- (1.) SHISHIR Kumar, J. The present writ petition has been filed for quashing the award-dated 12-10-1993. Further issuing a writ in the nature of mandamus directing the Labour Court to re-hear the matter after giving an opportunity to the parties to bring further evidence.
(2.) THE facts arising out of the present writ petition are that the petitioner alleged to be himself that he was working as seasonal employee in the employment of the respondent company and had worked there in the crushing season 1977-78, 1979-80 and 1980-81 and up to the crushing season of 1983-84 and after 1984 he was entitled to call back in the employment in the respondent company when the crushing season started on 19-12-1984. As the petitioner was not called, as such, he made an application to the State Government for reference that the action of the respondent amounts to retrenchment and no retrenchment compensation and notice have been given, therefore, the action of the respondent is bad. THE State Government on the application filed by the petitioner was satisfied that an industrial dispute exists on account of wrongful termination of the petitioner's services from 19- 12-1984 and in exercise of powers under Section 4-K of the Industrial Dispute Act, referred the dispute for adjudication to the Labour Court, Gorakhpur by order dated 23-12-1986. On behalf of the petitioner, a written statement was filed and a written statement on behalf of the respondent's employer was also filed. It has been submitted on behalf of the petitioner that pleadings of the parties clearly shows that there is a dispute and termination of service of the petitioner dated 19-12- 1984 is bad. It has been further submitted that the State Government in exercise of powers under Section 3 (b) of the U. P. Act has framed the standing order laying down the condition of service in all the pan vacuum mills in the State of U. P. , since the sugar factories are seasonal factories during the crushing season. During the crushing season the employees are employed and only of small section continued to work through out the year. In respect of the seasonal employee there is a provision in the standing order that sometime before the crushing season is to start, all those persons who are seasonal employees are to be given notice under registered post so that they could present themselves for resuming work or after the date when the crushing season starts. In the present case the crushing season starts on 19-12-1984 but the petitioner was not called. Though the respondents have denied that the petitioner was not a seasonal employee of whole crushing season and as such, he is not entitled for any notice for resuming the work. The petitioner in order to substantiate his pleadings that he has worked from 1977 to 1984 made an application for certain documents, be summoned as these documents were exclusively in possession of the company. The various documents were produced before the Court but the attendance register for 1984 was not produced. Before the Labour Court the petitioner examined himself as witness and on behalf of the respondent company timekeeper Sri Avinash Chandra was examined. In spite of the aforesaid documents before the Labour Court, the Labour Court vide its order dated 12-10-1983 has held that order of reference is bad in law, as such, the petitioner cannot be granted any relief. The argument raised on behalf of the petitioner is that law does not require that always a termination order must be in writing. Even if, the law required that an order of termination should be passed in writing, no employer could be prevented from terminating the services of an employee by oral order. Even non-employment would amounts to termination of service. In the present case if the petitioner was entitled to resume duty on 19-12-1984 when the crushing season starts and he was not permitted to resume duty it would amount to termination of service of the petitioner, as such, the Labour Court was not justified in holding that the services of the petitioner have not been terminated on 19-12-1984. The important factor was to be considered by the Labour Court was the date from which the workman lost employment whether it was termination of service in writing or by an oral order. The important and relevant factors to be considered by the Labour Court was cessation of employment and in the present case the cessation of employment of the employee was with effect from 19-12-1984. All the records were not permitted to be inspected by the petitioner, therefore, an adverse inference should have been drawn by the Labour Court against the respondent No. 2. The case of the petitioner was that he was being paid by vouchers but no vouchers were produced before the Labour Court. The register for 1983- 84 was not shown to the petitioner. In the absence of the same the petitioner could not established that he was working during the period of whole crushing season.
(3.) ON the other hand, a counter-affidavit has been filed. It has been submitted in the said counter- affidavit that the petitioner's services had not been terminated by the respondent No. 2. His last employment was during the crushing season of 1982-83 for a period of 29 days only. As the workman concerned had not worked in the season 1983-84, therefore, there was no question of termination of his services. In fact no industrial dispute could arise with effect from 19-12-1984. The respondents have placed reliance upon a judgment of this Court reported in 1993 (67) FLR 602, Kisan Sahakari Chini Mills Ltd. and Ors. v. Awadhesh Singh and Ors. Placing reliance upon the aforesaid judgment it has been stated that as the petitioner was not appointed on any temporary or permanent post and not for any season and not for any fixed period, therefore, cannot be treated to be as seasonal employee. Reliance has been placed upon Para 5 of the judgment. The same is being reproduced below: " (5) In paragraph 5 of the supplementary counter-affidavit numbers of days on which the respondent has worked during the three crushing seasons, have been given according to which in the crushing season 1988-89 out of 160 working days the respondent worked for 98 days, in season 1989-90 out of 160 days he worked for 126 days and in the year 1990-91 out of 140 days he worked for 127 days. From perusal of the affidavit is filed by the parties it is apparent that the respondent was not appointed on any post temporary or permanent and his appointment was not for any of the crushing seasons. He did not work for the whole of the crushing seasons and during the days on which he worked, he worked on daily wages basis. Such an appointment runs from day to day and is not for any fixed period. His appointment was necessitated due to allotment of extra cane centers to the mills. The nature of work of the respondent was of casual and temporary nature, and as such he can utmost claim status of temporary workman on daily wages basis. Such a workman cannot be treated to be seasonal workman. Even if the work is of permanent nature and workman will be temporary workman, if engaged to fill in temporary need of extra hand. ";