- (1.) SHISHIR Kumar, J. This writ petition has been filed for quashing the award dated 24th April, 1998, passed in Adjudication Case No. 146 of 1995, contained in Annexure 1 to the writ petition passed by respondent No. 2.
(2.) THE facts as stated in the writ petition are that petitioner-Triveni Engineering & Industries Limited, Deoband, Saharanpur is a company incorporated under the Indian Companies Act, 1956, having its registered office at Deoband, Saharanpur. THE company formally known as 'gangeshwar Limited, Deoband, Saharanpur'. Petitioner is engaged in the manufacture of crystal sugar through 'vacuum pan process'. Petitioner is a seasonal industry and relationship between the sugar factory and its employees is regulated and governed by Standing Orders issued under Section 3 of the Act for vacuum pan industries known as Standing Orders covering the condition of employment of workmen in Vacuum Pan Sugar Factories in U. P. The workmen, who are classified in Class B of the Standing Orders are thus: "b. Classification of workmen: (i) Permanent, (ii) Seasonal, (iii)Temporary, (iv) Probationers, (v) Apprentices, and (vi) Substitutes. " When there is an excess sugarcane, sugar factory necessarily needs more man-power to deal with the production and supply of sugarcane and when there is a shortage of sugarcane in any given year, the need of employee-workmen also goes down. It has been stated that to meet these exigencies of service, requirement keeps fluctuating and that there is a temporary need, it is open to the sugar factory to engage temporary hands to meet the temporary need. The respondent No. 3 was engaged as an apprentice/causal labour to meet the exigencies of services from time to time. However, the respondent No. 3 had a reference raised stating that he has been deprived of work from season 1994-95. The workman filed a written statement on 19th January, 1996. Petitioner also filed his written statement clearly stating therein that respondent No. 3 Luxman Singh has worked as a causal labour to meet the requirements of work. Rejoinder statement has also been filed clearly stating therein that workman had never worked beyond 21st October, 1993 and therefore, had no cause of action for filing the case. In paragraph 17 of the rejoinder statement, petitioner has clearly stated the period in which respondent No. 3 had worked as a temporary/causal workman and, therefore, no cause of action arose in the season 1994-95. The evidence was adduced and the award has been given in favour of respondent No. 3 for reinstatement with full back wages.
(3.) IT has been submitted on behalf of petitioner that workman concerned was unable to establish that he had worked for the whole of the second half of crushing season 1993-94 because unless the workman would established that he has worked for season 1993-94 up to end he would have no right to be called as seasonal workman in coming season in 1994-95. Although labour Court has recorded a finding that respondent workmen has shifted his stand from time to time yet has given no reason for believing the pleadings and evidence as given by workmen. Although from the award, it clearly appears that labour Court has refused respondent No. 3 as seasonal workmen but has given him benefit as seasonal workman and directed the petitioner to reinstate him in the status of permanent work. The said order of labour Court is contrary to the judgment of the Apex Court reported in JT 1995 (6) SC 547, Morinda Co-op. Sugar Mills Ltd. v. Ram Kisan and others. From perusal of the Standing Orders of the vacuum pan Sugar Factories under Clause 2-K of special condition, which governs the seasonal workman is defined. Petitioner submits that labour Court has not examined the issue whether the workman concerned had infact fulfilled the requirement of Clause 2-K in giving. benefit under Clause 2-K. As workman concerned is unable to establish that he has worked for whole of the second half of crushing season 1993-94, he would have no right to be called as seasonal workman in coming season 1994-95. In the absence of the aforesaid finding labour Court has no jurisdiction to pass order in favour of workman concerned. Aggrieved by the aforesaid order, writ petition was filed before this Court and by order dated 30. 10. 2003, this Court has passed an order that subject to petitioner's reinstating respondent No. 3 within three weeks from today and paying back wages from the date of award till the date of reinstatement and continuing to pay the same in future as and when the same falls due, further execution of award shall remain stayed Petitioner submits that in view of the order passed by this Court, respondent No. 3 has been reinstated and order of this Court has been complied with. But as regards the back wages prior to the date of award is concerned, in the facts and circumstances of the case, petitioner submits that he is not entitled for the same. Reliance has been placed upon a judgment of M. P. Electricity Board v. Hariram, (2004) 8 SCC 246. Paragraphs 4, 5, 8 and 10 are being reproduced below: "4. The appellant-Board denied the allegations made in the said application which had termed the non- employment as retrenchment of their service by contending that the question of retrenchment does not arise in the nature of employment because the service of the respondents were on work requirement basis. Before the Labour Court, an application was made by the respondents to produce the Muster Rolls for the period 1987 to 1992. That apart no other material was produced by the respondents to establish a fact that they had worked for 240 days continuously in any given year. Though some other applicants examined themselves before the Labour Court no other document was produced. While the appellant-Board examined three witnesses who are Engineers-in-Charge of the Project and produced the Muster Rolls for the period between 1986 to 1990 but did not produce the Muster Rolls for the later period. The Labour Court after examining the entries in the Muster Rolls came to the conclusion that the respondents-applicants had not worked for 240 days continuously in any given year, hence, they cannot claim permanency nor could they term their non-employment as a retrenchment. On the said basis, it rejected the applications of the respondents. 