Hon'ble Shishir Kumar, J. - (1.) Heard Sri S.S. Nigam, learned counsel for the petitioner and Sri Gopal Narain and Sri Shyam Narain, learned counsel appearing for the respondents.
(2.) The present writ petition has been filed for quashing the award dated 11 -7- 1997 and order dated 27-10-2000 as well as the order dated 31-12-2004. It appears that respondent-workman who claimed himself to be a seasonal employee since 1989. He was not permitted to work then he approached the Lower Court under the Industrial Dispute Act and after receipt of the notice, the petitioner filed a reply /written statement and the award was given by the Court by order dated 11-7- 1997 and was published on 13-1 -1998, when the petitioner came to know, he filed an application for recall of the said order that was not being considered then he filed a writ petition for the aforesaid reliefs.
(3.) Sri S.S, Nigam, learned counsel for the petitioner submits that he has already filed written statement and subsequently due to the illness, he could not appear before the Court but in spite of this fact, it was an obligation upon the labour Court to pass speaking and reasoned award on the basis of relevant record. As this has not been done, therefore, the award of the lower Court is liable to be set aside. He has cited various decisions which are being mentioned as under : Management of Tiruttani Co-operative Sugar Mills Ltd., Thiruvalangadu v. Presiding Officer, Industrial Tribunal, Madras and another, 2002 (1) LLJ page 589. "18. On a combined regarding of the above judgements, it would be clear that even though the management remained absent, the first respondent was required to consider the dispute and pass award giving reasons. Of course, such an award should be a speaking order on merits and based on materials available before the first respondent. While passing the award there must be a judicial application of mind and the order must be based on acceptable materials. In view of the above settled positions, I do not find any error in the first respondent in proceeding with the Industrial Dispute and disposed of the same. 22. In my considered view the non-consideration of Ex. W-2 by first respondent would vitiate the award. It is true that the management remained ex parte and not even a counter-affidavit was filed on behalf of the management. However, the reason as stated in the affidavit filed in support of the writ petition for the non-appearance of the management before the first respondent is that the summon appears to have been received by the then Administrator who has not brought the same to the notice of the Labour Consultant and therefore only the management could not appear before the first respondent. It is to be noted that except the said one summon, no further opportunity was given to the management. Therefore, I am inclined to accept the said reason adduced by the management for its non-appearance before the first respondent to defend the industrial dispute. Since the award was passed on merits, the writ petition came to be filed. In view of my finding that the award could not be sustained for non-consideration of the materials before the first respondent, in the interest of justice the matter has to be remanded back to the first respondent for fresh adjudication. The management also should be given an opportunity to put forth its case only with reference to the stand taken by the management to dispute the demands raised by the Union as contained in Ex. W-2." M/s Laxmi Palace (Cinema) v. Presiding Officer, Labour Court, Varanasi and others, 2005 (100) FLR page 325. "10. Reverting to the case in hand, it is luculent from a bare perusal that the award consists of four paragraphs. The first paragraph contains details of parties and dispute referred to it. The second and third paragraphs deal with the dates fixed in the case in Labour Court. The fourth and last paragraph contains conclusion. The decisions discussed above, do point to the requirements of taking into consideration the statements filed by the party and it is only on comparative merits of claims and counter claims that an ex- parte award has to be passed and any ex-parte award filed without discussing the claim and counter claims of the parties would not be valid. In the instant case, the Labour Court merely laid out factual aspects and jumped to the conclusion that the workman was illegally terminated and was liable to be reinstated in service. The requirement of law envisaged for quasi judicial authority such as Tribunal is that the approach should be one simulating the judicial standard and it must receive and place on record all the necessary, relevant, cogent and acceptable material facts germane and relevant to the fact in issue and inference to form conclusion has to be drawn in conformity with the judicial norms. In substance, the approach of the Labour Court should be judicious. It transpires from a perusal of the award that the Labour Court has not discussed the materials on record nor it tried to discuss the question for inference how the termination order was illegal on the basis of materials on record. The least that was expected of Labour Court was to discuss the claims of the workman simulating the judicial standard in case it was constrained to proceed ex-parte in the facts and circumstances of the case i.e. to have analytically examined the merit of the claims and recorded his satisfaction with reference to the provisions of the Industrial Disputes Act. It is well enunciated by catena of decisions that the decision on merit must have its genesis on material facts on record and the authority is not permitted to traverse beyond the facts on record to draw inference and made out a case of subjective satisfaction for his conclusions. What operated in the mind of the authority remained entombed and there is no discussion to articulate the view that the workman was illegally fired away and was entitled to reinstatement. It is therefore explicit from the award that the award was rendered without application of mind and it cannot be given the complexion of an award on merit. The award being bereft of any discussion on merit even on claims of the workman thus, non-application of mind is conspicuously discernible in the order." M/s Devyani Beverages Ltd. v. Labour Court-ll, Ghaziabad