Civil Writ Petition No.17563 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: September 22, 2010 Ishwar Dayal .....Petitioner VERSUS Presiding Officer, Labour Court, Ambala & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Whether Reporters of local papers may be allowed to see the judgement? 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? PRESENT: Mr.Puneet Bali, Advocate, for the petitioner. Mr.Akshay Bhan, Advocate, for respondent Nos.2 & 3. **** RANJIT SINGH, J. Large number of workers serving with Saraswati Sugar Mill (Unit of the Saraswati Industrial Syndicate Ltd.), Yamuna Nagar had sought reference of dispute relating to their termination. Haryana Government accordingly made identical references of the dispute in respect of all these workmen in the following terms:- “Whether the termination of service of the workman Ishwar Dayal is justified or not? If not so, to what relief he is entitled”. The Labour Court, Ambala has dismissed all the Civil Writ Petition No.17563 of 2009 : 2 : references by passing an identical award, which has been challenged by the workmen before this court by filing separate writ petitions. The issues and the dispute being common, this order will hold good in all these writ petitions. Like petitioner Ishwar Dayal, all these workmen had raised industrial dispute by serving a demand notice on the respondents. It is averred that the petitioner was working as Coolie for the last 15 years with the respondent-Management. The respondent-Management was getting work from the petitioner in the factory. Since there was no union to attend the problems of the casual and Badli workers, so some of the workers formed their own union under the name and style of Saraswati Sugar Mill Workers' Union, Yamuna Nangar. This union was also got registered. This union of casual and Badli workers preferred certain demands through demand notice dated 6.1.1998. The main demand was that these casual/badli workers be given a status of permanent workers on the basis of their seniority and that parity of their salary be maintained with the permanent workers. Demand further was that employment of such labour on contract basis being in violation of legal provisions of Contract Labour (Regulation & Abolition) Act, 1970 be abolished. Their demands were not met and rather the workmen, like the petitioner were subjected to harassment. It is stated that Management succeeded in misrepresenting the members of the union on the pretext that their problems would be solved one by one and, thus, entered into a settlement with the union on 24.2.1999. Thereafter, the Management started harassing the poor and hapless workers on the pretext that Civil Writ Petition No.17563 of 2009 : 3 : plant in the factory is being replaced. The respondent-Management stopped taking the workers on duty and rather started getting work through the contract labour. The labourers, like the petitioner resorted to hunger strike and even faced lathi charge and jail. Their union preferred Civil Writ Petition No.4535 of 2000 before this court with a prayer that the respondent-Management be restrained from easing out casual/badli workers by employing contract labour. Allegation is that the Labour Department colluded with the Management and made a misstatement before this Court that the contract labour had been abolished and that the apprehension expressed by the workers regarding their termination could be challenged by raising an industrial dispute. The writ petition filed by the union, therefore, was dismissed on 5.4.2001. It is alleged that Management thereafter started terminating the casual/badli workers one by one on the pretext that the plant in the Mill had been replaced reducing the requirement of employing casual/badli workers . Thus, the workers were retrenched without paying any compensation and without giving any show cause notice etc. This was in violation of the provisions of Sections 25-F and 25-N of the Industrial Disputes Act, 1947 (for short “the Act”). It is further alleged that no seniority list was prepared while terminating the services of the petitioner and new workmen were employed in place of such workmen, which would further show violation of provisions of Section 25-G and 25-H of the Act. The persons, like the petitioner were not taken on duty and accordingly prayer was made for reinstating them into service with continuity of service with full back wages. Civil Writ Petition No.17563 of 2009 : 4 : In reply, the Management has raised a preliminary objection about the maintainability of the writ petition. It is stated that the petitioner has not approached the court with clean hands. The Management would also controvert all the material assertions made in the demand notice and the statement of claim. It is denied that such workmen were in service for 15 years as was alleged. Rather, it is pointed out that the persons, like the petitioner used to be engaged as daily wager extra hand to cope with extra work during season and used to be paid off as and when the work was not available. As per the conditions, the persons, like petitioner were required to enquire at the gate about the availability of the work and were employed according to the requirement. It is, therefore, asserted that the averment of having continuously worked was wrong. The petitioner used to be engaged intermittently as an extra hand and no objection ever was raised by anyone of them. These terms and conditions were fully known to the petitioner and they being distinct and separate category, settlement under Section 12(3) of the Act was reached between such workmen and the Management. It is stated