5. Being aggrieved by the said rejection of their application, the respondents preferred an appeal before the Industrial Court at Bhopal Bench. The Industrial Court noticing the fact that though the application for production of the Muster Rolls was for the years 1987 to 1992, the appellant had only produced the Muster Rolls for the year ending 1990. Therefore, an adverse inference against the appellant was drawn and solely based on the said adverse inference it accepted the case of the Respondents that they had worked for 240 days continuously in a given year, hence, proceeded to grant relief, as stated hereinabove. 8. In these appeals, learned counsel appearing on behalf of the appellant-Board contended that the Courts below could not have drawn any adverse inference against the Board for not having produced the Muster Rolls for the year 1990-1992 when it complied with the request of the respondent by producing the Muster Rolls for the year 1980-90. It is submitted that the said Muster Rolls which were produced before the Court clearly indicated that the respondents had not worked continuously for 240 days in a year, at any point of time between 1988-90. It is argued that it is not the case of the respondents that between the year 1990-92 for which period the Muster Rolls were not produced they had worked for 240 days continuously only in those years. Their entire case was that between 1988 and 1992 they have been working in 240 days continuously in a year which having not been established at least for the years 1988 and 1990 without there being a specific allegation that between 1990 and 1992 there was such continuous employment a mere non-production of the Muster Rolls for the said year could not have been made the basis of drawing an adverse inference by the Courts below. It is also argued that the non-employment of a daily wager when there is no work would not amount to retrenchment. Learned counsel also submitted that the nature of work that was being done by the appellant was a work for a project and that project having come to an end, question of regularising the services of the respondents or making them permanent did not arise. 10. Having heard the learned counsel for the parties and having perused the documents, we notice that the case of the appellant that these respondents were employed for the purpose of digging pits for erecting electric poles in the course of drawing electric wire from one point to another point is not disputed. It is an accepted finding of the Courts below that the employment of the respondents have been discontinuous and intermittent during the period from 1982 till their employment was discontinued. We can take judicial notice of the fact that drawing of an electric line is in the nature of project work and once the polls are erected and the electric wire is drawn from the starting pole to the ending pole that work comes to an end. Therefore, it cannot be contended that the nature of work which was only to dig pits for the purpose of erecting poles could be construed as a permanent job. Of course, during the course of electrifying more places, job of this nature may be done by the Board continuously in different parts of the State but that does not deviate from the fact that drawing of electric line from one point to another at one part of the State would be a project and not a continuous job. Therefore, employment of people in that local area for the limited job cannot be construed as an employment for a continuous and regular work of the Board. This fact is also recorded in the Muster Rolls which shows that at regular intervals the services of the respondents were sought obviously for the reason that there was no continuous need for such work. A perusal of the Muster Rolls, a copy of which is produced along with the writ appeal which pertains to the respondents in the first appeal clearly indicates the above fact. If as an example, we take the case of the respondent in C. A. No. 2240/01 we notice that he worked between 16. 11. 1987 to 15. 12. 1987 for 30 days. His next employment was from 16. 12. 1987 to 15. 1. 1988 for 26 days. Therefore, it could be said that during the period 16. 11. 1987 to 15. 1. 1988 this respondent worked continuously for 56 days. He was then not employed between 15. 1. 1988 till 16. 2. 1988. After the said break he was re-employed from 16. 2. 1988 to 15. 9. 1988 which is for a period of 106 days. Thereafter, he was not employed till 16. 11. 1988. From 16. 11. 1988 he was re- employed till 15. 12. 1988 for 30 days. Thus it is noticed that the employment during the period 1987 to 1988 was not continuous and his total employed days for one year if taken from 16. 11. 1987 till 16. 11. 1988, same comes to 136 days. Similar is the case if we have a look at a subsequent employment during the years 1989-1990, this clearly shows the fact that the employment of the respondent was' on a job required basis and was not for any continuous services required by the Board. The respondent, therefore, cannot claim either permanency or regularisation since there is no such permanent post to which he could stake his claim nor could he claim the benefit of completion of 240 days of continuous work in a given year, because as stated above the figures do not show that the respondents whose particulars are referred to hereinabove or the other respondents for that matter have worked for 240 days. In such a factual background, in our opinion, the Industrial Court or the High Court could not have drawn an adverse inference for the non-production of the Muster Rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents-applicants that at least during that period they had worked for 240 days continuously in a given year. The application calling for the production of the documents was for the years 1987 to 1992. As stated above, between the period 1987 to 1990, as a matter of fact, till end of the year 1990 the respondents have not been able to establish the case of continuous work for 240 days. Considering these facts in our view drawing of an adverse inference for the non-production of the Muster Rolls for the years 1991-92, is wholly erroneous on the part of the Industrial Court and the High Court. We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the applicants- respondents. ";