M/S Ganeshwar Ltd. Saharanpur vs State Of U.P. & Others
2017 Latest Caselaw 1465 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on:-8.5.2017
 
Delivered on:-31.5.2017
 
Court No. - 26
 

 
Case :- WRIT - C No. - 6402 of 2002
 

 
Petitioner :- M/S Gangeshwar Ltd. Saharanpur
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- D P Singh,Diptiman Singh,S.D. Singh
 
Counsel for Respondent :- C.S.C.,Bushra Marayam,Shailesh Kumar Shukla,Smt.Sumati Rani Gupta,Suman Sirohi
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard, Shri Diptiman Singh, counsel for the petitioner, Shailesh Kumar Shukla, counsel for respondent No.3 (Ajab Singh) workman. This writ petition has been filed by the petitioner which is a company incorporated under the Companies Act, which used to known as M/S Gangeshwar Ltd., Deoband, Saharanpur, but since Year-2000, it is known as Triveni Engineering and Industries Limited, Deoband, Saharanpur. In this writ petition, the petitioner has challenged the award of Labour Court Dehradun dated 31.10.2001 in Adjudication Case No.325 of 1999 on a reference made to it under Section-4(K) of the U.P. Industrial Disputes Act, 1947. The reference which was to be answered was whether the services of the workman Ajab Singh son of Kaloo Ram cane weighment clerk had been illegally terminated since crushing season 1998-1999 and in case, it is so, what the relief can be claimed by Ajab Singh, workman.

It is the case of the petitioner that it is a sugar company engaged in the manufacture of crystal sugar through vacuum pan process. The nature of industry is seasonal and the crushing season normally begins from Ist of November and lasts upto April the following year. Services of its employees are regulated by Standing Orders setting out the conditions of employment of workmen employed by the sugar factories in U.P. issued by the Government under Section-3 of the U.P. Industrial Disputes Act.

Under Clause-(B) of the Standing Orders, there is a classification of workman as permanent, seasonal, probationers, apprentices and substitutes. Different kinds of work is being performed by different kinds of employees as duly classified under the Standing Orders.

It is the case of the petitioner that raw material for sugar factory is sugarcane which is available mostly on a year to year basis and therefore, the crushing season fluctuates. Whenever, there is excess of sugarcane, the sugar factory needs more manpower to deal with the supply of the sugarcane and whenever there is a shortage of sugar in any given year the need to employ comes down. It is open for the sugar factory to engage temporary employees to meet the temporary need in case of more supply of sugarcane in some crushing seasons only. The respondent No.3, workman was never engaged in regular employment of the sugar factory, but had filed a claim which was referred under Section-4(K) as aforesaid on false allegations.

The workman in his written statement had stated that he was initially engaged in the crushing season 1990-1991 w.e.f. 1.11.1990 as cane supervisor cum weighment clerk and thereafter in every crushing season upto 1997-1998, he had worked continuously as weighment clerk and therefore had a right to be engaged in crushing season 1998-1999, but he was not engaged in the crushing season 1998-1999, even though, the capacity for crushing sugar of the factory concerned had increased and the number of cane centres for crushing season 1998-1999 had also increased. Having worked continuously since 1990-1991 upto 1997-1998, he was entitled to be engaged and be given benefit of continuing service and reinstatement including full backwages retaining allowance and all other benefits available to permanent workman.

It was the case of the employer before the Labour Court that the workman was never engaged at all and the evidence filed by him of his engagement including license given to act as weighment clerk were infact forged documents. The license issued under U.P. Regulation of Supply and Purchase of Sugarcane Orders by the District Magistrate are given even if an additional hand is engaged in case of additional supply of sugarcane for only one day and it cannot be relied upon to hold that the workman had regularly worked.

In his replication to the written statement filed by the employer, the workman had denied as false all claims of the employer that he had never been engaged. In the list of documents submitted by the workman were copies of authority letters for the year-1990-1991, 1991-1992 and licenses for the year 1991-1992, 1993-1994, 1994-1995, 1995-1996 and 1996-1997 and 1997-1998. The evidence of GPF being deducted from his wages for the year 1993-1994, 1994-1995, 1995-1996 was also submitted and duty chart for 1997-1998 issued under the signature of the then Deputy General Manager of the Sugar Mill was also filed as well as No Dues Certificate issued for the crushing season 1994-1995.

In his oral statement, the workman clearly stated that the original copies of all documents of which the photocopies he filed were in his possession and could be produced in Court.

On the other hand, the oral statements of Randip Singh working as Supervisor and Ravindra Singh, Chief Time Keeper in the employers establishment baldly denied all evidence produced regarding the respondent's employment in the factory, but they did not produce any evidence like muster roll / attendance register to substantiate their claims.