that the terms of this settlement would govern the conditions and so the question of paying less wages or regarding curtailment of their rights would not arise in this case. It is conceded that the rights of the workmen, like the petitioner was espoused by the union and settlement in question was to the full satisfaction of the workers. In terms of this settlement, 25 workers were made as permanent seasonal and the waiting seniority list for such casual workers was displayed on the notice board. Accordingly, the allegation of unfair labour practice is denied. Civil Writ Petition No.17563 of 2009 : 5 : In addition, the respondent-Management would point out that there is a practice to engage casual workers and this category is known as “daily rated extra hands”. The persons, like the petitioner were engaged under this category, whereas the contractors were engaged for different kind and different nature of the work. The respondent-Management was duly registered under the Contract Labour (Regulation & Abolition) Act. Reference is then made to the order passed by this Court in CWP No.4535 of 2000, which was after hearing the arguments of both parties. Since no work was available for the daily rated extra hands, like the petitioner, they all were paid off prior to the season 1999-2000 as per the routine practice. It is accordingly stated that no right had accrued to the petitioner to seek any reference for the determination for retrenchment, which could be termed as illegal. While responding to the allegation of violation of Sections 25-F, 25-G and 25-H, it is pleaded that petitioner had not completed 240 days during the last 12 preceding calendar months, for which he was to be paid off and no other persons had been re- employed after disengaging the petitioner. It is ,therefore, stated that there has been no violation of the provisions of Sections 25-F, 25-G and 25-H of the Act. On the basis of pleadings, the Labour Court framed the following issues:- “1. Whether the termination of services of the workman is liable to be set-aside being wrong, illegal, null and void etc. and the workman is entitled to be reinstated in service with full back wages and all the benefits including the continuity of service? OPW. Civil Writ Petition No.17563 of 2009 : 6 : 2. Whether the claim statement is not maintainable in the present form? OPM 3. Whether the petitioner-workman has not come to the court with clean hands? If so its effect? OPM 4. Whether the workman has no cause of action to file the present claim statement? OPM 5. Relief. The Labour Court thereafter went on to decide various issues on the basis of evidence and has dismissed the reference. While appearing for the workman, the counsel conceded before me that he was not seeking any relief on account of violation of provisions of Sections 25-F and 25-N of the Act. The counsel mainly pleaded violation of the provisions of Sections 25-G and 25-H of the Act. Finding even otherwise is that the petitioner had not completed 240 days in the last preceding 12 months, when he was paid off on completion of crushing season 1998-99. It has accordingly been held by the Labour Court that this cannot be termed as retrenchment within the meaning of Section 2(oo) of the Act. On this basis, Labour Court has held that the petitioner would not be entitled to any relief whatsoever. The counsel for the petitioner has made an attempt to find fault with the approach adopted by the Labour Court, when the court observed that it had no jurisdiction/competency to go into the question as to whether the respondent-Management was bound to take the services of the petitioner in all the subsequent seasons or not. There appears to be some justification in the approach adopted by the Labour Court. Reference has been made to the terms of Civil Writ Petition No.17563 of 2009 : 7 : reference made by the Haryana Government and indeed the Labour Court was asked to see whether the termination of the services of the workman was justified or not and if so to what relief he/they were entitled to. Keeping these terms of reference in view, it is to be seen if the Labour Court could go into the challenge made by the petitioner-workman in regard to the violation of Sections 25-G and 25-H of the Act. Section 25-G of the Act prescribes a procedure for retrenchment and provides that the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. This is so in the absence of any agreement between the employer and the workman. Basically, this section makes a provision for last come first go. Finding that workman had been retrenched, thus, would be a condition precedent for Section 25-G to operate. Section 25-H of the Act talks of reemployment of a retrenched workman and the section provides for reemployment of such retrenched workman in preference over other persons. This is when the workman is retrenched and the employer proposes to take into his employment any person. The Labour Court relied upon Bhogpur Co-operative Sugar Mills Ltd. Vs. Harmesh Kumar, AIR 2007 Supreme Court 288, which was cited before it by the counsel appearing for the Management. The Hon'ble Supreme Court in this case has held that the Labour Court derives its jurisdiction from the terms in reference. The court ought to exercise its jurisdiction within the four corners thereof. The Hon'ble Supreme Court has then noticed the principal Civil Writ Petition No.17563 of 2009 : 8 : question referred by the State Government, which related to the termination of the service of the respondent and whether it was justified or not. The Hon'ble Supreme Court, thus, has observed that the Labour Court was not required to go