HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 10 Case :- SPECIAL APPEAL No. - 398 of 2016 Appellant :- Secretary Co-Operative Cane Development Society Respondent :- Anil Kumar Pandey & 22 Others Counsel for Appellant :- Ravindra Singh Counsel for Respondent :- C.S.C.,Rajeev Misra,Shrawan Kumar Tripathi With Case :- SPECIAL APPEAL No. - 399 of 2016 Appellant :- Secretary Co-Operative Cane Development Society Respondent :- Ram Darash Singh & 4 Others Counsel for Appellant :- Ravindra Singh Counsel for Respondent :- C.S.C. Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Heard Sri Ravindra Singh, learned counsel for the appellant, Sri Rajeev Mishra, learned counsel for respondent-writ petitioners and learned Standing Counsel for the State-respondents.
Special Appeal No. 398 of 2016 is directed against the judgment and order of the learned Single Judge dated 12th May, 2016 passed in Writ-A No. 60557 of 2015 (Anil Kumar Pandey & 17 Others versus State of U.P. & 4 Others), while Special Appeal No. 399 of 2016 is directed against the judgment and order of the learned Single Judge dated 12th May, 2016 passed in Writ-A No. 10706 of 2016 (Ram Darash Singh versus State of U.P. & 4 Others).
Both special appeals raise common questions of law and facts, therefore, they have been clubbed together and are being decided by means of this common order. Special Appeal No. 398 of 2016 is treated to be the leading special appeal.
Under the judgment in appeal no. 398 of 2016, the learned Single Judge has been pleased to issue a mandamus directing the appellant, namely, Co-operative Cane Development Society (hereinafter referred to as the "appellant society") to reinstate the writ petitioners, who were seasonal employees categorized within "A" category with reference to the work of the previous crushing season i.e. 2014-2015, and to continue them in engagement till termination of their seasonal employment in accordance with Regulation 34 of the U.P. Cane Co-operative Service Regulations, 1975 (hereinafter referred to as the "Regulations, 1975"). The Learned Single Judge has further directed that the writ petitioners would also be entitled to salary for the period between 1st October, 2015 till the date of their actual engagement in the crushing season 2015-2016.
Appellant-society is not satisfied with the directions so issued by the Learned Single Judge has, therefore, filed the present intra-court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.
Special Appeal No. 399 of 2016 is directed against the judgment and order of the learned Single Judge dated 12th May, 2016 passed in Writ-A No. 10706 of 2016, wherein similar directions have been issued as that in the judgment of the same date passed in Writ-A No. 60557 of 2015 giving rise to Special Appeal No. 398 of 2016.
Facts relevant for deciding the controversy are as under:
Appellant-society before us is a Co-operative Cane Development Society of cane growers. Appellant-society has to perform its statutory obligations as provided for under the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (hereinafter referred to as the "Act, 1953"), which has been enforced for regulating the supply and purchase of sugarcane to be used as raw materials in the Gur, Rab or Khandsari, manufacturing Units. It is not in dispute that for discharging its statutory obligations, the appellant-society is required to engage seasonal employees. Service condition of these seasonal employees employed in Cane Development Societies is regulated by the provisions of Regulations, 1975.
Regulation 2 (h) of Regulations, 1975 defines the word "Crushing Season" to mean the period as defined in the Act, 1953. There is no issue with regard to the crushing season, its commencement and its closure, which have to be assigned the same meaning as provided under the Act, 1953. It is also not in dispute that the writ petitioners/respondents before us were all seasonal clerks engaged by the appellant-society in the previous year i.e. 2014-2015 and that after close of the said season, they have all been categorized within the "A" category.
Writ petitioners approached the Writ Court with the contention that the crushing season for 2015-2016 has started on 1st October, 2015 in terms of the definition of the "crushing season" as contained under the Act, 1953 but they have not been offered employment by the appellant-society and therefore, they prayed for a mandamus for their re-employment and for payment of salary from the start of the crushing season i.e. 1st October, 2015. The claim so set up by the writ petitioners was based on the interpretation of Regulations 21, 26 and 34 of the Regulations, 1975.
It would be worthwhile to reproduce Regulations 21, 26 and 34 of the Regulations, 1975, which read as under:
21. Categorisation. - At the end of each crushing season the Secretary of the Cane Union shall classify the entire seasonal staff into ''A' and ''B' categories on the basis of their work and worth during the season. Such persons unquestionable integrity and have discharged their duties efficiently during the crushing season shall be placed in ''A' category and the rest in category ''B'. When seasonal employee is placed in category ''B' he will be informed of the same together with the grounds for his categorisation and an opportunity shall be given to him to explain the charges and deficiencies against him. These proceedings shall be of summary nature and shall be conducted by the Secretary of the Union concerned.
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26. The staff placed in category "A" (SIC) shall be automatically re-employed in the next season unless the strength of seasonal staff has been reduced in any particular year to such an extent that it may not be possible to re-employ all such staff.