and others, 2006(108) FLR page 426. "8. As regards the merits of the claim of the workman, a perusal of the award shows that without even discussing any evidence, and without actually recording any finding that the workman had worked for more than 240 days in a year or that he was ever paid any wages or salary, the Labour Court arrived at a conclusion that the passing of the oral termination order dated 10-12-1997 passed by the employer was not justified, and after quashing the same, allowed the entire claim of the workman. As already stated above, in the award itself it has been recorded that the written statement of the employer had been filed. The Labour Court, thus, before passing the award on merits, ought to have also considered the case of the employer as set out in their written statement, even if the employer, for any reason, could not participate in the proceedings subsequently. In the absence of the same, the ex-parte award passed by the Labour Court deserves to be set aside on this count also." Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008 (13) SCC page 248. " 19. Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee. But the relief of re-measurement with full back wages need not be granted automatically in every case where the Labour Court/Industrial Tribunal records the finding that the termination of services of a workman was in violation of the provisions of the Act. For this purpose, several factors, like the manner and method of selection; nature of appointment ? ad hoc, daily wage, temporary or permanent, etc., period for which the workman had worked and the delay in raising industrial dispute, are required to be taken into consideration" Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and others, 1995(5) SCC page 653. "4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work. 5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work." Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and another, JT 1997 (5) SC page 597. "3. Learned counsel for the appellant contends that the judgement of the High Court of Bombay relied on in the impugned order dated March 28, 1995 in Writ Petition No. 488 of 1994 is perhaps not applicable. Since the appellant has worked for more than 180 days, he is to be treated as retrenched employee and if the procedure contemplated under Section 25-F of the Industrial Disputes Act, 1947 is applied to, his retrenchment is illegal. We find no force in this contention. In Morinda Co-op. Sugar Mills Ltd. v. Ram Kishan and others JT 1995 (6) SC 547 : (1995) 5 SCC 653 in paragraph 3, this Court has dealt with engagement of the seasonal workman in sugarcane crushing; in paragraph 4, it is stated that it was not a case of retrenchment of the workman, but of closure of the factory after crushing season was over. Accordingly, in paragraph 5, it was held that it is not 'retrenchment' within the meaning of Section 2 (oo) of the Act. As a consequence the appellant is not entitled to retrenchment as per clause (bb) of Section 2 (oo) of the Act. Since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent-Management should maintain a register and engage the workmen when the season starts in the succeeding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen it would be incumbent upon the respondent management to adopt such procedure as is enumerated above. 4. The Labour Court was of the view that though the stand of the employer was that the respondent workman was employed on casual basis on daily wages for specific work and for a specific period, yet evasive reply was given in respect of the workman's stand that he was appointed in April 1986. It was observed that no attendance record was produced. There was also no material to show that the workman had left the job of his own accord and in any event the employer had not proved that the workman had worked for less than 240 days in 12 calendar months preceding the date of termination. Accordingly, it was held that there was violation of Section 25-F of the Act. Direction was given to reinstate the workman with 50% back wages. 6. In support of the appeal, learned counsel for the appellant submitted that both the Labour Court and the High Court fell in grave error by acting on factually and legally erroneous premises. The definite stand of the appellant was that the workman was engaged on casual basis on daily wages for specific work and for a specific period. Details in this regard were undisputedly filed. Therefore, the provisions of Section 2 (oo) (bb) of the Act are clearly applicable. In addition, the onus was wrongly placed on the employer to prove that the workman had not worked for 240 days in 12 calendar months preceding the alleged date of termination. No material was placed on record by the workman to establish that the workman had offered himself for a job after 12-2-1994. The award of the Labour Court does not speak of the requirement to maintain the muster roll. This point was taken up suo motu by the High Court without any opportunity to the appellant to have its say. 8. We find that the High Court's judgment is unsustainable on more than one count. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan it was observed s follows: (SCC p. 654, paras 4-5) "4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work. 5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work." 11. The materials on record clearly establish that the engagement of the workman was for a specific period and specific work. 12. In view of the position as highlighted in Morinda Coop. Sugar Mills and Anil Bapurao cases the relief granted to the workman by the Labour Court and the High Court cannot be maintained. 13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officers v. S. T. Hadimant the onus is on the workman. It was noted in the said judgement as follows : (SCC p. 26, paras 2-3) "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. 