into the question as to whether the appellant was bound to take the services of the respondent in all subsequent seasons or not and thereby granting relief to the respondent-workman under Section 25-G. Like in the instant case, there was no dispute in Bhogpur Cooperative Sugar Mills's case (supra) that the Mill was operating a seasonal factory and that the workmen had not been in continuous service for 240 days during 12 months preceding their termination. The Hon'ble Supreme Court while taking this view was conscious of the distinction in regard to the legality of the order of termination under Section 25-F and the situation where Section 25-G would apply. As is observed, in case where Section 25-F of the Act applies, the workman is bound to prove that he had been in continuous service of 240 days during 12 months preceding the order of termination. On the other hand, where he invokes the provisions of Sections 25-G and 25-H thereof, he may not have to establish this fact. Continuous work in terms of Section 25-B of the Act is, thus, not necessary in so far as statutory requirements under Section 25-G and 25-H are concerned. In Central Bank of India Vs. S.Satyan, (1996) 5 SCC 419, it has been held that Section 25-H is coached in a wide language and is capable of application to all retrenched workman not merely those covered by Section 25-F. It does not require curtailment of ordinary meaning of the word `retrenchment' used therein. The provision for re-employment of retrenchment Civil Writ Petition No.17563 of 2009 : 9 : workman merely gave preference to retrenched workman in a matter of re-employment over other persons. Similar view was expressed in Samishta Dube Vs. City Board Etawah, (1999) 3 SCC 14. Yet again, in Regional Manager SBI Vs. Rakesh Kumar Tewari, (2006) 1 SCC 530, the Hon'ble Supreme Court followed the Central Bank of India's case (supra). All these judgments were again considered and followed in the case of Jaipur Development Authority Vs. Ramsahai and another, (2006) 11 Supreme Court Cases 684. After noticing all the above noted judgments, the Hon'ble Supreme Court in Bhogpur Cooperative Sugar Mills Ltd.'s case (supra) went on to observe that provisions, like 25-G and 25-H would have no application in cases where Section 2(oo) (bb) of the Act is attracted. Termination of services of a workman as a result of non- renewal of contract of employment between the employer and the workman concerned on its expiry or termination of such contract of appointment under a stipulation in that behalf contained therein would, thus, not attract the definition of term “retrenchment”. Reference in this regard can be made to the cases of Municipal Council, Samrala Vs. Sukhwinder Kaur, (2006) 6 SCC 516 and Municipal Council, Samrala Vs. Raj Kumar, (2006) 3 SCC 81. This issue was earlier considered by Hon'ble Supreme Court and appears to be squarely covered by the decision of the Supreme Court in Morinda Coop. Sugar Mills Ltd. Vs. Ram Kishan, (1995) 5 SCC 653, where it is observed:- “It would thus be clear that the respondents were not Civil Writ Petition No.17563 of 2009 : 10 : 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. 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 sub-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 starts 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.” Reference can also be made to the case of Haryana State Agricultural Marketing Board Vs. Subhash Chand, (2006) 2 SCC 794. Counsel for the petitioner, by referring to the provisions of Section 2(oo)(bb) of the Act, submits that the said provisions would not apply to the case in hand. As per the counsel, there was no contract of employment between the employer and the workmen and their services were not terminated as a result of non-renewal of any Civil Writ Petition No.17563 of 2009 : 11 : such contract or were not terminated under a stipulation in this behalf. Similar were the pleas made in the case of Bhogpur Cooperative Sugar Mills (supra), but were negatived. The situation in the said case was identical to the one at hand in this case. The counsel may be justified in saying that word “retrenchment” under Section 25-H would not have the same meaning as is under Section 25-F of the Act as was held in cases Samishta Dube, Regional Manager SBI, Central Bank of India and Jaipur Development Authority (supra). Plea, therefore, is that the respondent- Management may be required to maintain a seniority list of workmen in that particular category from which the retrenchment is contemplated/arranged according to the seniority of their service. This plea would not in any manner help the cause of the petitioner. The Hon'ble Supreme Court in the case of Anil Bapurao Kanase Vs. Krishna Sahakari Sakhar Karkhana Ltd. And another, (1997) 10 SCC 599 required the management to maintain a register for engaging workmen in succeeding seasons according to seniority. The directions were also issued for not resorting to engaging fresh workmen unless the workmen of previous season were engaged. Despite this, the view as referred to above is expressed in Bhogpur Cooperative Sugar Mills's case (supra) and earlier in Morinda Coop. Sugar Mills Ltd.'s case (supra), which were also cases of Sugar Mills. In these cases also, the question was whether cessation would amount to retrenchment. Observing that it was only a seasonal work, it was held that workmen could not be said to have been retrenched in view of sub-clause (bb) of Section 2(oo) of the Civil Writ Petition No.17563 of 2009 : 12 : Act. The contrary view taken by the High Court was held to be illegal and only directions were issued to maintain a register for all workmen engaged during the season enumerated therein and to make publication thereof when the new season was to start. Somewhat similar observations were made in the case of Haryana State Agricultural Marketing Board's case (supra) and these are as under:- “It is the contention of the appellant that the respondent was appointed during the `wheat season' or the `paddy season'. It is also not in dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce Marketing Board Act. In terms of the provisions of the said Act, indisputably, regulations are framed by the Board laying down the terms and conditions of services of the employees working in the market Committees. