Union Of India Thru Its Secry. ... vs Surendra Singh Rashtriya ...
2019 Latest Caselaw 1238 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
RESERVED
 

 
Court No. - 39
 
Case :- WRIT - C No. - 20486 of 2013
 
Petitioner :- Union Of India Thru Its Secry. Culture And Another
 
Respondent :- Surendra Singh Rashtriya Adhayaksha Intuc And Another
 
Counsel for Petitioner :- Harish Chandra Dubey,R.B. Singhal A.S.G.I.
 
Counsel for Respondent :- Jamal Khan,Pooja Srivastava,Prashant Mishra,S.C.,Vipin Chandra Pal
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri Gaurav Kumar Chand, learned counsel for the petitioner, Sri Jamal Khan, learned counsel for the respondent no. 1, learned standing counsel for the respondent no. 2 and Sri Vipin Chandra Pal, learned counsel for the respondents no. 3 to 43.

The petitioner no. 2 is a department of Archaeological Survey of India which itself falls under the Ministry of Culture, Government of India and is assailing the award dated 27.11.2012 passed in Adjudication Case No. 96 of 2004 passed by the Central Government Industrial Tribunal (hereinafter referred to as the Tribunal).

Briefly stated the case of the respondents no. 3 to 43-workmen is that they were working in the Garden Branch of Archaeological Survey of India (ASI for short), Agra during 1.8.1987 to 31.1.1997 from time to time. Their services were dispensed with w.e.f. 1.2.1997 and thereafter they have not been re-engaged in service as per their seniority in violation of the provisions of Section 25H of the Industrial Disputes Act, 1947. The case of the workmen is that they were engaged in the maintenance of Garden and other related work of a perennial nature and work being available they were entitled for re-employment. The Government referred the dispute to the Industrial Tribunal and one of the pleas of the ASI before the Tribunal was that it is not an "Industry" within the meaning of the term as defined in Section 2(j) of the Act, 1947 and it was also stated that none of the workmen had completed 240 days continuous service in a calender year and infact some of the workmen had never been engaged at all and therefore the question of their retrenchment or compliance of Section 25 F of the Act, 1947 did not arise.

So far as the question as to whether ASI falls within the definition of "Industry" under Section 2(j) of the Act, 1947, the contention of the workmen was that the maintenance of the Garden was carried out through the revenue generated from the sale of tickets to the visitors and tourists at the various sites and monuments maintained by ASI and therefore it was an organized commercial activity of ASI Department and in any case the workmen respondents were engaged in the maintenance of Gardens and monuments which was a work of a perennial nature involving their labour and manual skill and in any case the work of maintenance of Garden cannot be said to be a sole sovereign function of the Government of India. Reliance was placed on the judgement of the Supreme Court in the case of Banglore Water Supply and Sewerage Board etc. vs. A. Rajappa and others reported in (1978) 2 SCC 213. The Tribunal decided the issue relying upon the judgement of A. Rajappa (supra) and held that the Garden/Horticulture Wing of the ASI was an "Industry".

So far as the status of the workmen as to whether they had completed 240 days of continuous service in a calender year is concerned, the case of the management initially was that the work was not of a perennial nature but intermittent and casual but in cross examination the management witness accepted that the workmen were required to take care of the garden and other monuments. The management witness further stated that there are about 400 helpers in the Garden Division I who are permanent and there were about 20 acres of garden in the Taj Mahal complex itself and that manual work is also being done by the helpers. So far as the question whether Heera Lal, Ali Mohammad, Ravinder, Prakash, Ram Gopal, Nafis, Ramesh, Kishore and Dinesh were appointed or not and whether they were junior to the workmen in the present proceedings, the witness could not confirm the same. He also could not confirm as to whether 70 workers mentioned in the list provided by the workmen Paper 11/13, were actually engaged after disengaging the respondent workmen.

The workmen's Union, on the other hand, prayed that the seniority list be summoned from the management which would show as to who are the persons who have been appointed after the disengagement of the respondent workmen and an order to that effect was also passed by the Tribunal on 15.2.2006, in response to which the management filed photo copy of the seniority list vide application Paper C-27. Objection was filed on affidavit by one Vijay Singh-respondent no. 3 herein that the list provided by the management was incomplete and related only to those workmen who had been engaged in the Mahbab Bagh but not to the entire Taj Mahal Complex. The workmen's Union also placed reliance on the Office Memorandum dated 17.3.2003 issued by the ASI filed as Paper 5/20 wherein instructions were issued to all the Garden In-charges to give preference to old daily rated agricultural labour while engaging labour for casual/seasonal work and the authorities of ASI were expected to give preference to old casual workers over new ones. The Office Memorandum dated 17.3.2003 Paper 5/20, of the ASI has been proved by the management witness as belonging to the Department. The management, however, denied that the respondent workman no. 3 to 43 were working continuously and had completed 240 days of service and infact their case was that the workmen had only worked in a casual and seasonal capacity. The case of the respondent workmen was that they had worked from 1.8.1987 to 1.1.1997 from time to time and after their retrenchment they were entitled for re-employment in terms of the provisions of Section 25H of the Act, 1947.