34. Termination of services.- The services of a seasonal employee may be terminated by the recruiting or appointing authority at any time on a week's notice or with a week's salary in lieu thereof. This provision shall not apply in case of termination as a result of disciplinary proceedings or termination at the close of the crushing season."
Writ petitioners explained that an earlier attempt by the Caner Commissioner vide his Circular dated 17th April, 2010 to alter the crushing season so as to mean the actual period during which cane crushing takes place in the Sugar Factories has been set aside by a Division Bench of this Court vide judgment and order dated 2nd November, 2011 passed in Special Appeal No. 943 of 2010 (Navneet Kumar & Others versus State of U.P. & Others) along with connected special appeals. In view of the observations made in the said judgment, all seasonal employees categorized within "A" category become entitled for reinstatement automatically at the start of the crushing season and for payment of salary unless their engagement is terminated under Regulation 34 of the Regulations, 1975.
The contention so raised on behalf of the writ petitioners has found favour with the learned Single Judge. The learned Single Judge after interpreting Regulations 21, 26 and 34 of the Regulations, 1975 and after referring to the observations made in the judgment of the Division Bench in the case of Navneet Kumar (Supra) has been pleased to issue a mandamus in favour of the writ petitioners as noticed above.
On behalf of the appellant-society, it has been contended before us that there has been complete misreading by the Writ Court of Regulations 21, 26 and 34 of the Regulations, 1975 as also of the observations made by the Division Bench in the case of Navneet Kumar (Supra). It is explained that in the case of Navneet Kumar (Supra) the Court was dealing with a situation, where seasonal employees had been terminated in the midst of the crushing season as defined under Act, 1953 in violation of Regulation 34 of Regulations, 1975. In that circumstance the Division Bench had gone on to hold that the change pertaining to crushing season under the Circular of the Cane Commissioner dated 17th April, 2010 was legally not justified and it will not have the effect of overreaching the definition of crushing season as contained in the Parent Act i.e. Act, 1953. It has been held that the subordinate legislation cannot overreach the provisions of the Parent Act.
Sri Rajeev Mishra, learned counsel for the respondent-writ petitioners however, submits that the judgment of the learned Single Judge is based on true and correct interpretation of Regulations 21, 26, and 34 of the Regulations, 1975 as well as on true and correct reading of the observations made by the Division Bench in the case of Navneet Kumar (Supra) as well as on the impact of quashing of the Circular of the Cane Commissioner dated 17th April, 2010, wherein an effort had been made to alter the definition of crushing season.
We have considered the submissions made by the learned counsel for the parties and have gone through the records of the present intra-court appeal.
At the very outset we may record that the right claimed by the writ petitioners has to be examined in the background that they are not permanent employees of the appellant-society, they are admittedly seasonal employees. Only a preferential right of re-engagement has been conferred upon seasonal employees categorized in "A" category at the end of previous crushing season.
From simple reading of Regulation 21 of Regulations, 1975, which has already been quoted above, it is apparently clear that at the end of each crushing season the Secretary of the Cane Union has to classify all the seasonal employees into "A" and "B" categories. The nature of the proceeding in that regard has been defined to be summary in nature. A right of re-engagement is conferred upon the seasonal employees who are categorized within "A" category. In our opinion, Regulation 26 of Regulations, 1975 which confers such right of re-engagement only confers preferential right of employment over any other employee on seasonal basis in the cane society.
In our opinion what flows from simple reading of the language of Regulation 26 of the Regulations, 1975 is that a seasonal staff placed in "A" category is to be automatically re-employed in the next crushing season, unless the strength of the seasonal staff has to be reduced in any particular year to such extent that it may not be possible to re-employ of all such staff i.e. "A" category seasonal staff.
What logically flows from the aforesaid Regulation is that in given circumstance, all "A" category employees may not be offered re-employment in the ensuing season, if there is depletion in the volume of work or there are other circumstances justifying reduction in number of staff actually required by the Cane Society.
It is also worthwhile to notice is that under Regulation 26 of Regulations, 1975, right of re-employment is conferred in the next season and not at the start of the crushing season as has been canvassed before us by learned counsel for the writ petitioners. The words "at the start" before the words "in the next season" are clearly missing from Regulation 26 of Regulations, 1975. If the interpretation as placed by the learned counsel for the writ petitioners is accepted then this Court would be required to add the words "at the start" before the words "in the next season" in Regulation 26 of Regulations, 1975.
It is settled law that the Court shall not add words to the statutory provisions unless there are compelling circumstances, otherwise the normal rule of interpretation is that the words of statutory provisions have to be assigned their simple meaning, specially in the circumstance when they can be attributed a reasonable meaning.
We are of the considered opinion that under Regulation 26 of the Regulations, 1975, no right is conferred upon any seasonal employee to seek re-employment at the start of the crushing season within the meaning of "crushing season" as provided under the Parent Act i.e. Act, 1953. Only right conferred upon the seasonal employees categorized as "A" category employees is that whenever the Cane society decides to re-engage the employees in a particular season, all such employees within "A" category shall have a preferential right over any other seasonal employee categorized in any other category and nothing beyond it.