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re- employed after termination of his services on contract basis after a consideration period(s)”. Reference made by the counsel to the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 to plead the principle of first come last go, for which there is no requirement to prove that the workman had worked for 240 days Civil Writ Petition No.17563 of 2009 : 13 : again would only lead to the same position as has been noticed above. In this case also, the Court has referred to the case of Bhogpur Cooperative Sugar Mills's case (supra) with approval but had interfered in the award for altogether different reasons. The Hon'ble Supreme Court in this case was dealing with a situation where the High Court had substituted the award of reinstatement of the appellant-workman with compensation. Another reason, which weighed with the Supreme Court to interfere in the order passed by the High Court was that it had erroneously assumed the appellant- workman to be daily wage employee, which was found contrary to the averment contained in the statement of claim. Empire Industries Limited Vs. State of Maharashtra and others, (2010) 4 SCC 272 again would explain the exhaustive nature of the scheme of Section 25-N and would not be of much help and assistance in the present case. Another fact which has been noticed by the Labour Court to decline the relief is that the Management under Section 2-A of the Act brought in change of condition of service due to improvement of plant/change of manufacturing process. The evidence was led before the Labour Court to show that the management did effect a change of manufacturing process by way of improvement of plant pursuant to which a notice under Section 9(A) of the Act was given to both the workers' unions existing in the Mill, against which no objections were filed by the respective workers' unions including the union of the casual workers. The fact of improvement has duly been reflected in the exhibits produced before the Court and this evidence had remained un-rebutted. Thus, the stand of the Management that the Civil Writ Petition No.17563 of 2009 : 14 : change in process resulted in reduction of work drastically for which the causal workers used to be employed cannot be doubted. The plea that the workmen have been shunted out of service on this ground, thus, was not found to be made up in any manner. Even otherwise, the workers'-Union and the petitioner cannot be permitted to run away from the agreement that they reached with the Management. The counsel for the Management has forthrightly submitted before this court that the Management would strictly follow the principle of last come first go and would reemploy the workman according to the seniority as and when the work was available. It may be noticed here that the stand of the respondent-company was that it had a fixed staff strength and the casual workers were entitled to be considered only if the vacancy of permanent nature was available. The Management had also made reference to the settlement reached with as many as 25 workers, who were made permanent seasonal. The waiting seniority list of such casual workers was displayed on the notice board, so as to inform each worker about the work in the waiting list. The allegations of unfair labour practice in either not maintaining the seniority list or for preparing a seniority list as pleaded, may not really arise. The Labour Court also found as a matter of fact that the plea of the petitioner-workman regarding the fact that the Management had started getting the work done of permanent nature through contract labour was not found made out from the record. The Management had also referred to Ex.M1/2. It was a notice dated 23.10.2009 under Section 2-A of the Industrial Disputes Act regarding change of condition of service on account of improvement of plant/change of Civil Writ Petition No.17563 of 2009 : 15 : manufacturing process. From this, Labour Court had observed that the Management did effect the change of manufacturing process by way of improvement of plant, pursuant to which notice under Section 9 (A) of the Industrial Disputes Act was given to both the workers' Unions existing in the Mill. No objection statedly was filed in response to this notice. This improvement in the manufacturing process was duly reflected in the reports of the Mill. No evidence was led by the petitioner-workman, which would show anything contrary to this position. The Labour Court had, thus, observed that work in the plant had drastically reduced for casual workers. The plea of the petitioner that the Management was relieving the casual workers under the garb of improvement was not rightly accepted. It may not also be possible to ignore the order passed in CWP No.4535 of 2000. The observations made by the Labour Court that principle of res judicata may stare at the petitioner in view of the order passed in the writ petition is