M/S Triveni Engineering And ... vs State Of U.P. And Others
2023 Latest Caselaw 23540 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:172549
 
Reserved
 
Court No. - 5
 

 
Case :- WRIT - C No. - 77731 of 2005
 
Petitioner :- M/S Triveni Engineering And Industries Limited
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Diptiman Singh,S.D. Singh
 
Counsel for Respondent :- C.S.C.,S.R. Gupta,Shyam Narain,Sunita Rani Gupta
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Heard Mr. Diptiman Singh for the petitioner and Mr. Shyam Narain for respondent no. 3.

2. The present writ petition has been filed for assailing the award dated 13.6.2005 passed by respondent no. 3 by which the petitioner was directed to reinstate respondent no. 3 in service for the next crushing season.

3. Brief facts of the case are that the petitioner is a private limited company incorporated under the Companies Act situated at Deoband Distt. Saharanpur and involved in the business of manufacture and sale of crystal sugar through vacuum pan process. It is stated that service condition of the employees are governed by the certified standing order issued under Section 3 of the Act for Vacuum Pan Industries known as Standing Orders Governing the Conditions of the Employment and Workman in Sugar Industry of UP and under the said standing orders the industries are engaging the workmen as classified in Clause B of the standing orders. The nature of the industry of the petitioner is seasonal and work normally from November to April in each season thus engagement of employees in the factory is stated to be temporary, seasonal and permanent in nature in view of different nature of jobs of the industry. Respondent no. 3 claims to be a seasonal clerk in the establishment of petitioner and as his service were terminated, he filed reference under Section 4 K of Industrial Disputes Act in which, the impugned order has been passed directing the petitioner to take work from respondent no.3 in the next crushing season and cost was also awarded. Hence the present petition.

4. Learned counsel for the petitioner has submitted that nature of the work in the factory of the petitioner is seasonal in nature and the factory usually runs from November to April each season. He submitted that employees are engaged only after adopting due procedure and issuing proper appointment letters for which the petitioner is also maintaining due records. He further submitted that since the petitioner is engaged in manufacture and sale of sugar through vacuum pan process thus the services of the employees are governed by the certified standing order issued under Section 3 of the Act for Vacuum Pan Industries known as Standing Orders Governing the Conditions of the Employment and Workman in Sugar Industry in UP as such no employment can be made by the petitioner in contravention of the standing order issued by the State Government.

5. He submitted that respondent no. 3 has wrongly claimed to be an employee of the petitioner as Seasonal Clerk, however respondent no. 3 has worked only on daily wages as and when his services were required. He further submitted that seasonal worker is a worker, who is engaged only for crushing season and not continuously worked and if the workmen is retained, he shall be liable to be called for duty in the next crushing season. He submitted that the petitioner and respondent no. 3 has no relation of master and servant but without considering the material on record the impugned award has been passed. He further submitted that prima facie burden is upon the workmen to adduce the evidence with regard to his claim for which respondent no. 3 has failed to do so.

6. He further submitted that respondent no. 3 can claim for reinstatement of service in succeeding crushing season as a seasonal workmen only after showing material that he worked in the previous full crushing season or in the whole season of last preceding year. Merely because the workmen had worked during the part of previous crushing season does not entitle him for re-employment in the next crushing season. In support of his submission, learned counsel for the petitioner has relied upon the judgment of Supreme Court in Batala Cooperative Sugar Mills Ltd. vs Sowaran Singh, 2005(8) SCC 481, UP State Sugar Corporation Ltd. Now M/s Dowiala Sugar Company Ltd. Doiwala Vs. Niraj Kumar and others, 2009 (14) SCCC 712, Managing Director Chalthan Vibhag Sahakari Khand Udyog Vs. Government Labour Officer and others, as well as this Court in UP State Electricity Board and another Vs. P.O. Labour Court, Gorakhpur and another, passed in W.P. No. 1110 of 1986 decided on 19.4.1996. He prays for allowing the writ petition.

7. Per contra, learned counsel for the respondent submitted that respondent was engaged in the establishment of the petitioner as weighment clerk and his services were illegally terminated without following the due process thus the impugned order has been passed in accordance with law. The petitioner has failed to adduce evidence as directed by the Labour Court. He prays for dismissing the writ petition. In support of his claim, learned counsel for the respondent has relied upon the judgement of this Court in M/s Gangeshwar Ltd. Vs. State of UP and others, 2017 (154) FLR 146 and Kishan Sahkari Chini Mills Ltd and others Vs. Awadhesh Singh and others, 1993 (64) FLR page 602. He prays for dismissal of this writ petition.