The Labour Court in the award impugned taking into account the mass of documentary evidence produced by the workman came to the conclusion that such documentary evidence filed by the workman cannot be ignored as it has not been proved to be forged by the employer by producing evidence in its favour. The Labour Court came to the conclusion that the workman had worked for more than one crushing season and relied upon judgment rendered by this Court in U.P. Sugar Corporation Vs. Labour Court, Gorakhpur reported in 2000 Labour Court (Lab IC) Vol.33 330.

The Labour Court came to this conclusion on the basis of documentary evidence and oral evidence that the workman had been able to prove that he had indeed worked for more than one season since 1990-1991 and the burden of proof was thus shifted on the employer to prove that the workman had been not engaged at all. The employer neither produced attendance registers nor any other evidence. In such case, an adverse inference was drawn against it and it was held that employers had resorted to illegal termination of the workman. A direction was issued that the workman be reinstated w.e.f. current crushing season and all consequential benefits for previous crushing seasons be given to him alongwith Rs.5,000/- as compensation and Rs.1,000 as cost of litigation.

The learned counsel for the petitioner Shri Diptiman Singh argued that in terms of the law settled by the Hon'ble Supreme Court in Managing Director, Chalthan Vibhag Sahakari Khand Udyog, Chalthan, District-Surat vs. Government Labour Officer and others 1981 (2) SCC 147 given in the case of Sugarcane Industries, there was no pleading that any retaining allowance was given to the workman concerned. It is settled law that for a seasonal workman, working in sugar industries retaining allowances is payable during off season and the workman had not produced any evidence that retaining allowance was paid to the employee during the off season.

Shri Diptiman Singh has also relied upon Batala Co-operative Sugar Mills Ltd. vs. Sowaran Singh 2005 (8) SCC 750 Paragraph-30, to the effect that onus of working for more than 240 days in the preciding year is upon the workman as per the law settled by the Hon'ble Supreme Court in the case of Range Forest Officer vs. S.T. Hadimani 2002 (3) SCC 25. When the initial burden is discharged then only burden of proof can be shifted to the employer. In this case, the respondent workman had not been able to prove his case that he had worked for 240 days continuously in the employer establishment in the previous crushing season.

The learned counsel for the petitioner has also relied upon the judgment rendered in Ganga Kisan Sahkari Chini Mills Ltd vs. Jai Veer Singh 2007 (7) SCC 748, wherein the Supreme Court held that the workman belonging to seasonal category cannot be directed to be reinstated with backwages and other consequential benefits without there being any finding to the effect that U.P. Payment of Retaining Allowance to Unskilled Seasonal Workman of Sugar Factories 1972, had been followed. It had been found by the Court that the workman was a weighment clerk and therefore his nature of work was seasonal, hence direction for reinstatement meant that the workman had been given the status of a permanent workman. For giving permanent status the workman concerned had to complete the probationary period. There was no averment that the workman had completed his probation period.

The learned counsel for the petitioner has also relied upon Paragraph-3 of U.P. State Sugar Corporation Ltd. vs. Niraj Kumar and others 2009 (14) SCC 712 that the burden of establishing that respondent workman was engaged as seasonal workman was upon the workman, he could not establish that he was engaged for the whole season to seek re-employment in succeeding crushing season, or even in the whole of the second half of crushing season of 1997-98. The engagement of weighment clerk should be the full second half of the crushing season. The respondent workman had not been able to prove that he had worked for the full second half of crushing season of 1997-1998 and therefore he had no right to be employed in the succeeding season.

The learned counsel for the petitioner has additionally relied upon Divyansh Pandit vs. Management, N.C.C.B.M. Reported in 2005 (105) FLR 1179 Supreme Court wherein, in Paragraph-9 the Supreme Court has held that in a case where no prayer has been made for submitting additional evidence alongwith written statement, even then, it did not place an embargo upon on the powers of the Court / Tribunal to require or permit parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded. It has been argued that the Labour Court should have asked the petitioners to produce documentary evidence in support of their claim that the respondent had never worked with them.