3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an 'industry' or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde, appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today." Batata Coop. Sugar Mills Ltd. v. Sowaran Singh, 2005 (8) SCC page 481. "4. The Labour Court was of the view that though the stand of the employer was that the respondent workman was employed on casual basis on daily wages for specific work and for a specific period, yet evasive reply was given in respect of the workman's stand that he was appointed in April 1986. It was observed that no attendance record was produced. There was also no material to show that the workman had left the job of his own accord and in any event the employer had not proved that the workman had worked for less than 240 days in 12 calendar months preceding the date of termination. Accordingly, it was held that there was violation of Section 25-F of the Act. Direction was given to reinstate the workman with 50% back wages. 6. In support of the appeal, learned counsel for the appellant submitted that both the Labour Court and the High Court fell in grave error by acting on factually and legally erroneous premises. The definite stand of the appellant was that the workman was engaged on casual basis on daily wages for specific work and for a specific period. Details in this regard were undisputedly filed. Therefore, the provisions of Section 2 (oo) (bb) of the Act are clearly applicable. In addition, the onus was wrongly placed on the employer to prove that the workman had not worked for 240 days in 12 calendar months preceding the alleged date of termination. No material was placed on record by the workman to establish that the workman had offered himself for a job after 12-2-1994. The award of the Labour Court does not speak of the requirement to maintain the muster roll. This point was taken up suo motu by the High Court without any opportunity to the appellant to have its say. 8. We find that the High Court's judgment is unsustainable on more than one count. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan it was observed s follows: (SCC p. 654, paras 4-5) "4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work. 5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work." 11. The materials on record clearly establish that the engagement of the workman was for a specific period and specific work. 12. In view of the position as highlighted in Morinda Coop. Sugar Mills and Anil Bapurao cases the relief granted to the workman by the Labour Court and the High Court cannot be maintained. 13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officers. S. T. Hadimant the onus is on the workman. It was noted in the said judgement as follows : (SCC p. 26, paras 2-3) "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. 3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an 'industry' or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was. then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde, appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today." Bhogpur Cooperative Sugar Mills Ltd. v. Harmesh Kumar, 2006 (13) SCC 28. "5. The fact that the appellant operates a seasonal factory and the respondent had not been in continuous service for 240 days during twelve months preceding his termination is not dispute. 11. Termination of services of a workman as a result of non-renewal of the contract of employment on its expiry or termination of such contract of appointment under a stipulation in that behalf contained therein would, thus, not attract the definition of the term "retrenchment". (See Municipal Council, Samrala v. Sukhwinder Kaur and Municipal Council, Samrala v. Raj Kumar.) 12. The issue is squarely covered by a decision of this Court in Morinda Coop. Sugar Mills Ltd. v. Ram Kishan wherein it was opined : (SCC p.654, paras 4-5) "4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work. 5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in sub-clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work." U.P. Avas Evam Vikas Parishad and another v. Madhu Shankar Agarwal and another, 2009 (122) FLR 335. 23. There is yet another aspect. If a claim has been made under section 6H(1) for the enforcement of the award, the said award attains finality when the amount payable thereunder is calculated and is recovered. Another application under section 6H(1) of the Act, for the purpose of the enforcement of the award, namely, for post award wages, is in my opinion, not maintainable." U.P. State Electricity Board, Aligarh v. Presiding Officer, Labour Court, Agra and others, 2009 (123) FLR 340. 7. Having heard the learned counsel for the parties at some length and having perused the record, this Court is of the opinion that the order of the Deputy Labour Commissioner passed under section 6-H(1) of the U.P. Industrial Disputes Act cannot be sustained for the reasons stated hereunder. The Deputy Labour Commissioner exercises quasi judicial powers and consequently, while adjudicating any claim under section 6-H(1), was required to give reasons while allowing or disallowing a claim. In the present case, I find that no reason whatsoever has been given by the Deputy Labour Commissioner while passing the order dated 31st December 1998. On this ground, the impugned order cannot be sustained." Taking support of those judgments, learned counsel for the petitioner submits that in view of the settled principle of law it was to be seen that the respondent-workman was being a seasonal employee whether he comes in the definition of the workman, was entitled to be reinstated with full back wages. Further, now it is well settled in the catena decisions of this Court that awarding back wages should not be in a routine manner, it has to be proved on the basis of the evidence that he was not financial, gainful engaged or employed some where else. On the other hand, Sri Gopal Narain, learned counsel appearing for the respondent has placed reliance upon a judgement of this Court in Writ Petition No. 18151 of 2003, decided on 20-11-2007, Vinay Kumar Gaur Vs. Presiding Officer, Labour Court and others. Taking support of the judgements of the learned counsel for the petitioner that the award is of 1997. For a period of four years only on the basis of the pendency of the application for restoration, the matter was kept pending before the Industrial Court and in the year 2005, the writ petition was filed. In such circumstances, this Court has observed that in view of the fact that the award is of 1997. The workman perfected his right, when the employer has not challenged the award for 9 years. In this petition also after a lapse of 8 years, the award has been challenged.;