For the said conclusion, we also draw support from the fact that Regulation 26 of Regulations, 1975 itself provides that in given circumstances, in a crushing season, not all seasonal employee of "A" category may be offered re-employment for reasons like depletion of work etc. So far as Regulation 34 of Regulations, 1975 is concerned, the same, in our opinion, deals with the termination of the engagement of the seasonal employees. Question of termination would arise only when a seasonal employee had already been engaged. It is in that circumstance that Regulation 34 requires the cane society to serve a week's notice or to pay a week's salary in lieu thereof before termination of any seasonal employee. However, Regulation 34 itself clarifies that such requirement of a week's notice or salary in lieu thereof would not be required if the termination is because of some disciplinary action or because of close of the crushing season, when the termination would be automatic.
We may record another reason in support of the conclusion drawn herein above: Regulation 34 of Regulations, 1975 itself confers a right to terminate the engagement of any seasonal employee by giving a week's notice or a week's salary in lieu thereof. If the cane society has no work at the start of the crushing season as per the definition of Act, 1953 and if the right of re-engagement at the start of crushing season is recognized, as per the contention of the writ petitioners, a seasonal employee categorized in "A" category employee has to be asked to join the duties in the cane society and immediately thereafter he is to be given a week's notice or a week's salary in lieu thereof for termination as there is no work with the cane society. Such conclusion would lead to absurd situations and therefore, has to be avoided.
So far as the observations made by the Division Bench in the case of Naveent Kumar (Supra) are concerned, we may mention that in that case the Division Bench was considering the circular of the Cane Commissioner dated 17th April, 2010, which had the effect of altering the definition of crushing season with reference to the period of actually crushing in the sugar factory. In the background of facts stated, the Court found that the work of cane cooperative union is not confined to the actual crushing period of the sugar factories as the Union had to perform large number of other functions besides ensuring supply of sugar cane to sugar factories. The judgment has to be read in the background of the issues involved therein.
The Rule Framing Authority has deliberately not used the words "at the start" of the next season in Regulation 26 of Regulations, 1975 but has used the words "at the close" of the crushing season in Regulation 34 of Regulations 1975.
We may only reproduce two of the observations in the case of Naveent Kumar (Supra) as borne out from page nos. 130 and 132 of the paper book, which reads as under:
"..................... It may be possible for the Cane Commissioner, while laying down conditions for employment of employees of Cane Cooperative Society that they may be terminated during currency of crushing season or they may be paid wages only for the period when they are required to work but for that it is not necessary to change the definition of "crushing season". Thus the first submission of learned counsel for the appellants has substance.
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The submission on which much stress has been given by the learned Additional Advocate General and Sri Ravindra Singh is that Cane Cooperative Societies are running under great loss and unable to pay wages to its staffs during entire crushing season if it is taken as 1st October to 15th July of next year. There cannot be any restraint on the employer to take work from its seasonal staff for a period when their services are not required nor there can be any restraint to terminate the services of a seasonal staff when there is no requirement. Regulation 34 of the 1975 Regulations, as noted above, clearly envisaged a situation when a seasonal staff can be terminated on a week's notice or a week's salary in lieu thereof. The 1975 Regulations could have been amended to achieve the aforesaid object if so required, however, it is not justified to change very definition of "crushing season"."
From simple reading of the aforesaid observations made by the Division Bench in the case of Navneet Kumar (Supra), it is apparently clear that the Division Bench itself of the view that the issue with regard to the re-employment being not offered for the reason that the work is not available does not require any change in the definition of the crushing season and further it has been observed that the right of employer to not to take work from the seasonal staff for the period when their services are not required is well recognized and there can be no restrain in that regard. The said observations are only another away of enforcing the principle of "no work, no pay".
For all the aforesaid reasons, the judgment and order of the learned Single Judge dated 12th May, 2016 cannot be legally sustained and is hereby set aside.
Both the writ petitions giving rise to the aforesaid two special appeals are dismissed. The special appeals are allowed.
We, however, clarify that as and when appellant-society proposes to engage any seasonal employee then all such seasonal employees, whose names find mentioned in the list of "A" category of employees shall be offered re-employment in preference to any other seasonal employee.
(Ritu Raj Awasthi, J.) (Arun Tandon, J.)
Order Date :- 18.8.2017
Sushil/-
Court No. - 10
Case :- SPECIAL APPEAL No. - 398 of 2016
Appellant :- Secretary Co-Operative Cane Development Society
Respondent :- Anil Kumar Pandey & 22 Others
Counsel for Appellant :- Ravindra Singh
Counsel for Respondent :- C.S.C.,Rajeev Misra,Shrawan Kumar Tripathi
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Allowed.
For orders, see our order of date passed on the separate sheets.
(Ritu Raj Awasthi, J.) (Arun Tandon, J.)
Order Date :- 18.8.2017
Sushil/-