The counsel has also relied upon Surendra Nagar District Panchayat vs. Dahyabhai Amarsinh 2005 (8) SCC 750, wherein the Supreme Court after placing reliance upon Range Forest Officer vs. S.T. Hadimani (supra) and the case of Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan 2004 (8) SCC 161; and Municipal Corporation, Faridabad vs. Siriniwas 2004 (8) SCC 195; and M.P. Electricity Board vs. Hari Ram 2004 (8) SCC 246; had held that the burden proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year before his termination. Only by appearance in the witness box or filing an affidavit which would be self serving, no workman could be said to have proved continuous employment with the employer. The Supreme Court had then observed thus:-

"-----In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined: muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section-25B(1) of the Act. In the facts and situation and in the l ight of the law on the subject, we find that the respondent workman is not entitled to the protection or compliance with Section 25-F of the Act before his service was terminated by the employer. As regards as non-compliance with Sections 25-G and 25-H suffice it to say that witness Vinod Misra examined by the appellant has stated that no seniority list was maintained by the department of daily-wagers. In the absence of regular employment of the workmen, the appellant was not excepted to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so-called seniority, no relief could be given to him for non-compliance with provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved.-----"

The learned counsel for the petitioner has also relied upon judgments rendered by this Court in writ petitions filed by the M/S Triveni Engineering namely Writ-C No.60160 of 2005 decided on 4.3.2008 and Writ-C No.19918 of 2009 decided on 7.1.2010, wherein this Court had held that the workman had failed to discharge the initial burden of having worked in the preceding crushing season. It was observed therein that the attendance registers of the preciding crushing season were produced, but the Labour Court had wrongly said that they were not filed. No documentary evidence, payment or receipt of wages or retaining allowance was filed by the workman and therefore it cannot be said that the workman was employed with the petitioner under Clause-(K)(1) of the Standing Orders governing sugar industries. Seasonal workman would have to show that he had worked in the factory during the whole of the second half of the last preceding season to be entitled for employment in the current season. Since in those cases, the workman could not produce any document for the last crushing season except authority letter said to have been issued to the workman by the employer, it was held that the workmen had not discharged the burden of proving that they were engaged in the last preceding crushing season as a whole and therefore they could not be held to be entitled to be called for their concurrent crushing season.

The learned counsel for the petitioner has also placed before this Court a judgment rendered by me in Writ-C No.5512 of 2000 (M/S Gangeshwar Ltd; Deoband, Saharanpur vs. State of U.P. and others), wherein I had held that in the absence of documentary evidence and oral evidence being insufficient, the Labour Court should have called for additional evidence and thereafter decided the case after noticing all arguments and pleadings on behalf of both the parties. In that case I had remanded the matter back to the Labour Court for decision afresh on the issues raised by the parties.

Having gone through the judgments relied upon by the learned counsel for the petitioner I shall now consider the judgments relied upon by the learned counsel for the respondent workman. They are Bank Of Baroda Versus Ghemarbhai Harjibhai Rabari 2005 (10) SCC 792 and R M Yellatti vs. Asst. Executive Engineer reported in 2006 (1) SCC 106. Both these judgments have been rendered by the corum of three judges. In the first case cited of Bank of Baroda (supra), the workman had established that he had worked as a driver of the car belonging to the Bank during the relevant period which came to more than 240 days of working in the 12 months preceding his termination, he had produced three vouchers which showed that he had been paid certain sums of money towards his wages and the said amount had been debited from the account of the Bank. The genuineness of the vouchers produced by the workman which showed payment made by the Bank to the workman were not challenged and the signatures of the workman obtained on the register maintained by the Bank were also not disputed.

The Bank setup a case before the Supreme Court that the Bank did not employ the workman directly and the there was no relationship of employer and employee. Being a nationalised Bank under its rules and regulations, appointment had to be through selection and letter of appointment had not been given by the Bank. The Bank had allotted cars to some of its executives, but it did not provide drivers for the car. The executives appointed drivers who became the personal employees of the executive concerned, the payment made by the executives to the drivers was reimbursed by the Bank. It was however not shown by the Bank that reimbursement of salary was done by it to the employer. On the other hand, the vouchers of payment made by the Bank to the workman directly were produced by the workman. The contention of the Bank was that the burden of proof that the workman was employed by the Bank being on him, the same had not been discharged. Therefore, the Labour Court and the High Court had decided wrongly in shifting the onus on the appellant Bank to disprove a case not established by the workman. The Hon'ble Supreme Court however held that:-

"-----while there is no doubt that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman, who claims to be a workman. The degree of such proof so required, would vary from case to case. In the instant case, the workman has established the fact which, of course, has not been denied by the bank, that he did work as a driver of the car belonging to the bank during the relevant period which come to more than 240 days of work. He has produced 3 vouchers which showed that he had been paid certain sums of money towards his wages and the said amount has been debited to the account of the bank. As against this, as found by the fora below, no evidence whatsoever has been adduced by the bank to rebut even this piece of evidence produced by the workman. It remained contented by filing a written statement wherein it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the employee of the executive concerned and not that of the bank; none was examined to prove the scheme. No evidence was led to establish that the vouchers produced by the workman were either not genuine or did not pertain to the wages paid to the workman. No explanation by way of evidence was produced to show for what purpose the workman's signatures were taken in the Register maintained by the bank. In this factual background, the question of workman further proving his case does not arise because there was no challenge at all to his evidence by way of rebuttal by the bank.-----"

The judgments rendered in the case of Range Forest Officer vs. S.T. Hadimani, Punjab National Bank vs. Ghulam Dastagir and M.P. Electricity Board vs. Hari Ram were distinguished by the Hon'ble Supreme Court by holding that such judgments only laid down that initial burden of establishing the factum of workman having continuously worked 240 days in a year rests with the workman and in the case before the Court, this fact had been established by evidence produced by the workman.