So far as the first question as to whether Garden/Horticulture Department of the ASI falls within the definition of "Industry" as defined in Section 2(j) of the Act, the Supreme Court in the case of A Rajappa (supra) has held as under:

"Where there is (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical), and (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making on a large scale Prasad or food), prima facie, there is an 'industry' in that enterprise."

From the nature of the work done by the respondent-workmen it cannot be said that the same is of a sovereign nature, therefore, I have no difficulty in holding that the Garden/Horticulture Department of the ASI is an "Industry" as defined in Section 2(j) of the Act, 1947.

The management next submitted that if the respondent-workmen were claiming to have worked under the management, the burden of proof lay upon them to prove the same and not upon the management. However, the workmen relied upon the judgement of the Supreme Court in case of Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda reported in (2010) 1 SCC 47 wherein it has been laid down by the Supreme Court that the burden to prove that the workman had worked continuously for 240 days or otherwise lay upon the management as the management alone had in its custody the entire records and the burden to prove the same cannot be thrust upon the workman as it would be difficult for him to access the records such as muster roll, seniority list etc.

In the present case what is noticed is that the Tribunal by its order dated 15.2.2006 had directed the management to produce the relevant record of seniority list to show not only as to whether the respondent workmen had completed 240 days in a calender year but also to show as to whether other casual labour were engaged after the respondent workmen had been disengaged/retrenched but the management produced the records only relating to Mehtab Bagh and not of the remaining Taj Mahal Complex, which objection was raised by the respondent no. 3 on affidavit before the Tribunal but never satisfactorily met by the management. The Tribunal also referred to the provisions of Rule 77 of the Industrial Disputes (Central) Rules, 1957 which prescribes the mode of re-employment and which requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated and the names of workmen in this list is required to be arranged in the order of seniority. Rule 78 of the Rules, 1957 refers to retrenched workman eligible for reconsideration against vacancies which may occur in future and those workmen who fall in the category of Section 25F of the Act, 1947 are required to be placed higher than those who do not fall in that category. The Office Memorandum dated 17.3.2003 issued by the ASI is also to the same effect and requires all the Garden In-charges to give preference to old daily rated agricultural labour while engaging labour for casual/seasonal work. Section 25H of the Act, 1947 may be adverted to which reads as under:

"25H. Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re- employment and such retrenched workman] who offer themselves for re- employment shall have preference over other persons."

A bare reading of Section 25H of the Act, 1947 would show that it provides for giving employment to the workmen who had been retrenched if they offer themselves for re-employment. Therefore, if the controversy in the present case is considered in the light of the Rules it would leave no doubt that not only the Office Memorandum of 17.3.2003 issued by the ASI but also Rules 77 and 78 of the Rules, 1957 contemplate giving of opportunity of re-employment to casual labour/seasonal workers who have worked with the department previously in the order of seniority and a list of such workers is also required to be maintained by the department. The respondents in-spite of order being issued by the Tribunal failed to produce the muster roll or seniority list relating to workers in the Taj Mahal Complex and besides the management witness had also admitted to the working of the respondents though in a casual and seasonal manner without completing 240 days in a calender year, therefore in my opinion irrespective of the fact whether the respondent workman had been retrenched in compliance of the provisions of Section 25F of the Act, 1947 or not, they would still be entitled for the benefit of re-employment in terms of the ASI Office Memorandum dated 17.3.2003. So far as the claim of the respondent workmen having completed 240 days of continuous service in a calender year is concerned, the Tribunal has also nowhere held that they have completed 240 days but has nevertheless allowed the claim of the respondents workmen for re-employment on the ground that they were engaged as casual labour though not as regular employees and on this ground has rejected their claim for back wages.

Learned counsel for the petitioner placed reliance upon the judgement of the Supreme Court in the case of M.P. Housing Board and another Vs. Manoj Shrivastava reported in (2006) 2 SCC 702 wherein it has been held that a daily wager does not hold a post and does not derive any legal right to a post unless he is appointed against a duly sanctioned post upon following the statutory law operating in the field and any appointment made in contravention of the Rules applicable to such appointment would be void. In my opinion in the present case the respondents workmen are not claiming appointment to any particular post but are only claiming re-employment on the basis of the Office Memorandum dated 17.3.2003 of the ASI and the Industrial Disputes Central Rules, 1957 and their only prayer is that if the work is available and juniors to them have been re=engaged then they may also be considered for re-employment. Therefore, in my opinion the said judgement has no application to the facts of the present case.

For reasons aforesaid I do not find any illegality or infirmity in the impugned award dated 27.11.2012. The writ petition lacks merit and is accordingly dismissed.

Dated: 14th March, 2019.

o.k.