- (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 Disputes 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. 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 : 1- 2002 (1) LLJ page 589, Management of Tiruttani Co-operative Sugar Mills Ltd., Thiruvalangadu v. Presiding Officer, Industrial Tribunal, Madras and another. "18. On a combined regarding of the above judgments, 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." 2-2005 (100) FLR page 325, M/s. Laxmi Palace (Cinema) v. Presiding Officer, Labour Court, Varanasi and others. "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." 3-2006 (108) FLR page 426 : (2006) 6 All LJ (DOC) 271) M/s. Devyani Beverages Ltd. v. Labour Court-Il, Ghaziabad and others. "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." 4-2008 (13) SCC page 248 : (AIR 2009 SC (Supp) 919) Rajasthan Lalit Kala Academy v. Radhey Shyam. "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 remeasurement 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." 5-1995(5) SCC page 653 : (AIR 1996 SC 332) Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and others. "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.
(3.) 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 stalls 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." 6-JT 1997 (5) SC page 597 : (AIR 1997 SC 2698) Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and another. "3. Learned counsel for the appellant con­tends that the judgment 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 Co­op. Sugar Mills Ltd. v. Ram Kishan and Ors. JT 1995 (6) SC 547 : [(1995) 5 SCC 653 : (AIR 1996 SC 332) 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. ;