daily wages. He had no right to the post and the Tribunal's order was bad for another reason that the Irrigation Department and Telecommunication Department were not an industry within the meaning of the definition under the Industrial Disputes Act as held in Union of India v. Jat Naraln Singh, 1995 Supp. (4) SCC 672 and State of H. P. v. Suresh Kumar Verma, (1996) 7 SCC 562. Similarly in the other case of State of U. P. and others v. U. P. Madhyamik Shiksha Parishad Shramik Sangh and another, the Supreme Court held that the respondent engaged daily wagers in exigencies for doing manual work at the rates fixed under the Minimum Wages Act. In the absence of post such daily wagers, although performing duty with all regular employees, were neither entitled to regularisation nor entitled to parity of pay with other regular employees.
19. For the aforesaid reasons, there is no merit in this petition.
20. This petition is, therefore, dismissed. Interim order, if any shall stand vacated.