8. The Court has perused the records.

9. It is not in dispute that the petitioner is engaged in the business of manufacture and sale of crystal sugar through vacuum pan process. The service conditions of the employees of the petitioner's industry is governed by certified standing order issued by the Government from time to time. It is also not in dispute that the petitioner's industry is seasonal and run from November to April in every season. The petitioner's industry engages the employee in its factory as temporary seasonal or permanent as per the standing order of the Government. Any employee claiming to be seasonal worker has to work in the previous full crushing season or in whole season of the last preceding year. Respondent no. 3 claims to be a seasonal weighment clerk but during the proceedings he was treated to be seasonal worker. In support of his claim, respondent no. 3 could not produce any cogent material on record that he was appointed as seasonal worker as per the standing order of Government where the worker are being employed on day to day basis. As per the standing order, it was required to issue a license to the worker prior to the appointment. The respondent no. 3 has failed to produce any evidence in support of his claim that he was appointed as seasonal weighment clerk. In the impugned order, there was neither any discussion nor any finding had been recorded in this respect.

10. From the perusal of the material on record that respondent no. 3 has worked as seasonal weighment clerk in the establishment of the petitioner's industry as claimed by him but still the impugned order has been passed. The petitioner has produced the employees register along with the list of cane clerk who had worked for the preceding crushing season but name of respondent no. 3 was not in the said record. The said document produced by the petitioner has neither been disbelieved by respondent no. 3 nor any contrary material was brought on record in support of the claim of respondent no. 3 but still the impugned order has been passed holding the termination of the respondent no. 3 as illegal. It is a primary duty of the workman to discharge his burden in support of his claim. The said burden has not been discharged by respondent no. 3.

11. Respondent no. 3 has claimed to be a seasonal weighment clerk but in support of his claim nothing has been brought on record. This Court in the case of Kisan Sahakari Chini Mills Ltd. And others (supra) has held as under:-

"6. Learned single Judge allowed the writ petition of respondent on the basis that he has worked during the major parts of the three crushing seasons from 1988-89 to 1990-91 and that the appellants have not produced any material to show that his appointment was made with a view to meet any casual requirement of the mills. It was further held by the learned Judge that as the respondent has worked for major parts of the three crushing seasons, nature of his work cannot be said to be in casual nature. It is not possible to agree with the learned Judge. Before a workman can be declared as seasonal he must be engaged for the crushing seasons. The appointment of the respondent was not for the crushing season but was on daily wages basis without reference to any fixed period. Such an appointment cannot be treated to be appointment for the crushing season. Merely because the nature of work of a daily wager is not of casual nature, he cannot be treated to be seasonal workman. A daily wager cannot be declared to be seasonal workman because he has worked for substantive part in more than one crushing season. Such a workman may at the most be treated as temporary workman, unless his appointment is referable to crushing season and he has worked in that season. Two learned single Judges of this Court in Writ Petition No. 2053 of 1992 Shashi Bhushan Singh v. State of U.P. decided on December 2, 1992 and Writ Petition No. 22843 of 1988, Rajaram Misra v. District Magistrate, decided on January 18, 1993, have negatived the claim of the daily wagers for declaration as seasonal workmen and have accordingly dismissed their writ petitions. We respectfully agree with the views taken in the above decisions in the cases of Shashi Bhushan Singh and Rajaram Misra (supra)."

12. On perusal of the aforesaid judgement, it is evident that the workman has to show that he has worked in the whole preceding year or whole crushing year. The case in hand workmen has failed to justify his claim by adducing cogent material on record and in the absence of any cogent material, the impugned award cannot be justified in the eyes of law.

13. The case law relied upon by the counsel for the respondent in the case of M/s Gangeshwar Ltd. (supra) is of no help to him as in that case the workman has brought documentary evidences on record in the form of authorization letter, license issued in this regard as well as supporting evidences i.e. no dues certificate, provident fund deduction papers etc., however, in the present case, no such documents have been produced by the respondent.

14. In view of the facts as stated above, respondent no. 3 has failed to brought on record any cogent material / documents in respect of his claim that he had employed with the petitioner as seasonal weighment clerk thus the award cannot be sustained.

15. In the results, the writ petition is allowed. The impugned award is set aside.

Order Date :- 28. 8.2023

Rahul Dwivedi/-