In the case of R M Yellatti (supra), the three judges bench of the Hon'ble Supreme Court relying upon Manager, Reserve Bank of India vs. S Mani; Municipal Corporation, Faridabad vs. Siri Niwas (supra); and Range Forest Officer vs. S.T. Hadimani (supra); and Rajasthan State Ganganagar S. Mills Ltd. vs. its Workman (supra); that initial burden of proof lay upon the workman that he had worked for 240 days in a given year. This burden is not discharged only upon the workman stepping in the witness box and making a statement on oath. This burden has to be discharged by the workman adducing cogent evidence both oral and documentary. Only affidavits or self serving statements made by the claimants / workman will not suffice in the matter of discharge of burden of proof.

The aforesaid judgment also further laid down that mere non-production of muster rolls per se without any plea of suppression by the claimant / workman will not be a ground for the Tribunal / Court to draw adverse inference against the management and the High Court under Article-226 of the Constitution will not interfere with concurrent findings of fact recorded by the Labour Court unless they are perverse.

In case, the workman by stepping into the witness box and by producing documentary evidence has been able to prove that he was employed for 240 days in the preceding year, the rebuttal from the side of the management should be proved also. The management was duty bound to produce before the Labour Court, the nominal muster rolls for the relevant period particularly when it was summoned to do so. The burden of proof having shifted upon the employer, it was not properly discharged by it and therefore adverse inference was rightly drawn by the Labour Court and its finding was affirmed by the learned Single Judge.It was further held in R M Yellati that the Division Bench of the High Court upturned the finding recorded by the Labour Court without correctly appreciating the whole issue. The Division Bench should not to have interfered with the concurrent findings given by the award of the Labour Court and the judgments of the learned Single Judge. The appeal made by the workman was allowed holding that full opportunity was given to the management to produce its record by the Labour Court, but the entire record was not produced despite the management being asked to do so by the Court concerned. Having deliberately suppressed evidence which only it could have produced relating to nominal muster rolls, it could not take the benefit by the judgments cited it.

I have perused the records of the adjudication case filed alongwith the writ petition and the order of the Labour Court. I find that the workman had not only in his written statement mentioned that he had worked as weighment clerk for the crushing season 1990-91, 1991-92, 1993-94, 1995-96, 1997-98, but had also produced documentary evidence in the form of authority letters and license issued in this regard as also other supporting evidence like No Dues Certificate and evidence relating to Provident Fund being deducted from his wages.

On the other hand employer in its written statement had merely denied the claim of the workman and said that the workman had never been engaged at all and in its oral evidence of its two officers Randeep Singh and Ravinder Singh also there was a bald denial without any effort to produce any documentary evidence viz. Attendance registers and other relevant material to prove before the Labour Court that the workman had never been engaged as seasonal weighment clerk by them.

Mere assertion that the oral as well as documentary evidence produced by the workman of his continuous engagement in the previous crushing season was forged and manipulated would not discharge the burden of proof shifted upon the employer.

In this case, the Labour Court rightly considered all evidence and came to conclusion that the workman had been able to prove and the employer had been unable to disprove the fact of illegal termination of the services of the workman / non-engagement in the crushing season of 1997-1998.

This Court has very limited jurisdiction in so far as Courts' findings of fact is concerned with regard to Labour Court.

The limited jurisdiction under Article 226 of the constitution in cases arising out of Industrial Disputes Act is to see whether the claimed arrived at by the Labour Court is without any evidence at all and the findings are perverse i.e. against the material placed on record or there is a apparent illegality in the order of the Labour Court in the sense that it has wrongly shifted the burden of proof on the employer without the onus of proof first being discharged by the workman concerned. I am of the considered opinion that the judgments cited by the learned counsel for the petitioner as aforesaid do not apply to the facts of the case, and are clearly distinguishable. The award of the Labour Court does not suffer from any illegality or perversity.

The writ petition is thus dismissed as devoid of merit.

No order as to cost.

Order Date :- 31.5.2017

S Rawat